“(2) Subsection (1) above does not apply to any disclosure made -(a) in accordance with the order of any court or for the purposes of
any criminal proceedings;
(b) in accordance with any warrant, authorisation or notice issued,
granted or given under any provision of [RIPA].
(c) in compliance with any requirement imposed (apart from that Act)
in consequence of the exercise by any person of any statutory power
exercisable by him for the purpose of obtaining any document or other
information …
(3) In subsection (2) above … ‘statutory power’ [has] the same
meanings as in [RIPA].”
“Statutory power” is defined in s. 81(1) of RIPA: “‘statutory’, in relation to
any power or duty, means conferred or imposed by or under any enactment or
subordinate legislation”.
40
Thus, as a matter of ordinary language, s.45, as amended by RIPA, recognised
that disclosure might be made under RIPA or in consequence of the exercise
by any person of any other statutory power exercisable for the purpose of
obtaining any document or other information. It did so, by amendment of the
Act in which s.94 appears. It would therefore be surprising if Parliament can
be taken to have intended by these words to do other than preserve that power.
41
The position is put beyond doubt by s.80 of RIPA:
“Nothing in any of the provisions in this Act, by virtue of which conduct of
any description is or may be authorised by any warrant, authorisation or
notice, or by virtue of which information may be obtained in any manner,
shall be construed –
(a) as making it unlawful to engage in any conduct of that description
which is not otherwise unlawful under this Act and would not be
unlawful apart from this Act;
...
(c) as prejudicing any power to obtain information by any means not
involving conduct that may be authorised under this Act.”
As a matter of construction, therefore, RIPA did not revoke the power of the
Secretary of State under s.94 to give directions for the provision of
communications data to PECNs or their duty to comply with such a direction.
In any event, so far as collection of communications data is concerned, s.45
continued in force (as amended). S. 1(1) of RIPA, which made it an offence to
intercept communications, did not, in any event, apply to communications data
(s.2 (5) of RIPA).
42
The power under s.94 was preserved by the Communications Act 2003 which
repealed the operative provisions of the 1984 Act, apart from s.94. Further, as
set out in paragraph 9 above, it amended s.94 to substitute “necessary” for
“requisite or expedient” in subsection (1), and it added subsection (2A):
17