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Protection of Freedoms Act 2012

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This is the original version (as it was originally enacted).

CHAPTER 2Safeguards for certain surveillance under RIPA

37Judicial approval for obtaining or disclosing communications data

After section 23 of the Regulation of Investigatory Powers Act 2000 (form and duration of authorisations and notices for obtaining and disclosing communications data) insert—

23AAuthorisations requiring judicial approval

(1)This section applies where a relevant person has—

(a)granted or renewed an authorisation under section 22(3), (3B) or (3F), or

(b)given or renewed a notice under section 22(4).

(2)The authorisation or notice is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant or renewal of the authorisation or (as the case may be) the giving or renewal of the notice.

(3)The relevant judicial authority may give approval under this section to the granting or renewal of an authorisation under section 22(3), (3B) or (3F) if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the grant or renewal—

(i)there were reasonable grounds for believing that the requirements of section 22(1) and (5) were satisfied in relation to the authorisation, and

(ii)the relevant conditions were satisfied in relation to the authorisation, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 22(1) and (5) are satisfied in relation to the authorisation.

(4)The relevant judicial authority may give approval under this section to the giving or renewal of a notice under section 22(4) if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the giving or renewal of the notice—

(i)there were reasonable grounds for believing that the requirements of section 22(1) and (5) were satisfied in relation to the notice, and

(ii)the relevant conditions were satisfied in relation to the notice, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 22(1) and (5) are satisfied in relation to the notice.

(5)For the purposes of subsections (3) and (4) the relevant conditions are—

(a)in relation to any grant, giving or renewal by an individual holding an office, rank or position in a local authority in England, Wales or Scotland, that—

(i)the individual was a designated person for the purposes of this Chapter,

(ii)the grant, giving or renewal was not in breach of any restrictions imposed by virtue of section 25(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b)in relation to a grant, giving or renewal, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i)the individual was a designated person for the purposes of this Chapter,

(ii)the grant, giving or renewal was not in breach of any restrictions imposed by virtue of section 25(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c)in relation to any other grant, giving or renewal by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(6)In this section—

  • “local authority in England” means—

    (a)

    a district or county council in England,

    (b)

    a London borough council,

    (c)

    the Common Council of the City of London in its capacity as a local authority, or

    (d)

    the Council of the Isles of Scilly,

  • “local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994,

  • “local authority in Wales” means any county council or county borough council in Wales,

  • “Northern Ireland excepted or reserved matter” means an excepted or reserved matter (within the meaning of section 4(1) of the Northern Ireland Act 1998),

  • “Northern Ireland transferred matter” means a transferred matter (within the meaning of section 4(1) of the Act of 1998),

  • “relevant judicial authority” means—

    (a)

    in relation to England and Wales, a justice of the peace,

    (b)

    in relation to Scotland, a sheriff, and

    (c)

    in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland,

  • “relevant person” means—

    (a)

    an individual holding—

    (i)

    an office, rank or position in a local authority in England or Wales, or

    (ii)

    an office, rank or position in a local authority in Scotland (other than an office, rank or position in a fire and rescue authority),

    (b)

    also, in relation to a grant, giving or renewal for any purpose relating to a Northern Ireland excepted or reserved matter, an individual holding an office, rank or position in a district council in Northern Ireland, and

    (c)

    also, in relation to any grant, giving or renewal of a description that may be prescribed for the purposes of this subsection by an order made by the Secretary of State or every grant, giving or renewal if so prescribed, a person of a description so prescribed.

(7)No order of the Secretary of State—

(a)may be made under subsection (6) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b)may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter.

23BProcedure for judicial approval

(1)The public authority with which the relevant person holds an office, rank or position may apply to the relevant judicial authority for an order under section 23A approving the grant or renewal of an authorisation or (as the case may be) the giving or renewal of a notice.

(2)The applicant is not required to give notice of the application to—

(a)any person to whom the authorisation or notice which is the subject of the application relates, or

(b)such a person’s legal representatives.

(3)Where, on an application under this section, the relevant judicial authority refuses to approve the grant or renewal of the authorisation concerned or (as the case may be) the giving or renewal of the notice concerned, the relevant judicial authority may make an order quashing the authorisation or notice.

(4)In this section “relevant judicial authority” and “relevant person” have the same meaning as in section 23A.

38Judicial approval for directed surveillance and covert human intelligence sources

(1)After section 32 of the Regulation of Investigatory Powers Act 2000 (authorisation of surveillance and human intelligence sources: intrusive surveillance) insert—

Authorisations requiring judicial approval
32AAuthorisations requiring judicial approval

(1)This section applies where a relevant person has granted an authorisation under section 28 or 29.

