Communications Data Bill/Draft

Text of the Draft Communications Data Bill as published 2012-06-15. A pdf of the bill with explanatory notes is available at official-documents.gov.uk

Content under the Open Government Licence

See also our commentary

A Bill to Make provision for ensuring or otherwise facilitating the availability of communications data and as to its obtaining by public authorities; and for connected purposes.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1: Ensuring or Facilitating Availability of Data

Ensuring or facilitating availability

Commentary

1 Power to ensure or facilitate availability of data

(1) The Secretary of State may by order—

(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 2, or

(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.

(2) An order under this section may, in particular—

(a) provide for—

(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,

(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators,

(iii) the entering into by such operators of arrangements with the Secretary of State or other persons under or by virtue of which the Secretary of State or other persons engage in activities on behalf of the operators on a commercial or other basis for the purpose of enabling the operators to comply with requirements imposed by virtue of this section,

(b) impose requirements or restrictions on telecommunications operators or other persons or provide for the imposition of such requirements or restrictions by notice of the Secretary of State.

(3) Requirements imposed by virtue of subsection (2) may, in particular, include—

(a) requirements (whether as to the form or manner in which the data is held or otherwise) which ensure that communications data can be disclosed without undue delay to relevant public authorities in accordance with Part 2,

(b) requirements for telecommunications operators—

(i) to comply with specified standards,

(ii) to acquire, use or maintain specified equipment or systems, or

(iii) to use specified techniques,

(c) requirements which—

(i) are imposed on a telecommunications operator who controls or provides a telecommunication system, and

(ii) are in respect of communications data relating to the use of telecommunications services provided by another telecommunications operator in telecommunication system concerned.

(4) Nothing in this Part authorises any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system.

(5) In this section—

“processing”, in relation to communications data, includes its reading, organisation, analysis, copying, correction, adaptation or retrieval and its integration with other data,

“relevant public authority” has the same meaning as in Part 2.

(6) See—

(a) section 25 for the way in which this Part applies to public postal operators and public postal services, and

(b) section 28 for the definitions of “communications data” and “telecommunications operator” and for other definitions relevant to this Part.

Safeguards

Commentary

2 Consultation requirements

(1) Before making an order under section 1, the Secretary of State must consult OFCOM.

(2) Before making an order under section 1, the Secretary of State must consult—

(a) such persons appearing to be likely to be subject to the requirements or restrictions for which it provides,

(b) such persons representing persons falling within paragraph (a), and

(c) such persons (other than OFCOM) with statutory functions in relation to persons falling within that paragraph,

as the Secretary of State considers appropriate.

(3) Before making an order under section 1, the Secretary of State must consult the Technical Advisory Board.

(4) In this section “OFCOM” means the Office of Communications.

(5) In this Act “the Technical Advisory Board” means the Board established by section 13 of the Regulation of Investigatory Powers Act 2000.

3 Data security and integrity

A telecommunications operator who holds communications data by virtue of this Part must—

(a) secure that the data is of the same quality and subject to the same security and protection as the data on any system from which it is derived, and

(b) protect the data against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful retention, processing, access or disclosure.

4 Period for which data is to be retained

(1) A telecommunications operator who holds communications data by virtue of this Part must retain the data until—

(a) the end of—

(i) the period of 12 months, or

(ii) such shorter period as may be specified in an order under section 1 or a notice given to the operator in pursuance of such an order,

beginning with the date of the communication concerned, and

(b) any extension of that period under subsection (3).

(2) A public authority may, before the end of the period mentioned in subsection (1)(a), notify the telecommunications operator concerned that the data is, or may be, required for the purpose of legal proceedings.

(3) If such a notification has been given, the period mentioned in subsection (1)(a) is extended until the public authority notifies the operator that the data is not required for the purpose of legal proceedings.

(4) The public authority must, as soon as reasonably practicable after the authority becomes aware of the fact, notify the operator that the data is not required for the purpose of legal proceedings.

(5) A notification under this section must be in writing.

5 Access to data

(1) A telecommunications operator who holds communications data by virtue of this Part must not disclose the data except—

(a) in accordance with the provisions of Part 2, or

(b) otherwise as authorised by law.

(2) The operator must put in place adequate security systems (including management checks and controls) governing access to the data in order to protect against any disclosure of a kind which does not fall within subsection (1)(a) or (b).

6 Destruction of data

(1) A telecommunications operator who holds communications data by virtue of this Part must destroy the data if the retention of the data ceases to be authorised by virtue of this Part and is not otherwise authorised by law.

(2) The requirement in subsection (1) to destroy data is a requirement to destroy the data in such a way that it can never be retrieved.

(3) It is sufficient for the operator to make arrangements for the destruction of the data to take place at such monthly or shorter intervals as appear to the operator to be convenient.

7 Other safeguards

(1) A notice of the Secretary of State provided for by an order under section 1 must—

(a) be in writing,

(b) specify the person to whom it is given, and

(c) be given in such manner (whether by publication or otherwise) as the Secretary of State considers appropriate for bringing it to the attention of the person concerned.

(2) An order under section 1 must ensure that a person, to whom a notice of the kind mentioned in section 1(2)(b) is given, can refer the notice to the Technical Advisory Board.

(3) Such an order must provide for—

(a) any such reference to the Board to be made before the end of such period as may be specified in the order,

(b) the Board to have a discretion, on such grounds as may be specified, to extend any period so specified,

(c) there to be no requirement (other than in the case of any notice specified in the order) to comply with a notice referred to the Board until proceedings on the reference are completed,

(d) the Board—

(i) to consider any technical matters relating to the notice referred to them and the financial consequences, for the person making the reference, of the notice, and

(ii) to report their conclusions on those matters to that person and to the Secretary of State,

(e) the Secretary of State, after considering the Board’s report, to be able to—

(i) withdraw the notice, or

(ii) give a further notice confirming its effect, with or without modifications,

(f) a further notice given by virtue of paragraph (e)(ii) not to be the subject of a further reference to the Board.

(4) See also—

(a) sections 22 and 23 (which confer roles on the Interception of Communications Commissioner, the Information Commissioner and the Investigatory Powers Tribunal in relation to reviewing the exercise of functions exercisable by virtue of this Part), and

(b) section 24 (which abolishes certain general powers to secure the disclosure of communications data by telecommunications operators etc.).

Enforcement and protection for compliance

Commentary

8 Enforcement and protection for compliance

(1) It is the duty of a telecommunications operator or other person on whom a requirement or restriction is imposed by—

(a) section 3, 4(1), 5 or 6, or

(b) a notice of the Secretary of State provided for by an order under section 1, to comply with the requirement or restriction concerned.

(2) That duty is enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.

(3) Conduct is lawful for all purposes if—

(a) it is conduct in which a person is authorised or required to engage by virtue of this Part, and

(b) the conduct is in accordance with, or in pursuance of, the authorisation or requirement.

(4) A person (whether or not the person so authorised or required) is not to be subject to any civil liability in respect of conduct that—

(a) is incidental to, or is reasonably undertaken in connection with, conduct that is lawful by virtue of subsection (3), and

(b) is not itself conduct for which an authorisation or warrant—

(i) is capable of being granted under any of the enactments mentioned in subsection (5), and

(ii) might reasonably have been expected to have been sought in the case in question.

