Crown Copyright Acknowledged
An Act to make provision to facilitate the use of electronic communications and
electronic data storage; to make provision about the modification of licences
granted under section 7 of the Telecommunications Act 1984; and for connected
purposes.
[25th May 2000]
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, as follows:- CRYPTOGRAPHY SERVICE PROVIDERS
Register of approved providers. |
| | Part I
CRYPTOGRAPHY SERVICE PROVIDERS
1. -
(1) It shall be the duty of the Secretary of State to establish and maintain a register
of approved providers of cryptography support services.
(2) The Secretary of State shall secure that the register contains particulars of every
person who is for the time being approved under any arrangements in force under
section 2.
(3) The particulars that must be recorded in every entry in the register relating to an
approved person are-
(a) the name and address of that person;
(b) the services in respect of which that person is approved; and
(c) the conditions of the approval.
(4) It shall be the duty of the Secretary of State to ensure that such arrangements
are in force as he considers appropriate for-
(a) allowing members of the public to inspect the contents of the register; and
(b) securing that such publicity is given to any withdrawal or modification of an
approval as will bring it to the attention of persons likely to be interested in it.
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Arrangements for the grant of approvals |
| | 2. -
(1) It shall be the duty of the Secretary of State to secure that there are
arrangements in force for granting approvals to persons who-
(a) are providing cryptography support services in the United Kingdom or
are proposing to do so; and
(b) seek approval in respect of any such services that they are providing,
or are proposing to provide, whether in the United Kingdom or elsewhere.
(2) The arrangements must-
(a) allow for an approval to be granted either in respect of all the services
in respect of which it is sought or in respect of only some of them;
(b) ensure that an approval is granted to a person in respect of any services
only if the condition for the grant of an approval to that person is fulfilled
in accordance with subsection (3);
(c) provide for an approval granted to any person to have effect subject to
such conditions (whether or not connected with the provision of the
services in respect of which the approval is granted) as may be contained
in the approval;
(d) enable a person to whom the Secretary of State is proposing to grant
an approval to refuse it if the proposal is in different terms from the
approval which was sought;
(e) make provision for the handling of complaints and disputes which-
(i) are required by the conditions of an approved person's approval to
be dealt with in accordance with a procedure maintained by him
in pursuance of those conditions; but
(ii) are not disposed of by the application of that procedure;
(f) provide for the modification and withdrawal of approvals.
(3) The condition that must be fulfilled before an approval is granted to any
person is that the Secretary of State is satisfied that that person-
(a) will comply, in providing the services in respect of which he is approved,
with such technical and other requirements as may be prescribed;
(b) is a person in relation to whom such other requirements as may be
prescribed are, and will continue to be, satisfied;
(c) is, and will continue to be, able and willing to comply with any
requirements that the Secretary of State is proposing to impose by
means of conditions of the approval; and
(d) is otherwise a fit and proper person to be approved in respect of those
services.
(4) Regulations made by virtue of paragraph (a) or (b) of subsection (3) may
frame a requirement for the purposes of that subsection by reference to
the opinion of a person specified in the regulations, or of a person chosen
in a manner determined in accordance with the regulations.
(5) The requirements which (subject to subsection (6)) may be imposed by
conditions contained in an approval in accordance with the arrangements
include-
(a) requirements to provide information to such persons, in such form, at
such times and in response to such requests as may be specified in
or determined under the terms of the condition;
(b) requirements that impose obligations that will continue or recur
notwithstanding the withdrawal (in whole or in part) of the approval;
(c) requirements framed by reference to the opinion or directions of a person
specified in or chosen in accordance with provision contained in the
conditions.
(6) Nothing in the arrangements shall authorise the imposition, by conditions
contained in an approval, of any requirements for-
(a) the provision of information, or
(b) the maintenance of a procedure for handling complaints or disputes,
in relation to any matter other than one appearing to the Secretary of State to
be relevant to the matters mentioned in subsection (3)(a) to (d).
(7) Any requirement to provide information that is imposed in accordance with
the arrangements on any person by the conditions of his approval shall be
enforceable at the suit or instance of the Secretary of State.
(8) Where any arrangements under this section so provide, a person who-
(a) seeks an approval under the arrangements,
(b) applies for a modification of such an approval,
(c) is for the time being approved under the arrangements, or
(d) has his approval under the arrangements modified wholly or partly in
consequence of an application made by him,
shall pay to the Secretary of State, at such time or times as may be prescribed,
such fee or fees as may be prescribed in relation to that time or those times.
