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Notices of Amendments: 14 April 2016                  

8

 

Investigatory Powers Bill, continued

 
 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

Joanna Cherry

 

Gavin Newlands

 

144

 

Clause  68,  page  54,  line  19,  leave out subsections (5) (a) and (b) and insert—

 

“( )    

that the conduct permitted by the authorisation is necessary for one or more of the

 

purposes in section 53(7); and

 

( )    

that the conduct permitted by the authorisation is proportionate to what is sought

 

to be achieved by that conduct.”

 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

145

 

Clause  68,  page  54,  line  29,  leave out subsection (7) and insert—

 

“( )    

The Investigatory Powers Commissioner may for the purposes of approving

 

authorisations under this Section appoint Deputy Judicial Commissioners.

 

( )    

A “Deputy Judicial Commissioner” must be—

 

(a)    

in relation to England and Wales, a justice of the peace,

 

(b)    

in relation to Scotland, a sheriff, and

 

(c)    

in relation to Northern Ireland, a district judge (magistrates’ courts) in

 

Northern  Ireland.

 

( )    

An authorisation under this Section may not grant authorisation in relation to the

 

obtaining by a relevant public authority of communications data—

 

(a)    

insofar as the communication consists of matters subject to legal

 

privilege; or

 

(b)    

related communications data, insofar as the data relate to the

 

communication of matters subject to legal privilege.

 

( )    

For the purposes of subsection (1), legal privilege means—

 

(a)    

communications between a professional legal adviser and his client or

 

any person representing his client made in connection with the giving of

 

legal advice to the client;

 

(b)    

communications between a professional legal adviser and his client or

 

any person representing his client and any other person with or in

 

contemplation of legal proceedings or for the purposes of such

 

proceedings;

 

(c)    

items enclosed with or referred to in such communications and made—

 

(i)    

In connection with the giving of legal advice or

 

(ii)    

In connection with the contemplation of legal proceedings or for

 

the purposes of such proceedings.

 

(d)    

communications made with the intention of furthering a criminal purpose

 

are not subject to legal privilege.

 

( )    

An application which contains a statement that the purpose of a warrant is to

 

access communications data in connection with communications made for the


 
 

Notices of Amendments: 14 April 2016                  

9

 

Investigatory Powers Bill, continued

 
 

purpose of furthering a criminal purpose, but which would otherwise attract legal

 

privilege must be considered by a Judicial Commissioner.

 

( )    

A Judicial Commissioner may issue an authorisation sought under subsection (3),

 

if satisfied that—

 

(a)    

there are reasonable grounds to believe that the communications data

 

relates to communications made with the intent of furthering a criminal

 

purpose;

 

(b)    

that the data is likely to be of substantial value to the investigation in

 

connection with which the application is made; and

 

(c)    

that the data concerned is likely to be relevant evidence;

 

(d)    

other proportionate methods of obtaining the data have been tried without

 

success or were not tried because they were bound to fail;

 

(e)    

it is in the public interest that the authorisation is granted, having regard

 

to—

 

(i)    

the benefit likely to accrue to the investigation and prosecution

 

if the data is accessed,

 

(ii)    

the importance of the prosecution and

 

(iii)    

the importance of maintaining public confidence in the

 

confidentiality of material subject to legal professional privilege,

 

( )    

A code of practice issued under Schedule 6 must contain provision about—

 

(a)    

the steps to be taken to minimise the risk of conduct undertaken pursuant

 

to a warrant to which this section applies resulting in accidental

 

acquisition of a communication, or communications data, falling within

 

subsection (1);

 

(b)    

the steps to be taken if it appears that such conduct has accidentally

 

resulted in acquisition of such a communication or data.

 

( )    

Where an authorisation issued under this Part would seek to authorise any activity

 

which may involve access to special procedure material, the following subclauses

 

apply.

 

( )    

Special procedure material subject to subsection (1) will include—

 

(a)    

journalistic material other than material which a person holds in

 

confidence and

 

(b)    

communications sent by, or intended for, a member of the relevant

 

legislature.

 

( )    

The special procedure authorisation may only be granted on application to a

 

Judicial Commissioner.

 

( )    

The Judicial Commissioner must be satisfied that there are reasonable grounds to

 

believe that—

 

(a)    

a criminal offence has been committed,

 

(b)    

the material is likely to be of substantial value to the investigation of that

 

offence,

 

(c)    

other proportionate methods of obtaining the information have been tried

 

without success or were not tried because they were bound to fail and

 

(d)    

it is in the public interest that the warrant is granted, having regard to—

 

(i)    

the benefit likely to accrue to the investigation and prosecution

 

if the information is accessed,

 

(ii)    

the importance of the prosecution,

 

(iii)    

the importance of maintaining public confidence in the integrity

 

of journalists’ work product, and/or communications with

 

members of relevant legislatures and


 
 

Notices of Amendments: 14 April 2016                  

10

 

Investigatory Powers Bill, continued

 
 

(iv)    

the public interest in the freedom of expression enjoyed by

 

journalists and the members of the relevant legislatures,

 

including as protected by Article 10 ECHR.