(5) The enactments referred to in subsection (4)(b)(i) are—

(a) an enactment contained in Part 2,

(b) an enactment contained in the Regulation of Investigatory Powers Act 2000,

(c) an enactment contained in Part 3 of the Police Act 1997 (powers of the police and of customs officers), or

(d) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services).

Part 2: Regulatory Regime for Obtaining Data

Authorisations for obtaining data

Commentary

9 Authorisations by police and other relevant public authorities

(1) Subsection (2) applies if a designated senior officer of a relevant public authority believes in respect of communications data (“Part 2 data”)—

(a) that it is necessary to obtain the data for a permitted purpose,

(b) that it is necessary to obtain the data—

(i) for the purposes of a specific investigation or a specific operation, or

(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of communications data, and

(c) that the conduct authorised by the authorisation is proportionate to what is sought to be achieved.

(2) The designated senior officer may grant an authorisation for—

(a) the designated senior officer, or

(b) persons holding offices, ranks or positions with the same relevant public authority as the designated senior officer,

to engage in any conduct in relation to a telecommunication system, or data derived from a telecommunication system, for obtaining the Part 2 data from any person (“section 9(2) conduct”).

(3) Section 9(2) conduct may, in particular, consist of an authorised officer—

(a) obtaining the Part 2 data themselves from any person with the consent of that person,

(b) asking any person whom the authorised officer believes is, or may be, in possession of the Part 2 data to disclose it to a person identified by, or in accordance with, the authorisation,

(c) asking any person whom the authorised officer believes is not in possession of the Part 2 data but is capable of obtaining it, to obtain it and disclose it to a person identified by, or in accordance with, the authorisation, or

(d) requiring by notice a telecommunications operator—

(i) whom the authorised officer believes is, or may be, in possession of the Part 2 data to disclose the data to a person identified by, or in accordance with, the authorisation, or

(ii) whom the authorised officer believes is not in possession of the Part 2 data but is capable of obtaining the data, to obtain it and disclose it to a person identified by, or in accordance with, the authorisation.

(4) An authorisation may, in particular, authorise any obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of Part 2 data.

(5) An authorisation—

(a) may not authorise any conduct consisting in the interception of communications in the course of their transmission by means of a telecommunication system, and

(b) may not authorise an authorised officer to ask or require, in the circumstances mentioned in subsection (3)(b), (c) or (d), a person to disclose the Part 2 data to any person other than—

(i) an authorised officer, or

(ii) a person holding an office, rank or position with the same relevant public authority as an authorised officer.

(6) For the purposes of this section it is necessary to obtain communications data for a permitted purpose if it is necessary to do so—

(a) in the interests of national security,

(b) for the purpose of preventing or detecting crime or of preventing disorder,

(c) for the purpose of preventing or detecting any conduct in respect of which a penalty may be imposed under section 123 or 129 of the Financial Services and Markets Act 2000 (civil penalties for market abuse),

(d) in the interests of the economic well-being of the United Kingdom,

(e) in the interests of public safety,

(f) for the purpose of protecting public health,

(g) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department,

(h) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health,

(i) to assist investigations into alleged miscarriages of justice, or

(j) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition.

(7) The Secretary of State may by order amend subsection (6) so as to add to or restrict the permitted purposes.

(8) See section 25 for the way in which this Part applies to postal operators and postal services.

10 Form of authorisations and authorised notices

(1) An authorisation must specify—

(a) the conduct that is authorised, and

(b) the Part 2 data in relation to which the conduct is authorised.

(2) An authorisation must specify—

(a) the matters falling within section 9(6) by reference to which it is granted, and

(b) the office, rank or position held by the person granting it.

(3) An authorisation which authorises a person to impose requirements by notice on a telecommunications operator must specify the nature of the requirements that are to be imposed but need not specify the other contents of the notice.

(4) The notice itself—

(a) must specify—

(i) the office, rank or position held by the person giving it,

(ii) the requirements that are being imposed, and

(iii) the telecommunications operator on whom the requirements are being imposed, and

(b) must be given in writing or (if not in writing) in a manner that produces a record of its having been given.

(5) An authorisation to which section 11(1) applies must be granted in writing.

(6) Any other authorisation must be granted in writing or (if not in writing) in a manner that produces a record of its having been granted.

11 Judicial approval for certain authorisations

(1) An authorisation granted by a relevant person 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.

(2) The relevant public authority with which the relevant person holds an office, rank or position—

(a) may apply to the relevant judicial authority for such an order, but (b) need not give notice of the application to—

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

(ii) such a person’s legal representatives.

(3) The relevant judicial authority may give approval under this section to the granting of an authorisation 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 9(1) 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 9(1) are satisfied in relation to the authorisation.

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

(a) in relation to any grant 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 senior officer,

(ii) the grant was not in breach of any restrictions imposed by virtue of section 17, 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 senior officer,

(ii) the grant was not in breach of any restrictions imposed by virtue of section 17, 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) 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.

(6) In this section—

“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, Wales or Scotland,

(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.

(7) No order of the Secretary of State 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 without being ancillary to other provision (whether in the Act or previously enacted) which deals with a Northern Ireland excepted or reserved matter.

12 Duration and cancellation of authorisations

(1) An authorisation ceases to have effect at the end of the period of one month beginning with the date on which it is granted.

(2) An authorisation may be renewed at any time before the end of that period by the grant of a further authorisation.

(3) Subsection (1) has effect in relation to a renewed authorisation as if the period of one month mentioned in that subsection did not begin until the end of the period of one month applicable to the authorisation that is current at the time of the renewal.

(4) A designated senior officer who has granted an authorisation must cancel it if the designated senior officer is satisfied that the position is no longer as mentioned in section 9(1)(a), (b) and (c).

(5) The Secretary of State may by order provide for the person by whom any duty imposed by subsection (4) is to be performed in a case in which it would otherwise fall on a person who is no longer available to perform it.

(6) Such an order may, in particular, provide for the person on whom the duty is to fall to be a person appointed in accordance with the order.

13 Duties of telecommunications operators in relation to authorisations

(1) It is the duty of a telecommunications operator who is obtaining or disclosing communications data in response to a request or requirement for Part 2 data in pursuance of an authorisation to obtain or disclose the communications data in a way that minimises the amount of data that needs to be processed for the purpose concerned.

(2) It is the duty of a telecommunications operator on whom a requirement is imposed by notice given in pursuance of an authorisation to comply with that requirement.

(3) A person who is under a duty by virtue of subsection (1) or (2) is not required to do anything in pursuance of that duty that it is not reasonably practicable for that person to do.

(4) The duty imposed by subsection (1) or (2) is enforceable by the Secretary of State by civil proceedings for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.

Filtering arrangements for acquisition of data

Commentary

14 Filtering arrangements for obtaining data

(1) The Secretary of State may establish, maintain and operate arrangements for the purposes of—

(a) assisting a designated senior officer to determine whether, in any case, the officer believes as mentioned in section 9(1)(a), (b) and (c) in relation to the grant of an authorisation in respect of communications data, or

(b) facilitating the lawful, efficient and effective obtaining of Part 2 data from any person by relevant public authorities in pursuance of an authorisation.

