Francis Davey fjmd1a at gmail.com
Tue Jun 19 08:47:06 BST 2012

2012/6/19 Peter Fairbrother <zenadsl6186 at zen.co.uk>:
> No, I meant when is clause 11 invoked _by_the_Act_?
> When does a demand *have* to be Judicially authorised under the Act? - and
> afaics, it's never.
> Some "safeguard".
> I'd like to be proved wrong ..

I'm still puzzled by this and maybe I haven't followed your working.

Clause 11 is in the bill. When the bill is enacted, clause 11 will
have the force of law whether or not anything else refers to it. It
will rob any authorisation given by a relevant person of any power
unless and until they obtain judicial authorisation. I agree it has
been more common to inter-refer, eg for clause 9 to say "subject to
clause 11...." or something like that, but there doesn't, as a matter
of law, need to be any specific invocation to give it effect.

Some legislation is drafted in that sort of cautious fashion in which
no provision is stated without very clearly saying that it is
subordinate to other provisions, but it is not the rule.

Another example of the kind is 10(5) which requires any clause 11
(i.e. local authority +) authorisation to be in writing, by
implication overriding 10(4).

It may get tidied up later on in its passage through Parliament out of
abundance of caution. In my experience some of the worst technical
errors do get fixed - in other words when campaigning against a bill
its always important to push at the substance not merely the
particular drafting (while pointing that out too).

Clause 11 will also be referenced by other legislation (see eg clause 23).

> Or. and let's get right down to it - suppose the HS wants to set GCHQ (or
> whoever) up as a filtering service, and demands of the IPSs that all UK
> internet traffic gets passed to them so GCHQ can filter it for comms data.
> Is there anything in the draft Act which would prevent that?

Absolutely nothing. That would be done under Part I anyway (it
wouldn't be an authorisation).

That is why I have said that the bill is almost entirely about clause
1. Sure, there are lots of bits and pieces in the rest, but it is
clause 1 that gives sweeping and almost entirely unrestricted powers
to government to do almost anything (but not "interception" whatever
that may mean) to make sure that communications data can be got hold
of. Nothing in the rest of the bill really takes anything away from
that and is, to a great extent, a red herring.

As Roland says, local authorities have attracted some negative press
attention for (mis)-using RIPA and clause 11 may be a sop to that
constituency. I'm not particularly interested in it because the parts
of the bill that relate to obtaining the data by the police etc are
almost identical to RIPA Part II, the big change is Part I of the
bill, which is enormous.

> 'Cos if there is I still haven't seen it. And that's what they were asking
> for.
> Again, I'd like to be proved wrong ..

No. The power in Part I is only limited in a number of *formal* ways,
such as the requirement to consult and have any order positively
approved by Parliament. In practice those are very weak constraints of
interest to law geeks - the requirement of an SI means that the order
at least gets *printed*, there are bits of secondary legislation where
that doesn't apply which is most annoying - so although a government
might have to go through the formalities, there's little to stop the
kind of scenario you are envisaging.

That assumes no successful challenge on human rights or other public
law grounds of course (which are always potentially available). A
government getting competent legal advice ought to be able to fashion
something that steered past any challenge. That doesn't mean they
will. Some interactions between the UK and human rights go like this:

Government: we have an inflexible policy
Court: no

... and then they blame it on cats.

Francis Davey

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