1. This Memorandum identifies each provision of the Regulation of Investigatory Powers Bill which provides for a power to make subordinate legislation. It explains in each case the purpose of the power; and, except where comment is thought unnecessary, it explains the reason why the matter is to be left to subordinate legislation and the nature of and justification for the procedure selected in each case.

The purpose of the Regulation of Investigatory Powers Bill

2. The Bill is intended to:

• update the law on the interception of communications;
• tighten up the regime for the acquisition of communications data;
• regulate the use of surveillance by public authorities;
• regulate the use of covert human intelligence sources by public authorities;
• introduce a power for access to protected electronic data; and
• establish an oversight and redress regime for the use of all of these powers.

PART I, CHAPTER I

CLAUSE 1(4): POWER TO DESIGNATE INTERNATIONAL MUTUAL ASSISTANCE AGREEMENTS

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

3. This power allows the Secretary of State to designate international agreements on mutual assistance in connection with the interception of communications. In respect of designated agreements, the subsection places the Secretary of State under a duty to ensure that no request for mutual assistance to intercept communications is made unless it has lawful authority (which means, in practice, that it must be warranted under clause 5). It is intended that this provision will enable the United Kingdom to comply with the interception provisions in the draft Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. This Convention has yet to be agreed between Member States.

4. Subordinate legislation is necessary for this because the draft Convention in mind is some way from ratification and cannot yet be identified with sufficient legal certainty. Further, it remains possible that other such agreements may be negotiated in future. It is submitted that negative resolution is satisfactory in this context since, prior to the ratification of the relevant Convention, a significant amount of Parliamentary scrutiny will have been involved.

CLAUSE 4(1)(D): POWER TO MAKE REGULATIONS SPECIFYING THE CONDITIONS UNDER WHICH COMMUNICATION SERVICE PROVIDERS MAY BE AUTHORISED TO USE TELECOMMUNICATION SYSTEMS LOCATED IN THE UNITED KINGDOM TO INTERCEPT THE COMMUNICATIONS OF SUBJECTS ON THE TERRITORY OF ANOTHER COUNTRY IN ACCORDANCE WITH THE LAW OF THAT COUNTRY.

Power conferred on:	Secretary of State
Power exercisable by:	regulations made by statutory instrument
Parliamentary procedure:	negative resolution

5. This subsection will allow the United Kingdom to comply with Article 17 of the draft Convention described in paragraph 3 above. This Article, in its current form, is intended to allow operators of satellite communications systems to use a ground station in one Member State to facilitate interception using a service provider located in another Member State.

6. In practice the "interceptor" is likely to be a communication service provider located in the UK which is either providing a public telecommunication service to another country or in a business relationship with another communication service provider providing such a service. This subsection applies only where the subject of the interception is in the country whose competent authorities issued the interception warrant.

7. Subordinate legislation, and the level of scrutiny provided, are considered appropriate for the following reasons:

• the draft Convention, as discussed in paragraph 4 above, is yet to be ratified;
• the power only allows the Secretary of State to add further conditions to the important provisions contained in the clause itself: in particular, the subsection only allows the interception of subjects on the territory of another country in accordance with the law of that country.

CLAUSE 4(2): POWER TO MAKE REGULATIONS AUTHORISING CONDUCT THAT WILL BE PERMISSIBLE AS PART OF LEGITIMATE BUSINESS PRACTICE

Power conferred on:	Secretary of State
Power exercisable by:	regulations made by statutory instrument
Parliamentary procedure:	negative resolution

8. This power allows the Secretary of State to make regulations describing the kinds of interception which it is lawful to carry out in the course of carrying on a business.

9. Clause 1 makes interception unlawful except where it is carried out with lawful authority. Various sources of lawful authority are created in clauses 3, 4 and 5. One of these is for businesses, defined widely in subsection (6), which carry out interception as a legitimate practice. In this respect, the Bill implements Article 5 of Council Directive 97/66/EC (the Telecommunications Data Protection Directive) which exempts the required prohibition on interception: "any legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of commercial transaction or any other business communication".

