2013 No. 2788
The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013
Made
Laid before Parliament
Coming into force
The Secretary of State, in exercise of the powers conferred by sections 29(2)(c), 29(7)(b), 30(1), (3) and (6), 43(8) and 78(5) of the Regulation of Investigatory Powers Act 20001, makes the following Order:
PART 1General
Citation and commencement1
This Order may be cited as the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 and shall come into force on 1st January 2014.
Interpretation2
In this Order—
“the Act” means the Regulation of Investigatory Powers Act 2000;
“relevant source” means a source holding an office, rank or position with one of the following—
- a
a police force maintained under section 2 of the Police Act 19962,
- b
the City of London Police Force,
- c
the Metropolitan Police Force,
- d
the Police Service of Northern Ireland,
- e
the Police Service of Scotland,
- 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,
- k
the National Crime Agency,
- l
Her Majesty’s Revenue and Customs, or
- m
the Home Office;
- a
“section 29 authorisation” means an authorisation for the conduct or the use of a source under section 29 of the Act;
“source” means covert human intelligence source.
Long Term Authorisation3
1
In this Order a section 29 authorisation for the conduct or use of a relevant source is a long term authorisation if the periods mentioned in paragraph (2)(a) and (b), when taken together, exceed 12 months.
2
Those periods are—
a
the period for which the relevant source will be authorised under the authorisation, having regard (where relevant) to paragraph (4), and
b
any period or periods, other than a period or periods to which paragraph (3) or (5) applies, for which the relevant source has previously been authorised as a source in relation to the same investigation or operation.
3
This paragraph applies to a period or periods for which the relevant source has been authorised as a source under a section 29 authorisation where that authorisation was granted orally or by a person whose entitlement to act is confined to urgent cases.
4
For the purposes of paragraph (2)(a) where the period or periods in respect of which a relevant source has previously been authorised as a source is less than 12 months in total, any further authorisation will cease to have effect, unless renewed, at the end of a period of 12 months less the total period for which the source has previously been authorised and section 43(3) of the Act shall have effect as if the period specified in paragraph (b) of that subsection were modified accordingly.
5
For the purposes of paragraphs (2)(b) and (4) any period of authorisation which ceased to have effect more than 3 years prior to the intended commencement date of the authorisation referred to at paragraph (2)(a) shall be disregarded.
6
In respect of an authorisation to which article 8(1)(b) of the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 20103 applies references in paragraphs (1) and (4) of this article to 12 months should be read as references to 3 months.
PART 2Notification to and Approval by Ordinary Surveillance Commissioner
Notification4
1
Where a person grants a section 29 authorisation for the conduct or use of a relevant source he must give notice of that authorisation to an ordinary Surveillance Commissioner save where he is granting or renewing a long term authorisation.
2
A notice under this article must—
a
be given in writing;
b
be given within 7 days of the grant; and
c
include the matters specified in paragraph (3).
3
Where a person gives notice under this article in respect of the granting of an authorisation, the notice shall specify—
a
the grounds on which the person giving the notice believes the matters specified in article 5(6) and section 29(2)(b) and (c) of the Act are satisfied; and
b
the conduct that is, or is to be authorised under section 29 of the Act.
4
Any notice that is required by this article to be given in writing may be given, instead, by being transmitted by electronic means.
Approval required for long term authorisation5
1
A long term authorisation shall not be granted or renewed until—
a
it has been approved in accordance with this article by a Commissioner, and
b
written notice of the Commissioner’s decision to approve the grant or renewal of the authorisation has been given, in accordance with paragraph (5) to the person seeking approval.
2
A request for approval under this article must be made in writing and must include the matters specified in article 4(3) or, in the case of a renewal, the matters specified in paragraph (3) of this article.
3
Where a person seeks approval under this article in respect of the renewal of a long term authorisation, the request shall specify—
a
whether the authorisation is being renewed for the first time, or, where it has been previously renewed, each occasion on which it has been renewed;
b
the matters required by article 4(3), as they apply at the time of the request;
c
the reason why it is considered necessary to renew the authorisation;
d
the results of any reviews of the matters mentioned in section 43(7) of the Act.
4
The Commissioner, following receipt of a request for approval under this article, shall as soon as is reasonably practicable —
a
scrutinise the authorisation; and
b
decide whether or not to approve the grant or renewal of the authorisation.
