Investigatory Powers Bill (HC Bill 143)

(b) 20the circumstances in which the Commissioner would consider it
appropriate to serve a monetary penalty notice,

(c) how the Commissioner will determine the amount of the penalty,
and

(d) the circumstances in which the Commissioner would consider it
25appropriate to impose an enforcement obligation.

(3) The Commissioner may alter or replace the guidance.

(4) If the guidance is altered or replaced, the Commissioner must issue the
altered or replacement guidance.

(5) The Commissioner must arrange for the publication, in such form and
30manner as the Commissioner considers appropriate, of any guidance issued
under this paragraph.

Interpretation of Part 1

12 In this Part of this Schedule—

  • “address” means—

    (a)

    35in the case of a registered company, the address of its
    registered office,

    (b)

    in the case of a person (other than a registered company)
    carrying on a business, the address of the person’s principal
    place of business in the United Kingdom, and

    (c)

    40in any other case, the person’s last known address;

  • “the Commissioner” means the Investigatory Powers Commissioner;

  • “enforcement obligation” has the meaning given by paragraph 3(2);

  • “monetary penalty notice” means a monetary penalty notice under
    section 6;

  • Investigatory Powers BillPage 190

  • “notice” means notice in writing;

  • “notice of intent” has the meaning given by paragraph 4(3);

  • “registered company” means a company registered under the
    enactments relating to companies for the time being in force in the
    5United Kingdom.

Part 2 Information provisions

Information notices

13 (1) The Commissioner may by notice (an “information notice”) request any
10person on whom the Commissioner is considering whether to serve a Part 1
notice of intent or a Part 1 monetary penalty notice to provide such
information as the Commissioner reasonably requires for the purpose of
deciding whether to serve it.

(2) Where the Commissioner requests that documents be produced, the
15Commissioner may take copies of, or extracts from, any document so
produced.

(3) An information notice must—

(a) specify or describe the information to be provided,

(b) specify the manner in which, and the period within which, the
20information is to be provided,

(c) state that the Commissioner considers that the information is
information which the Commissioner reasonably requires for the
purpose of deciding whether to serve a Part 1 notice of intent or (as
the case may be) a Part 1 monetary penalty notice,

(d) 25state the Commissioner’s grounds for this view, and

(e) provide details of the rights of appeal under paragraph 15 in respect
of the information notice.

(4) For the purposes of sub-paragraph (3)(b)—

(a) specifying the manner in which the information is to be provided
30may include specifying the form in which it is to be provided, and

(b) the specified period within which the information is to be provided
must not be less than 28 days beginning with the day after the day on
which the information notice is served.

14 (1) The Commissioner may not vary an information notice except as set out in
35sub-paragraph (2).

(2) The Commissioner may vary an information notice by extending the period
within which the information is to be provided if the person on whom the
notice is served appeals under paragraph 15 in relation to the notice.

(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new
40information notice instead of varying such a notice.

(4) The Commissioner may cancel an information notice.

(5) A variation or cancellation of an information notice is effected by serving on
the person on whom the notice was served a notice setting out the variation
or cancellation.

Investigatory Powers BillPage 191

Appeals in relation to information notices

15 (1) A person on whom an information notice is served may appeal to the First-
tier Tribunal against—

(a) the information notice or any provision of it, or

(b) 5any refusal of a request by the person to serve a notice of variation or
cancellation in relation to the information notice.

(2) Subject to paragraph 14(2), an appeal under this paragraph does not affect
the need to comply with the information notice while the appeal has not
been withdrawn or finally determined.

(3) 10Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph
(1)(a).

(4) The First-tier Tribunal must allow the appeal or substitute such other
information notice as could have been served by the Commissioner if the
Tribunal considers—

(a) 15that the notice to which the appeal relates is not in accordance with
the law, or

(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that the Commissioner ought to have exercised the
discretion differently.

(5) 20In any other case, the First-tier Tribunal must dismiss the appeal.

(6) The First-tier Tribunal may review any determination of fact on which the
notice was based.

(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-
paragraph (1)(b).

(8) 25The First-tier Tribunal must direct the Commissioner to issue, on such terms
as the Tribunal considers appropriate, a notice of variation or cancellation in
relation to the information notice if the Tribunal considers that the
information notice ought to be varied or cancelled on those terms.