(2) Arrangements under subsection (1) (“filtering arrangements”) may, in particular, involve the obtaining of Part 2 data in pursuance of an authorisation by means of—

(a) a request to the Secretary of State to obtain the data on behalf of an authorised officer, and

(b) the Secretary of State—

(i) obtaining the data or data from which the data may be derived,

(ii) processing the data or the data from which it may be derived (and retaining data temporarily for that purpose), and

(iii) disclosing the Part 2 data to the person identified for this purpose by, or in accordance with, the authorisation.

(3) Filtering arrangements may, in particular, involve the generation or use by the Secretary of State of information—

(a) for the purpose mentioned in subsection (1)(a), or for the purposes of—

(i) the support, maintenance, oversight, operation or administration of the arrangements, or

(ii) the functions of the Interception of Communications Commissioner mentioned in subsection (4).

(4) Filtering arrangements must involve the generation and retention of such information or documents as the Interception of Communications Commissioner considers appropriate for the purposes of the functions of the Commissioner in relation to the arrangements under section 57(2)(e) of the Regulation of Investigatory Powers Act 2000 (review functions: see section 22 of this Act).

15 Use of filtering arrangements in pursuance of an authorisation

(1) This section applies in relation to the use of the filtering arrangements in pursuance of an authorisation.

(2) The filtering arrangements may be used—

(a) to obtain and disclose Part 2 data in pursuance of an authorisation, only if the authorisation specifically authorises the use of the arrangements to obtain the data,

(b) to process data in pursuance of an authorisation (and to retain the data temporarily for that purpose), only if the authorisation specifically authorises processing data of that description under the arrangements (and their temporary retention for that purpose).

(3) The authorisation must record the designated senior officer’s decision as to—

(a) whether the Part 2 data to be obtained and disclosed in pursuance of the authorisation may be obtained and disclosed by use of the filtering arrangements,

(b) whether the processing of data under the filtering arrangements (and its temporary retention for that purpose) is authorised,

(c) if the processing of data under the filtering arrangements is authorised, the description of data that may be processed.

(4) A designated senior officer must not authorise—

(a) use of the filtering arrangements, or

(b) processing under the filtering arrangements,

unless satisfied that what is authorised is proportionate in relation to what is sought to be achieved.

16 Duties in connection with operation of filtering arrangements

(1) The Secretary of State must secure—

(a) that no authorisation data is obtained or processed under the filtering arrangements except for the purposes of an authorisation,

(b) that data which—

(i) has been obtained or processed under the filtering arrangements, and

(ii) is to be disclosed in pursuance of an authorisation or for the purpose mentioned in section 14(1)(a),

is disclosed only to the person to whom the data is to be disclosed in pursuance of the authorisation or (as the case may be) to the designated senior officer concerned,

(c) that any authorisation data which is obtained under the filtering arrangements in pursuance of an authorisation is immediately destroyed in such a way that it can never be retrieved—

(i) when the purposes of the authorisation have been met, or

(ii) if at any time it ceases to be necessary to retain the data for the purposes or purpose concerned.

(2) The Secretary of State must secure that data (other than authorisation data) which is retained under the filtering arrangements is disclosed only—

(a) for the purpose mentioned in section 14(1)(a),

(b) for the purposes of support, maintenance, oversight, operation or administration of the arrangements,

(c) to the Interception of Communications Commissioner for the purposes of the functions of the Commissioner mentioned in section 14(4), or

(d) otherwise as authorised by law.

(3) The Secretary of State must secure—

(a) that only the Secretary of State and individuals authorised by the Secretary of State are permitted to read, obtain or otherwise process data for the purposes of support, maintenance, oversight, operation or administration of the filtering arrangements, and

(b) that no other persons are permitted to access or use the filtering arrangements except in pursuance of an authorisation or for the purpose mentioned in section 14(1)(a).

(4) The Secretary of State must—

(a) put in place and maintain an adequate security system to govern access to, and use of, the filtering arrangements and to protect against any abuse of the power of access, and

(b) impose measures to protect against unauthorised or unlawful data retention, processing, access or disclosure.

(5) The Secretary of State must—

(a) put in place and maintain procedures (including the regular testing of relevant software and hardware) to ensure that the filtering arrangements are functioning properly, and

(b) report, as soon as possible after the end of each calendar year, to the Interception of Communications Commissioner about the functioning of the filtering arrangements during that year.

(6) A report under subsection (5)(b) must, in particular, contain information about the destruction of authorisation data during the calendar year concerned.

(7) If the Secretary of State believes that significant processing errors have occurred giving rise to a contravention of any of the requirements of this Part, the Secretary of State must report that fact immediately to the Interception of Communications Commissioner.

Supplementary provisions

Commentary

17 Restrictions on exercise of powers

(1) A designated senior officer of a local authority in England, Wales or Scotland may not grant an authorisation for obtaining—

(a) traffic data, or

(b) any communications data generated by a telecommunications operator in pursuance of a requirement imposed by or under an order under section 1.

(2) The Secretary of State may by order impose restrictions on the granting of authorisations by designated senior officers.

(3) An order under this section may, in particular, impose restrictions—

(a) on the authorisations that may be granted by a designated senior officer with a specified public authority, or

(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by a designated senior officer.

(4) An order under this section may, in particular, as regards authorisations impose restrictions on—

(a) the public authorities that may use the filtering arrangements,

(b) the permitted purposes for which the filtering arrangements may be used,

(c) the data that may be processed by means of the filtering arrangements.

18 Lawfulness of conduct authorised by this Part

(1) Conduct is lawful for all purposes if—

(a) it is conduct in which any person is authorised to engage by an authorisation, and

(b) the conduct is in accordance with, or in pursuance of, the authorisation.

(2) A person (whether or not the person so authorised) shall not be subject to any civil liability in respect of conduct that—

(a) is incidental to, or is reasonably undertaken in connection with, conduct that is lawful by virtue of subsection (1), and

(b) is not itself conduct for which an authorisation or warrant—

(i) is capable of being granted under any of the enactments mentioned in subsection (3), and

(ii) might reasonably have been expected to have been sought in the case in question.

(3) The enactments referred to in subsection (2)(b)(i) are—

(a) an enactment contained in this Part,

(b) an enactment contained in the Regulation of Investigatory Powers Act 2000,

(c) an enactment contained in Part 3 of the Police Act 1997 (powers of the police and of customs officers), or

(d) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services).

19 Collaborating police forces in England and Wales

(1) Subsections (2) and (3) apply if—

(a) a person is a designated senior officer by reference to an office, rank or position with an England and Wales police force, and

(b) the chief officer of police of that force has entered into a collaboration agreement under section 22A of the Police Act 1996 which contains force collaboration provision.

(2) The designated senior officer may grant an authorisation for persons holding offices, ranks or positions with a collaborating force to engage in any section 9(2) conduct if the designated senior officer believes as mentioned in section 9(1)(a), (b) and (c).

(3) In its application to such conduct, section 9(5)(b) has effect as if the reference to a person holding an office, rank or position with the same relevant public authority as an authorised officer included a reference to a person holding an office, rank or position with the same relevant public authority as the designated senior officer.

(4) For the purposes of this section a police force is a collaborating force if—

(a) its chief officer of police is a party to the agreement mentioned in subsection (1)(b), and

(b) the persons holding offices, ranks or positions with it are permitted by the terms of the agreement to be granted authorisations by the designated senior officer or (as the case may be) to be identified by, or in accordance with, such authorisations.

