Electronic Communications Bill

 ARRANGEMENT OF CLAUSES

PART I

CRYPTOGRAPHY SERVICE PROVIDERS

PART II

FACILITATION OF ELECTRONIC COMMERCE, DATA STORAGE, ETC.

9. Section 8 orders. [j411]

PART III

INVESTIGATION OF PROTECTED ELECTRONIC DATA

18. The Tribunal. [j207]

PART IV

MISCELLANEOUS AND SUPPLEMENTAL

Schedules:

Schedule 1 —Persons having theappropriate permission [j201S].

Schedule 2 —The Tribunal [j207s].

A

1.—(1) It shall be the duty of the Secretary of State to establish and
maintain a register of approved providers of cryptography support services.

(2) The Secretary of State shall secure that the register contains particulars
of every person who is for the time being approved under any arrangements in
force under section 2.

(3) The particulars that must be recorded in every entry in the register
relating to an approved person are—

(a) the name and address of that person;

(b) the services in respect of which that person is approved; and

(c) the conditions of the approval.

(4) It shall be the duty of the Secretary of State to ensure that such
arrangements are in force as he considers appropriate for—

2.—(1) It shall be the duty of the Secretary of State to secure that there are
arrangements in force for granting approvals to persons who—

(a) are or are proposing to provide cryptography support services in the United Kingdom; and

(b) seek approval in respect of any such services that they are providing, or are proposing to provide, whether in the United Kingdom or
elsewhere.

(2) The arrangements must—

(a) allow for an approval to be granted either in respect of all the
services in respect of which it is sought or in respect of only some of
them;

(b) ensure that an approval is granted to a person in respect of any services only if subsection (3) applies in that person’s case;

(c) provide for an approval granted to any person to have effect subject to such conditions (whether or not connected with the provision of the
services in respect of which the approval is granted) as may be
contained in the approval;

(d) enable a person to whom the Secretary of State is proposing to grant
an approval to refuse it if the proposal is in different terms from the
approval which was sought;

(e) make provision for the handling of complaints and disputes which—

(i) fall to be dealt with in accordance with a procedure
maintained by an approved person in accordance with the
conditions of his approval; but

(ii) have failed to be disposed of by the application of that
procedure;

(f) provide for the modification and withdrawal of approvals.

(3) This subsection applies in a person’s case if the Secretary of State is
satisfied that that person—

(a) will comply, in providing the services in respect of which he is
approved, with such technical and other requirements as may be
prescribed;

(b) is a person in relation to whom such other requirements as may be
prescribed are, and will continue to be, satisfied;

(c) is, and will continue to be, able and willing to comply with any
requirements that the Secretary of State is proposing to impose by
means of conditions of the approval; and

(d) is otherwise a fit and proper person to be approved in respect of
those services.

(4) Regulations made by virtue of paragraph (a) or (b) of subsection (3)
may frame a requirement for the purposes of that subsection by reference to
the opinion of a person specified in the regulations, or of a person chosen in a
manner determined in accordance with the regulations.

(5) The requirements that may be imposed by conditions contained in an
approval in accordance with the arrangements include—

(a) requirements to provide information to such persons, in such form, at
such times and in response to such requests as may be specified in or
determined under the terms of the condition;

(b) requirements that impose obligations that will continue or recur
notwithstanding the withdrawal (in whole or in part) of the
approval;

(c) requirements framed by reference to the opinion or directions of a
person specified in or chosen in accordance with provision
contained in the conditions.

(6) Any requirement to provide information that is imposed in accordance
with the arrangements on any person by the conditions of his approval shall
be enforceable at the suit or instance of the Secretary of State.

(7) Where any arrangements under this section so provide, a person
who—

(a) seeks an approval under the arrangements,

(b) applies for a modification of such an approval,

(c) is for the time being approved under the arrangements, or

(d) has his approval under the arrangements modified wholly or partly in
consequence of an application made by him,

shall pay to the Secretary of State, at such time or times as may be
prescribed, such fee or fees as may be prescribed in relation to that time or
those times.

3.—(1) The Secretary of State may appoint any person to carry out, in his
place, such of his functions under the preceding provisions of this Part (other
than any power of his to make regulations) as may be specified in the
appointment.

(2) An appointment under this section—

(a) shall have effect only to such extent, and subject to such conditions,
as may be set out in the appointment; and

(b) may be revoked or varied at any time by a notice given by the
Secretary of State to the appointed person.

(3) A person appointed under this section shall, in the carrying out of the
functions specified in his appointment, comply with all such general
directions as may be given to him from time to time by the Secretary of
State.