(9) In any other case, the First-tier Tribunal must dismiss the appeal.

(10) 30The First-tier Tribunal may review any determination of fact on which the
refusal to serve the notice of variation or cancellation was based.

Enforcement of information notices

16 (1) The Commissioner may serve a Part 2 monetary penalty notice on a person
if the person—

(a) 35without reasonable excuse fails to comply with an information
notice, or

(b) knowingly or recklessly gives any information which is false in a
material particular in response to an information notice.

(2) A Part 2 monetary penalty notice is a notice requiring the person on whom
40it is served to pay to the Commissioner a monetary penalty of an amount
determined by the Commissioner and specified in the notice.

(3) The amount of a monetary penalty determined by the Commissioner under
this paragraph may be—

(a) a fixed amount,

Investigatory Powers BillPage 192

(b) an amount calculated by reference to a daily rate, or

(c) a fixed amount and an amount calculated by reference to a daily rate.

(4) But the total amount payable must not exceed £10,000.

(5) In the case of an amount calculated by reference to a daily rate—

(a) 5no account is to be taken of the day on which the Part 2 monetary
penalty notice is served or any day before that day, and

(b) the Part 2 monetary penalty notice must specify—

(i) the day on which the amount first starts to accumulate and
the circumstances in which it is to cease to accumulate, and

(ii) 10the period or periods within which the amount, or any part
or parts so far accumulated, must be paid to the
Commissioner.

Any period falling within paragraph (b)(ii) must not be less than 28 days
beginning with the day after the day on which the notice is served.

17 (1) 15Part 1 of this Schedule applies in relation to a Part 2 monetary penalty notice and
the penalty that relates to that notice as it applies in relation to a Part 1 monetary
penalty notice and the penalty that relates to that notice.

This is subject to the following modifications.

(2) The provisions in Part 1 of this Schedule so far as relating to enforcement
20obligations do not apply in relation to a Part 2 monetary penalty notice.

(3) Paragraph 4 has effect in relation to a Part 2 monetary penalty notice as if in
sub-paragraph (6)(b) the reference to making representations about matters
falling within sub-paragraph (6)(b)(i) or (ii) were a reference to making
representations about matters falling within sub-paragraph (6)(b)(ii) only.

(4) 25Paragraph 6 has effect in relation to a Part 2 monetary penalty notice as if the
references in sub-paragraph (1) to an interception were references to
conduct falling within paragraph 16(1)(a) or (b).

(5) Paragraph 7(5) has effect in relation to a Part 2 monetary penalty notice as if
the references to an interception were references to conduct falling within
30paragraph 16(1)(a) or (b).

Technical assistance for the Commissioner

18 (1) OFCOM must comply with any reasonable request made by the
Commissioner, in connection with the Commissioner’s functions under
section 6 and this Schedule, for advice on technical and similar matters
35relating to electronic communications.

(2) For this purpose, the Commissioner may disclose to OFCOM any
information obtained by the Commissioner under this Schedule.

(3) In this paragraph “OFCOM” means the Office of Communications
established by section 1 of the Office of Communications Act 2002.

40Interpretation of Part 2

19 In this Part of this Schedule—

  • “the Commissioner” means the Investigatory Powers Commissioner;

  • “enforcement obligation” has the meaning given by paragraph 3(2);

  • Investigatory Powers BillPage 193

  • “information” includes documents; and any reference to providing or
    giving information includes a reference to producing a document;

  • “information notice” has the meaning given by paragraph 13(1);

  • “notice” means notice in writing;

  • 5“Part 1 monetary penalty notice” means a monetary penalty notice
    under section 6;

  • “Part 1 notice of intent” means a notice of intent (within the meaning of
    paragraph 4(3)) relating to a Part 1 monetary penalty notice;

  • “Part 2 monetary penalty notice” means a monetary penalty notice
    10under paragraph 16.

Section 10(1)

SCHEDULE 2 Abolition of disclosure powers

Health and Safety at Work etc. Act 1974

1 In section 20 of the Health and Safety at Work etc. Act 1974 (powers of
15inspectors), at end, insert—

(9) Nothing in this section is to be read as enabling an inspector to secure
the disclosure by a telecommunications operator or postal operator
of communications data without the consent of the operator.

(10) In subsection (9) “communications data”, “postal operator” and
20“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 223 and 224 of that Act).”