(5) In this section—

“England and Wales police force” means—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),

(b) the metropolitan police force, or

(c) the City of London police force,

“force collaboration provision” has the meaning given by section 22A(2)(a) of that Act.

20 Certain transfer and agency arrangements with public authorities

(1) The Secretary of State may by order provide for—

(a) any function exercisable by the Secretary of State under sections 14 to 16 to be exercisable instead by a designated public authority, or

(b) any function under sections 14 to 16 exercisable by a designated public authority to be exercisable instead by another designated public authority or the Secretary of State.

(2) The Secretary of State may by order modify any enactment about a public authority for the purpose of enabling or otherwise facilitating any function exercisable by the Secretary of State under this Part to be exercisable on behalf of the Secretary of State by the authority concerned.

(3) An order under subsection (2) does not affect the Secretary of State’s responsibility for the exercise of the functions concerned.

(4) Subsection (2) does not apply in relation to any function of the Secretary of State of making orders.

(5) Schedule 1 (which contains further safeguards and provisions supplementing this section) has effect.

(6) In this section and Schedule 1—

“designated public authority” means a public authority designated by an order of the Secretary of State,

“modify” includes amend, repeal or revoke.

21 Interpretation of Part 2

(1) In this Part—

“authorisation” means an authorisation under section 9 or 19,

“authorisation data”, in relation to an authorisation, means communications data that is, or is to be, obtained in pursuance of the authorisation or any data from which that data is, or may be, derived,

“authorised officer” means a person who—

(a) is authorised by an authorisation to engage in any section 9(2) conduct, and

(b) either—

(i) is the designated senior officer or holds an office, rank or position with the same relevant public authority as the designated senior officer, or

(ii) in the case of an authorisation under section 19, holds an office, rank or position with a collaborating force (within the meaning of that section),

“designated senior officers” means individuals holding such ranks, offices or positions with relevant public authorities as are specified by order of the Secretary of State,

“filtering arrangements” means any arrangements under section 14(1),

“GCHQ” has the same meaning as in the Intelligence Services Act 1994,

“intelligence service” means the Security Service, the Secret Intelligence Service or GCHQ,

“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,

“member of a police force”, in relation to the Royal Navy Police, the Royal Military Police or the Royal Air Force Police, does not include any member of that force who is not for the time being attached to, or serving with, that force or another of those forces,

“Part 2 data” has the meaning given by section 9(1),

“police force” means any of the following—

(a) any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London),

(b) the metropolitan police force,

(c) the City of London police force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the Ministry of Defence Police,

(g) the Royal Navy Police,

(h) the Royal Military Police,

(i) the Royal Air Force Police,

(j) the British Transport Police,

“relevant public authority” means any of the following—

(a) a police force,

(b) the Serious Organised Crime Agency,

(c) Her Majesty’s Revenue and Customs,

(d) any of the intelligence services,

(e) any public authority designated for the purposes of this Part by order of the Secretary of State,

“section 9(2) conduct” has the meaning given by section 9(2).

(2) In this Part references to crime are references to conduct that—

(a) constitutes one or more criminal offences, or

(b) is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences.

(3) For the purposes of this Part detecting crime shall be taken to include—

(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and

(b) the apprehension of the person by whom any crime was committed.

(4) References in this Part to an individual holding an office or position with a public authority include any member, official or employee of the authority.

(5) For the purposes of this Part information required for the purposes of supporting the filtering arrangements includes information which (to any extent) explains authorisation data.

(6) Other expressions are defined generally for the purposes of this Part: see section 28.

(7)The Secretary of State may by order provide for a person who is a relevant public authority otherwise than by virtue of a designation under paragraph (e) of the definition of “relevant public authority” to cease to be a relevant public authority.

(8) The Secretary of State may by order make such amendments, repeals or revocations in this or any other enactment as the Secretary of State considers appropriate in consequence of—

(a) a person ceasing to be designated under paragraph (e) of the definition of “relevant public authority”, or

(b) an order under subsection (7).

Part 3: Scrutiny and Other Provisions

Scrutiny of functions relating to communications data

Commentary

22 Scrutiny by Commissioners

(1) In section 57(2) of the Regulation of Investigatory Powers Act 2000 (matters that the Interception of Communications Commissioner is to keep under review)—

(a) for “subsections (4) and (4A)” substitute “subsection (4)”,

(b) the word “and” at the end of paragraph (c) is repealed, and

(c) after paragraph (d) insert “; and

(e) the exercise and performance, by the persons on whom they are conferred, of the powers and duties conferred by or under Part 1 or 2 of the Communications Data Act 2012 other than—

(i) any powers or duties conferred by or under Part 1 of that Act which are subject to review by the Information Commissioner,

(ii) any powers or duties conferred by or under Part 1 of that Act on the Secretary of State in respect of the giving of notices, and

(iii) any powers or duties conferred by or under Part 2 of that Act which belong to the relevant judicial authority (within the meaning of section 11 of that Act)”.

(2) Section 57(4A) of the Act of 2000 (exception for functions of relevant judicial authority) is repealed.

(3) In section 58(1) of that Act (persons subject to duty to co-operate with the Commissioner)—

(a) after paragraph (i) (and before the word “and” at the end of that paragraph) insert—

“(ia) every person on whom a power or duty has been conferred by virtue of section 4(1) or 5, or an order under section 1, of the Communications Data Act 2012,

(ib) every person by or to whom an authorisation has been granted under section 9 or 19 of that Act,

(ic) every person to whom a notice of the kind mentioned in section 9(3)(d) of that Act has been given in pursuance of such an authorisation,

(id) any public authority designated under section 20 of that Act,”, and

(b) in paragraph (j) for “or (i)” substitute “, (i), (ia), (ic) or (id)”.

(4) In section 58(2) of that Act (duty of Commissioner to report on contraventions of Act), in paragraph (a), after “this Act” insert “or the Communications Data Act 2012”.

(5) The Information Commissioner must keep under review the operation of—

(a) sections 3 and 6 of this Act, and

(b) any provisions in an order under section 1 of this Act which relate to the security of communications data held by telecommunications operators.

(6) A telecommunications operator who holds communications data by virtue of Part 1 or 2 of this Act, and the Secretary of State, must keep a sufficient record of things done by them in accordance with provision made by or under that Part to enable the Information Commissioner or (as the case may be) the Interception of Communications Commissioner effectively to discharge any relevant functions.

23 Scrutiny by the Investigatory Powers Tribunal

(1) In section 65 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Tribunal)—

(a) in subsection (5) (conduct in relation to which the Tribunal has jurisdiction), after paragraph (f), insert—

“(g) conduct required or permitted by virtue of an order under section 1 of the Communications Data Act 2012 (other than conduct which is subject to review by the Information Commissioner or conduct in respect of the giving of a notice by the Secretary of State);

(h) conduct to which Part 2 of the Act of 2012 applies.”,

(b) in subsection (7ZA) (conduct taking place in challengeable circumstances) for “23A or 32A” substitute “32A of this Act or section 11 of the Communications Data Act 2012”, and

(c) in subsection (8) (matters that may be challenged before the Tribunal), the word “or” at the end of paragraph (e) is repealed and, after paragraph (f), insert—

“(g) an order under section 1 of the Communications Data Act 2012;

(h) an authorisation under section 9 or 19 of that Act; or

(i) a notice of the kind mentioned in section 9(3)(d) of that Act.”