5
The Commissioner shall—
a
approve the grant or renewal of the authorisation if, and only if, satisfied that there are reasonable grounds for believing that–
i
the authorisation is necessary on grounds falling within paragraph (6), and
ii
the requirements of section 29(2)(b) and (c) of the Act are satisfied in the case of the authorisation; and
b
give written notice of his decision to the person seeking approval under this article as soon as reasonably practicable after making that decision.
6
An authorisation is necessary on grounds falling within this paragraph if it is necessary—
a
in the interests of national security;
b
for the purpose of preventing or detecting crime or of preventing disorder;
c
in the interests of the economic well-being of the United Kingdom;
d
in the interests of public safety;
e
for the purpose of protecting public health; or
f
for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department.
7
Anything required by this article to be made or given in writing may be made or given, instead, by being transmitted by electronic means.
8
For the purpose of this article “Commissioner” means ordinary Surveillance Commissioner.
Appeals against decisions by Surveillance Commissioners6
1
Any person seeking approval for the grant or renewal of a long term authorisation may appeal to the Chief Surveillance Commissioner against any refusal of an ordinary Surveillance Commissioner to approve any such authorisation.
2
An appeal under this article must be brought within the period of seven days beginning with the day on which notice of the refusal is given under article 5(5)(b).
3
The Chief Surveillance Commissioner, on an appeal under this article, shall allow the appeal if satisfied that there are reasonable grounds for believing the matters set out in article 5(5)(a).
PART 3Prescribed Offices, Ranks and Positions in relation to Relevant Sources
Amendment of the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 20107
The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 20104 is amended as set out in this Part.
Interpretation
8
After article 1(2) insert—
3
In this Order “relevant source” means a source holding an office, rank or position with one of the following—
a
a police force maintained under section 2 of the Police Act 19965,
b
the City of London Police Force,
c
the Metropolitan Police Force,
d
the Police Service of Northern Ireland,
e
the Police Service of Scotland,
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,
k
the National Crime Agency,
l
Her Majesty’s Revenue and Customs, or
m
the Home Office;
“section 29 authorisation” means an authorisation for the conduct or the use of a source under section 29 of the Act;
“source” means covert human intelligence source.
9
1
After article 1 insert—
Long Term Authorisation1A
1
In this Order a section 29 authorisation for the conduct or use of a relevant source is a long term authorisation if the periods mentioned in paragraph (2)(a) and (b), when taken together, exceed 12 months.
2
Those periods are—
a
the period for which the relevant source will be authorised under the authorisation, having regard (where relevant) to paragraph (4), and
b
any period or periods, other than a period or periods to which paragraph (3) or (5) applies, for which the relevant source has previously been authorised as a source in relation to the same investigation or operation.
3
This paragraph applies to a period or periods for which the relevant source has been authorised as a source under a section 29 authorisation where that authorisation was granted orally or by a person whose entitlement to act is confined to urgent cases.
4
For the purposes of paragraph (2)(a) where the period or periods in respect of which a relevant source has previously been authorised as a source is less than 12 months in total, any further authorisation will cease to have effect, unless renewed, at the end of a period of 12 months less the total period for which the source has previously been authorised.
5
For the purposes of paragraphs (2)(b) and (4) any period of authorisation which ceased to have effect more than 3 years prior to the intended commencement date of the authorisation referred to at paragraph (2)(a) shall be disregarded.
6
In respect of an authorisation to which article 8(1)(b) of the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 20106 applies references in paragraphs (1) and (4) of this article to 12 months should be read as references to 3 months.
7
For the purposes of this article any period for which the relevant source has previously been authorised as a source in relation to the same investigation or operation prior to 1st January 2014 shall be disregarded save for any period in relation to an authorisation that is extant on that date.
Prescribed Offices, ranks and position with relevant public authorities
10
After article 3(1) insert—
1A
Part 1 to the Schedule has effect subject to Part 1A.
11
At the end of article 3(2)(a) omit “and” and insert—
aa
column (2) of Part 1A of the Schedule (being offices, ranks and positions with the relevant public authorities which are listed in relation to such entries in column (1) of that Part and which are relevant public authorities for the purposes of section 29 of the Act in relation to the authorisation of relevant sources), and
Additional offices, ranks and positions prescribed for urgent cases12
In article 4(2) after “(for the purposes of section 28 or 29 of the Act in the case of an entry in Part 1 of the Schedule” insert “or for the purposes of section 29 only in the case of an entry in Part 1A”.