10. The regulations envisaged under Clause 4(2) will spell out for businesses and other concerns what may be acceptable in terms of interception in support of lawful business practice. The kinds of conduct which are likely to be covered are customer call monitoring for quality control or training purposes, and the recording of transactions for audit reasons.

11. Subordinate legislation is considered appropriate for this because detailed provisions will be necessary, will change over a period of time, and may have to apply to widely different kinds of business practice. The balance between the protection of privacy and the legitimate concerns of businesses is a delicate one which will undoubtedly be affected by developments in technology.

CLAUSE 4(4): PRISON RULES

CLAUSE 4(5): DIRECTIONS FOR HIGH SECURITY PSYCHIATRIC SERVICES

12. The Committee's attention is drawn to these provisions, although they are not new powers. Interception of communications in prisons and at high security psychiatric premises (eg the monitoring of phone calls made to and from telephones within those establishments) is a matter for the subordinate legislation governing the establishments. In each case, the rules or the directions will have to achieve compliance with Article 8.

13. There is no intention by rules or directions (assuming the powers exist) to attempt to regulate interception of the mail at a point outside the establishment, or the interception of telephone calls by accessing any telecommunications system outside the establishment. Those interceptions, if justified, will continue to be only by warrant under clause 5.

CLAUSE 12(1): POWER TO SET OUT IN AN ORDER WHAT MAY CONSTITUTE AN INTERCEPTION CAPABILITY

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution

14. Clause 12 provides the mechanism by which the Secretary of State may oblige providers of public postal services or public telecommunications services to maintain an interception capability. The mechanism is in two parts: the order-making power in subsection (1), and the notice provision in subsection (2).

15. Subsection (1) allows the Secretary of State to make an order setting out reasonable obligations to be imposed on service providers. The power should be read with clause 69(4)(a), which allows different provision to be made for different cases. The aim of the order will be to ensure that providers of publicly available communication services are capable of providing assistance with the implementation of interception warrants. The order itself will not impose specific requirements on communication service providers but it will describe in general terms the kind of intercept capability which they may be required to provide. Specific requirements will be imposed by notices served under subsection (2).

16. Subordinate legislation is considered appropriate here because the provisions will be technical in nature and will certainly change over time with the development of technology. While the order will not identify for each particular service provider the precise requirement placed upon it, it will, to a level of detail not possible in primary legislation, identify the types of requirements which may be imposed and which will need to be complied consistently across the sector. This is an important provision and was amended during the Bill's Commons passage from negative to affirmative resolution.

PART I, CHAPTER II

CLAUSE 21(2)(H): POWER TO ADD TO THE PURPOSES FOR WHICH COMMUNICATIONS DATA MAY BE OBTAINED

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

17. Clause 21(2) sets out the grounds on which communications data may be obtained under the provisions in this Chapter. These are consistent with the exceptions to the right to respect for private and family life, home and correspondence, permitted by Article 8(2) of the Convention.

18. As the Bill stands, the purposes for which access to communications data may be authorised are narrower than the legitimate purposes in Article 8(2) of the Convention. For the "protection of morals" and the "protection of the rights and freedoms of others" have been deliberately omitted. This is because the Government does not intend, at present, that public authorities should use these purposes as grounds for obtaining communications data and therefore consider it inappropriate to include them in the Bill. However, public authorities may not yet be fully aware of the ways in which the Human Rights Act could impact on their activities and circumstances in which the other Article 8(2) exceptions may be legitimately relied upon may emerge over time. The provision is there to allow the Secretary of State to widen the grounds if this proves necessary.

19. By virtue of section 6 of the Human Rights Act, the Secretary of State may not use this order-making power incompatibly with Convention rights. The power is, therefore, constrained by Article 8(2), although that limitation need not appear on the face of the Bill.

CLAUSE 22(9): POWER TO PROVIDE FOR THE PERSON ON WHOM THE DUTY TO CANCEL AN AUTHORISATION FALLS WHEN THE AUTHORISING OFFICER IS NO LONGER AVAILABLE

Power conferred on:	the Secretary of State
Power exercisable by:	regulations made by statutory instrument
Parliamentary procedure:	negative resolution

20. There will be occasions when the officer who gave the authorisation is no longer available. Since this is a duty to cancel, it must fall on someone, and because the authorising officer may be one of several officers of the same rank, rather than an identifiable office-holder, the duty cannot automatically devolve on his successor.