(2) In section 67(7) of the Act of 2000 (powers of the Tribunal) for paragraph (aa) (but not the word “and” at the end of it) substitute—

“(aa) an order quashing an order made under section 32A by the relevant judicial authority (within the meaning of that section);

(ab) an order quashing an order made under section 11 of the Communications Data Act 2012 by the relevant judicial authority (within the meaning of section 11 of that Act);”.

(3) In section 68(7) of the Act of 2000 (persons subject to duty to co-operate with the Tribunal)—

(a) after paragraph (m) (and before the word “and” at the end of that paragraph) insert—

“(ma) every person on whom a power or duty has been conferred by virtue of section 4(1) or 5, or an order under section 1, of the Communications Data Act 2012;

(mb) every person by or to whom an authorisation has been granted under section 9 or 19 of that Act;

(mc) every person to whom a notice of the kind mentioned in section 9(3)(d) of that Act has been given in pursuance of such an authorisation;

(md) any public authority designated under section 20 of that Act;”, and

(b) in paragraph (n) for “or (m)” substitute “, (m), (ma), (mc) or (md)”.

Abolition of powers to secure disclosure of communications data

Commentary

24 Abolition of powers to secure disclosure of communications data

(1) Schedule 2 (which contains repeals of certain general information powers so far as they enable public authorities to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator) has effect.

(2) Any general information power which—

(a) would otherwise enable a public authority to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator, and

(b) does not involve a court order or other judicial authorisation or warrant,

is to be read as not enabling the public authority to secure such a disclosure.

(3) The Secretary of State may by order amend, repeal or revoke any enactment in consequence of subsection (2).

(4) In this section—

“general information power” means—

(a) in relation to disclosure by a telecommunications operator, any power to obtain information or documents (however expressed) which—

(i) is conferred by or under an enactment other than this Act or the Regulation of Investigatory Powers Act 2000, and

(ii) does not deal (whether alone or with other matters) specifically with telecommunications operators or any class of telecommunications operators, and

(b) in relation to disclosure by a postal operator, any power to obtain information or documents (however expressed) which—

(i) is conferred by or under an enactment other than this Act or the Regulation of Investigatory Powers Act 2000, and

(ii) does not deal (whether alone or with other matters) specifically with postal operators or any class of postal operators,

“power” includes part of a power.

(5) References in subsections (2) and (4) to powers include duties (and references to enabling are accordingly to be read as including references to requiring).

General provisions

Commentary

25 Application of Parts 1 and 2 to postal operators and postal services

(1) Part 1 applies to public postal operators and public postal services as it applies to telecommunications operators and telecommunications services.

(2) In its application by virtue of subsection (1), Part 1 has effect as if—

(a) any reference to a telecommunications operator were a reference to a public postal operator, and

(b) any reference to a telecommunications service were a reference to a public postal service.

(3) Part 2 applies to postal operators and postal services as it applies to telecommunications operators and telecommunication systems.

(4) In its application by virtue of subsection (3), Part 2 has effect as if—

(a) any reference to a telecommunications operator were a reference to a postal operator, and

(b) any reference to a telecommunication system were a reference to a postal service.

(5) Nothing in this Act affects any power conferred on a postal operator by or under any enactment to open, detain or delay any postal packet (within the meaning given by section 125(1) of the Postal Services Act 2000) or to deliver any such packet to a person other than the person to whom it is addressed.

26 Operators’ costs of compliance with Parts 1 and 2

(1) The Secretary of State must ensure that arrangements are in force for securing that telecommunications operators and postal operators, or telecommunications operators or postal operators of a particular description, receive an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate.

(2) In subsection (1) “relevant costs” means costs incurred, or likely to be incurred, by telecommunications operators or postal operators in engaging in activities permitted or required by virtue of Part 1 or 2.

(3) The arrangements may provide for payment of a contribution to be subject to conditions.

(4) Such conditions may, in particular, include a condition on the telecommunications operator or postal operator concerned to comply with any audit that may reasonably be required to monitor the claim for costs.

(5) The arrangements may provide for the Secretary of State to determine—

(a) the scope and extent of the arrangements,

(b) whether or not contributions should be made to particular operators falling within the ambit of the arrangements, and

(c) the appropriate level of contribution (if any) which should be made in each case.

(6) For the purpose of complying with this section the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

27 Codes of practice in relation to Part 1 and 2 functions

Schedule 3 (which makes provision about codes of practice) has effect.

28 Interpretation general

(1) In this Act—

“apparatus” includes any equipment, machinery or device and any wire or cable,

“civil proceedings” means any proceedings in or before any court or tribunal that are not criminal proceedings,

“communication”—

(a) in relation to a telecommunications operator, telecommunications service or telecommunication system, includes—

(i) anything comprising speech, music, sounds, visual images or data of any description, and

(ii) signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus, and

(b) in relation to a postal operator or postal service (but not in the definition of “postal service” in this section), includes anything transmitted by a postal service,

“communications data”—

(a) in relation to a telecommunications operator, telecommunications service or telecommunication system, means traffic data, use data or subscriber data, and

(b) in relation to a postal operator or postal service, means—

(i) postal data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of a postal service by means of which it is being or may be transmitted,

(ii) information about the use made by any person of a postal service (but excluding the contents of a communication (apart from information within sub-paragraph (i)),

(iii) information not within sub-paragraph (i) or (ii) that is held or obtained by a person providing a postal service in relation to persons to whom the service is provided by that person,

“criminal proceedings” includes proceedings before a court in respect of a service offence within the meaning of the Armed Forces Act 2006,

“document” includes a map, plan, design, drawing, picture or other image,

“enactment” means an enactment whenever passed or made; and includes—

(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978,

(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,

(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation, and

(d) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,

“interception” has the same meaning as in the Regulation of Investigatory Powers Act 2000 (see sections 2 and 81 of that Act),

“legal proceedings” means—

(a) civil or criminal proceedings in or before a court or tribunal, or

(b) proceedings before an officer in respect of a service offence within the meaning of the Armed Forces Act 2006,

“person” includes an organisation and any association or combination of persons,

“postal data” means data which—

(a) identifies, or purports to identify, a person, apparatus or location to or from which a communication is or may be transmitted,

(b) identifies or selects, or purports to identify or select, apparatus through which, or by means of which, a communication is or may be transmitted,

(c) identifies, or purports to identify, the time at which an event relating to a communication occurs, or

(d) identifies the data or other data as data comprised in or attached to a particular communication,

and for the purposes of this definition “data”, in relation to a postal item, includes anything written on the outside of the item,

“postal item” means—

(a) any letter, postcard or other such thing in writing as may be used by the sender for imparting information to the recipient, or

(b) any packet or parcel,

“postal operator” means a person providing a postal service,

“postal service” means a service that—

(a) consists in the following, or in any one or more of them, namely, the collection, sorting, conveyance, distribution and delivery (whether in the United Kingdom or elsewhere) of postal items, and

(b) has as its main purpose, or one of its main purposes, to make available, or to facilitate, a means of transmission from place to place of postal items containing communications,

“primary legislation” means—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) a Measure or Act of the National Assembly for Wales, or

(d) Northern Ireland legislation,

“public authority” means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal,

“public postal operator” means a person providing a public postal service,

“public postal service” means a postal service that is offered or provided to the public or a substantial section of the public,

“specified”, in relation to an order, notice or authorisation, means specified or described in the order, notice or (as the case may be) authorisation (and “specify” is to be read accordingly),

“statutory”, in relation to a function, means a function conferred or imposed by or under an enactment,

“subordinate legislation” means—

(a) subordinate legislation within the meaning of the Interpretation Act 1978, or

(b) an instrument made under an Act of the Scottish Parliament, Northern Ireland legislation or a Measure or Act of the National Assembly for Wales,

“subscriber data” has the meaning given by subsection (5),

“the Technical Advisory Board” has the meaning given by section 2(5),

“telecommunications operator” means a person who—

(a) controls or provides a telecommunication system, or

(b) provides a telecommunications service,

“telecommunication system” means a system (including the apparatus comprised in it) that exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy,

“telecommunications service” means a service that consists in the provision of access to, and of facilities for making use of, a telecommunication system (whether or not one provided by the person providing the service),

“traffic data” has the meaning given by subsections (2) and (3),

“use data” has the meaning given by subsection (4).