(4) Subject to any order under subsection (5) and to any directions given
by the Secretary of State, where a body established by or under any
enactment or the holder of any office created by or under any enactment is
appointed to carry out any functions of the Secretary of State under this
Part—

(a) the enactments relating to the functions of that body or office shall
have effect as if the functions of that body or office included the
functions specified in the appointment; and

(5) The Secretary of State may, by order made by statutory instrument,
provide for enactments relating to any such body or office as is mentioned in
subsection (4) to have effect, so far as appears to him appropriate for
purposes connected with the carrying out of functions that have been or may
be conferred on the body or office-holder under this section, with such
modifications as may be provided for in the order.

(6) An order shall not be made under subsection (5) unless a draft of it has
first been laid before Parliament and approved by a resolution of each House.

(7) It shall be the duty of the Secretary of State to secure—

(a) that any appointment made under this section is published in such
manner as he considers best calculated to bring it to the attention of
persons likely to be interested in it;

(b) that any variation or revocation of such an appointment is also so
published; and

(c) that the time fixed for any notice varying or revoking such an
appointment to take effect allows what appears to him to be a
reasonable period after the giving of the notice for the making of
any necessary incidental or transitional arrangements.

(8) Nothing in this section, or in anything done under this section, shall
prejudice—

(a) any power of the Secretary of State, apart from this Act, to exercise
functions through a Minister or official in his department;

(b) any power of any person by virtue of subsection (4), or by virtue of an
order under subsection (5), to act on behalf of a body or office-holder
in connection with the carrying out of any function;

shall, during the lifetime of that individual or so long as that business
continues to be carried on, be disclosed without the consent of that
individual or the person for the time being carrying on that business.

(2) Subsection (1) does not apply to any disclosure of information which is
made—

(a) for the purpose of facilitating the carrying out of any functions under
this Part, or any prescribed functions, of the Secretary of State or a
person appointed under section 3;

(b) for the purpose of facilitating the carrying out of any functions of a
local weights and measures authority in Great Britain;

(c) for the purpose of facilitating the carrying out of prescribed functions
of any prescribed person;

(d) in connection with the investigation of any criminal offence or for
the purposes of any criminal proceedings;

(e) for the purposes of any civil proceedings which—

(i) relate to the provision of cryptography support services;
and

(ii) are proceedings to which a person approved in accordance
with arrangements under section 2 is a party;

(f) for the purposes of any proceedings before the Tribunal established
under section 18; or

(g) in pursuance of a Community obligation.

(3) In subsection (2)(a) the reference to functions under this Part does not
include a reference to any power of the Secretary of State to make
regulations.

(4) If information is disclosed to the public in circumstances in which the
disclosure does not contravene this section, this section shall not prevent its
further disclosure by any person.

(5) Any person who discloses any information in contravention of this
section shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory
maximum;

(2) The powers of the Secretary of State to make regulations under this
Part shall be exercisable by statutory instrument subject to annulment in
pursuance of a resolution of either House of Parliament.

(3) Regulations made by the Secretary of State under any provision of this
Part—

(a) may make different provision for different cases; and

6.—(1) In this Part "cryptography support service" means any service
which is provided to the senders or recipients of electronic communications,
or to those storing electronic data, and is designed to facilitate the use of
encryption—

(a) for securing that such communications or data can be accessed, or
can be put into an intelligible form, only by certain persons; or

(b) for securing that the authenticity or integrity of such
communications is capable of being ascertained.

(2) References in this Part to the provision of a cryptography support
service include references to the supply of, or of any right to use, computer
software or computer hardware if, and only if, the supply is intended to be no
more than incidental to the provision by the same person of cryptography
support services not consisting in such a supply.

(3) For the purposes of this Part cryptography support services are
provided in the United Kingdom if—

(a) they are provided from premises in the United Kingdom;

(b) they are provided to a person who is in the United Kingdom when he
makes use of the services; or

7.—(1) In any legal proceedings—

(a) an electronic signature incorporated or logically associated with a
particular electronic communication, and

(b) the certification by any person of such a signature,

shall each be admissible in evidence in relation to any question as to the
authenticity of the communication or its integrity.

(2) For the purposes of this section an electronic signature is so much of
anything in electronic form as—

(a) is incorporated into or otherwise logically associated with an
electronic communication; and

(b) purports to be so incorporated or associated for the purpose of being
used in establishing the authenticity of the communication or its
integrity, or both.

(3) For the purposes of this section an electronic signature incorporated
into or associated with a particular electronic communication is certified by
any person if that person (whether before or after the making of the
communication) has certified either—

(a) the signature, or

(b) a procedure to be applied to the signature,

as a valid means of establishing the authenticity of the communication or its
integrity, or both.