(9) Sums received by the Secretary of State by virtue of subsection (8) shall be
paid into the Consolidated Fund.
(10) For the purposes of subsection (1) cryptography support services are
provided in the United Kingdom if-
(a) they are provided from premises in the United Kingdom;
(b) they are provided to a person who is in the United Kingdom when
he makes use of the services; or
(c) they are provided to a person who makes use of the services for the
purposes of a business carried on in the United Kingdom or from
premises in the United Kingdom.
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Delegation of approval functions. |
| | 3. -
(1) The Secretary of State may appoint any person to carry out, in his place,
such of his functions under the preceding provisions of this Part (other
than any power of his to make regulations) as may be specified in the
appointment.
(2) An appointment under this section-
(a) shall have effect only to such extent, and subject to such
conditions, as may be set out in the appointment; and
(b) may be revoked or varied at any time by a notice given by
the Secretary of State to the appointed person.
(3) A person appointed under this section shall, in the carrying out of the
functions specified in his appointment, comply with all such general
directions as may be given to him from time to time by the Secretary
of State.
(4) Subject to any order under subsection (5) and to any directions given
by the Secretary of State, where a body established by or under any
enactment or the holder of any office created by or under any enactment
is appointed to carry out any functions of the Secretary of State under
this Part-
(a) the enactments relating to the functions of that body or office shall have
effect as if the functions of that body or office included the functions
specified in the appointment; and
(b) the body or office-holder shall be taken to have power to do anything
which is calculated to facilitate, or is incidental or conducive to, the
carrying out of the functions so specified.
(5) The Secretary of State may, by order made by statutory instrument,
provide for enactments relating to any such body or office as is
mentioned in subsection (4) to have effect, so far as appears to him
appropriate for purposes connected with the carrying out of functions
that have been or may be conferred on the body or office-holder under
this section, with such modifications as may be provided for in the order.
(6) An order shall not be made under subsection (5) unless a draft of it has first
been laid before Parliament and approved by a resolution of each House.
(7) It shall be the duty of the Secretary of State to secure-
(a) that any appointment made under this section is published in such
manner as he considers best calculated to bring it to the attention of
persons likely to be interested in it;
(b) that any variation or revocation of such an appointment is also so
published; and
(c) that the time fixed for any notice varying or revoking such an appointment
to take effect allows a reasonable period after the giving of the notice for
the making of any necessary incidental or transitional arrangements.
(8) Nothing in this section, or in anything done under this section, shall prejudice-
(a) any power of the Secretary of State, apart from this Act, to exercise
functions through a Minister or official in his department;
(b) any power of any person by virtue of subsection (4), or by virtue of an order
under subsection (5), to act on behalf of a body or office-holder in
connection with the carrying out of any function;
(c) any provision by virtue of section 2(4) or (5)(c) that imposes a requirement
by reference to the opinion of any person or determines the manner of
choosing a person whose opinion is to be referred to.
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FACILITATION OF ELECTRONIC COMMERCE, DATA STORAGE, ETC. | | PART II
FACILITATION OF ELECTRONIC COMMERCE, DATA STORAGE, ETC.
7. -
(1) In any legal proceedings-
(a) an electronic signature incorporated into or logically associated with a
particular electronic communication or particular electronic data, and
(b) the certification by any person of such a signature, shall each be
admissible in evidence in relation to any question as to the authenticity
of the communication or data or as to the integrity of the communication
or data.
(2) For the purposes of this section an electronic signature is so much of
anything in electronic form as-
(a) is incorporated into or otherwise logically associated with any electronic
communication or electronic data; and
(b) purports to be so incorporated or associated for the purpose of being
used in establishing the authenticity of the communication or data,
the integrity of the communication or data, or both.
(3) For the purposes of this section an electronic signature incorporated into
or associated with a particular electronic communication or particular
electronic data is certified by any person if that person (whether before or
after the making of the communication) has made a statement
confirming that-
(a) the signature,
(b) a means of producing, communicating or verifying the signature, or
(c) a procedure applied to the signature, is (either alone or in combination
with other factors) a valid means of establishing the authenticity of the
communication or data, the integrity of the communication or data, or both.
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Power to modify legislation. |
| | 8. -
(1) Subject to subsection (3), the appropriate Minister may by order made by
statutory instrument modify the provisions of-
(a) any enactment or subordinate legislation, or
(b) any scheme, licence, authorisation or approval issued, granted or given
by or under any enactment or subordinate legislation, in such manner
as he may think fit for the purpose of authorising or facilitating the use
of electronic communications or electronic storage (instead of other
forms of communication or storage) for any purpose mentioned in
subsection (2).