 

( )    

Where data could reasonably be obtained by means of a search and seizure order

 

pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part

 

will not be in the public interest.

 

( )    

An application for an authorisation concerning journalistic material held in

 

confidence or information for the purpose of identifying or confirming a source

 

of journalistic information, may only be considered by the Investigatory Powers

 

Commissioner, who must be satisfied that there are reasonable grounds to

 

believe—

 

(a)    

a criminal offence has been committed,

 

(b)    

the communications data is likely to be of substantial value to the

 

investigation of that offence,

 

(c)    

other proportionate methods of obtaining the information have been tried

 

without success or were not tried because they were bound to fail and

 

(d)    

it is in the public interest that the authorisation is granted, having regard

 

to—

 

(i)    

the benefit likely to accrue to the investigation and prosecution

 

if the information is accessed;

 

(ii)    

the importance of the prosecution;

 

(iii)    

the importance of maintaining public confidence in the integrity

 

of journalists’ work product and

 

(iv)    

the public interest in the freedom of expression enjoyed by

 

journalists and the members of the relevant legislatures,

 

including as protected by Article 10 ECHR.

 

( )    

In considering an authorisation concerning journalistic material held in

 

confidence, the Investigatory Powers Commissioner must give notice to the

 

journalist concerned, unless it would not be in the public interest to do so.

 

( )    

If an authorisation is considered without notice, the Investigatory Powers

 

Commissioner must appoint a Special Advocate to represent the interests of the

 

journalist and the person to whom confidence is owed, and the wider public

 

interest in the integrity of journalists sources and freedom of expression,

 

including as protected by Article 10 ECHR.

 

( )    

Journalistic material is held in confidence for the purposes of this section if—

 

(a)    

it is held subject to such an undertaking, restriction or obligation and

 

(b)    

it has been continuously held (by one or more persons) subject to such an

 

undertaking, restriction or obligation since it was first acquired or created

 

for the purposes of journalism.”

 

Joanna Cherry

 

Gavin Newlands

 

242

 

Clause  68,  page  54,  line  29,  leave out subsection (7) and insert—

 

“( )    

The Investigatory Powers Commissioner may for the purposes of approving

 

authorisations under this Section appoint Deputy Judicial Commissioners.

 

( )    

A “Deputy Judicial Commissioner” must be—

 

(a)    

in relation to England and Wales, a justice of the peace,

 

(b)    

in relation to Scotland, a sheriff, and

 

(c)    

in relation to Northern Ireland, a district judge (magistrates’ courts) in

 

Northern Ireland.


 
 

Notices of Amendments: 14 April 2016                  

11

 

Investigatory Powers Bill, continued

 
 

( )    

An authorisation under this Section may not grant authorisation in relation to the

 

obtaining by a relevant public authority of communications data—

 

(a)    

insofar as the communication consists of matters subject to legal

 

privilege; or

 

(b)    

related communications data, insofar as the data relate to the

 

communication of matters subject to legal privilege.

 

( )    

For the purposes of subsection (1), legal privilege means—

 

(a)    

communications between a professional legal adviser and his client or

 

any person representing his client made in connection with the giving of

 

legal advice to the client;

 

(b)    

communications between a professional legal adviser and his client or

 

any person representing his client and any other person with or in

 

contemplation of legal proceedings or for the purposes of such

 

proceedings;

 

(c)    

items enclosed with or referred to in such communications and made—

 

(i)    

in connection with the giving of legal advice, or

 

(ii)    

in connection with the contemplation of legal proceedings or for

 

the purposes of such proceedings.

 

(d)    

communications made with the intention of furthering a criminal purpose

 

are not subject to legal privilege.

 

( )    

An application which contains a statement that the purpose of a warrant is to

 

access communications data in connection with communications made for the

 

purpose of furthering a criminal purpose, but which would otherwise attract legal

 

privilege must be considered by a Judicial Commissioner.

 

( )    

A Judicial Commissioner may issue an authorisation sought under subsection (3),

 

if satisfied that—

 

(a)    

there are reasonable grounds to believe that the communications data

 

relates to communications made with the intent of furthering a criminal

 

purpose;

 

(b)    

that the data is likely to be of substantial value to the investigation in

 

connection with which the application is made;

 

(c)    

that the data concerned is likely to be relevant evidence;

 

(d)    

other proportionate methods of obtaining the data have been tried without

 

success or were not tried because they were bound to fail;

 

(e)    

it is in the public interest that the authorisation is granted, having regard

 

to the—

 

(i)    

benefit likely to accrue to the investigation and prosecution if the

 

data is accessed;

 

(ii)    

importance of the prosecution; and

 

(iii)    

importance of maintaining public confidence in the

 

confidentiality of material subject to legal professional privilege.