(2) Those purposes are—

(a) the doing of anything which under those provisions is to be or may
be done in writing or otherwise using a document, notice or
instrument;

(b) the doing of anything which under those provisions is to be or may
be done by post or other specified means of delivery;

(c) the doing of anything which under those provisions is to be or may
be authorised by a person’s signature or seal, or is required to be
witnessed;

(d) the making of any statement or declaration which under those
provisions is required to be made under oath or to be contained in a
statutory declaration;

(e) the keeping, maintenance or preservation, for the purposes or in
pursuance of those provisions, of any account, record, notice,
instrument or other document;

(f) the provision, production or publication under those provisions of
any information or other matter;

(g) the making of any payment that is to be or may be made under those
provisions.

(3) The appropriate Minister shall not make an order under this section
authorising the use of electronic communications or electronic storage for
any purpose unless he is satisfied that the authorisation is such that it will be
possible for a record to be produced of everything that is done by virtue of
the authorisation.

(4) Without prejudice to the generality of subsection (1), the power to
make an order under this section shall include power to make an order
containing any of the following provisions—

(a) provision as to the electronic form to be taken by any electronic
communications or electronic storage the use of which is
authorised by an order under this section;

(b) provision imposing conditions subject to which the use of electronic
communications or electronic storage is so authorised;

(c) provision, in relation to cases in which any such conditions are not
satisfied, for treating anything for the purposes of which the use of
such communications or storage is so authorised as not having been
done;

(d) provision, in relation to cases in which the use of electronic
communications or electronic storage is so authorised, for the
determination of any of the matters mentioned in subsection (5), or
as to the manner in which they may be proved in legal proceedings;

(e) provision, in relation to cases in which fees or charges are or may be
imposed in connection with anything for the purposes of which the
use of electronic communications or electronic storage is so
authorised, for different fees or charges to apply where use is made
of such communications or storage;

(f) provision, in connection with anything so authorised, for a person to
be able to refuse to accept receipt of something in electronic form
except in such circumstances as may be specified in or determined
under the order;

(g) provision, in connection with any use of electronic communications
so authorised, for intermediaries to be used, or to be capable of
being used, for the transmission of any data or for establishing the
authenticity or integrity of any data;

(h) provision, in connection with any use of electronic storage so
authorised, for persons satisfying such conditions as may be
specified in or determined under the regulations to carry out
functions in relation to the storage;

(i) provision requiring persons to prepare and keep records in connection
with any use of electronic communications or electronic storage
which is so authorised;

(j) provision requiring the production of the contents of any records kept
in accordance with an order under this section;

(k) provision for a requirement imposed by virtue of paragraph (i) or (j) to
be enforceable at the suit or instance of such person as may
specified in or determined in accordance with the order.

(5) The matters referred to in subsection (4)(d) are—

(a) whether a thing has been done using an electronic communication or
electronic storage;

(b) the time at which, or date on which, a thing done using any such
communication or storage was done;

(c) the person by whom such a thing was done; and

(d) the contents, authenticity or integrity of any electronic data.

(6) An order under this section—

(a) shall not (subject to paragraph (b)) require the use of electronic
communications or electronic storage for any purpose; but

(b) may impose restrictions on, or conditions in relation to, the variation
or withdrawal of any election or other decision to make use of such
communications or storage in relation to any matter.

(7) The matters in relation to which provision may be made by an order
under this section do not include any matter under the care and management of
the Commissioners of Inland Revenue or any matter under the care and
management of the Commissioners of Customs and Excise.

(a) in relation to any matter with which a department of the Secretary of
State is concerned, the Secretary of State;

(b) in relation to any matter with which the Treasury is concerned, the
Treasury; and

(c) in relation to any matter with which any Government department
other than a department of the Secretary of State or the Treasury is
concerned, the Minister in charge of the other department.

(2) Where in the case of any matter—

(a) that matter falls within more than one paragraph of subsection (1),

(b) there is more than one such department as is mentioned in paragraph

(c) of that subsection that is concerned with that matter, or

(c) both paragraphs (a) and (b) of this subsection apply,

references, in relation to that matter, to the appropriate Minister are
references to any one or more of the appropriate Ministers acting (in the case of
more than one) jointly.

(3) Subject to subsection (4), a statutory instrument containing an order
under section 8 shall be subject to annulment in pursuance of a resolution of
either House of Parliament.

(4) Subsection (3) does not apply in the case of an order a draft of which
has been laid before Parliament and approved by a resolution of each House.

(5) An order under section 8 may—

(a) provide for any conditions or requirements imposed by such an order
to be framed by reference to the directions of such persons as may
be specified in or determined in accordance with the order;

(b) provide that any such condition or requirement is to be satisfied only
where a person so specified or determined is satisfied as to specified
matters.

