Office of Public Sector Information

• in the interests of national security,

• for tackling serious crime,

• for safeguarding the economic well-being of the UK, or

• for the purpose of giving effect to any international mutual assistance agreement and tackling serious crime.

294.The effect of the amendment made by paragraph 6 is to allow the Commissioners for HMRC to apply for an interception warrant in connection with any of HMRC’s responsibilities. At the moment an application could only be made in respect of an ex-HMCE matter. There is no change to the conditions that have to be met before a warrant can be issued or the safeguards provided by RIPA in respect of the intercepted material.

295.Part I Chapter II of RIPA concerns the acquisition and disclosure of ‘communications data’ which is defined at section 21(4). The acquisition of this data is lawful where conducted by a person authorised or required to engage in that activity by an authorisation or notice granted or given under Chapter II of Part I and provided the conduct is in accordance with, or in pursuance of, the authorisation or requirement (section 21(2)). Where a ‘designated person’ believes it is necessary to obtain communications data and the relevant tests are passed he or she can:

• grant an authorisation for persons in the same public authority to engage in the relevant conduct (section 22(3)), and

• by notice require a postal or telecommunications operator to obtain the data and disclose it to the designated person (section 22(4)).

296.The ‘designated persons’ are individuals holding certain positions with ‘relevant public authorities’. The detail of who is a designated person, and the grounds on which they can obtain communications data, is set out in The Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003/3172). The Commissioners of HMCE and the Commissioners of Inland Revenue were both ‘relevant public authorities’. For both ex-HMCE and ex-Revenue matters communications data can be obtained by HMRC where it is believed necessary for either tackling crime or preventing disorder, or assessing or collecting tax (section 22(2) and article 6 of SI 2003/3172). In addition communications data can only be sought where that is believed to be proportionate to the result sought (section 25(5)) and where the grounds are to assess or collect tax the only data that can be obtained is ‘subscriber data’ as defined at section 21(4)(c) (article 7 of SI 2003/3172).

297.The only difference at the moment between HMRC’s powers under Part I Chapter II of RIPA for ex-HMCE and ex-Inland Revenue matters concerns the data that can be obtained when action is believed necessary to tackle crime or prevent disorder. Where ‘traffic data’ (as defined at section 21(4)(a)) is sought on these grounds in relation to an ex-Inland Revenue matter only data relating to a postal service can be obtained, data relating to a telecommunications system cannot be sought. For ex-HMCE matters data relating to either a postal service or a telecommunications system can be sought. This restriction for ex-Inland Revenue matters is imposed by article 10 of SI 2003/3172, there is no difference in the treatment of ex-HMCE and ex-Revenue matters in RIPA itself. Because of this the changes being made by the Schedule do not of themselves change HMRC’s powers, they simply update references to the old departments. However, when SI 2003/3172 (The Regulation of Investigatory Powers (Communications Data) Order 2003) is amended the intention is to remove this restriction in article 10 relating to ex-Inland Revenue matters. Once that is done HMRC will be able to obtain traffic data relating to both postal services and telecommunications systems where that is believed necessary, and proportionate, for tackling crime or preventing disorder.

298.Paragraph 7 of this Schedule makes a consequential amendment to section 21(5) of RIPA to substitute a reference to ‘officers of Revenue and Customs’ for a reference to ‘customs officers’ when referring to Part III of the Police Act 1997. This is to reflect the changes being made to the Police Act 1997, as detailed above.

299.Paragraph 8 of this Schedule amends section 25(1) of RIPA to substitute a reference to HMRC for references to HMCE and the Inland Revenue in the definition of ‘relevant public authority’.

300.Part II of RIPA deals with directed surveillance, intrusive surveillance and the conduct and use of covert human intelligence sources. These three types of activity are defined at section 26(2) to (11). The Schedule makes no change to the RIPA procedures for authorising directed surveillance and the use of covert human intelligence sources. The changes being made in respect of intrusive surveillance are detailed below.

