Investigatory Powers Act 2016 (c. 25)
Part 7 — Bulk personal dataset warrants
177
using the relevant criteria only if the Secretary of State has approved the use of
those criteria.
(3)
In any other case, the data may be selected for examination using the relevant
criteria only if a senior official acting on behalf of the Secretary of State has
approved the use of those criteria.
(4)
The Secretary of State may give approval for the purposes of subsection (2)
only with the approval of a Judicial Commissioner.
(5)
Approval may be given under subsection (2) or (3) only if—
(a) the Secretary of State or (as the case may be) the senior official considers
that the arrangements mentioned in section 205(6)(d) include specific
arrangements in respect of items subject to legal privilege, and
(b) where subsection (1)(a) applies, the Secretary of State or (as the case
may be) the senior official considers that there are exceptional and
compelling circumstances that make it necessary to authorise the use of
the relevant criteria.
(6)
In deciding whether to give an approval under subsection (2) or (3) in a case
where subsection (1)(a) applies, the Secretary of State or (as the case may be)
the senior official must have regard to the public interest in the confidentiality
of items subject to legal privilege.
(7)
For the purposes of subsection (5)(b), there cannot be exceptional and
compelling circumstances that make it necessary to authorise the use of the
relevant criteria unless—
(a) the public interest in obtaining the information that would be obtained
by the selection of the data for examination outweighs the public
interest in the confidentiality of items subject to legal privilege,
(b) there are no other means by which the information may reasonably be
obtained, and
(c) obtaining the information is necessary in the interests of national
security or for the purpose of preventing death or significant injury.
(8)
In deciding whether to give approval for the purposes of subsection (4), the
Judicial Commissioner must—
(a) apply the same principles as would be applied by a court on an
application for judicial review, and
(b) consider the matter with a sufficient degree of care as to ensure that the
Judicial Commissioner complies with the duties imposed by section 2
(general duties in relation to privacy).
(9)
Subsections (10) and (11) apply if, in a case where protected data retained in
reliance on a specific BPD warrant is to be selected for examination—
(a) the purpose, or one of the purposes, of using the criteria to be used for
the selection of the data for examination (“the relevant criteria”) is to
identify data that, if the data or any underlying material were not
created or held with the intention of furthering a criminal purpose,
would be an item subject to legal privilege, and
(b) the person to whom the warrant is addressed considers that the data
(“the targeted data”) or any underlying material is likely to be data or
underlying material created or held with the intention of furthering a
criminal purpose.