21. Regulations are required to deal with these circumstances, because the solution in a particular case cannot be identified until the power in clause 24(2) is exercised. Negative resolution is suitable, being the procedure proposed for clause 24(2).

CLAUSE 24(1)(F): POWER TO ADD PUBLIC AUTHORITIES TO THOSE NAMED ON THE FACE OF THE BILL WHO WILL BE ABLE TO ACCESS COMMUNICATIONS DATA

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

22. Police forces, the National Criminal Intelligence Service, the National Crime Squad, HM Customs & Excise and the intelligence services are named on the face of the Bill. However, there are many other public authorities with investigatory functions which could obtain communications data to help to fulfil their statutory functions. They will need to be named by order if they are to use the power in this Bill rather than the permissive provision in the Data Protection Act 1998.

23. This matter is considered appropriate for subordinate legislation because the information will be constantly changing. Depending on developments in technology or the practices of various investigatory bodies, new authorities may need to be named under this clause to ensure their activities are ECHR compliant. There are no current plans to add to the list in clause 24 but it will be important for the Secretary of State to keep the list under review and to update it as necessary.

24. The Committee will note that clause 24(4) allows the Secretary of State, by the same procedure, to remove authorities from the list.

PART II

CLAUSE 27(3(G)): POWER TO ADD TO THE GROUNDS FOR WHICH AN AUTHORISATION FOR DIRECTED SURVEILLANCE WILL BE CONSIDERED NECESSARY

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

25. Clause 27(3) sets out the grounds on which an authorisation for directed surveillance will be considered necessary. These are consistent with the legitimate aims set out in Article 8(2) of the Convention. It is intentional, however, that clause 27(3) does not refer to the "protection of morals" or the "protection of the rights and freedoms of others". The reasoning at paragraphs 18 and 19 applies here also.

CLAUSE 28 (2)(C):POWER TO ADD TO THE REQUIREMENTS IN CLAUSE 28(5)

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

26. Clause 28(2) provides that an authorisation for the use/conduct of a covert human intelligence source cannot be granted unless the authorising officer believes that certain criteria are met. For instance he cannot grant the authorisation unless he believes that certain arrangements are in place, which satisfy the requirements in clause 28(5).

27. Subsection (5) does not as such impose any requirements. It merely sets out what the authorising officer must be satisfied is likely to be secured by the arrangements that are in place when he considers whether to grant the authorisation. To the extent that they are requirements, they relate to the management of, and record keeping in relation to, the source.

28. The order-making power at clause 28(2)(c) provides that the Secretary of State may add to the requirements currently contained in clause 28(5). For example, it may be necessary to add to these requirements where the source is a juvenile informant. In such cases, the department envisages a possible additional requirement that a risk assessment should be undertaken as part of the application to use a juvenile informant, covering the physical dangers and the moral and psychological aspects of the use.

29. Subordinate legislation is considered to be appropriate in order to give the Secretary of State the flexibility to add to the requirements in clause 28(5) where this is considered necessary.

30. The negative resolution procedure is thought sufficient, as the provision is intended to be used to protect certain categories of covert sources and will only be used to further the protection given to those sources.

CLAUSE 28(3)(G): POWER TO ADD TO THE GROUNDS FOR WHICH AN AUTHORISATION FOR THE CONDUCT/USE OF A COVERT HUMAN INTELLIGENCE SOURCE WILL BE CONSIDERED NECESSARY

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

31. This order making power is identical to that in clause 27(3)(g) discussed above.

CLAUSE 28(5)(D): POWER TO SPECIFY THE PARTICULARS TO BE CONTAINED IN RECORDS RELATING TO THE SOURCE

Power conferred on:	Secretary of State
Power exercisable by:	regulations made by statutory instrument
Parliamentary procedure:	negative resolution

32. As already explained, the authorising officer cannot grant an authorisation for the conduct/use of a covert human intelligence source unless he believes that arrangements exist which would satisfy the requirements of subsection (5).

