With this it will be convenient to discuss the following:
Government new clause 6—Civil liability for certain unlawful interceptions.
New clause 4—Offence of unlawful use of investigatory powers—
“(1) A relevant person is guilty of an offence if—
(a) by way of conduct described in this Act, he knowingly or recklessly obtains the communications, communications data, secondary data, equipment data or personal information of an individual, and
(b) the person does not have lawful authority to make use of the investigatory power concerned.
(2) Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the information referred to in subsection (1)(a).
(3) In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
(5) The offence in this section shall have precedence over any other relevant offences in the Data Protection Act 1998, Wireless Telegraphy Act 2006, Computer Misuse Act 1990, and the common law offence of misfeasance in public office.”
On behalf of the Intelligence and Security Committee of Parliament, to provide for a unified offence for the misuse of intrusive investigatory powers at the beginning of the Bill, in Part 1, rather than having each offence scattered throughout the Bill or in other legislation.
New clause 21—General duties in relation to privacy—
“(1) Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4 or section 216, 217 or 220,
(f) to vary or revoke such a notice,
(g) to approve a decision to give a notice under section 216 or 217, or
(h) to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e) or (f).
(2) The public authority must give effect to—
(a) the requirements of the Human Rights Act 1998, and
(b) other requirements of public law.
(3) The public authority must also have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
(b) the public interest in the integrity and security of telecommunication systems and postal services, and
(c) any other aspects of the public interest in the protection of privacy.
(4) The duties under subsection (3)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are also relevant in that context.
(5) The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this Act.
(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 66) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.”
This new clause sets out general duties in relation to privacy.
Amendment 14, in clause 1, page 1, line 4, at end insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to place privacy at the forefront of the legislation.
Government amendments 26 to 34.
New clause 1—Notification by the Investigatory Powers Commissioner—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within thirty days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
New clause 2—Referrals by the Intelligence and Security Committee of Parliament—
“(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner.
(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the outcome of any investigation, inspection or audit arising from such a referral.”
To allow the Intelligence and Security Committee to refer matters, on behalf of Parliament, to the Commissioner and to provide a mechanism for the Committee to be informed of the outcome.
New clause 16—Investigatory Powers Commissioner: obligation to notify—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(a) equipment interference,
(b) access or examination of data retrieved from a bulk personal dataset.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within ninety days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of the provisions under which the conduct has taken place.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of the on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
This new Clause would ensure that individuals are informed after the event that they have been a subject of investigatory powers.
Amendment 465, in clause 194, page 149, line 7, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
See amendment 469.
Amendment 466, page 149, line 12, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of Inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing Investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the Investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of subsection (2)(a) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (-)(a) – (b);
(f) human rights as defined in Section 9(2) of the Equality Act 2006.”
See amendment 469.
Amendment 295, page 149, line 19, leave out paragraph (a).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 296, page 149, line 20, leave out paragraph (b).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 297, page 149, line 21, leave out paragraph (c).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 7, page 149, line 23, at end insert—
“(3A) The term of office of a person appointed under subsection (1)(a) as Investigatory Powers Commissioner must not begin before the Intelligence and Security Committee of Parliament has consented to the proposed appointee.”
This amendment would require the appointment of the Investigatory Powers Commissioner to be agreed by the Intelligence and Security Committee of Parliament.
Amendment 298, page 149, line 28, at end insert—
“(5A) When appointing any person under subsection (1), the Prime Minister must act on the recommendation of—
(a) the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,
(b) the Lord President of the Court of Session, in relation to Judicial Commissioners appointed from Scotland, and
(c) the Lord Chief Justice of Northern Ireland, in relation to Judicial Commissioners appointed from Northern Ireland.”
An amendment to require the Prime Minister to act on the recommendation of the Lord Chief Justice of England and Wales, the Lord President of the court of Session, or the Lord Chief Justice of Northern Ireland, when appointing Judicial Commissioners.
Amendment 146, page 149, line 35, at end insert—
“(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the
audit and inspection functions set out in this Part.”
This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function..
Amendment 467, page 149, line 35, at end insert—
“(7A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) The Judicial Appointments Commission;
(b) The Judicial Appointments Board of Scotland; or
(c) The Northern Ireland Judicial Appointments Commission.”
See amendment 469.
Amendment 468, page 149, line 35, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
See amendment 469.