301.Paragraph 9 of this Schedule makes a consequential amendment to section 27(4) to substitute a reference to ‘officers of Revenue and Customs’ for a reference to ‘customs officers’ when referring to Part III of the Police Act 1997. This is to reflect the changes being made to the Police Act 1997, as detailed above.

302.Section 32 of RIPA deals with the authorisation of intrusive surveillance (such as using listening devices in residential premises). Intrusive surveillance can be authorised where it is believed to be proportionate to the intended results and is necessary:

• in the interests of national security,

• for tackling serious crime, or

• in the interests of the economic well-being of the UK.

303.Usually authorisations for intrusive surveillance do not take effect until they have been approved by an independent Surveillance Commissioner (section 36). At the moment HMRC can use intrusive surveillance for ex-HMCE matters but not for ex-Revenue matters. The Schedule changes this, as detailed below, so that it can be used for ex-Revenue matters as well. The conditions that have to be met and authorisations granted are not altered.

304.Paragraph 10 of this Schedule amends the definition of ‘senior authorising officer’ at section 32(6). The reference to a customs officer is changed to an officer of Revenue and Customs designated for that purpose by the Commissioners for HMRC. The amendment provides that only senior officials can be so designated. Section 81(1) defines “senior official” as “a member of the Senior Civil Service”. The “senior authorising officer” is the officer who can authorise intrusive surveillance and this change will allow authorisations to be made in respect of all HMRC’s responsibilities, including ex-Inland Revenue ones not just ex-HMCE matters.

305.Paragraph 11 of this Schedule makes consequential amendments to section 33 (police and customs authorisations) to change references to HMCE and its officers to HMRC and its officers. The rule which prevents an officer granting an authorisation except on an application by another officer of the department is retained in an updated form.

306.Paragraphs 12 to 18 make consequential amendments to change references to HMCE and its officers to HMRC and its officers in the remainder of Part II of RIPA.

307.Part III deals with electronic data protected by encryption. Section 49 provides a power to enable persons with the ‘appropriate permission’ to serve notices on individuals or bodies requiring the disclosure of protected (for example encrypted) information which they lawfully hold, or are likely to, in an intelligible form. The power under section 49 can be used where the conditions set out at subsection (2) are met. The Schedule makes various amendments to Part III so it applies consistently to HMRC.

308.Section 49 of RIPA limits the information to which the power to serve notices applies by defining the various means by which the protected information in question has been, or is likely to be, obtained at subsection (1)(a) to (e). HMRC could already issue notices in respect of the information specified in subsections (1)(a) to (d) whether they related to ex-HMCE or ex-Inland Revenue matters. However, HMRC could issue a notice in respect of information it holds which falls within section 49(1)(e) only where it relates to an ex-HMCE matter and not where it relates to an ex-Inland Revenue matter. Subsection (1)(e) covers information that has come into (or is likely to come into) the possession of the customs and excise by any lawful means not involving the exercise of statutory powers and not covered by subsections (1)(a) to (d).

309.Paragraph 19 of this Schedule amends section 49(1)(e) so it applies to information which has come into the possession of HMRC, rather than HMCE. This allows HMRC to issue a notice under section 49 in respect of this information whether it relates to an ex-Inland Revenue or an ex-HMCE matter.

310.Paragraph 20 of this Schedule makes consequential amendments to section 51 to substitute references to HMRC for references to HMCE. This section sets out the extra tests to be fulfilled if a key (such as a password or decryption key – see definition at section 56(1)) is required to be disclosed rather than the disclosure of protected information in an intelligible form.

311.Paragraph 21 of this Schedule amends section 54 to substitute a reference to HMRC for a reference to HMCE. This section allows a section 49 notice to contain a provision requiring the recipient, or anybody else who becomes aware of it, to keep it secret. This can be done only where the protected information it relates to has been obtained by means which it is reasonable to keep secret from a particular person to maintain the effectiveness of any investigation or investigatory technique, or in the interests of any person’s safety or well-being. At the moment HMRC can only impose a requirement under section 54 in connection with ex-HMCE matters. Changing the reference to HMCE to HMRC will allow a requirement to be imposed whenever the conditions are met, whether an ex-HMCE or ex-Inland Revenue matter is involved.