33. One of the "requirements" in subsection (5) is that records are maintained of the use made of the source. Subsection (5) however, does not set out which details should be recorded. The enabling power in clause 25(5)(d) will make provision in relation to this.

34. This matter is considered appropriate for subordinate legislation because of the level of detail that is expected to be involved; and because of the need to change the regulations from time to time in the light of experience and circumstances.

CLAUSE 28(6)(A): POWER TO PROHIBIT THE AUTHORISATION OF THE CONDUCT OR USE OF CERTAIN TYPES OF COVERT HUMAN INTELLIGENCE SOURCES.

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

35. Subject to the requirements of subsection(2), clause 28 does not restrict the conduct or use of particular types of covert source or the categories of information which that source might be used to obtain. There may, though, be reasons why the Government would wish to restrict the use of particular types of sources, for example to stop the most vulnerable persons from being used by public authorities. In this context, the department intends to prohibit the use of any juvenile informant, under 16 years of age and living with his parents, from being tasked to obtain information about his parents.

36. This matter is considered appropriate for secondary legislation in order that the Secretary of State can introduce additional prohibitions, or modify them, from time to time in the light of experience and circumstances.

CLAUSE 28(6)(B): POWER TO IMPOSE ADDITIONAL REQUIREMENTS THAT MUST BE SATISFIED BEFORE AN AUTHORISATION FOR THE CONDUCT OR USE OF CERTAIN COVERT HUMAN INTELLIGENCE SOURCES IS GRANTED.

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

37. There will be cases, where the Secretary of State does not wish to prohibit the conduct or use of a covert source altogether, but instead wishes to impose additional requirements which must be met before an authorisation can be granted. For example, where a juvenile informant is involved, it is thought that additional requirements should be met, such as that the risks should be fully explained to the informant. As for the previous power, the matter is considered appropriate for secondary legislation in order that the Secretary of State can add to or modify these requirements.

CLAUSE 29(1): POWER TO PRESCRIBE THE INDIVIDUALS WITHIN PUBLIC AUTHORITIES WHO CAN AUTHORISE DIRECTED SURVEILLANCE OR THE CONDUCT/USE OF COVERT HUMAN INTELLIGENCE SOURCES

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

38. The power enables the persons entitled to grant authorisations for directed surveillance and the conduct/use of covert human intelligence sources to be set out in an order.

39. Clause 29(3)(a) provides that the order under subsection (1) may impose restrictions on the authorisations under clauses 27 and 28 that may be granted by individuals within a specified public authority. For example, it might be provided that designated individuals within a particular authority can only grant authorisations for directed surveillance. Alternatively where authorisations for a certain type of directed surveillance can be granted by individuals of a certain rank, it might be provided that in some circumstances the authorisation requires a higher-ranked individual.

40. In order to achieve consistency and the same standards across all public authorities, the rank, office or position of the authorising officer will be set out.

41. This matter is considered appropriate for subordinate legislation because of number of authorities concerned; and because structures within an authority may change, making it necessary to update amend the order.

CLAUSE 29(4)(H): POWER TO ADD PUBLIC AUTHORITIES TO THOSE NAMED ON FACE OF BILL, WHICH WILL BE ABLE TO AUTHORISE DIRECTED SURVEILLANCE AND CONDUCT/USE OF COVERT HUMAN INTELLIGENCE SOURCES

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

42. Police forces, the National Criminal Intelligence Service, the National Crime Squad, the intelligence services, the Ministry of Defence, the Armed Forces and HM Customs & Excise are named public authorities on the face of the Bill. However, there are a number of other public authorities that currently carry out directed surveillance and benefit from covert human intelligence sources.

43. This matter is considered appropriate for subordinate legislation at present, because of the need to resolve with the Scottish Executive the right extent provision in respect of each authority before any designation can be made. The list of authorities will change from time to time and the Secretary of State will keep the list under review and will need to update it as necessary.