(2) “Traffic data” means data—

(a) which is comprised in, attached to or logically associated with a communication (whether by the sender or otherwise) for the purposes of a telecommunication system by means of which the communication is being or may be transmitted, and

(b) which—

(i) identifies, or purports to identify, any person, apparatus or location to or from which the communication is or may be transmitted,

(ii) identifies or selects, or purports to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,

(iii) comprises signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of the communication,

(iv) identifies, or purports to identify, the time at which an event relating to the communication occurs, or

(v) identifies data as comprised in, attached to or logically associated with the communication.

The references in this subsection to a telecommunication system by means of which a communication is being or may be transmitted include, in relation to data comprising signals for the actuation of apparatus, any telecommunication system in which that apparatus is comprised.

(3) Data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication is not “traffic data” except to the extent that the file or program is identified by reference to the apparatus in which it is stored.

(4) “Use data” means information—

(a) which is about the use made by a person—

(i) of a telecommunications service, or

(ii) in connection with the provision to or use by any person of a telecommunications service, of any part of a telecommunication system, but

(b) which does not (apart from any information falling within paragraph (a) which is traffic data) include any of the contents of a communication.

(5) “Subscriber data” means information (other than traffic data or use data) held or obtained by a person providing a telecommunications service about those to whom the service is provided by that person.

(6) Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by an authorisation or notice or an order under section 1, or by virtue of which information may be obtained in any manner, is to be read—

(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act,

(b) as otherwise requiring—

(i) the grant, giving or making of such an authorisation, notice or order, or

(ii) the taking of any step for or towards obtaining the authority of such an authorisation, notice or order,

before any such conduct of that description is engaged in, or

(c) as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.

Final provisions

Commentary

29 Orders

(1) Any power of the Secretary of State or the Treasury to make an order under this Act—

(a) is exercisable by statutory instrument,

(b) may be exercised so as to make different provision for different cases or descriptions of case, different circumstances, different purposes or different areas, and

(c) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision.

(2) A statutory instrument containing—

(a) an order under section 1, 9(7), 11(6), 17 or 20,

(b) an order under section 21 that—

(i) designates a public authority under paragraph (e) of the definition of “relevant public authority” in subsection (1) of that section, or

(ii) amends or repeals any provision of primary legislation, or

(c) an order under section 24(3) or 31 which amends or repeals any provision of primary legislation,

may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(3) A statutory instrument containing—

(a) an order under section 11(4) or 12 or paragraph 3(1)(b) of Schedule 1, or

(b) an order under section 21, 24(3) or 31 to which subsection (2) above does not apply,

is (if a draft of the instrument has not been laid before, and approved by a resolution of, each House of Parliament) subject to annulment in pursuance of a resolution of either House of Parliament.

(4) A statutory instrument containing an order under paragraph 5 of Schedule 1 is subject to annulment in pursuance of a resolution of the House of Commons.

30 Financial provisions

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by the Secretary of State by virtue of this Act, and

(b) any increase attributable to this Act in the sums payable by virtue of any other Act out of money so provided.

31 Consequential provision

(1) Schedule 4 (consequential provision) has effect.

(2) The Secretary of State may by order make such provision as the Secretary of State considers appropriate in consequence of this Act.

(3) The power to make an order under this section may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an enactment.

32 Transitional, transitory or saving provision

(1) The Secretary of State may by order make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act.

(2) An order under subsection (1) may, in particular, make such transitory provision as the Secretary of State considers appropriate in consequence of any provision of the Police and Fire Reform (Scotland) Act 2012 not coming into force before any provision of this Act.

(3) Such an order may, in particular, modify—

(a) paragraph (a) of the definition of “relevant person” in section 11(6) of this Act to exclude an individual holding an office, rank or position in a fire and rescue authority in Scotland,

(b) section 19 of this Act for the purpose of making provision in relation to police forces maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 which corresponds to provision made by section 19 in relation to England and Wales police forces, or

(c) the reference to the Police Service of Scotland in the definition of “police force” in section 21(1) of this Act.

(4) Subsections (2) and (3) do not limit the scope of the power conferred by subsection (1).

33 Short title, commencement and extent

(1) This Act may be cited as the Communications Data Act 2012.

(2) Subject to subsection (3), this Act comes into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(3) Sections 29, 30, 31(2) and (3) and 32 and this section come into force on the day on which this Act is passed.

(4) Subject to subsection (5), this Act extends to England and Wales, Scotland and Northern Ireland.

(5) An amendment, repeal or revocation of an enactment has the same extent as the enactment amended, repealed or revoked.

Schedules

Schedule 1: Transfer and Agency Arrangements with Public Authorities: Further Provisions

Commentary

No transfer of functions without consent of transferee and suitable arrangements

1 No order may be made under section 20(1) transferring functions to a designated public authority unless the Secretary of State considers that the authority—

(a) is willing to exercise the functions concerned, and

(b) will have arrangements in place which are likely to ensure that the functions will be exercised effectively and in accordance with any requirements or other provision made by the order.

Particular safeguards in connection with operation of section 16

2 (1) The following provisions apply where the functions of the Secretary of State under section 16 are exercisable by a designated public authority by virtue of an order under section 20(1).

(2) The measures adopted or arrangements made by the public authority for the purpose of complying with the requirements of section 16 must be such as are approved by the Secretary of State.

(3) Any report required by section 16(5)(b) or (7) must be made to the Secretary of State as well as to the Interception of Communications Commissioner.

Requirement for transferee to provide reports to Secretary of State

3 (1) A designated public authority exercising functions by virtue of an order under section 20(1) must, at least once in each calendar year, make a report to the Secretary of State on—

(a) the discharge of the functions, and

(b) such other matters as the Secretary of State may by order require.

(2) An order under section 20(1) may, in particular, modify sub-paragraph (1) as it has effect in relation to the calendar year in which the order comes into force or is revoked.

(3) The Secretary of State may agree to a report under this paragraph being combined with any other report which the authority is required to, or may, make to the Secretary of State.

Transfer schemes in connection with transfer of functions

4 (1) The Secretary of State may, in connection with an order under section 20(1), make a scheme for the transfer of property, rights or liabilities.

(2) The things that may be transferred under a transfer scheme include—

(a) property, rights and liabilities which could not otherwise be transferred,

(b) property acquired, and rights and liabilities arising, after the making of the scheme.