Amendment 469, page 150, line 2, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
The purpose of these amendments is to replace the proposal to create an Investigatory Powers Commissioner with provisions to create a new Investigatory Powers Commission. They would provide that no appointment can be made except pursuant to a recommendation by the independent bodies in England and Wales, Scotland and Northern Ireland tasked with making judicial appointments in those jurisdictions.
Government amendment 35.
Amendment 8, in clause 196, page 152, line 9, at end insert—
“(4A) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to make explicit that the Investigatory Powers Commissioner is required to scrutinise the underlying safeguards, procedures and processes relating to bulk powers, including the arrangements for the protection of, and control of access to, material obtained through their use.
Amendment 18, in clause 197, page 153, line 8, after “Commissioner”, insert
“or the Intelligence and Security Committee of Parliament.”
On behalf of the Intelligence and Security Committee of Parliament, to allow the Prime Minister to issue directions at the request of the ISC (in addition to the Commissioner).
Amendment 189, in clause 198, page 153, line 21, leave out
“if the Commissioner considers that—”.
See amendment 195.
Amendment 472, page 153, line 21, leave out from “aware” to end of line 24.
See amendment 477.
Amendment 190, page 153, leave out line 23.
See amendment 195.
Amendment 191, page 153, leave out line 24.
See amendment 195.
Amendment 473, page 153, line 25, leave out subsections (2) to (5) and insert—
“(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(1) Exceptional circumstances under subsection (1) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
See amendment 477.
Amendment 192, page 153, line 25, leave out subsection (2).
See amendment 195.
Amendment 193, page 153, line 29, leave out subsection (3).
See amendment 195.
Amendment 194, page 153, line 32, leave out subsection (4).
See amendment 195.
Amendment 474, page 153, line 44, at end insert—
“(5A) Provide the person with such details of the submissions made by the public authority on the error and on the matters concerned pursuant to subsection (5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
See amendment 477.
Amendment 195, page 154, line 6, leave out from “having” to end of line 9.
These amendments will remove excessive restrictions on the Investigatory Powers Commissioner to instruct and inform individuals who have been subject to surveillance and will ensure that they are always notified of that fact when unlawful errors occur.
Amendment 2, page 154, line 10, leave out subsection (7).
Amendment 476, page 154, line 16, leave out paragraph (b).
See amendment 477.
Amendment 477, page 154, line 23, leave out paragraph (b).
These amendments would amend the Bill to provide for the Commissioner to notify any relevant person of any error made pursuant to the activities in the Bill, in order to allow those individuals to consider whether a claim may lie to the Investigatory Powers Tribunal for redress. It makes provision for non-disclosure in circumstances where the public interest in disclosure would be outweighed by a significant risk of prejudice to national security or the prevention and detection of crime.
Amendment 479, in clause 199, page 154, line 28, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 478, page 154, line 34, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”
See amendment 481.
Amendment 480, page 154, line 35, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 481, page 154, line 38, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
These amendments would remove the requirement to consult the Secretary of State and would make clear that in circumstances where a relevant error has been identified, material should be provided to the Tribunal by the Commission. It would make clear that any potentially unlawful use of the powers in this Act may be referred to the Tribunal by the Commissioners. These amendments would remove the requirement to consult the Secretary of State before giving assistance direct to other public authorities.
Amendment 482, in clause 203, page 159, line 2, at end insert—
“(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
This amendment would make it clear that voluntary, unsolicited disclosures are protected, and that any whistle-blower is also protected from criminal prosecution.
Amendment 483, in clause 208, page 160, line 29, after “determination” insert
“or ruling or decision, including relating to a procedural matter.”
See amendment 486.
Amendment 484, page 160, line 29, leave out from “Tribunal” to the end of line 30.
See amendment 486.
Amendment 485, page 161, line 8, leave out subsection (6).
See amendment 486.
Amendment 486, page 162, line 38, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this Section if its disclosure would seriously prejudice (a) national security or (b) the prevention and detection of crime.
(1E) Publication for the purposes of this Section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”
These amendments make clear that all decisions, determinations and rulings can be appealed on a point of law.
Amendment 487, page 162, line 38, at end insert—
“(6) After Section 4(5)(f) of the Human Rights Act 1998 insert—
‘(g) the Investigatory Powers Tribunal.’”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
Government amendments 36 to 43 and 48.