Counter-Terrorism and Border Security Bill - Committee (4th Day)

Part of the debate – in the House of Lords at 7:30 pm on 14th November 2018.

Alert me about debates like this

Moved by Baroness Williams of Trafford

82: Schedule 3, page 47, line 6, at end insert—“15A(1) Before proceeding under paragraph 15 in relation to a copy, the Commissioner—(a) must invite each affected party to make representations, before the end of whatever period the Commissioner may specify, about how the Commissioner should proceed under that paragraph, and(b) must have regard to any representations made by an affected party before the end of that period. (2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 15 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(3) Each of the following is an “affected party” for the purposes of this paragraph—(a) where the examining officer is a constable, the responsible chief officer,(b) the Secretary of State, and(c) the person from whom the article was taken from which the copy was made.(4) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the copy was made in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.(5) Sub-paragraph (6) applies where—(a) a direction for the destruction of a copy is given under paragraph 15, or (b) authorisation for the retention and use of a copy is granted under that paragraph.(6) The Commissioner must inform the person from whom the article was taken from which the copy was made that—(a) a direction to destroy the copy has been given, or(b) (as the case may be) authorisation to retain and use the copy has been granted (and in this case the Commissioner must provide details of any conditions subject to which that authorisation was granted).(7) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken from which a copy was made applies only so far as it is reasonably practicable to do so.(8) Representations under sub-paragraph (1) must be made in writing.15B(1) This paragraph applies where—(a) a copy consisting of or including confidential material is retained by virtue of paragraph 14(3)(d) or (e), and(b) the examining officer who retained the copy considers that the urgency condition is met in relation to the copy.(2) The urgency condition is met in relation to a copy if—(a) there is an urgent need for the copy to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 15 and 15A to be complied with in relation to the copy would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the copy.(4) An application under sub-paragraph (3) in relation to a copy may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to make the copy or to question a person from whom the article was taken from which the copy was made.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of a copy if satisfied that—(a) there are reasonable grounds for considering that the urgency condition is met in relation to the copy,(b) arrangements are in place that are sufficient for ensuring that confidential material contained in the copy is retained securely, and(c) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 15C and 15D contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent, (b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.15C(1) If a senior officer grants an authorisation under paragraph 15B, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 15D in respect of an authorisation granted under paragraph 15B.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted.(5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations made before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 15D.(7) The requirement under this paragraph to provide information to the person from whom an article was taken from which the copy was made applies only so far as it is reasonably practicable to do so. (8) In this paragraph and paragraph 15D—“affected party” has the meaning given by paragraph 15A(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.15D(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 15C.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made—(a) after the end of the period for making representations referred to in paragraph 15C(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the copy may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the copy must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that—(a) the copy is destroyed, and (b) all reasonable steps are taken to secure that any information derived from the copy is also destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under a power conferred by paragraph 14(3)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken from which the copy was made applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled;(b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”

Amendment 82 agreed.

Amendments 83 to 88 not moved.

Schedule 3, as amended, agreed.

Clause 22 agreed.

Schedule 4 agreed.

Clauses 23 and 24 agreed.

Clause 25: Extent