(3) A transfer scheme may make consequential, supplementary, incidental, transitional, transitory or saving provision and may, in particular—

(a) create rights, or impose liabilities, in relation to property or rights transferred,

(b) make provision about the continuing effect of things done by, on behalf of or in relation to the transferor in respect of anything transferred,

(c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred,

(d) make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee,

(e) make provision for the shared ownership or use of property,

(f) if the TUPE regulations do not apply in relation to the transfer, make provision which is the same or similar.

(4) A transfer scheme may provide—

(a) for modification by agreement,

(b) for modifications to have effect from the date when the original scheme came into effect.

(5) A transfer scheme may confer a discretion on the Secretary of State to pay compensation to any person whose interests are adversely affected by the scheme.

(6) A transfer scheme may be included in an order under section 20(1) but, if not so included, must be laid before Parliament after being made.

(7) For the purposes of this section references to rights and liabilities include references to—

(a) rights and liabilities relating to a contract of employment, and (b) rights and liabilities of the Crown relating to the terms of employment of individuals in the civil service.

(8) Accordingly, a transfer scheme may, in particular, provide—

(a) for—

(i) an individual employed in the civil service to become an employee of the transferee, or

(ii) an employee of the transferor to become an employee of the transferee or an individual employed in the civil service,

(b) for—

(i) the individual’s terms of employment in the civil service to have effect (subject to any necessary modifications) as the terms of the individual’s contract of employment with the transferee, or

(ii) (as the case may be) the individual’s contract of employment to have effect (subject to any necessary modifications) as the terms of the individual’s contract of employment with the transferee or, where the transferee is the Secretary of State, the individual’s terms of employment with the civil service,

(c) for the transfer of rights and liabilities of the Crown or another public authority under or in connection with the individual’s terms of employment.

(9) In this paragraph—

“civil service” means the civil service of the State,

“TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246),

references to the transfer of property include the grant of a lease.

Tax in connection with transfer schemes

5 (1) The Treasury may by order make provision varying the way in which a relevant tax has effect in relation to—

(a) anything transferred under a transfer scheme, or

(b) anything done for the purposes of, or in relation to, a transfer under a transfer scheme.

(2) The provision which may be made under sub-paragraph (1)(a) includes, in particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation to anything transferred,

(b) anything transferred to be treated in a specified way for the purposes of a tax provision,

(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything transferred.

(3) The provision which may be made under sub-paragraph (1)(b) includes, in particular, provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, the transfer,

(b) anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way,

(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, the transfer.

(4) In this paragraph— “relevant tax” means income tax, corporation tax, capital gains tax, stamp duty, stamp duty reserve tax or stamp duty land tax, “tax provision” means any provision—

(a) about a relevant tax, and

(b) made by an enactment, “transfer scheme” means a transfer scheme under paragraph 4, and references to the transfer of property include the grant of a lease.

Supplementary and other general provision

6 (1) The power to make an order under section 20(1) includes, in particular, power to—

(a) modify any enactment about a public authority for the purpose of enabling or otherwise facilitating any function under sections 14 to 5 16 to be exercisable by the authority,

(b) impose requirements or confer other functions on a public authority in connection with functions transferred by the order.

7 The power to make an order under—

(a) section 20, or

(b) paragraph 5 above,

including that power as extended (whether by section 29(1) or otherwise) may, in particular, be exercised by modifying any enactment (including this Act).

Schedule 2: Abolition of Disclosure Powers

Commentary

Trade Descriptions Act 1968 (c. 29)

1 In section 28 of the Trade Descriptions Act 1968 (power to enter premises and inspect and seize goods and documents), at end, insert—

“(8) Nothing in this section is to be read as enabling an officer to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(9) In subsection (8) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Health and Safety at Work etc. Act 1974 (c. 37)

2 In section 20 of the Health and Safety at Work etc. Act 1974 (powers of inspectors), at end, insert—

“(9) Nothing in this section is to be read as enabling an inspector to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(10) In subsection (9) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Criminal Justice Act 1987 (c. 38)

3 In section 2 of the Criminal Justice Act 1987 (investigation powers of Director of Serious Fraud Office), after subsection (10), insert—

“(10A) Nothing in this section is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(10B) In subsection (10A) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Consumer Protection Act 1987 (c. 43)

4 In section 29 of the Consumer Protection Act 1987 (powers of search etc.), at end, insert—

“(8) The officer may not exercise a power under this section to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(9) In subsection (8) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Environmental Protection Act 1990 (c. 43)

5 In section 71 of the Environmental Protection Act 1990 (obtaining of information from persons and authorities), at end, insert—

“(5) Nothing in this section is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(6) In subsection (5) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act)."

Social Security Administration Act 1992 (c. 5)

6 In section 109B of the Social Security Administration Act 1992 (power to require information)—

(a) in subsection (2A), paragraph (j) is repealed,

(b) in subsection (2E), for the words from “for” to the end of the subsection substitute “so as to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.”,

(c) subsection (2F) is repealed, and

(d) in subsection (7)—

(i) after the definition of “bank” insert—

““communications data” has the same meaning as in the Communications Data Act 2012 (see section 28 of that Act);”,

(ii) after the definition of “insurer” insert—

““postal operator” has the same meaning as in the Communications Data Act 2012 (see section 28 of that Act);”, and

(iii) for the definition of “telecommunications service” substitute—

““telecommunications operator” has the same meaning as in the Communications Data Act 2012 (see section 28 of that Act);”.

7 In section 109C of the Social Security Administration Act 1992 (powers of entry), for subsection (6), substitute—

“(6) Subsections (2E) and (5) of section 109B apply for the purposes of this section as they apply for the purposes of that section.”

Competition Act 1998 (c. 41)

8 In section 26 of the Competition Act 1998 (powers of the Office of Fair Trading when conducting investigations), after subsection (6), insert—

“(7) Nothing in this section is to be read as enabling the OFT to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(8) In subsection (7) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Financial Services and Markets Act 2000 (c. 8)

9 In section 175 of the Financial Services and Markets Act 2000 (information gathering and investigations: supplemental provision), after subsection (5), insert—

“(5A) Nothing in this Part is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(5B) In subsection (5A) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Enterprise Act 2002 (c. 40)

10 In section 224 of the Enterprise Act 2002 (enforcement of consumer legislation: information gathering powers of the Office of Fair Trading), at end, insert—

“(3) Nothing in this section is to be read as enabling the OFT to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(4) In subsection (3) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

11 In section 225 of the Enterprise Act 2002 (enforcement of consumer legislation: information gathering powers of certain enforcers), at end, insert—

“(4) Nothing in this section is to be read as enabling an enforcer to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(5) In subsection (4) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Finance Act 2008 (c. 9)

12 In Schedule 36 to the Finance Act 2008 (information and inspection powers), in paragraph 19 (restrictions on powers: types of information), at end, insert—

“(4) An information notice does not require a telecommunications operator or postal operator to provide or produce communications data.

(5) In sub-paragraph (4) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Communications Data Act 2012 (see section 28 of that Act).”

