The Act Commentary on Sections Part 2: Regulation of surveillance Section 37: Judicial approval for obtaining or disclosing communications data
163.Section 37 inserts new sections 23A and 23B into the Regulation of Investigatory Powers Act 2000 (“RIPA”) which provide a procedure by which local authority authorisations or notices to obtain “communications data”, or renewals of those authorisations or notices, can only come into effect if approved by a relevant judicial authority. In England and Wales, the judicial authority is a justice of the peace (Magistrates’ Court), in Northern Ireland it is a district judge (magistrates’ court) and in Scotland, a sheriff. The section also provides a mechanism by which the requirement for judicial approval may be applied to authorisations or notices granted by officials in other public authorities by order made by the Secretary of State.
164.Communications data is defined in section 21 of RIPA. In summary it is information such as telephone numbers dialled, times of calls, details of callers and receivers, and website addresses. In the case of postal items, communications data includes anything written on the outside of the item. Under Chapter 2 of Part 1 of RIPA, conduct consisting in the acquisition or disclosure of communications data is rendered lawful if it is authorised or carried out pursuant to an authorisation or notice granted or given in accordance with the provisions in sections 22 and 23 of RIPA.
165.Authorisations must not be granted or renewed, and notices must not be given or renewed, save by a person of a description designated by order under section 25(2) of RIPA. The designated person must not grant or renew an authorisation, or give or renew a notice, unless they believe that it is necessary to obtain the data on grounds specified in section 22 of RIPA, and that obtaining the data in question is proportionate to what is sought to be achieved by obtaining the data. By section 25(3), the Secretary of State may by order impose restrictions on the types of authorisations or notices that may be granted by individuals within specified public authorities, and on the circumstances in which, and the purposes for which, authorisations may be granted or notices given by those individuals. In the case of local authorities, such designated persons must be staff of at least Director, Head of Service or Service Manager grade or equivalent. These designated persons may not grant authorisations or notices save for the purpose of preventing or detecting crime or preventing disorder (see the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480)).
166.New section 23A(1) of RIPA provides that new section 23A applies where a “relevant person” has granted or renewed an authorisation, or given or renewed a notice under section 22 of RIPA. New section 23A(6) defines a “relevant person” for these purposes as either a designated person within a local authority in England, Wales or Scotland, or a designated person in Northern Ireland where the grant, renewal or authorisation relates to an excepted or reserved matter. A relevant person may also be any other person of a description prescribed by order of the Secretary of State. Such an order cannot make provision in relation to a matter that has been transferred to the competence of the Northern Ireland Assembly. An order made by the Secretary of State to prescribe additional relevant persons to whom the judicial approval requirement will apply would be subject to the affirmative resolution procedure (new section 23A(7)). By this mechanism the requirement to obtain judicial approval for the use of the powers to obtain or disclose communications data will only initially apply to local authorities, but the Secretary of State will subsequently be able to extend the requirement to other public bodies able to exercise these powers.
167.New section 23A(2) provides that an authorisation or notice granted or renewed under the relevant provisions in section 22 of RIPA will not take effect until the “relevant judicial authority” has given its approval. The relevant judicial authority is defined in new section 23A(6).
168.New section 23A(3) sets out the test for the judicial approval of a local authority authorisation, or renewal of an authorisation, to obtain communications data. The relevant judicial authority must be satisfied that not only were there reasonable grounds for the designated person to believe that obtaining communications data was necessary and proportionate (subsection (3)(a)(i)), but that there also remain reasonable grounds for believing so (subsection (3)(b)). The judicial authority must also be satisfied that the “relevant conditions”, which relate to the authorisation or notice, were met (subsection (3)(a)(ii)). New section 23A(4) sets out the same test for the judicial approval of the giving and renewal of notices to obtain communications data.
169.New section 23A(5) lists the relevant conditions that must be met if the relevant judicial authority is to approve the making or renewing of an authorisation or notice. For local authorities, in England, Wales and Scotland (and in Northern Ireland where the authorisation or notice is granted or given for the purpose relating to an excepted or reserved matter), these conditions are: (a) whether the person making the authorisation was of the correct office, rank or position and was accordingly a designated person within the meaning of Chapter 2 of Part 1 of RIPA; (b) whether the authorisation or notice was in breach of any other restrictions imposed by the Secretary of State by virtue of the power at section 25(3); and (c) whether the authorisation or notice satisfied any other conditions set out in an order (subject to the negative resolution procedure) made by the Secretary of State. In relation to conditions (a) and (b), the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480) applies. For authorisations or notices granted or given by public authorities other than local authorities to which the judicial approval requirement may in the future be applied, the relevant conditions are those that will be set out in an order (subject to the negative resolution procedure) made by the Secretary of State. New section 23A(6) defines various terms used in new section 23A.
170.New section 23B sets out the procedure for obtaining judicial approval for an authorisation, or notice, to obtain communications data.
171.New section 23B(1) provides that the public authority to which the relevant person (authorising officer) belongs may apply for approval from the relevant judicial authority for an authorisation or a notice to obtain communications data. The relevant person is not required to apply in person; the same procedure applies to renewals.
172.New section 23B(2) provides that notice of such applications need not be given to either the subject of the authorisation or notice or to their legal representatives; this reflects the covert nature of the exercise of the investigatory powers under RIPA.
173.New section 23B(3) allows the relevant judicial authority on refusing an approval of an authorisation or a notice to quash that authorisation or notice.