(2)The authorisation is not to take effect until such time (if any) as the relevant judicial authority has made an order approving the grant of the authorisation.

(3)The relevant judicial authority may give approval under this section to the granting of an authorisation under section 28 if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the grant—

(i)there were reasonable grounds for believing that the requirements of section 28(2) were satisfied in relation to the authorisation, and

(ii)the relevant conditions were satisfied in relation to the authorisation, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 28(2) are satisfied in relation to the authorisation.

(4)For the purposes of subsection (3) the relevant conditions are—

(a)in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i)the individual was a designated person for the purposes of section 28,

(ii)the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b)in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i)the individual was a designated person for the purposes of section 28,

(ii)the grant of the authorisation was not in breach of any restrictions imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c)in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(5)The relevant judicial authority may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant judicial authority is satisfied that—

(a)at the time of the grant—

(i)there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), were satisfied in relation to the authorisation, and

(ii)the relevant conditions were satisfied in relation to the authorisation, and

(b)at the time when the relevant judicial authority is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b), are satisfied in relation to the authorisation.

(6)For the purposes of subsection (5) the relevant conditions are—

(a)in relation to a grant by an individual holding an office, rank or position in a local authority in England or Wales, that—

(i)the individual was a designated person for the purposes of section 29,

(ii)the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied,

(b)in relation to a grant, for any purpose relating to a Northern Ireland excepted or reserved matter, by an individual holding an office, rank or position in a district council in Northern Ireland, that—

(i)the individual was a designated person for the purposes of section 29,

(ii)the grant of the authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and

(iii)any other conditions that may be provided for by an order made by the Secretary of State were satisfied, and

(c)in relation to any other grant by a relevant person, that any conditions that may be provided for by an order made by the Secretary of State were satisfied.

(7)In this section—

  • “local authority in England” means—

    (a)

    a district or county council in England,

    (b)

    a London borough council,

    (c)

    the Common Council of the City of London in its capacity as a local authority, or

    (d)

    the Council of the Isles of Scilly,

  • “local authority in Wales” means any county council or county borough council in Wales,

  • “Northern Ireland excepted or reserved matter” means an excepted or reserved matter (within the meaning of section 4(1) of the Northern Ireland Act 1998),

  • “Northern Ireland transferred matter” means a transferred matter (within the meaning of section 4(1) of the Act of 1998),

  • “relevant judicial authority” means—

    (a)

    in relation to England and Wales, a justice of the peace,

    (b)

    in relation to Scotland, a sheriff, and

    (c)

    in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland,

  • “relevant person” means—

    (a)

    an individual holding an office, rank or position in a local authority in England or Wales,

    (b)

    also, in relation to a grant for any purpose relating to a Northern Ireland excepted or reserved matter, an individual holding an office, rank or position in a district council in Northern Ireland, and

    (c)

    also, in relation to any grant of a description that may be prescribed for the purposes of this subsection by an order made by the Secretary of State or every grant if so prescribed, a person of a description so prescribed.

(8)No order of the Secretary of State—

(a)may be made under subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;

(b)may be made under this section so far as it makes provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament;

(c)may be made under this section so far as it makes provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a Northern Ireland transferred matter.

32BProcedure for judicial approval

(1)The public authority with which the relevant person holds an office, rank or position may apply to the relevant judicial authority for an order under section 32A approving the grant of an authorisation.

(2)The applicant is not required to give notice of the application to—

(a)any person to whom the authorisation relates, or

(b)such a person’s legal representatives.

(3)Where, on an application under this section, the relevant judicial authority refuses to approve the grant of the authorisation concerned, the relevant judicial authority may make an order quashing the authorisation.

(4)In this section “relevant judicial authority” and “relevant person” have the same meaning as in section 32A.

(2)In section 43 of that Act (general rules about grant, renewal and duration of authorisations)—

(a)after subsection (6) insert—

(6A)The relevant judicial authority (within the meaning given by subsection (7) of section 32A) shall not make an order under that section approving the renewal of an authorisation for the conduct or the use of a covert human intelligence source unless the relevant judicial authority—

(a)is satisfied that a review has been carried out of the matters mentioned in subsection (7) below, and

(b)has, for the purpose of deciding whether to make the order, considered the results of that review., and

(b)in subsection (7) for “subsection (6)” substitute “subsections (6) and (6A)”.

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