CLAUSE 29(6): CONCURRENT POWER FOR FIRST MINISTER AND DEPUTY FIRST MINISTER IN NORTHERN IRELAND TO MAKE AN ORDER UNDER THIS CLAUSE

Power conferred on:	First Minister and Deputy First Minister in Northern Ireland (acting jointly)
Power exercisable by:	order made by statutory rule
Parliamentary procedure:	none; negative resolution in NI Assembly

44. The justification for this power is the same as that for the other powers in the clause. However, the provision reflects the executive and legislative devolution achieved by the Northern Ireland Act 1998.

45. Some of the authorities to be specified under clause 29(4)(h) have functions that were devolved to the Northern Ireland Assembly. This power provides for the First Minister and Deputy First Minister jointly to make orders under clause 29(1) and (3) in relation to authorities specified by them jointly for the purposes of clause 29(4)(h). The powers cannot be exercised in relation to excepted matters but can be exercised in relation to reserved matters where the Secretary of State consents.

CLAUSE 33(2)(C): POWER TO SPECIFY THE INFORMATION TO BE PROVIDED IN NOTIFICATIONS TO SURVEILLANCE COMMISSIONERS

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution, but by 40-day procedure on first exercise

46. Whenever the police or Customs grant, renew or cancel an authorisation for intrusive surveillance, a notification must be given to a Surveillance Commissioner. The information to be included in such notifications will be specified by order.

47. A similar order was approved in relation to interference with property by the police and Customs under part III of the Police Act 1997 [the Police Act 1997 (Notification of Authorisations etc) Order 1998 (SI 1998 No 3241)]. It required that a notification should include details of the subjects of the investigation and any property likely to be involved, together with the nature of any offence being investigated and the likely intrusion on the privacy of persons other than the subjects of the investigation. It is likely that this order will require similar information to be provided.

48. Subordinate legislation is considered appropriate because of the level of detail involved. Parliament approved the use of the affirmative resolution procedure in the Police Act, and the same procedure is selected here.

49. The standard affirmative resolution procedure is displaced for the first exercise of this power. The order will instead come into force on making, and must be approved by subsequent resolution. The same procedure is explained for clause 62 below: it is to achieve a commencement date for Part II before the Human Rights Act comes into force.

CLAUSE 39(3): POWER TO DESIGNATE PUBLIC AUTHORITIES FOR THE PURPOSE OF CLAUSE 39(1)(D) AS AN AUTHORITY WHICH CAN APPLY TO THE SECRETARY OF STATE FOR AN AUTHORISATION FOR THE CARRYING OUT OF INTRUSIVE SURVEILLANCE

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution

50. This clause provides for the Secretary of State to add to those public authorities that are entitled to apply for authorisations for the carrying out of intrusive surveillance.

51. Intrusive surveillance is the highest level of surveillance permitted under part II. At present, applications for intrusive surveillance are limited to law enforcement bodies, intelligence agencies and organs of the Ministry of Defence. The grounds on which authorities can apply are also limited to serious crime, national security and the economic well-being of the UK. However, the position could change over time and more authorities may need to use these techniques in order to combat serious crime.

CLAUSE 39(4): POWER TO PRESCRIBE IN RELATION TO A PUBLIC AUTHORITY, THE OFFICE, RANK OR POSITION OF THE INDIVIDUAL WHO MAY APPLY FOR THE INTRUSIVE SURVEILLANCE AUTHORISATION

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

52. This power will enable the Secretary of State to specify whom, within a public authority, can apply for an authorisation for intrusive surveillance. By this means, the Secretary of State will be able to ensure that all applications are made through a central point and that they are reviewed by a senior official before being received.

53. Subordinate legislation is appropriate because administrative arrangements and structures of authority within a body are likely to change over time; and because of the level of detail involved.

CLAUSE 39(5)(A) AND (B): POWER TO IMPOSE RESTRICTIONS ON INTRUSIVE SURVEILLANCE AUTHORISATIONS GRANTED PURSUANT TO AN APPLICATION OF CERTAIN INDIVIDUALS AND POWER TO IMPOSE RESTRICTIONS ON THE CIRCUMSTANCES IN WHICH, OR THE PURPOSES FOR WHICH, SUCH AUTHORISATIONS MAY BE GRANTED

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

54. The power in clause 39(5)(a) is linked to that in clause 39(4), and will enable the Secretary of State to impose restrictions on the authorisations for intrusive surveillance.

