Part 4Retention of communications data
Safeguards
90Review by the Secretary of State
(1)
A telecommunications operator to whom a retention notice is given may, within such period or circumstances as may be provided for by regulations made by the Secretary of State, refer the notice back to the Secretary of State.
(2)
Such a reference may be in relation to the whole of a notice or any aspect of it.
(3)
In the case of a notice given to a description of operators—
(a)
each operator falling within that description may make a reference under subsection (1), but
(b)
each such reference may only be in relation to the notice, or aspect of the notice, so far as it applies to that operator.
F1(4)
Where a telecommunications operator refers a retention notice under subsection (1)—
(a)
there is no requirement for the operator to comply with the notice, so far as referred, and
(b)
subsection (4A) applies to the operator,
until the Secretary of State has reviewed the notice in accordance with subsection (5).
(4A)
Where this subsection applies to a telecommunications operator, the operator must not make any relevant changes to telecommunications services or telecommunication systems to which obligations imposed by the retention notice relate.
(4B)
In subsection (4A) “relevant change” means a change that, if implemented, would have a negative effect on the capability of the operator to provide any assistance which the operator may be required to provide in relation to any warrant, authorisation or notice issued or given under this Act.
(5)
F4(5A)
In subsection (5) “the review period” means—
(a)
such period as may be provided for by regulations made by the Secretary of State, or
(b)
if that period is extended by the Secretary of State in accordance with the regulations (see subsection (14)), such extended period.
(6)
Before deciding the review, the Secretary of State must consult—
(a)
the Technical Advisory Board, and
(b)
a Judicial Commissioner.
(7)
The Board must consider the technical requirements and the financial consequences, for the operator who has made the reference, of the notice so far as referred.
(8)
The Commissioner must consider whether the notice so far as referred is proportionate.
(9)
The Board and the Commissioner must—
(a)
give the operator concerned and the Secretary of State the opportunity to provide evidence, or make representations, to them before reaching their conclusions, and
(b)
report their conclusions to—
(i)
the operator, and
(ii)
the Secretary of State.
F5(9A)
The Commissioner may give a direction to the operator concerned or the Secretary of State specifying the period within which the operator or the Secretary of State (as the case may be) may provide evidence, or make representations, in accordance with subsection (9)(a).
(9B)
If the Commissioner gives such a direction to the operator or the Secretary of State, the Board and the Commissioner are not required to take into account any evidence provided, or representations made, by the operator or the Secretary of State (as the case may be) after the end of that period.
(10)
The Secretary of State F6must, after considering the conclusions of the Board and the Commissioner F7but before the end of the relevant period, decide whether to—
(a)
vary or revoke the retention notice under section 94, or
(b)
give a notice under this section to the operator concerned confirming its effect.
(11)
But the Secretary of State may vary the notice, or give a notice under subsection (10)(b) confirming its effect, only if the Secretary of State's decision to do so has been approved by the Investigatory Powers Commissioner.
F8(11A)
In subsection (10) “the relevant period” means—
(a)
such period as may be provided for by regulations made by the Secretary of State, or
(b)
if that period is extended by the Secretary of State in accordance with the regulations (see subsection (15)), such extended period.
(12)
A report or notice under this section is given to an operator by giving or publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of the operator.
(13)
The Secretary of State must keep a retention notice under review (whether or not referred under subsection (1)).
F9(14)
Regulations under subsection (5A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State where the extension is agreed by the Secretary of State, the telecommunications operator concerned and a Judicial Commissioner.
(15)
Regulations under subsection (11A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State—
(a)
where the Secretary of State considers that there are exceptional circumstances that justify the extension, or
(b)
in any other circumstances specified in the regulations.
(16)
Where regulations under subsection (11A)(a) include provision mentioned in subsection (15), the regulations must also include provision requiring the Secretary of State to notify a Judicial Commissioner and the telecommunications operator concerned of the duration of any extended period.