 

( )    

A code of practice issued under Schedule 6 must contain provision about—

 

(a)    

the steps to be taken to minimise the risk of conduct undertaken pursuant

 

to a warrant to which this section applies resulting in accidental

 

acquisition of a communication, or communications data, falling within

 

subsection (1);

 

(b)    

the steps to be taken if it appears that such conduct has accidentally

 

resulted in acquisition of such a communication or data.

 

( )    

Where an authorisation issued under this Part would seek to authorise any activity

 

which may involve access to special procedure material, the following subclauses

 

apply.

 

( )    

Special procedure material subject to subsection (1) will include—


 
 

Notices of Amendments: 14 April 2016                  

12

 

Investigatory Powers Bill, continued

 
 

(a)    

journalistic material other than material which a person holds in

 

confidence;

 

(b)    

communications sent by, or intended for, a member of the relevant

 

legislature.

 

( )    

The special procedure authorisation may only be granted on application to a

 

Judicial Commissioner.

 

( )    

The Judicial Commissioner must be satisfied that there are reasonable grounds to

 

believe that—

 

(a)    

a criminal offence has been committed;

 

(b)    

the material is likely to be of substantial value to the investigation of that

 

offence;

 

(c)    

other proportionate methods of obtaining the information have been tried

 

without success or were not tried because they were bound to fail;

 

(d)    

it is in the public interest that the warrant is granted, having regard to

 

the—

 

(i)    

benefit likely to accrue to the investigation and prosecution if the

 

information is accessed;

 

(ii)    

importance of the prosecution;

 

(iii)    

importance of maintaining public confidence in the integrity of

 

journalists’ work product; and

 

(iv)    

public interest in the freedom of expression enjoyed by

 

journalists and the members of the relevant legislatures,

 

including as protected by Article 10 ECHR.

 

( )    

In considering an authorisation concerning journalistic material held in

 

confidence, the Investigatory Powers Commissioner must give notice to the

 

journalist concerned, unless it would not be in the public interest to do so.

 

( )    

If an authorisation is considered without notice, the Investigatory Powers

 

Commissioner must appoint a Special Advocate to represent the interests of the

 

journalist and the person to whom confidence is owed, and the wider public

 

interest in the integrity of journalists sources and freedom of expression,

 

including as protected by Article 10 ECHR.

 

( )    

Journalistic material is held in confidence for the purposes of this section if—

 

(a)    

it is held subject to such an undertaking, restriction or obligation;

 

(b)    

it has been continuously held (by one or more persons) subject to such an

 

undertaking, restriction or obligation since it was first acquired or created

 

for the purposes of journalism.”

 

Member’s explanatory statement

 

This amendment proposes special procedures for communications data subject to legal

 

professional privilege and for the protection of journalistic material and the communications data

 

of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy

 

Judicial Commissioners to consider applications for the authorisation of access to

 

Communications Data.

 



 
 

Notices of Amendments: 14 April 2016                  

13

 

Investigatory Powers Bill, continued

 
 

Joanna Cherry

 

Gavin Newlands

 

243

 

Page  54,  line  33,  leave out Clause 69

 

Member’s explanatory statement

 

This amendment is consequential on amendments to clause 67, which provide for the senior point

 

of contact scheme to be operated under the authority of the Investigatory Powers Commissioner.

 


 

Joanna Cherry

 

Gavin Newlands

 

244

 

Page  55,  line  39,  leave out Clause 70

 

Member’s explanatory statement

 

See explanatory statement for amendment 243.

 


 

Joanna Cherry

 

Gavin Newlands

 

245

 

Page  56,  line  16,  leave out Clause 71

 

Member’s explanatory statement

 

See explanatory statement for amendment 243.

 


 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

146

 

Clause  72,  page  57,  line  27,  leave out from “by” to “and” in line 29 and insert “a

 

warrant”

 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

147

 

Clause  72,  page  57,  line  30,  leave out “authorisation or notice” and insert

 

“warrant”


 
 

Notices of Amendments: 14 April 2016                  

14

 

Investigatory Powers Bill, continued

 
 

Joanna Cherry

 

Gavin Newlands

 

246

 

Clause  72,  page  57,  line  35,  leave out from “subsection (1)” to end of line 40

 

Member’s explanatory statement

 

This amendment ensures that if conduct cannot be justified it must remain unlawful.

 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

Joanna Cherry

 

Gavin Newlands

 

148

 

Clause  72,  page  57,  line  36,  leave out paragraph (b)

 


 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

149

 

Clause  73,  page  58,  line  33,  at end insert—

 

“(4)    

In proceedings against any person for an offence under this section in respect of

 

any disclosure, it is a defence for the person to show that the disclosure was in the

 

public interest.”

 


 

Keir Starmer

 

Jo Stevens

 

Christian Matheson

 

Peter Kyle

 

Stephen Kinnock

 

Sue Hayman

 

227

 

Page  58,  line  34,  leave out Clause 74

 



 
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Revised 15 April 2016