55. The power in clause 39(5)(b) will enable the Secretary of State to provide, for example, that authorisations on application by a person within a particular authority will only be granted where it is necessary for the purpose of national security.

56. It could also be used by the Secretary of State to specify that certain applications for intrusive surveillance authorisations will only be granted in relation to certain sorts of criminal activity.

57. Subordinate legislation is appropriate because the authorities have not yet been designated for the purposes of clause 39(1).

CLAUSE 41(8): POWER TO PROVIDE FOR SPECIFIED AUTHORISATIONS TO CEASE TO HAVE EFFECT AFTER A SHORTER PERIOD THAN NORMAL

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

58. This power provides for Secretary of State to set a shorter period for authorisations in a particular category specified by order. For example, the department envisages an order providing that a period shorter than the normal 12 months can be set for the use of juvenile informants.

59. This matter is considered appropriate for subordinate legislation because of because of the need to change the order from time to time in the light of experience and circumstances.

CLAUSE 42(6): POWER TO PROVIDE FOR SPECIFIED AUTHORISATIONS TO CEASE TO HAVE EFFECT AFTER A SHORTER PERIOD THAN NORMAL

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	negative resolution

60. This is a similar power to that contained in clause 41(8) but covers authorisations granted to the intelligence services.

CLAUSE 43(4): POWER TO PROVIDE WHERE THE DUTY TO CANCEL AN AUTHORISATION FALLS WHEN THE AUTHORISING OFFICER OR THE DESIGNATED DEPUTY (WHERE THERE IS ONE) IS NO LONGER AVAILABLE TO PERFORM THAT DUTY

Power conferred on:	Secretary of State
Power exercisable by:	regulations made by statutory instrument
Parliamentary procedure:	negative resolution

61. The reason for this clause is the same as for clause 22(9), discussed above.

CLAUSE 44(1): POWER TO APPLY THE PROVISIONS OF PART II TO SURVEILLANCE THAT IS NEITHER DIRECTED NOR INTRUSIVE OR TO PROVIDE FOR DIRECTED SURVEILLANCE BE TREATED AS INTRUSIVE SURVEILLANCE

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution

62. Clause 44 enables the Secretary of State to change the types of activities which fall within the category of directed surveillance by providing that a type of directed surveillance will be treated as intrusive surveillance. Furthermore, it will enable the Secretary of State to provide that Part II (with modifications where appropriate) applies to additional types of surveillance, which are not at present defined as either directed or intrusive surveillance.

63. One of the main purposes of Part II of the Bill is to give a lawful basis to activities currently undertaken which might interfere with Article 8 rights. The department considers that the current definitions of surveillance mean that covert surveillance will be regulated compatibly with the Convention, experience may show that, for example, an activity classified as directed surveillance requires the further safeguards provided under the intrusive regime. A power is therefore required to enable the Secretary of State to make certain changes to the provisions in Part II. The second power would also allow the Secretary of State to take account of future technological advances so that Part II can be applied to an activity which is not currently regulated under the Bill at all.

64. Subordinate legislation is considered appropriate to enable the Secretary of State to respond quickly to this kind of development. The affirmative resolution recognises the potential significance of a redesignation from directed to intrusive surveillance or the application of Part II to currently unregulated conduct.

65. The Committee will note that the power in this clause was narrowed at Commons report, by the deletion of a third power which would have allowed categories of intrusive surveillance to be brought within the arrangements for directed surveillance.

PART III

66. There are no enabling powers in this Part of the Bill.

PART IV

CLAUSE 57(2)(D): POWER TO ALLOCATE OTHER PROCEEDINGS TO THE TRIBUNAL ESTABLISHED BY CLAUSE 57(1)

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution

67. Clause 57 establishes a Tribunal, which is to be the forum for certain categories of complaints and proceedings relating to behaviour and persons mentioned in the Bill. These categories are listed in subsection (2)(a) to (c). Subsection (2)(d) enables the Secretary of State to add to the Tribunal's jurisdiction any other proceedings against any of the intelligence services or people acting on their behalf; or which concern the use by police, Customs or Her Majesty's forces of investigatory powers under this Bill or under the Scottish Bill corresponding to Part II, any other entry on or interference with property, or any interference with wireless telegraphy.

