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Investigatory Powers Act 2016 (c. 25)
Part 9 — Miscellaneous and general provisions
Chapter 1 — Miscellaneous
(2)
In deciding whether to approve a decision to give a relevant notice, a Judicial
Commissioner must review the Secretary of State’s conclusions as to the
following matters—
(a) whether the notice is necessary as mentioned in section 252(1)(a) or (as
the case may be) section 253(1)(a), and
(b) whether the conduct that would be required by the notice is
proportionate to what is sought to be achieved by that conduct.
(3)
In doing so, 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 matters referred to in subsection (2) 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).
(4)
Where a Judicial Commissioner refuses to approve a decision to give a relevant
notice, the Judicial Commissioner must give the Secretary of State written
reasons for the refusal.
(5)
Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, refuses to approve a decision to give a relevant notice, the
Secretary of State may ask the Investigatory Powers Commissioner to decide
whether to approve the decision to give the notice.
255
Further provision about notices under section 252 or 253
(1)
In this section “relevant notice” means—
(a) a national security notice under section 252, or
(b) a technical capability notice under section 253.
(2)
Before giving a relevant notice to a person, the Secretary of State must consult
that person.
(3)
Before giving a relevant notice, the Secretary of State must, among other
matters, take into account—
(a) the likely benefits of the notice,
(b) the likely number of users (if known) of any postal or
telecommunications service to which the notice relates,
(c) the technical feasibility of complying with the notice,
(d) the likely cost of complying with the notice, and
(e) any other effect of the notice on the person (or description of person) to
whom it relates.
(4)
In the case of a technical capability notice that would impose any obligations
relating to the removal by a person of electronic protection applied by or on
behalf of that person to any communications or data, in complying with
subsection (3) the Secretary of State must in particular take into account the
technical feasibility, and likely cost, of complying with those obligations.
(5)
A relevant notice must be in writing.
(6)
A technical capability notice may be given to a person outside the United
Kingdom in any of the following ways (as well as by electronic or other means
of giving a notice)—