(2) Those purposes are-
(a) the doing of anything which under any such provisions is required to be
or may be done or evidenced in writing or otherwise using a document,
notice or instrument;
(b) the doing of anything which under any such provisions is required to
be or may be done by post or other specified means of delivery;
(c) the doing of anything which under any such provisions is required to be
or may be authorised by a person's signature or seal, or is required to be
delivered as a deed or witnessed;
(d) the making of any statement or declaration which under any such
provisions is required to be made under oath or to be contained in a
statutory declaration;
(e) the keeping, maintenance or preservation, for the purposes or in
pursuance of any such provisions, of any account, record, notice,
instrument or other document;
(f) the provision, production or publication under any such provisions of
any information or other matter;
(g) the making of any payment that is required to be or may be made
under any such provisions.
(3) The appropriate Minister shall not make an order under this section
authorising the use of electronic communications or electronic storage
for any purpose, unless he considers that the authorisation is such that
the extent (if any) to which records of things done for that purpose will be
available will be no less satisfactory in cases where use is made of
electronic communications or electronic storage than in other cases.
(4) Without prejudice to the generality of subsection (1), the power to make
an order under this section shall include power to make an order containing
any of the following provisions-
(a) provision as to the electronic form to be taken by any electronic
communications or electronic storage the use of which is authorised by
an order under this section;
(b) provision imposing conditions subject to which the use of electronic
communications or electronic storage is so authorised;
(c) provision, in relation to cases in which any such conditions are not
satisfied, for treating anything for the purposes of which the use of such
communications or storage is so authorised as not having been done;
(d) provision, in connection with anything so authorised, for a person to be
able to refuse to accept receipt of something in electronic form except in
such circumstances as may be specified in or determined under the order;
(e) provision, in connection with any use of electronic communications so
authorised, for intermediaries to be used, or to be capable of being used,
for the transmission of any data or for establishing the authenticity or
integrity of any data;
(f) provision, in connection with any use of electronic storage so authorised,
for persons satisfying such conditions as may be specified in or determined
under the regulations to carry out functions in relation to the storage;
(g) provision, in relation to cases in which the use of electronic
communications or electronic storage is so authorised, for the determination
of any of the matters mentioned in subsection (5), or as to the manner in
which they may be proved in legal proceedings;
(h) provision, in relation to cases in which fees or charges are or may be
imposed in connection with anything for the purposes of which the use
of electronic communications or electronic storage is so authorised, for
different fees or charges to apply where use is made of such
communications or storage;
(i) provision, in relation to any criminal or other liabilities that may arise
(in respect of the making of false or misleading statements or otherwise)
in connection with anything for the purposes of which the use of electronic
communications or electronic storage is so authorised, for corresponding
liabilities to arise in corresponding circumstances where use is made of
such communications or storage;
(j) provision requiring persons to prepare and keep records in connection with
any use of electronic communications or electronic storage which is so
authorised;
(k) provision requiring the production of the contents of any records kept in
accordance with an order under this section;
(l) provision for a requirement imposed by virtue of paragraph (j) or (k) to
be enforceable at the suit or instance of such person as may be specified
in or determined in accordance with the order;
(m) any such provision, in relation to electronic communications or electronic
storage the use of which is authorised otherwise than by an order under
this section, as corresponds to any provision falling within any of the
preceding paragraphs that may be made where it is such an order that
authorises the use of the communications or storage.
(5) The matters referred to in subsection (4)(g) are-
(a) whether a thing has been done using an electronic communication or
electronic storage;
(b) the time at which, or date on which, a thing done using any such
communication or storage was done;
(c) the place where a thing done using such communication or storage was
done;
(d) the person by whom such a thing was done; and
(e) the contents, authenticity or integrity of any electronic data.
(6) An order under this section-
(a) shall not (subject to paragraph (b)) require the use of electronic
communications or electronic storage for any purpose; but
(b) may make provision that a period of notice specified in the order must
expire before effect is given to a variation or withdrawal of an election or
other decision which-
(i) has been made for the purposes of such an order; and
(ii) is an election or decision to make use of electronic communications
or electronic storage.
(7) The matters in relation to which provision may be made by an order under
this section do not include any matter under the care and management of
the Commissioners of Inland Revenue or any matter under the care and
management of the Commissioners of Customs and Excise.
(8) In this section references to doing anything under the provisions of any
enactment include references to doing it under the provisions of any subordinate
legislation the power to make which is conferred by that enactment.