Criminal Justice Act 1987

2 In section 2 of the Criminal Justice Act 1987 (investigation powers of
Director of Serious Fraud Office), after subsection (10), insert—

(10A) 25Nothing in this section is to be read as enabling a person to secure the
disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.

(10B) In subsection (10A) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
30Investigatory Powers Act 2016 (see sections 223 and 224 of that Act).”

Consumer Protection Act 1987

3 In section 29 of the Consumer Protection Act 1987 (powers of search etc.), at
end, insert—

(8) The officer may not exercise a power under this section to secure the
35disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.

(9) In subsection (8) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 223 and 224 of that Act).”

Investigatory Powers BillPage 194

Environmental Protection Act 1990

4 In section 71 of the Environmental Protection Act 1990 (obtaining of
information from persons and authorities), at end, insert—

(5) Nothing in this section is to be read as enabling a person to secure the
5disclosure by a telecommunications operator or postal operator of
communications data without the consent of the operator.

(6) In subsection (5) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 223 and 224 of that Act).”

10Social Security Administration Act 1992

5 In section 109B of the Social Security Administration Act 1992 (power to
require information)—

(a) in subsection (2A) omit paragraph (j),

(b) in subsection (2E) for the words from “for” to the end of the
15subsection substitute “so as to secure the disclosure by a
telecommunications operator or postal operator of communications
data without the consent of the operator.”,

(c) omit subsection (2F), and

(d) in subsection (7)—

(i) 20after the definition of “bank” insert—

  • ““communications data” has the same meaning as in the
    Investigatory Powers Act 2016 (see sections 223 and
    224 of that Act);”,

(ii) after the definition of “insurer” insert—

  • 25““postal operator” has the same meaning as in the
    Investigatory Powers Act 2016 (see section 224 of that
    Act);”, and

(iii) for the definition of “telecommunications service”
substitute—

  • 30““telecommunications operator” has the same meaning
    as in the Investigatory Powers Act 2016 (see section
    223 of that Act).”

6 In section 109C of the Social Security Administration Act 1992 (powers of
entry) for subsection (6) substitute—

(6) 35Subsections (2E) and (5) of section 109B apply for the purposes of this
section as they apply for the purposes of that section.”

Social Security Administration (Northern Ireland) Act 1992

7 In section 103B of the Social Security Administration (Northern Ireland) Act
1992 (power to require information)—

(a) 40in subsection (2A) omit paragraph (i),

(b) in subsection (2E) for the words from “for” to the end of the
subsection substitute “so as to secure the disclosure by a
telecommunications operator or postal operator of communications
data without the consent of the operator.”,

(c) 45omit subsection (2F), and

Investigatory Powers BillPage 195

(d) in subsection (7)—

(i) after the definition of “bank” insert—

  • ““communications data” has the same meaning as in the
    Investigatory Powers Act 2016 (see sections 223 and
    5224 of that Act);”,

(ii) after the definition of “insurer” insert—

  • ““postal operator” has the same meaning as in the
    Investigatory Powers Act 2016 (see section 224 of that
    Act);”, and

(iii) 10for the definition of “telecommunications service”
substitute—

  • ““telecommunications operator” has the same meaning
    as in the Investigatory Powers Act 2016 (see section
    223 of that Act).”.

8 15In section 103C of the Social Security Administration (Northern Ireland) Act
1992 (powers of entry) for subsection (6) substitute—

(6) Subsections (2E) and (5) of section 103B apply for the purposes of this
section as they apply for the purposes of that section.”

Financial Services and Markets Act 2000

9 20In section 175 of the Financial Services and Markets Act 2000 (information
gathering and investigations: supplemental provision), after subsection (5),
insert—

(5A) Nothing in this Part is to be read as enabling a person to secure the
disclosure by a telecommunications operator or postal operator of
25communications data without the consent of the operator.

(5B) In subsection (5A) “communications data”, “postal operator” and
“telecommunications operator” have the same meanings as in the
Investigatory Powers Act 2016 (see sections 223 and 224 of that Act).”

Finance Act 2008

10 30In Schedule 36 to the Finance Act 2008 (information and inspection powers),
in paragraph 19 (restrictions on powers: types of information), at end,
insert—

(4) An information notice does not require a telecommunications
operator or postal operator to provide or produce
35communications data.