312.Paragraph 22 of this Schedule amends section 55 to substitute a reference to HMRC for a reference to HMCE. This section places a duty on various people to safeguard the use of disclosed keys and describes the safeguards that must be in place. The change made by paragraph 22 ensures that these safeguards apply to all keys HMRC may obtain, not just to keys relating to ex-HMCE matters.

313.Paragraph 23 of this Schedule makes a consequential amendment to section 56 by removing the definition of ‘the customs and excise’.

314.Paragraphs 24 and 25 of this Schedule make consequential amendments to sections 65 and 71 (the Tribunal and Codes of Practice respectively) to substitute references to HMRC for references to HMCE.

315.Paragraphs 26 and 27 of this Schedule make consequential amendments to sections 76A and 81 (Foreign Surveillance Operations and General Interpretation respectively) to update a reference to a ‘customs officer’ and remove the definition of that term which is no longer necessary.

316.Paragraph 28 of this Schedule makes a consequential amendment to Part I of Schedule 1 to substitute a reference to HMRC for references to HMCE and the Inland Revenue. Part 1 defines relevant authorities for the purposes of sections 28 and 29 - authorisation of directed surveillance and covert human intelligence sources.

317.Only a person with the ‘appropriate permission’ under Schedule 2 may issue a notice under section 49 (section 49(2)) requiring the disclosure of protected (for example encrypted) information. At the moment where an ex-Inland Revenue matter is involved a judge’s permission (sheriff in Scotland) under paragraph 1 of Schedule 2 is always required before an officer can have the appropriate permission. In certain circumstances an officer of HMRC can have the appropriate permission in respect of an ex-HMCE matter without obtaining a judge’s permission. A judge’s permission is not required in relation to ex-HMCE matters in two circumstances, as detailed below:

• Under paragraph 2 of Schedule 2 where certain protected information was obtained under a warrant issued by the Secretary of State, or a person holding judicial office, or an authorisation under Part III of the Police Act 1997 and the warrant or authorisation gave permission for the section 49 notice to be given. Alternatively, written permission could be obtained from the ‘relevant authority’ (as defined at paragraph 2(6) of Schedule 2) for the issue of the notice after the issue of the warrant or authorisation.

• Under paragraph 4 of Schedule 2 where unintelligible information is, or is likely to be, obtained under statutory powers but without a warrant issued by the Secretary of State or a person holding judicial office, or an authorisation under Part III of the Police Act 1997.

318.For an officer of HMRC to have the appropriate permission in respect of an ex-HMCE matter the Commissioners for HMRC, or an officer of or above such level as they may designate for the purpose, must give permission for the section 49 notice to be issued in relation to that protected information (paragraph 6(4) of Schedule 2). This is not a requirement in respect of ex-Inland Revenue matters at the moment.

319.Paragraph 29 of this Schedule amends Schedule 2 to substitute references to HMRC for references to HMCE. The effect of this is to make Schedule 2 apply to HMRC as a whole in the same way it currently applies to ex-HMCE matters as explained above. The rules on who has the “appropriate permission” to issue a section 49 notice will apply in future to all information HMRC obtains in the way they currently apply to information relating to ex-HMCE matters.

320.Paragraph 30 amends Schedule 2 to the Commissioners for Revenue and Customs Act 2005 (CRCA) to provide that paragraphs 1 (in respect of the Wireless and Telegraphy Act 2006 (WTA)) and 11 (in respect of RIPA) shall cease to have effect. Those paragraphs prevent HMRC using the following powers in respect of ex-Revenue matters:

• Paragraph 1 section 48 of WTA, and

• Powers conferred by RIPA relating to interception, intrusive surveillance and certain of those for the investigation of electronic data protected by encryption.

