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OVERSIGHT paras 11.1 to 11.4

OVERSIGHT

11.1 The Act provides for Commissioners whose remit is to provide independent oversight of the exercise and performance of the powers and duties contained in Part III

  • except where those powers and duties are being exercised by a judicial authority.

11.2 There are three independent Commissioners with relevant oversight responsibilities:

  • the Interception of Communications Commissioner who keeps under review:

    • the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by or under Part III, particularly the grant of appropriate permission for the giving of a section 49 notice in relation to information obtained under Part I (intercepted material and other related communications data), and
    • the adequacy of the arrangements for complying with the safeguards in section 55 in relation to key material for protected information obtained under Part I.

  • the Intelligence Services Commissioner who keeps under review (so far as they are not required to be kept under review by the Interception of Communications Commissioner):

    • the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him by Part III particularly the grant of appropriate permission for the giving of a section 49 notice in connection with, or in relation to, the activities of the intelligence services and the activities (other than activities in Northern Ireland) of the Ministry of Defence ('MOD') and members of HM Forces;
    • the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Part III;
    • the exercise and performance, in places other than Northern Ireland, by officials of the MOD and members of HM Forces of the powers and duties conferred or imposed on such officials or members of HM Forces by or under Part III, and
    • the adequacy of the arrangements for complying with the safeguards in section 55 in relation to members of the intelligence services and, in connection with any of their activities in places other than Northern Ireland, in relation to officials of the MOD and members of HM Forces.

  • the Chief Surveillance Commissioner who keeps under review, so far as they are not kept under review by the other Commissioners:
    • the exercise and performance, by any person (other than a judicial authority) of the powers and duties conferred or imposed, otherwise than with the permission of a judicial authority, by or under Part III, and
    • the adequacy of the arrangements for complying with the safeguards in section 55 by those persons whose conduct is subject to review by the Chief Surveillance Commissioner.

11.3 This code does not cover the exercise of the Commissioners' functions. It is the duty of any person who uses the powers conferred by Part III, or on whom duties are conferred, to comply with any request made by a Commissioner to provide any information he requires for the purposes of enabling him to discharge his functions.

11.4 Should any Commissioner establish that an individual has been adversely affected by any wilful or reckless failure by any person within a public authority exercising or complying with the powers and duties under Part III of the Act he shall inform the affected individual of the existence of the Tribunal and its role. The Commissioner should disclose sufficient information to the affected individual to enable him or her to effectively engage the Tribunal.

Comments

The "Oversight" of the RIPA Part III Powers by the RIPA Commissioners listed above is inadequate

Note also the comments in para 6.8 in "Special circumstances requiring disclosure of a key" about the role of the Chairman of the Financial Services Authority, who has even less power than the RIPA Commissioners do in regard to RIPA Part III.

Even these existing RIPA Commissioners ,
although exempt from the "tipping off" offence, do not have any powers to veto powers over the issuance of Section 49 Key Disclosure Notices.

Neither do they have any power to add or remove the "tipping off" secrecy provisions.

That is all left to the judgement of the official who is authorising the Key Disclosure.

The RIPA Commissioners do not even have any say in whether or not the investigation is to be regarded as a "national security investigation" or not.

They were not given any extra powers, when the Terrorism Act 2006 amended RIPA to increase the penalties for non-disclosure of a Key or of Protected Data, in such circumstances:

Terrorism Act 2006 Section 15 Maximum penalty for contravening notice relating to encrypted information

15 Maximum penalty for contravening notice relating to encrypted information (1) In section 53 of the Regulation of Investigatory Powers Act 2000 (c. 23) (offence of contravening disclosure requirement)-

(a) in paragraph (a) of subsection (5), for "two years" substitute "the appropriate maximum term"; and

(b) after that subsection insert the subsections set out in subsection (2).
(2) The inserted subsections are-
"(5A) In subsection (5) ‘the appropriate maximum term’ means-

(a) in a national security case, five years; and

(b) in any other case, two years.
(5B) In subsection (5A) ‘a national security case’ means a case in which the grounds specified in the notice to which the offence relates as the grounds for imposing a disclosure requirement were or included a belief that the imposition of the requirement was necessary in the interests of national security."

(3) This section does not apply to offences committed before the commencement of this section.

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