Schedule 3: Codes of Practice in Relation to Part 1 and 2 Functions

Commentary

1 The Regulation of Investigatory Powers Act 2000 is amended as follows.

2 In section 71(2) (issue and revision of codes of practice: powers and duties in respect of which code of practice must be issued)—

(a) for “subsection (10)” substitute “subsections (10) and (11)”,

(b) for “of section 23A or 32A” substitute “given by section 32A(7) of this Act or section 11(6) of the Communications Data Act 2012”,

(c) the word “and” at the end of paragraph (b) is repealed, and

(d) after paragraph (c) insert “; and “(d) Parts 1 and 2 of the Communications Data Act 2012.”

3 For subsections (3) to (9) of section 71 substitute—

“(3) Before issuing a code the Secretary of State must—

(a) prepare and publish a draft of the code, and

(b) consider any representations made about it,

and may modify the draft.

(4) A code does not come into operation until the Secretary of State by order so provides.

(5) An order bringing a code into operation may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6) When a draft of an order is laid, the code to which it relates must also be laid.

(7) No draft of an order may be laid until the consultation required by subsection (3) has taken place.

(8) An order bringing a code into operation may include transitional or saving provisions.”

4 After subsection (10) of section 71 insert—

“(11) The reference in subsection (2) to powers and duties conferred by or under Part 1 of the Communications Data Act 2012 does not include a reference to any such powers and duties which are conferred on the Secretary of State.”

5 In the heading to section 71, the words “and revision” are repealed.

6 After section 71 insert—

“71A Revision of codes of practice

(1) The Secretary of State may from time to time revise the whole or part of a code of practice issued under section 71.

(2) Before issuing any revision of a code the Secretary of State must— (a) prepare and publish a draft, and (b) consider any representations made about it,

and may modify the draft.

(3) A revision of a code does not come into operation until the Secretary of State by order so provides.

(4) An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House of Parliament.

(5) When an order or draft of an order is laid, the revision of a code to which it relates must also be laid.

(6) No order or draft of an order may be laid until the consultation required by subsection (2) has taken place.

(7) An order bringing a revision of a code into operation may include transitional or saving provisions.”

7 In section 72 (effect of codes of practice: functions of relevant Commissioners)—

(a) in subsection (4)(c) after “this Act” insert “or the Communications Data Act 2012”, and

(b) in subsection (5) after “Intelligence Services Commissioner” insert “, the Information Commissioner”.

Schedule 4: Consequential Provision

Commentary

PART 1 GENERAL CONSEQUENTIAL PROVISION

Northern Ireland Act 1998 (c. 47)

1 (1) Paragraph 9(1) of Schedule 3 to the Northern Ireland Act 1998 (reserved matters) is amended as follows.

(2) After “following matters—” insert—

“(za) the subject matter of Part 2 of the Communications Data Act 2012 so far as relating to—

(i) the prevention or detection of crime (within the meaning of that Part of that Act), or

(ii) the prevention of disorder;”.

(3) In paragraph (a)(ii), paragraph (aa) and the word “and” at the end of paragraph (aa) are repealed.

Regulation of Investigatory Powers Act 2000 (c. 23)

2 The Regulation of Investigatory Powers Act 2000 is amended as follows.

3 In section 2 (meaning and location of “interception” etc.)—

(a) in subsection (9), at the end of paragraph (c) (and before “and”), insert—

“(ca) any data identifying, or purporting to identify, the time at which an event relating to the communication occurs,”, and

(b) in subsection (10) for “means”, where it appears for the second time, substitute “includes”.

4 In section 20 (interception: interpretation), in the definition of “related communications data”, for “of Chapter II of this Part” substitute “given by section 28 of the Communications Data Act 2012 (communications data: interpretation)”.

5 Sections 21 to 25 (acquisition and disclosure of communications data) are repealed.

6 The following provisions are repealed (repeals consequential on repeal of sections 21 to 25)—

(a) section 57(2)(b),

(b) in section 58(1)—

(i) paragraphs (g) and (h), and (ii) in paragraph (j), the text “, (h)”,

(c) section 65(5)(c) and (8)(b), and

(d) in section 68(7)—

(i) paragraphs (g) and (h), and

(ii) in paragraph (n), the text “, (h)”.

7 In section 49(1)(c) (notices requiring disclosure) for the words from “an authorisation” to “section 22(4)” substitute “virtue of an authorisation under section 9 or 19 of the Communications Data Act 2012 or Part 2 of this Act”.

8 In section 77A (procedure for order of sheriff under section 23A or 32A: Scotland)—

(a) in the heading for “23A or 32A” substitute “32A of this Act or section 11 of the Communications Data Act 2012”,

(b) in subsection (1) for “23A or 32A” substitute “32A of this Act or section 11 of the Communications Data Act 2012”, and

(c) in subsection (3) for “sections 23B and 32B and this section” substitute “section 32B and this section of this Act and section 11 of the Communications Data Act 2012”.

9 In section 77B (procedure for order of district judge under section 23A or 32A: Northern Ireland)—

(a) in the heading for “23A or 32A” substitute “32A of this Act or section15 11 of the Communications Data Act 2012”,

(b) in subsection (1) for “23A or 32A” substitute “32A of this Act or section 11 of the Communications Data Act 2012”, and

(c) in subsection (4)—

(i) for “23A or 32A” substitute “32A of this Act or section 11 of the Communications Data Act 2012”, and

(ii) for “sections 23B and 32B and any order made under this section” substitute “section 32B of this Act, any order made under this section, and section 11 of the Communications Data Act 2012”.

10 In section 78(3)(a) (orders subject to negative instrument procedure) the words “22(9), 23A(6), 25(5),” are repealed.

11 In section 81(9) (interpretation), the word “23A(7)(b),” is repealed.

Anti-terrorism, Crime and Security Act 2001 (c. 24)

12 Part 11 of the Anti-terrorism, Crime and Security Act 2001 (retention of communications data) is repealed.

Wireless Telegraphy Act 2006 (c. 36)

13 (1) Section 49 of the Wireless Telegraphy Act 2006 (interception authorities) is amended as follows.

(2) In subsection (2)—

(a) paragraph (c) and the word “or” at the end of paragraph (c) are repealed, and

(b) after paragraph (d) insert “; or

(e) conduct that is capable of being authorised by virtue of an authorisation under Part 2 of the Communications Data Act 2012 (regulatory regime for obtaining communications data).”

(3) In subsection (10)—

(a) in the opening words, for “Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c 23) or under Part 2 of that Act” substitute “Part 2 of the Regulation of Investigatory Powers Act 2000 or by virtue of an authorisation under Part 2 of the Communications Data Act 2012”, and

(b) in paragraphs (a) and (b), the words “that Chapter or” are repealed.

(4) In subsection (11), after “Part 1 or 2 of the Regulation of Investigatory 5 Powers Act 2000” insert “or Part 2 of the Communications Data Act 2012”.

PART 2 MINOR CONSEQUENTIAL REPEALS AND REVOCATIONS

Title	Extent of repeal or revocation
Serious Organised Crime and Police Act 2005 (c. 15)	In Schedule 4, paragraph 135.
Serious Crime Act 2007 (c. 27)	In Schedule 12, paragraphs 7 and 8.
Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (S.I. 2007/1098)	In the Schedule, paragraph 4(5).
Policing and Crime Act 2009 (c. 26)	Section 7. Part 2 of Schedule 7.
Protection of Freedoms Act 2012 (c. 9)	Section 37. In Schedule 9, paragraphs 7, 8, 10, 13 and 16(b)(i) (and the word “and” at the end of paragraph 16(b)(i)).