Captured statutory text (L5)
89 Joint processing by intelligence services and competent authorities
(1)Part 4 of the 2018 Act (intelligence services processing) is amended as follows.
(2)In section 82 (processing to which Part 4 applies)—
(a)before subsection (1) insert—
(A1)This Part—
(a)applies to processing of personal data by an intelligence service, and
(b)applies to processing of personal data by a qualifying competent authority where the processing is the subject of a designation notice that is for the time being in force (see sections 82A to 82E).
,
(b)in subsection (1)—
(i)after “applies” insert “only”,
(ii)in paragraph (a), for “the processing by an intelligence service” substitute “processing”, and
(iii)in paragraph (b), for “the processing by an intelligence service” substitute “processing”,
(c)after subsection (2) insert—
(2A)In this Part—
“competent authority” has the same meaning as in Part 3;
“qualifying competent authority” means a competent authority specified or described in regulations made by the Secretary of State.
, and
(d)after subsection (3) insert—
(4)Regulations under this section are subject to the affirmative resolution procedure.
(3)After section 82 insert—
Designation of processing by a qualifying competent authority(82A)
(1)For the purposes of this Part, the Secretary of State may give a notice designating processing of personal data by a qualifying competent authority (a “designation notice”) where—
(a)an application for designation of the processing is made in accordance with this section, and
(b)the Secretary of State considers that designation of the processing is required for the purposes of safeguarding national security.
(2)The Secretary of State may only designate processing by a qualifying competent authority that is carried out by the authority as a joint controller with at least one intelligence service.
(3)The Secretary of State may not designate processing by a qualifying competent authority that consists of the transfer of personal data to—
(a)a country or territory outside the United Kingdom, or
(b)an international organisation.
(4)A designation notice must—
(a)specify or describe the processing and qualifying competent authority that are designated, and
(b)be given to the applicants for the designation (and see also section 82D).
(5)An application for designation of processing of personal data by a qualifying competent authority must be made jointly by—
(a)the qualifying competent authority, and
(b)the intelligence service with which the processing is to be carried out.
(6)An application may be made in respect of more than one qualifying competent authority and in respect of processing with more than one intelligence service.
(7)The application must—
(a)describe the processing, including the intended purposes and means of processing, and
(b)explain why the applicants consider that designation is required for the purposes of safeguarding national security.
(8)Before giving a designation notice, the Secretary of State must consult the Commissioner.
(9)In this section, “joint controller”, in relation to processing of personal data, means a controller whose responsibilities for compliance with this Part in relation to the processing are determined in an arrangement under section 104.
Duration of designation notice(82B)
(1)A designation notice must state when it comes into force.
(2)A designation notice ceases to be in force at the earliest of the following times—
(a)at the end of the period of 5 years beginning when the notice comes into force;
(b)(if relevant) at the end of a shorter period specified in the notice;
(c)when the notice is withdrawn under section 82C.
(3)The Secretary of State may give a further designation notice in respect of processing that is, or has been, the subject of a previous designation notice.
Review and withdrawal of designation notice(82C)
(1)Subsections (2) to (4) apply where processing is the subject of a designation notice for the time being in force.
(2)A person who applied for the designation of the processing must notify the Secretary of State without undue delay if the person considers that the designation is no longer required for the purposes of safeguarding national security.
(3)A person who applied for the designation of the processing must, on a request from the Secretary of State, provide—
(a)a description of the processing that is being, or is intended to be, carried out in reliance on the notice, and
(b)an explanation of why the person considers that designation of the processing continues to be required for the purposes of safeguarding national security.
(4)The Secretary of State must at least annually—
(a)review each designation notice that is for the time being in force, and
(b)consider whether designation of the processing which is the subject of the notice continues to be required for the purposes of safeguarding national security.
(5)The Secretary of State—
(a)may withdraw a designation notice by giving a further notice (a “withdrawal notice”) to the persons who applied for the designation, and
(b)must give a withdrawal notice if the Secretary of State considers that designation of some or all of the processing to which the notice applies is no longer required for the purposes of safeguarding national security (whether as a result of a review required under subsection (4) or otherwise).
(6)A withdrawal notice must—
(a)withdraw the designation notice completely, and
(b)state when it comes into force.
(7)In determining when a withdrawal notice required under subsection (5)(b) comes into force, the Secretary of State must consider—
(a)the desirability of the processing ceasing to be designated as soon as possible, and
(b)where relevant, the time needed to effect an orderly transition to new arrangements for the processing of personal data.
Records of designation notices(82D)
(1)Where the Secretary of State gives a designation notice—
(a)the Secretary of State must send a copy of the notice to the Commissioner, and
(b)the Commissioner must publish a record of the notice.
(2)The record must contain—
(a)the Secretary of State’s name,
(b)the date on which the notice was given,
(c)the date on which the notice ceases to have effect (if not previously withdrawn), and
(d)subject to subsection (3), the rest of the text of the notice.
(3)The Commissioner must not publish the text, or a part of the text, of the notice if—
(a)the Secretary of State has determined that publishing the text or that part of the text—
(i)would be against the interests of national security,
(ii)would be contrary to the public interest, or
(iii)might jeopardise the safety of any person, and
(b)the Secretary of State has notified the Commissioner of that determination.
(4)The Commissioner must keep the record of the notice available to the public while the notice is in force.
(5)Where the Secretary of State gives a withdrawal notice, the Secretary of State must send a copy of the notice to the Commissioner.
Appeal against designation notice(82E)
(1)A person directly affected by a designation notice may appeal to the Tribunal against the notice.