(6) The provision made by such an order may include—

(a) different provision for different cases;

(b) such exceptions and exclusions as the appropriate Minister may
think fit; and

(c) any such incidental, supplemental, consequential and transitional
provision as he may think fit.

(7) In the application of this section and section 8 to Scotland—

(a) any power of the appropriate Minister to make an order under section
8 may also be exercised by the Scottish Ministers with the consent
of the appropriate Minister; and

(b) where the Scottish Ministers make an order under section 8—

10.—(1) This section applies where any protected information—

(a) has come, or is likely to come, into the possession of any person by
means of the exercise of a statutory power to seize, detain, inspect,
search or otherwise to interfere with documents or other property;

(b) has come, or is likely to come, into the possession of any person by
means of the exercise of a statutory power to intercept
communications or to interfere with wireless telegraphy;

(c) has come into the possession of any person as a result of having been
provided or disclosed in pursuance of any statutory duty (whether
or not one arising as a result of a request for information); or

(d) has, by any other lawful means not involving the exercise of
statutory powers, come into the possession of an intelligence
agency, the police or the customs and excise.

(2) If it appears to any person with the appropriate permission under
Schedule 1 that a key to the protected information—

(a) is in the possession of any person, and

(b) cannot reasonably be obtained by the person with that permission
without the giving of a notice under this section,

the person with that permission may, by notice to the person appearing to
him to have possession of the key, require the disclosure of the key.

(3) A notice under this section requiring the disclosure of any key—

(a) must be given in writing or (if not in writing) must be given in a way
that produces a record of its having been given;

(b) subject to paragraph (a), may take such form and be given in such
manner as the person giving it thinks fit; and

(c) must specify the manner in which, and time by which, the disclosure is
to be made.

(4) A notice under this section shall not require the disclosure of a key to
any person other than—

(a) the person giving the notice; or

(b) such other person as may be specified in or otherwise identified by,
or in accordance with, the provisions of the notice.

(5) A notice under this section shall not require the disclosure of any key
which—

(a) is intended to be used for the purpose only of generating electronic
signatures; and

(b) has not in fact been used for any other purpose.

(6) Schedule 1 (definition of the appropriate permission) shall have effect.

(a) a person is required by a section 10 notice to disclose a key to any protected information; and

(b) compliance with the requirement by the provision of the information
in an intelligible form is authorised for the purposes of this section.

(2) The person required to disclose the key—

(a) may use it to obtain access to the protected information, or to put
that information into an intelligible form; and

(b) shall be taken for the purposes of this Part to have complied with the
requirement to disclose the key if, by the time by which he is
required to disclose it to any person, he has instead provided that
person with the information in an intelligible form.

(3) Compliance with a requirement to disclose a key to protected
information by the provision of the information in an intelligible form is
authorised for the purposes of this section unless—

(a) a person who for the purposes of Schedule 1 granted the permission
for the giving of a section 10 notice in relation to that information, or

(b) a person whose permission for the giving of a such a notice in
relation to that information would constitute the appropriate
permission under that Schedule,

12.—(1) A person is guilty of an offence if he fails to comply, in
accordance with any section 10 notice, with any requirement of that notice to
disclose a key to protected information.

(2) In proceedings against any person for an offence under this section, i
shall be a defence (subject to subsection (4)) for that person to show—

(a) that the key was not in his possession after the giving of the notice
and before the time by which he was required to disclose it; but

(b) that he did, before that time, make a disclosure, to the person to
whom he was required to disclose the key, of all such information in
is possession as was required by that person to enable possession
of the key to be obtained.

(3) In proceedings against any person for an offence under this section it
shall be a defence (subject to subsection (4)) for that person to show—

(a) that it was not reasonably practicable for him to make a disclosure of
the key before the time by which he was required to do so;

(b) where the key was not in his possession at that time, that it was not
reasonably practicable for him, before that time, to make such a
disclosure as is mentioned in subsection (2)(b); and

(c) that as soon after that time as it was reasonably practicable for him to
make a disclosure of the key or (if earlier) of sufficient information to
enable possession of the key to be obtained, he made such a
disclosure to the person to whom he was required to disclose the
key.

(a) the person to whom the notice is given, and

(b) every other person who becomes aware of it or of its contents,
to keep secret the giving of the notice, its contents and the things done in
pursuance of it.

(2) A person who makes a disclosure to any other person of anything that
he is required by the notice to keep secret shall be guilty of an offence.