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| | 9. -
(1) In this Part "the appropriate Minister" means (subject to subsections (2)
and (7) and section 10(1))-
(a) in relation to any matter with which a department of the Secretary of
State is concerned, the Secretary of State;
(b) in relation to any matter with which the Treasury is concerned, the
Treasury; and
(c) in relation to any matter with which any Government department other
than a department of the Secretary of State or the Treasury is concerned,
the Minister in charge of the other department.
(2) Where in the case of any matter-
(a) that matter falls within more than one paragraph of subsection (1),
(b) there is more than one such department as is mentioned in paragraph (c)
of that subsection that is concerned with that matter, or
(c) both paragraphs (a) and (b) of this subsection apply,
references, in relation to that matter, to the appropriate Minister are
references to any one or more of the appropriate Ministers acting (in the
case of more than one) jointly.
(3) Subject to subsection (4) and section 10(6), a statutory instrument containing
an order under section 8 shall be subject to annulment in pursuance of a
resolution of either House of Parliament.
(4) Subsection (3) does not apply in the case of an order a draft of which has
been laid before Parliament and approved by a resolution of each House.
(5) An order under section 8 may-
(a) provide for any conditions or requirements imposed by such an order to
be framed by reference to the directions of such persons as may be
specified in or determined in accordance with the order;
(b) provide that any such condition or requirement is to be satisfied only
where a person so specified or determined is satisfied as to specified
matters.
(6) The provision made by such an order may include-
(a) different provision for different cases;
(b) such exceptions and exclusions as the person making the order may
think fit; and
(c) any such incidental, supplemental, consequential and transitional provision
as he may think fit; and the provision that may be made by virtue of
paragraph (c) includes provision modifying any enactment or subordinate
legislation or any scheme, licence, authorisation or approval issued, granted
or given by or under any enactment or subordinate legislation.
(7) In the case of any matter which is not one of the reserved matters within the
meaning of the Scotland Act 1998 or in respect of which functions are, by
virtue of section 63 of that Act, exercisable by the Scottish Ministers instead
of by or concurrently with a Minister of the Crown, this section and section 8
shall apply to Scotland subject to the following modifications-
(a) subsections (1) and (2) of this section are omitted;
(b) any reference to the appropriate Minister is to be read as a reference to
the Secretary of State;
(c) any power of the Secretary of State, by virtue of paragraph (b), to make
an order under section 8 may also be exercised by the Scottish Ministers
with the consent of the Secretary of State; and
(d) where the Scottish Ministers make an order under section 8-
(i) any reference to the Secretary of State (other than a reference in this
subsection) shall be construed as a reference to the Scottish
Ministers; and
(ii) any reference to Parliament or to a House of Parliament shall be
construed as a reference to the Scottish Parliament.
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MISCELLANEOUS AND SUPPLEMENTAL | |
PART III
MISCELLANEOUS AND SUPPLEMENTAL
Telecommunications licences
11. -
(1) In subsection (3) of section 12 of the Telecommunications Act 1984 (which
requires notice of a proposed modification of the conditions of a licence
under section 7 of that Act to be served on the licensee), for "that person"
there shall be substituted "every relevant licensee".
(2) For subsection (4) of that section (circumstances in which a proposal by the
Director General of Telecommunications for the modification of the conditions
of a licence is made by agreement) there shall be substituted the following
subsections-
"(4A) In the case of a licence granted to all persons, or to all persons of a
particular class, the Director shall not make any modification unless-
(a) he has considered every representation made to him about the
modification; and
(b) there has not been any objection by a person running a
telecommunication system under the authority of the licence to the
making of the modification.
(4B) In the case of a licence granted to a particular person, the Director shall
not make any modification unless-
(a) he has considered every representation made to him about the
modification or any modification in the same or similar terms that
he is at the same time proposing to make in the case of other
licences; and
(b) the requirements of section 12A below are satisfied in the case
of the modification and also in the case of every such modification
in the same or similar terms."
(3) After subsection (6) of that section there shall be inserted the
following subsections-
"(6A) Where the Director makes a modification under this section,
he shall, as soon as reasonably practicable after making the
modification, give notice of his reasons for doing so.
(6B) Subsection (3) above shall apply in the case of a notice under
subsection (6A) above as it applies in the case of a notice under
subsection (2) above.