68. This power, in conjunction with clause 59, ensures that cases falling within any of these latter categories may be properly heard and considered, while at the same time information is not disclosed where it might be contrary to the public interest or prejudicial to the matters listed in clause 61(6)(b), such as national security or the prevention or detection of serious crime. The Tribunal will have the power to remit proceedings to the court which would have had jurisdiction but for the order.

69. Subordinate legislation is considered appropriate for this because it is not yet certain how wide the Tribunal's jurisdiction will need to be in order to preserve the balance between safeguarding sensitive information and ensuring cases are heard fairly. That balance is particularly important for those cases which, by virtue of the Human Rights Act, must be heard in accordance with Article 6 of the Convention. Where it is thought that the protection of national security necessitates special provision, there will always be a choice between allocating classes of case to the ordinary courts and modifying rules of court; and allocating the cases to the Tribunal. The power here preserves that choice. The choice of the affirmative procedure reflects the significance of an order allocating jurisdiction to a special forum; and because the rules themselves will be by affirmative resolution.

CLAUSE 59(8): POWER TO PROVIDE THAT ANY DECISIONS OF THE TRIBUNAL ESTABLISHED BY CLAUSE 57(1) MAY BE SUBJECT TO APPEAL OR BE LIABLE TO BE QUESTIONED IN A COURT

Power conferred on:	Secretary of State
Power exercisable by:	order made by statutory instrument
Parliamentary procedure:	affirmative resolution

70. Clause 59 provides for the exercise of the Tribunal's jurisdiction, including the limitation that decisions made by the Tribunal shall not be subject to appeal or liable to be questioned in any court except to such extent as the Secretary of State may by order provide. Clause 59(10) lists, non-exhaustively, provisions which may be contained in an order.

71. Subordinate legislation is suitable for these matters because of the level of detail required, to preserve flexibility, and because the provisions in question will be contingent on rules made under Clause 61. But the question of appeal rights is an important matter, and the affirmative resolution procedure has been selected. The Committee will also note that clause 59(9) requires that there must at all times be an order in force allowing for an appeal to a court against any exercise by the Tribunal of its jurisdiction under clause 57(2)(c) or (d). This subsection was inserted at Commons report stage.

CLAUSE 61(1): POWER TO MAKE RULES FOR THE TRIBUNAL

Power conferred on:	Secretary of State
Power exercisable by:	rules made by statutory instrument
Parliamentary procedure:	Affirmative resolution, but by 40-day procedure on first exercise

72. Clause 61(1) gives the Secretary of State power to make rules regulating the Tribunal's exercise of its jurisdiction and related matters. The use of subordinate legislation, and the choice of affirmative resolution, are common for procedural provisions of this kind. Nevertheless, the department draws the following aspects of this power to the Committee's attention.

73. Subsection (2) expands on the general power. Subsection (3) allows the rules to enable an applicant to be legally represented or for his interests to be otherwise represented. Subsection (4) provides for rules to enable or require the Tribunal to adopt special procedures which will be designed to protect sensitive information. Each of these provisions should be read subject to clause 69(4), which allows different provision to be made for different cases. It is not envisaged that a single set of rules will apply in the same way to each of the different jurisdictions exercised by the Tribunal.

74. Subsection (6) requires the Secretary of State, in making any rules, to ensure that proceedings before the Tribunal are properly heard and considered; and that information is not disclosed where this might be damaging or prejudicial as described in subsection (6)(b).

75. Subsection (7) enables any rules to incorporate, for example, existing Civil Procedure Rules. This is likely to be used in making rules governing cases which, but for an order under clause 57(1)(d), would be heard in the ordinary courts.