(3) In proceedings against any person for an offence under this section in
respect of any disclosure, it shall be a defence for that person to show that—

(a) the disclosure was effected entirely by the operation of software
designed to indicate when a key to protected information has
ceased to be secure; and

(b) that person could not reasonably have been expected to take steps,
after being given the notice or (as the case may be) becoming aware
of it or of its contents, to prevent the disclosure.

(4) In proceedings against any person for an offence under this section in
respect of any disclosure, it shall be a defence for that person to show that—

(a) the disclosure was made by or to a professional legal adviser in
connection with the giving of advice by the adviser to any client of
his; and

(b) the person to whom or, as the case may be, by whom it was made
was the client or a representative of the client.

(5) In proceedings against any person for an offence under this section in
respect of any disclosure, it shall be a defence for that person to show that
the disclosure was made by a legal adviser in contemplation of, or in
connection with or for the purposes of, any proceedings before a court or
tribunal.

(6) Neither subsection (4) nor subsection (5) applies in the case of a
disclosure made with a view to furthering any criminal purpose.

(7) In proceedings against any person for an offence under this section in
respect of any disclosure, it shall be a defence for that person to show that
the disclosure was authorised by or on behalf of either the person who gave
the notice or a person who—

(a) is in possession of the protected information to which the notice
relates; and

(b) came into possession of that information as mentioned in section
10(1).

(a) on conviction on indictment, to imprisonment for a term not exceeding two
years or a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding
six months or a fine not exceeding the statutory maximum, or to
both.

(2) A person guilty of an offence under section 13 shall be liable—

(a) on conviction on indictment, to imprisonment for a term not
exceeding five years or a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding
six months or a fine not exceeding the statutory maximum, or to
both.

(3) In section 9(4) of the Interception of Communications Act 1985
(offences in proceedings for which the restriction on the admissibility of
evidence of warrant etc. is not to apply) after paragraph (bb) there shall be
inserted—

15.—(1) This section applies to—

(a) the Secretary of State and every other Minister of the Crown in
charge of a government department;

(b) every chief officer of police;

(c) the Commissioners of Customs and Excise; and

(d) every person whose officers or employees include persons with
duties that involve the giving of section 10 notices.

(2) It shall be the duty of each of the persons to whom this section applies to
ensure, in relation to persons under his control who obtain possession of
keys to protected information by means of the exercise of powers conferred
by this Part, that such arrangements are in force as he considers necessary for
securing—

(a) that a key disclosed in pursuance of a section 10 notice is used for
obtaining access to, or putting into an intelligible form, only the
protected information in relation to which the power to give the
notice was exercised;

(b) that the uses to which a key so disclosed is put, and the
consequences of the use of the key, are reasonable and
proportionate having regard to the uses to which the person using
the key is entitled to put the protected information to which it
relates;

(c) that the requirements of subsection (3) are satisfied in relation to any
key so disclosed;

(d) that all records of a key so disclosed are destroyed as soon as the key is
no longer needed for the purposes for which its disclosure was
required.

(3) The requirements of this subsection are satisfied in relation to any key
disclosed in pursuance of a section 10 notice if—

(a) the number of persons to whom the key is disclosed or otherwise
made available, and

(b) the number of copies made of the key,
are each limited to the minimum that is necessary for the purposes for which its
disclosure was required.

(4) In this section "chief officer of police" means any of the following—

(a) the chief constable of a police force maintained under or by virtue of
section 2 of the Police Act 1996 or section 1 of the Police
(Scotland) Act 1967; .

(b) the Commissioner of Police of the Metropolis;

(c) the Commissioner of Police for the City of London;

(d) the Chief Constable of the Royal Ulster Constabulary;

(e) the Director General of the National Criminal Intelligence Service;

16.—(1) The Secretary of State shall issue a code of practice in connection
with the exercise or performance by persons (other than the Commissioner
and the Tribunal) of their powers and duties under this Part.

(2) Before issuing a code of practice under subsection (1), the Secretary of
State shall—

(a) prepare and publish a draft of that code; and

(b) consider any representations made to him about the draft;
and the Secretary of State may incorporate in the code finally issued any
modifications made by him to the draft after its publication.

(3) The Secretary of State shall lay before both Houses of Parliament any
draft code of practice prepared by him under this section.

(4) A code of practice issued by the Secretary of State under this section
shall not be brought into force except in accordance with an order made by
the Secretary of State by statutory instrument.

(5) A statutory instrument containing an order under subsection (4) shall
not be made unless a draft of the order has been laid before Parliament and
approved by a resolution of each House.

(6) An order under subsection (4) may contain such transitional provisions
and savings as appear to the Secretary of State to be necessary or expedient in
connection with the bringing into force of the code brought into force by that order.