(6C) Where the Director has given notice under subsection (2) above
of a proposal to modify the conditions of a licence, he may in such
manner and at such time as he considers appropriate publish-
(a) the identities of any or all of the persons who objected to the
making of the modification; and
(b) to the extent that confidentiality for representations or objections
in relation to the proposal for the modification has not been claimed
by the persons making them, such other particulars of the
representations or objections as he thinks fit.
(6D) In this section and section 12A below (except in subsection
(6C) above), a reference to a representation or objection, in relation to
a modification, is a reference only to a representation or objection which-
(a) was duly made to the Director within a time limit specified in the
case of that modification under subsection (2)(c) above or section
12A(5)(d) below; and
(b) has not subsequently been withdrawn; and for the purposes
of this section and section 12A below representations against a
modification shall be taken to constitute an objection only if they
are accompanied by a written statement that they are to be so taken.
(6E) In this section and section 12A below "relevant licensee", in
relation to a modification, means-
(a) in a case where the same or a similar modification is being
proposed at the same time in relation to different licences
granted to different persons, each of the persons who, at the time
when notice of the proposals is given, is authorised by one or more
of those licences to run a telecommunication system; and
(b) in any other case, the person authorised by the licence in question
to run such a system.
(6F) In this section references to a modification of the conditions of a
licence do not include references to any modification to which effect
is given by the exercise of a power under the terms of any licence to
revoke it and by the grant of a new licence."
(4) After that section there shall be inserted the following section-
(5) In section 12 of that Act-
(a) in subsection (2), the words after paragraph (c) (duty to consider
representations and objections) shall be omitted; and
(b) in subsection (7) (references to modification not to include
modifications relating to the telecommunications code), for "sections
13 to 15" there shall be substituted "sections 12A to 15".
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"Agreement required for the purposes of section 12. |
| | 12A. -
(1) The requirements of this section are satisfied in the case of a
modification if any of subsections (2) to (4) below applies.
(2) This subsection applies if-
(a) it appears to the Director that the relevant licensee or, as the
case may be, each of the relevant licensees has been given a
reminder, at least seven days before the making of the modification,
of the Director's powers in the absence of objections; and
(b) there has not been an objection by a relevant licensee to the making
of the modification.
(3) This subsection applies if-
(a) the modification is one which in the opinion of the Director
is deregulatory; and
(b) the notice given under section 12(2) above in the case of the
proposal for the modification contained a statement of that opinion
and of the Director's reasons for it.
(4) This subsection applies if-
(a) the modification is in the same or similar terms as modifications
that the Director has already proposed but not yet made in the
case of other licences;
(b) the licence in question is one issued since the making of the
proposal for the modification of the conditions of the other licences;
(c) subsection (2) or (3) above applies in the case of the modifications
of the conditions of the other licences;
(d) it appears to the Director that the person holding the licence in
question has been given a reasonable opportunity of stating whether
he objects to the modification; and
(e) that person has not objected.
(5) A reminder for the purposes of subsection (2)(a) above-
(a) must be contained in a notice given by the Director and, in the case
of a relevant licensee which is a company with a registered office in
the United Kingdom, must have been given to that company by being
sent to that office;
(b) must remind the licensee of the contents of the notice which was
copied to the licensee under section 12(3) above in the case of the
modification in question;
(c) must state that the Director will be able to make the modification if
no relevant licensee objects; and
(d) must specify a time (not being less than seven days from the date
of the giving of the notice) at the end of which the final opportunity for
the making of representations and objections will expire.
(6) Nothing in subsection (2) above shall require a reminder to be sent to
a person who has consented to the making of the
modification in question.
(7) For the purposes of this section a modification is deregulatory if-
(a) the effect of the conditions to be modified is to impose a burden
affecting the holder of the licence in which those conditions
are included;
(b) the modification would remove or reduce the burden without
removing any necessary protection;
(c) the modification is such that no person holding a licence granted
under section 7 above to a particular person would be unduly
disadvantaged by the modification in competing with the holder of
the licence in which those conditions are included."
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Appeals against modifications of licence conditions |
| | 12.
In subsection (1) of section 46B of the Telecommunications Act 1984
(appeals against decisions of the Secretary of State or the Director), after
paragraph (d) there shall be inserted-
"(da) a decision with regard to the modification under section 12 of a condition
of a licence granted under section 7 above to a particular person;".
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Ministerial expenditure etc. |
| | Supplemental
13.
There shall be paid out of money provided by Parliament-
(a) any expenditure incurred by the Secretary of State for or in connection
with the carrying out of his functions under this Act; and
(b) any increase attributable to this Act in the sums which are payable out of
money so provided under any other Act.
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