321.The substantive changes being made to those powers are described above. Paragraph 30 removes the rule currently preventing the powers being used by HMRC for ex-Inland Revenue matters.

322.Paragraph 31 of this Schedule confirms that sections 6 and 7 CRCA do not restrict the functions in connection with which officers can exercise a power amended by this Schedule. Normally sections 6 and 7 CRCA would prevent a power or duty conferred on an officer of HMCE being exercised in connection with an ex-Inland Revenue matter and require a power conferred in connection with an ex-Inland Revenue matter to be used only for an ex-Inland Revenue matter.

Part 4: General and Final Provisions

Section 89: Orders

323.Subsection (1) of this section ensures that orders made by the Secretary of State, the Treasury or the Scottish Ministers are made by statutory instrument. Subsection (2) enables the powers of the Secretary of State and the Treasury to make orders to be exercised to make different provision for different cases, descriptions of cases, or purposes. An order may also make supplementary, incidental, consequential, transitional, transitory and saving provision. Subsection (3) sets out the orders which are subject to the affirmative resolution procedure. Subsections (5) and (6) set out the orders which are subject to the negative resolution procedure.

Section 90: Supplementary, incidental or consequential provision

324.Subsection (1) of this section confers on the Secretary of State a power by order to make supplementary, incidental or consequential provision. The effect of subsection (3) is that the power does not extend to matters that are devolved under the Scotland Act 1998. Where such an order amends or repeals any provision of an Act, it is subject to the affirmative resolution procedure under section 89(3); otherwise it is subject to the negative resolution procedure (see section 89(4) and (5)).

Clause 91 and Schedule 13: Transitional and transitory provisions and savings

325.Subsection (1) of this clause gives effect to Schedule 13. Subsection (2) provides for the Secretary of State to make, by order, appropriate transitional, transitory or saving provisions in connection with the coming into force of any provision of the Bill other than the provisions specified in clause 94(4). The power in respect of these provisions is exercisable by the Scottish Ministers.

326.Paragraph 6 of Schedule 13 relates to the new offences created in Part 2 of the Bill. It provides that where a person is charged in respect of the same conduct with the common law offence of incitement or an offence under section 42, but it is not possible to establish whether the conduct took place before or after the commencement of Part 2, he should be treated as if the conduct took place before the commencement of Part 2.

Section 92 and Schedule 14: Repeals and revocations

327.This section gives effect to Schedule 14 which sets out legislation to be repealed or revoked by the Act.

Section 93: Extent

328.This section sets out the extent of the Act. Subsection (1) lists the sections of the Act that only apply to England and Wales. Subsection (2) lists the sections that apply to England, Wales and Northern Ireland. Subsection (3) lists those sections that apply to Scotland only. Subsection (4) lists the sections that extend to Northern Ireland only. Subsection (6) provides that any amendment, repeal or revocation in Schedule 5, 8, 10 or 14 has the same extent as the enactment amended, repealed or revoked.Subsection (7) provides that, subject to the limitations contained in subsections (1) to (6), the Act extends throughout the United Kingdom.

Section 94: Commencement

329.This section provides for commencement. Subsection (1) provides that the provisions of the Act will be brought into force by means of commencement orders made by the Secretary of State, with the exception of the sections listed in that subsection and sections 94 and 95, which will come into force on Royal Assent, and the provisions listed in subsection (4), which are to be brought into force by Scottish Ministers. Subsection (2) requires the Secretary of State to consult the Scottish Ministers before making an order under subsection (1), in relation to section 75(1), paragraph 2 of Schedule 10 or paragraph 24 of that Schedule. Subsections (3) and (4) provide that the provisions listed in subsection (4) will be brought into force by orders made by Scottish Ministers.

Section 95: Short title

330.This section sets out the short title of the Act.

Commencement

331.Section 94 of the Act provides for commencement.

Hansard References

332.The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament.

Table of Abbreviations