(7) The Secretary of State may from time to time—

(a) revise the whole or any part of a code issued under this section; and

(b) issue the revised code.

(8) Subsections (2) to (6) shall apply (with appropriate modifications) in
relation to the issue of any revised code under this section as they apply in
relation to the first issue of such a code.

(9) A person exercising or performing any power or duty under this Part
shall, in so doing, have regard to the code of practice for the time being in
force under this section.

(10) A failure on the part of any person to comply with any provision of
the code of practice for the time being in force under this section shall not of
itself render him liable to any criminal or civil proceedings.

17.—(1) The Prime Minister shall appoint a person who holds or has held a
high judicial office (within the meaning of the Appellate Jurisdiction Act
1876) to carry out the functions of—

(a) keeping under review the exercise and performance by the Secretary
of State of his powers and duties under this Part;

(b) keeping under review the adequacy of the arrangements by reference
to which the Secretary of State seeks to discharge his duty under
section 15; and

(c) giving to the Tribunal all such assistance as the Tribunal may require
for the purpose of enabling them to carry out their functions under
this Part.

(2) The Commissioner shall hold office in accordance with the terms of
his appointment; and there shall be paid to him out of money provided by
Parliament such allowances as the Treasury may determine.

(3) It shall be the duty of—

(a) every person holding office under the Crown,

(b) every member of an intelligence agency,

(c) every official of a government department,

(d) every person engaged in the business of the Post Office or in the
running of a public telecommunication system (within the meaning
of the Telecommunications Act 1984),

(e) every person by or to whom a section 10 notice has been given, and

(f) every officer or employee of a person whose officers or employees
include persons with duties that involve the giving of section 10
notices,

to disclose or provide to the Commissioner such documents and information
as he may require for the purpose of enabling him to carry out his functions
under this section.

(4) If at any time it appears to the Commissioner—

(a) that there has been a contravention of the provisions of this Part
which has not been the subject of a report made by the Tribunal
under section 18(4), or

(b) that any arrangements by reference to which the Secretary of State
has sought to discharge his duty under section 15 have proved
inadequate,

he shall make a report to the Prime Minister with respect to that
contravention or those arrangements.

(5) As soon as practicable after the end of each calendar year, the
Commissioner shall make a report to the Prime Minister with respect to the
carrying out of his functions under this section.

(6) The Prime Minister shall lay before each House of Parliament a copy
of every annual report made by the Commissioner under subsection (5),
together with a statement as to whether any matter has been excluded from
that copy in pursuance of subsection (7).

(7) If it appears to the Prime Minister, after consultation with the
Commissioner, that the publication of any matter in an annual report would
be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of serious crime,

(c) the economic well-being of the United Kingdom, or

18.—(1) There shall be a tribunal for hearing the following complaints—

(a) complaints about the manner in which functions under this Part are
carried out in relation to cases in which the permission of the
Secretary of State is required for the giving of a section 10 notice;
and

(b) complaints that a person has suffered detriment as a consequence of
any prohibition or restriction, by virtue of section 9 of the
Interception of Communications Act 1985 (matters of which
evidence cannot be adduced), on his relying in any proceedings
before a court or tribunal on anything done under this Part or on
any contravention of this Part.

(2) If—

(a) an interested party makes a complaint to the Tribunal in respect of a
section 10 notice for the giving of which the permission of the
Secretary of State was or should have been granted under this Part,
and

(b) the complaint is not one appearing to the Tribunal to be frivolous or
vexatious,

the Tribunal shall hear and determine the complaint.

(3) Subject to rules under paragraph 3(1)(f) of Schedule 2, the Tribunal
shall have power, on determining a complaint under this section, to make
such award of compensation or other order as they think fit.

(4) On making a determination under this section, the Tribunal shall send a
report of their determination—

(a) in a case in which they have determined that the Secretary of State
has failed to carry out his functions in relation to a section 10
notice in accordance with the provisions of this Part, to the Prime
Minister; and

(b) in any case, to the Commissioner.

(5) Section 9 of the Interception of Communications Act 1985 shall not
apply to proceedings before the Tribunal.

(6) Schedule 2 (which makes provision about the constitution and
procedure of the Tribunal) shall have effect.