(5) In sub-paragraph (4) “communications data”, “postal operator”
and “telecommunications operator” have the same meanings as in
the Investigatory Powers Act 2016 (see sections 223 and 224 of that
Act).”

40Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations
2014 (S.I. 2014/899S.I. 2014/899)

11 In regulation 4 of the Prevention of Social Housing Fraud (Power to Require
Information) (England) Regulations 2014 (power to require information
from persons who provide telecommunications services etc.)—

Investigatory Powers BillPage 196

(a) omit sub-paragraph (f) of paragraph (3),

(b) in sub-paragraph (g) of that paragraph for “(f)” substitute “(e)”,

(c) omit paragraphs (6) and (7),

(d) after paragraph (10) insert—

(10A) 5Nothing in this regulation is to be read as enabling a person
to secure the disclosure by a telecommunications operator or
postal operator of communications data without the consent
of the operator.”, and

(e) in paragraph (11)—

(i) 10after the definition of “bank” insert—

  • ““communications data” has the same meaning as in the
    Investigatory Powers Act 2016 (see sections 223 and 224 of that
    Act);”,

(ii) after the definition of “family” insert—

  • 15““postal operator” has the same meaning as in the Investigatory
    Powers Act 2016 (see section 224 of that Act);”, and

(iii) for the definition of “telecommunications service”
substitute—

  • ““telecommunications operator” has the same meaning as in the
    20Investigatory Powers Act 2016 (see section 223 of that Act).”

Section 48

SCHEDULE 3 Exceptions to section 48

Introductory

1 This Schedule contains—

(a) 25exceptions to the exclusion by section 48(1) of certain matters from
legal proceedings, and

(b) limitations on those exceptions where that exclusion will still apply.

Disclosures of lawfully intercepted communications

2 (1) Section 48(1)(a) does not prohibit the disclosure of any content of a
30communication, or any secondary data obtained from a communication, if
the interception of that communication was lawful by virtue of any of the
following provisions—

(a) sections 5(1)(c) and 37 to 45;

(b) sections 1(5)(c), 3 and 4 of the Regulation of Investigatory Powers Act
352000;

(c) section 1(2)(b) and (3) of the Interception of Communications Act
1985.

(2) Where any disclosure is proposed to be, or has been, made on the grounds
that it is authorised by sub-paragraph (1), section 48(1) does not prohibit the
40doing of anything in, or for the purposes of, so much of any proceedings as
relates to the question whether that disclosure is or was so authorised.

Investigatory Powers BillPage 197

Disclosures of convictions for certain offences

3 Section 48(1)(b) does not prohibit the doing of anything that discloses any
conduct of a person for which that person has been convicted of—

(a) an offence under section 2(1), 36(7) or 51,

(b) 5an offence under section 1(1) or (2), 11(7) or 19 of the Regulation of
Investigatory Powers Act 2000, or

(c) an offence under section 1 of the Interception of Communications
Act 1985.

Proceedings before the Investigatory Powers Tribunal etc.

4 10Section 48(1) does not apply in relation to—

(a) any proceedings before the Investigatory Powers Tribunal,

(b) any proceedings on an appeal under section 67A of the Regulation of
Investigatory Powers Act 2000 (appeal against decisions of the
Tribunal etc.), or

(c) 15any proceedings arising out of such an appeal.

Proceedings before Special Immigration Appeals Commission

5 (1) Section 48(1) does not apply in relation to—

(a) any proceedings before the Special Immigration Appeals
Commission, or

(b) 20any proceedings arising out of proceedings before that Commission.

(2) But sub-paragraph (1) does not permit the disclosure of anything to—

(a) the appellant or (as the case may be) applicant to the Special
Immigration Appeals Commission, or

(b) any person who—

(i) 25represents that appellant or applicant for the purposes of the
proceedings, and

(ii) does so otherwise than by virtue of appointment under
section 6 of the Special Immigration Appeals Commission
Act 1997.

30Proceedings before Proscribed Organisations Appeal Commission

6 (1) Section 48(1) does not apply in relation to—

(a) any proceedings before the Proscribed Organisations Appeal
Commission, or

(b) any proceedings arising out of proceedings before that Commission.