Restrictions on the granting of authorisations
13
After article 5(1)(a) insert—
aa
section 29(3) of the Act in the case of an entry in Part 1A, or
14
After article 5(2)(a) insert—
aa
section 29(3) of the Act in the case of an entry in Part 1A, or
15
After article 6 insert—
6A
Where an entry in column (2) of Part 1A of the Schedule is headed by reference to an authorisation of a relevant source or to an authorisation for a long term authorisation, an authorisation may only be granted by the individual holding the office, rank or position listed in an entry under the relevant heading.
Schedule16
1
In Part 1 of the Schedule for the entry for Home Office substitute—
Home Office
Immigration Inspector or Senior Officer with responsibility for immigration and border security investigations and functions
Chief Immigration Officer or Higher Officer with responsibility for immigration and border security investigations and functions
Paragraphs (b) and (c)
Immigration Inspector or Senior Executive Officer with responsibility for security and intelligence in detention services (Immigration Removal Centres)
Paragraphs (b) and (d)
Section 28 authorisation
The Head of the Unit responsible for anti-corruption investigations and functions
Section 28 authorisation
Immigration Inspector or Senior Executive Officer with responsibility for anti-corruption investigations and functions
Paragraph (b)
2
After Part 1 of the Schedule insert—
PART 1AOffices etc and Restrictions In Respect of Public Authorities Specified in Part 1 of Schedule 1 to the Act in Relation to Relevant Sources
(1)
Relevant public
authorities
(2)
Prescribed offices etc
(3)
Urgent cases
(4)
Grounds set out in section 29(3) of the Act
A police force maintained under section 2 of the Police Act 1996
Relevant Source Authorisation
Assistant Chief Constable
Long Term Authorisation
Chief Constable
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The City of London Police Force
Relevant Source Authorisation
Commander
Long Term Authorisation
Commissioner
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The Metropolitan Police Force
Relevant Source Authorisation
Commander
Long Term Authorisation
Assistant Commissioner
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The Police Service of Northern Ireland
Relevant Source Authorisation
Assistant Chief Constable
Long Term Authorisation
Chief Constable
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The Police Service of Scotland
Relevant Source Authorisation
Assistant Chief Constable
Long Term Authorisation
Chief Constable
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The Ministry of Defence Police
Relevant Source Authorisation
Assistant Chief Constable
Long Term Authorisation
Chief Constable
Superintendent
Paragraphs (a), (b) and (c)
The Royal Navy Police
Relevant Source Authorisation
Commander
Long Term Authorisation
Provost Marshal (Navy)
Lieutenant Commander
Paragraphs (a), (b) and (c)
The Royal Military Police
Relevant Source Authorisation
Colonel
Long Term Authorisation
Provost Marshal (Army)
Major
Paragraphs (a), (b) and (c)
The Royal Air Force Police
Relevant Source Authorisation
Wing Commander
Long Term Authorisation
Provost Marshal (Royal Air Force)
Squadron Leader
Paragraphs (a), (b) and (c)
The British Transport Police
Relevant Source Authorisation
Assistant Chief Constable
Long Term Authorisation
Chief Constable
Superintendent
Paragraphs (a), (b), (c), (d) and (e)
The National Crime Agency
Relevant Source Authorisation
Deputy Director
Long Term Authorisation
Deputy Director General
Grade 2 Senior Manager
Paragraph (b)
Her Majesty’s Revenue and Customs
Relevant Source Authorisation
Assistant Director
Long Term Authorisation
Director Criminal Investigation
Senior Officer
Paragraphs (a), (b), (d), (e) and (f)
The Home Office
Relevant Source Authorisation
Senior Civil Service pay band 1 with responsibility for criminal investigations in relation to immigration and border security
Long Term Authorisation
Director General with responsibility for criminal investigations in relation to immigration and border security
Grade 6 with responsibility for criminal investigations in relation to immigration and border security
Paragraphs (b), (c) and (d)
PART 4Transitional Arrangements
17
1
This Order does not affect the continued operation of authorisations granted or renewed under section 29 of the Act before this Order comes into force.
2
For the purposes of article 3 any period for which the relevant source has previously been authorised as a source in relation to the same investigation or operation prior to the coming into force of this Order shall be disregarded save for any period in relation to an authorisation that is extant on the date that this Order comes into force.
(This note is not part of the Order)