(7) In this section "interested party" means a person who—

(a) is or has been in possession of any protected information the key to
which has been required to be disclosed in pursuance of a section
10 notice, or a notice purporting to be such a notice;

(b) has been required by a section 10 notice, or a notice purporting to be
such a notice, to disclose any key to protected information; or

19.—(1) In this Part—

"the Commissioner" means the Commissioner appointed under section
17;

"the customs and excise" means any person commissioned by the
Commissioners of Customs and Excise;

"electronic signature" means anything in electronic form which—

(a) is incorporated into, or otherwise logically associated
with, any electronic data;

(b) is generated by the signatory or other source of the data;
and

(c) is used for the purpose of facilitating, by means of a link
between the signatory or other source and the data, the
establishment of the authenticity or integrity of the data, or of
both;

"GCHQ" has the same meaning as in the Intelligence Services Act 1994;
"Her Majesty’s forces" has the same meaning as in the Army Act 1955;
"intelligence agency" means the Security Service, the Secret Intelligence
Service or GCHQ;

"key", in relation to any electronic data, means any code, password,
algorithm, key or other data the use of which (with or without other
keys)—

(a) allows access to the electronic data, or

(b) facilitates the putting of the data into an intelligible form;

"the police" means—

(a) any constable;

(b) the Commissioner of Police of the Metropolis or any
Assistant Commissioner of Police of the Metropolis;

(c) the Commissioner of Police for the City of London;

"protected information" means any electronic data which, without the
key to the data—

(a) cannot, or cannot readily, be accessed, or

(b) cannot, or cannot readily, be put into an intelligible form;

"section 10 notice" means a notice under section 10;

"statutory", in relation to any power or duty, means conferred or
imposed by or under any enactment or subordinate legislation;

"the Tribunal" means the Tribunal established under section 18;

"warrant" includes any instrument (however described) which has an
effect equivalent to that of a warrant;

"wireless telegraphy" and, in relation to wireless telegraphy, "interfere"
have the same meanings as in the Wireless Telegraphy Act 1949.

(2) References in this Part to a person’s having protected information in
his possession include references—

(a) to its being in the possession of a person who is under his control so
far as that information is concerned; and

20.—(1) In subsection (3) of section 12 of the Telecommunications Act
1984 (which requires notice of a proposed modification of the conditions of a
licence under section 7 of that Act to be served on the licensee), for "that
person" there shall be substituted "every relevant licensee".

(2) For subsection (4) of that section (circumstances in which a proposal
by the Director General of Telecommunications for the modification of the
conditions of a licence is made by agreement) there shall be substituted the
following subsections—

"(4A) In the case of a licence granted to all persons, or to all persons of
a particular class, the Director shall not make any modification
unless—

(a) he has considered every representation made to him about the
modification; and

(b) there has not been any objection by a person running a
telecommunication system under the authority of the licence
to the making of the modification.

(4B) In the case of a licence granted to a particular person, the
Director shall not make any modification unless—

(a) he has considered every representation made to him about the
modification or any modification in the same or similar terms
that he is at the same time proposing to make in the case of
other licences; and

(b) the requirements of section 12A below are satisfied in the case
of the modification and also in the case of every such
modification in the same or similar terms."

"(6A) Where the Director makes a modification under this section,
he shall, as soon as reasonably practicable after making the
modification, give notice of—

(a) his reasons for doing so; and

(b) where the modification is made by virtue of subsection (3) of
section 12A below, his reasons for determining that the
condition in paragraph (c) of that subsection is fulfilled.

(6B) Subsection (3) above shall apply in the case of a notice under
subsection (6A) above as it applies in the case of a notice under
subsection (2) above.

(6C) Where the Director has given notice under subsection (2) above
of a proposal to modify the conditions of a licence, he may in such
manner and at such time as he considers appropriate publish—

(a) the identities of any or all of the persons who objected to the
making of the modification; and

(b) to the extent that confidentiality for representations or
objections in relation to the proposal for the modification has
not been claimed by the persons making them, such other
particulars of the representations or objections as he thinks fit.

(6D) In this section and section 12A below (except in subsection

(6C) above), a reference to a representation or objection, in relation to a
modification, is a reference only to a representation or objection
which—

(a) was duly made to the Director within a time limit specified in
the case of that modification under subsection (2)(c) above or
section 12A(6)(e) below; and

(b) has not subsequently been withdrawn;
and for the purposes of this section and section 12A below
representations against a modification shall be taken to constitute an
objection only if they are accompanied by a written statement that they
are to be so taken.

(6E) In this section and section 12A below ‘relevant licensee’, in
relation to a modification, means—

(a) in a case where the same or a similar modification is being
proposed at the same time in relation to different licences
granted to different persons, each of the persons who, at the
time when notice of the proposals is given, is authorised by
one or more of those licences to run a telecommunication
system; and

(b) in any other case, the person authorised by the licence in
question to run such a system.

(6F) In this section references to making a modification of the
conditions of a licence do not include references to the exercise of any
power conferred by a term of the licence to revoke the licence in part or
for particular purposes."