76. The standard affirmative resolution procedure is displaced for the first exercise of this power. Those rules will instead come into force on making, and must be approved by subsequent resolution. This procedure is more normally found in situations of urgency. Its adoption here is prompted by the Government's intention to bring the Human Rights Act into force on 2 October. The department intends that parts of the Bill, and in particular Part II, should be in force by that date in order to give a proper legal basis for surveillance. In order for Part II to be compliant with the Convention, the Tribunal's complaints function must be in force by that date, and it is highly desirable that it should assume its jurisdiction for the purposes of section 7 of the Human Rights Act also. The timing of the summer recess means that rules would be unlikely to be approved before 2 October.

CLAUSE 63: POWER TO ISSUE CODES OF PRACTICE, AND POWER TO BRING THEM INTO FORCE BY ORDER

Power conferred on:	Secretary of State
Power exercisable by:	Codes to be published in draft; order by statutory instrument
Parliamentary procedure:	Codes to be laid in draft; order by affirmative resolution

77. The Codes of Practice will explain in greater detail the practical arrangements relating to the use of the provisions of this Bill and the powers and duties relating to interference with property or wireless telegraphy in the Intelligence Services Act 1994 and Part III of the Police Act 1997. Clause 64 describes the effect these Codes will have.

78. Under subsections (4) and (5), the Secretary of State must consult on each draft Code and lay it before Parliament. Once a Code has been laid, it can be brought into force by an order subject to the affirmative resolution procedure.

79. These provisions, and the procedures selected, are common in recent legislation. The Committee is referred, for example, to the Police and Criminal Evidence Act 1984 and the Police Act 1997.

PART V

CLAUSE 65(3), NEW 1949 S5(4)(G): POWER TO ADD TO THE PURPOSES FOR CONDUCT UNDER SECTION 5 OF THE WIRELESS TELEGRAPHY ACT 1949

Power conferred on:	Secretary of State
Power exercisable by:	regulations by statutory instrument
Parliamentary procedure:	negative resolution

80. The reasons for this power, and the justification for the procedure selected, are the same as those for clause 21(2)(h), which are discussed above.

CLAUSE 65(3), NEW 1949 S5(7)(C): POWER TO ADD TO PERSONS ABLE TO GIVE AUTHORITY FOR CONDUCT UNDER SECTION 5 OF THE WIRELESS TELEGRAPHY ACT

Power conferred on:	Secretary of State
Power exercisable by:	regulations by statutory instrument
Parliamentary procedure:	negative resolution

81. The reasons for this power are largely the same as those for the power at clause 24(1)(f) as discussed above.

CLAUSE 65(3), NEW 1949 S5(11)(C): POWER TO ADD TO DESIGNATED PERSONS UNDER SECTION 5 OF THE WIRELESS TELEGRAPH ACT 1949

Power conferred on:	the Secretary of State
Power exercisable by:	regulations by statutory instrument
Parliamentary procedure:	negative resolution

82. The use of this power would be contingent on the naming of any new persons under the provision inserted at clause 65(3), new subsection (7)(c).

CLAUSE 72(6): POWER TO MAKE CHANGES TO THE DEFINITION OF "SENIOR OFFICIAL"

Power conferred on:	Secretary of State
Power exercisable by:	order by statutory instrument
Parliamentary procedure:	negative resolution

83. Subsection (1) defines "senior official" as a member of the Senior Civil Service. This power is needed in the event that the Senior Civil Service, which is a recent reform, is restructured or modified.

CLAUSE 74(2): POWER TO BRING PROVISION OF THE ACT INTO FORCE

Power conferred on:	Secretary of State
Power exercisable by:	order by statutory instrument
Parliamentary procedure:	none

84. This is a standard commencement provision.

CLAUSE 74(5): POWER TO DIRECT SCOTTISH EXTENT OF CERTAIN PART II ORDERS

Power conferred on:	Secretary of State
Power exercisable by:	order by statutory instrument
Parliamentary procedure:	negative/affirmative resolution

85. This power makes it clear that public authorities may be specified for the purpose of clause 29 (directed surveillance and covert human intelligence sources) or designated for the purpose of clause 39 (intrusive surveillance) either with or without that order extending to Scotland.

86. Although the order by itself would be by negative resolution, it is likely that it will be included in an order under clause 29 or 39. In the latter case, it would therefore become subject to affirmative resolution by virtue of clause 69(3).

17 May 2000