(2) 35But sub-paragraph (1) does not permit the disclosure of anything to any of
the following—

(a) the applicant to the Commission;

(b) the organisation concerned (if different);

(c) any person designated under paragraph 6 of Schedule 3 to the
40Terrorism Act 2000 to conduct the proceedings on behalf of that
organisation;

(d) any person who—

(i) represents that appellant or that organisation for the
purposes of the proceedings, and

Investigatory Powers BillPage 198

(ii) does so otherwise than by virtue of an appointment under
paragraph 7 of that Schedule.

Closed material proceedings

7 (1) Section 48(1) does not apply in relation to any section 6 proceedings within
5the meaning given by section 14(1) of the Justice and Security Act 2013
(certain civil proceedings in which closed material applications may be
made).

(2) But sub-paragraph (1) does not permit a prohibited section 6 disclosure.

(3) In the case of section 6 proceedings where the only relevant person is the
10Secretary of State, a “prohibited section 6 disclosure” means a disclosure of
anything to—

(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or

(b) any person who—

(i) 15represents such a person for the purposes of the proceedings,
and

(ii) does so otherwise than by virtue of appointment as a special
advocate.

(4) In the case of section 6 proceedings where the Secretary of State is not the
20only relevant person, or is not a relevant person but is a party to the
proceedings, a “prohibited section 6 disclosure” means a disclosure of
anything to—

(a) any person, other than the relevant person concerned or the
Secretary of State, who is or was a party to the proceedings, or

(b) 25any person who—

(i) represents a person within paragraph (a) for the purposes of
the proceedings, and

(ii) does so otherwise than by virtue of appointment as a special
advocate.

(5) 30In this paragraph “relevant person”, in relation to section 6 proceedings, has
the meaning given by section 14(1) of the Justice and Security Act 2013.

TPIM proceedings

8 (1) Section 48(1) does not apply in relation to—

(a) any TPIM proceedings, or

(b) 35any proceedings arising out of any TPIM proceedings.

(2) But sub-paragraph (1) does not permit the disclosure of anything to—

(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or

(b) any person who—

(i) 40represents such a person for the purposes of the proceedings,
and

(ii) does so otherwise than by virtue of appointment as a special
advocate under Schedule 4 to the Terrorism Prevention and
Investigation Measures Act 2011.

Investigatory Powers BillPage 199

(3) In this paragraph “TPIM proceedings” has the same meaning as in the
Terrorism Prevention and Investigation Measures Act 2011.

TEO proceedings

9 (1) Section 48(1) does not apply in relation to—

(a) 5any TEO proceedings, or

(b) any proceedings arising out of any TEO proceedings.

(2) But sub-paragraph (1) does not permit the disclosure of anything to—

(a) any person, other than the Secretary of State, who is or was a party
to the proceedings, or

(b) 10any person who—

(i) represents such a person for the purposes of the proceedings,
and

(ii) does so otherwise than by virtue of appointment as a special
advocate under Schedule 3 to the Counter-Terrorism and
15Security Act 2015.

(3) In this paragraph “TEO proceedings” has the meaning given by paragraph
1 of Schedule 3 to the Counter-Terrorism and Security Act 2015 (temporary
exclusion orders: proceedings).

Proceedings relating to freezing of terrorist assets etc.

10 (1) 20Section 48(1) does not apply in relation to—

(a) any financial restrictions proceedings, or

(b) any proceedings arising out of such proceedings.

(2) In this paragraph “financial restrictions proceedings” has the meaning given
by section 65 of the Counter-Terrorism Act 2008.

11 25Section 48(1) does not apply in relation to any proceedings—

(a) on an appeal under section 26, or an application under section 27, of
the Terrorist Asset-Freezing etc. Act 2010 (appeals and reviews by
the court), or

(b) on a claim arising from any matter to which such an appeal or
30application relates,

or any proceedings arising out of such proceedings.

12 But neither paragraph 10 nor paragraph 11 permits the disclosure of
anything to—

(a) any person, other than the Treasury, who is or was a party to the
35proceedings, or

(b) any person who—

(i) represents such a person for the purposes of the proceedings,
and

(ii) does so otherwise than by virtue of appointment as a special
40advocate.

Proceedings relating to release of prisoners etc. in Northern Ireland

13 (1) Section 48(1) does not apply in relation to—

(a) any proceedings before—