(4) After that section there shall be inserted the following section—

(2) This subsection applies if—

(a) it appears to the Director that the relevant licensee
or, as the case may be, each of the relevant
licensees has been given a reminder, at least seven
days before the making of the modification, of the
Director’s powers in the absence of objections; and

(b) there has not been an objection by a relevant
licensee to the making of the modification.

(3) This subsection applies, in a case where there is more
than one relevant licensee, if—

(a) the notice given under section 12(2) above in the
case of the proposal for that modification contained a
statement describing the method proposed by the
Director for determining what would constitute
objections from a significant minority of the
relevant licensees;

(b) it appears to the Director that each of the relevant
licensees has been given a reminder, at least seven
days before the making of the modification, of the
Director’s powers in the absence of objections
representing objections from a significant minority
of the relevant licensees; and

(c) it appears to the Director that the objections made to
him by relevant licensees, taken together, do not
represent objections from at least a significant
minority of the relevant licensees.

(4) This subsection applies if—

(a) the modification is one which in the opinion of the
Director is deregulatory; and

(b) the notice given under section 12(2) above in the
case of the proposal for the modification contained a
statement of that opinion and of the Director’s
reasons for it.

(5) This subsection applies if—

(a) the modification is in the same or similar terms as
modifications that the Director has already
proposed but not yet made in the case of other
licences;

(b) the licence in question is one issued since the
making of the proposal for the modification of the
conditions of the other licences;

(c) subsection (2), (3) or (4) above applies in the case of
the modifications of the conditions of the other
licences;

(d) it appears to the Director that the person holding the
licence in question has been given a reasonable
opportunity of stating whether he objects to the
modification; and

(e) that person has not objected or is a person whose
objection would not have prevented subsection (3)
above from applying in the case of the other
licensees if—

(i) his licence had been issued earlier; and

(ii) the proposal to modify the conditions of
his licence had been made at the same time as
the proposals for the other modifications.

(2) Parts I and III of this Act and sections 7 and 20 shall come into force on
such day as the Secretary of State may by order made by statutory instrument
appoint; and different days may be appointed under this subsection for
different purposes.

(3) The day appointed under subsection (2) for the coming into force of so
much of this Act as authorises the Secretary of State to grant permission for
the purposes of Schedule 1 must be a day on which the Tribunal established
under section 18 will have jurisdiction—

(a) by virtue of an order under that subsection, and

(b) in accordance with rules made and in force under paragraph 3 of
Schedule 2,

to consider complaints relating to grants of permission made by the Secretary
of State for those purposes.

(4) This Act extends to Northern Ireland.

PERSONS HAVING THE APPROPRIATE PERMISSION [J201S]

(b) an authorisation under Part III of the Police Act 1997 (authorisation of
otherwise unlawful action in respect of property).

(b) since the issue of the warrant or authorisation, written permission has been
granted by the relevant authority for the giving of such notices in relation to
protected information obtained under the warrant or authorisation.

(5) Only the police and the customs and excise shall be capable of having the
appropriate permission in relation to protected information obtained, or to be
obtained, under an authorisation under Part III of the Police Act 1997.

(d) any person holding any such judicial office as entitles him to exercise the
jurisdiction of a judge of the Crown Court or of a justice of the peace.

shall not be taken, by reason only of the warrant required for the exercise of the
power mentioned in paragraph (b), to be information in the case of which this
paragraph applies.

Data obtained under statute but without a warrant etc.

(b) he is the person to whom the protected information was provided or
disclosed, or is of a description of person the provision or disclosure of the
information to whom would have discharged the statutory duty.

(b) a person who is authorised (apart from this Act) to act on behalf of such a
person.

(b) permission to give a section 10 notice in relation to that information has
been granted by a person holding the rank of superintendent, or any
higher rank.

(b) in an urgent case in which the Secretary of State has expressly authorised the
grant of the permission, under the hand of a member of the Senior Civil
Service.

THE TRIBUNAL [J207S]

(b) subject to the following sub-paragraphs, shall hold office during good
behaviour.

4.—(1) The power to make rules under paragraph 3 includes—

5. Subject to rules under paragraph 3, the Tribunal may determine their own
procedure.

Appointment of special representatives

6.—(1) The Attorney General, the Advocate General for Scotland and the
Attorney General for Northern Ireland shall each have power to appoint a person to
represent the interests of the complainant in any proceedings before the Tribunal
from which the complainant and any legal representative of his are excluded in
accordance with rules under paragraph 3.

(2) An appeal under this section shall not be brought except with the leave of the
Tribunal or, after such leave has been refused, with the leave of the appropriate
appeal court.

"The Tribunal established under section 18 of the Electronic
Communications Act 1999".