(2)If, on an appeal under this section, the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Secretary of State did not have reasonable grounds for giving the notice, the Tribunal may—
(a)allow the appeal, and
(b)quash the notice.
Full captured verbatim text
(1) Part 4 of the 2018 Act (intelligence services processing) is amended as follows. (2) In section 82 (processing to which Part 4 applies)— (a) before subsection (1) insert— (A1) This Part— (a) applies to processing of personal data by an intelligence service, and (b) applies to processing of personal data by a qualifying competent authority where the processing is the subject of a designation notice that is for the time being in force (see sections 82A to 82E). , (b) in subsection (1)— (i) after “applies” insert “only”, (ii) in paragraph (a), for “the processing by an intelligence service” substitute “processing”, and (iii) in paragraph (b), for “the processing by an intelligence service” substitute “processing”, (c) after subsection (2) insert— (2A) In this Part— “competent authority” has the same meaning as in Part 3; “qualifying competent authority” means a competent authority specified or described in regulations made by the Secretary of State. , and (d) after subsection (3) insert— (4) Regulations under this section are subject to the affirmative resolution procedure. (3) After section 82 insert— Designation of processing by a qualifying competent authority(82A) (1) For the purposes of this Part, the Secretary of State may give a notice designating processing of personal data by a qualifying competent authority (a “designation notice”) where— (a) an application for designation of the processing is made in accordance with this section, and (b) the Secretary of State considers that designation of the processing is required for the purposes of safeguarding national security. (2) The Secretary of State may only designate processing by a qualifying competent authority that is carried out by the authority as a joint controller with at least one intelligence service. (3) The Secretary of State may not designate processing by a qualifying competent authority that consists of the transfer of personal data to— (a) a country or territory outside the United Kingdom, or (b) an international organisation. (4) A designation notice must— (a) specify or describe the processing and qualifying competent authority that are designated, and (b) be given to the applicants for the designation (and see also section 82D). (5) An application for designation of processing of personal data by a qualifying competent authority must be made jointly by— (a) the qualifying competent authority, and (b) the intelligence service with which the processing is to be carried out. (6) An application may be made in respect of more than one qualifying competent authority and in respect of processing with more than one intelligence service. (7) The application must— (a) describe the processing, including the intended purposes and means of processing, and (b) explain why the applicants consider that designation is required for the purposes of safeguarding national security. (8) Before giving a designation notice, the Secretary of State must consult the Commissioner. (9) In this section, “joint controller”, in relation to processing of personal data, means a controller whose responsibilities for compliance with this Part in relation to the processing are determined in an arrangement under section 104. Duration of designation notice(82B) (1) A designation notice must state when it comes into force. (2) A designation notice ceases to be in force at the earliest of the following times— (a) at the end of the period of 5 years beginning when the notice comes into force; (b) (if relevant) at the end of a shorter period specified in the notice; (c) when the notice is withdrawn under section 82C. (3) The Secretary of State may give a further designation notice in respect of processing that is, or has been, the subject of a previous designation notice. Review and withdrawal of designation notice(82C) (1) Subsections (2) to (4) apply where processing is the subject of a designation notice for the time being in force. (2) A person who applied for the designation of the processing must notify the Secretary of State without undue delay if the person considers that the designation is no longer required for the purposes of safeguarding national security. (3) A person who applied for the designation of the processing must, on a request from the Secretary of State, provide— (a) a description of the processing that is being, or is intended to be, carried out in reliance on the notice, and (b) an explanation of why the person considers that designation of the processing continues to be required for the purposes of safeguarding national security. (4) The Secretary of State must at least annually— (a) review each designation notice that is for the time being in force, and (b) consider whether designation of the processing which is the subject of the notice continues to be required for the purposes of safeguarding national security. (5) The Secretary of State— (a) may withdraw a designation notice by giving a further notice (a “withdrawal notice”) to the persons who applied for the designation, and (b) must give a withdrawal notice if the Secretary of State considers that designation of some or all of the processing to which the notice applies is no longer required for the purposes of safeguarding national security (whether as a result of a review required under subsection (4) or otherwise). (6) A withdrawal notice must— (a) withdraw the designation notice completely, and (b) state when it comes into force. (7) In determining when a withdrawal notice required under subsection (5)(b) comes into force, the Secretary of State must consider— (a) the desirability of the processing ceasing to be designated as soon as possible, and (b) where relevant, the time needed to effect an orderly transition to new arrangements for the processing of personal data. Records of designation notices(82D) (1) Where the Secretary of State gives a designation notice— (a) the Secretary of State must send a copy of the notice to the Commissioner, and (b) the Commissioner must publish a record of the notice. (2) The record must contain— (a) the Secretary of State’s name, (b) the date on which the notice was given, (c) the date on which the notice ceases to have effect (if not previously withdrawn), and (d) subject to subsection (3), the rest of the text of the notice. (3) The Commissioner must not publish the text, or a part of the text, of the notice if— (a) the Secretary of State has determined that publishing the text or that part of the text— (i) would be against the interests of national security, (ii) would be contrary to the public interest, or (iii) might jeopardise the safety of any person, and (b) the Secretary of State has notified the Commissioner of that determination. (4) The Commissioner must keep the record of the notice available to the public while the notice is in force. (5) Where the Secretary of State gives a withdrawal notice, the Secretary of State must send a copy of the notice to the Commissioner. Appeal against designation notice(82E) (1) A person directly affected by a designation notice may appeal to the Tribunal against the notice. (2) If, on an appeal under this section, the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Secretary of State did not have reasonable grounds for giving the notice, the Tribunal may— (a) allow the appeal, and (b) quash the notice.