Session 2016-17
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LORDS AMENDMENTS TO THE

INVESTIGATORY POWERS BILL

[The page and line references are to HL Bill 40, the bill as first printed for the Lords]

Clause 1

1

Page 1, line 5, at beginning insert—

 

“( )    

This Act sets out the extent to which certain investigatory powers may be

 

used to interfere with privacy.”

 

2

Page 2, line 11, leave out “misfeasance” and insert “misconduct”

Clause 2

3

Page 2, line 43, after “give” insert “or vary”

 

4

Page 2, line 43, after “under” insert “Part 4 or”

 

5

Page 2, line 43, leave out “or 226” and insert “, 226 or 230”

 

6

Page 2, line 43, at end insert—

 

“(ga)    

to approve the use of criteria under section 143, 179 or (Additional

 

safeguards for items subject to legal privilege: examination),”

 

7

Page 2, line 43, at end insert—

 

“(gb)    

to give an authorisation under section 198(3)(b),

 

(gc)    

to approve a decision to give such an authorisation,”

 
 

 

 
 

2

 
 

8

Page 2, line 46, leave out “or (f)” and insert “, (f) or (gb)”

 

9

Page 3, line 2, at end insert—

 

“(aa)    

whether the level of protection to be applied in relation to any

 

obtaining of information by virtue of the warrant, authorisation or

 

notice is higher because of the particular sensitivity of that

 

information,”

 

10

Page 3, line 20, at end insert—

 

“( )    

For the purposes of subsection (2)(aa), examples of sensitive information

 

include—

 

(a)    

items subject to legal privilege,

 

(b)    

any information identifying or confirming a source of journalistic

 

information, and

 

(c)    

relevant confidential information within the meaning given by

 

paragraph 2(2) of Schedule 7 (certain information held in

 

confidence and consisting of personal records, journalistic material

 

or communications between Members of Parliament and their

 

constituents).”

Clause 8

11

Page 7, line 7, leave out “D” and insert “C”

 

12

Page 7, line 14, at end insert “, or

 

( )    

in the course of its transmission by means of a public

 

telecommunication system.”

 

13

Page 7, line 15, leave out subsection (4)

 

14

Page 7, line 18, leave out “D” and insert “C”

After Clause 8

15

Insert the following new Clause—

 

“Interception without lawful authority: award of costs

 

(1)    

This section applies where—

 

(a)    

a claim is made under section 8 (civil liability for certain unlawful

 

interceptions) against a person (“the defendant”),

 

(b)    

the defendant was a relevant publisher at the material time, and

 

(c)    

the claim is related to the publication of news-related material.

 
 

 


 
 

3

 
 

(2)    

If the defendant was a member of an approved regulator at the time when

 

the claim was commenced (or was unable to be a member at that time for

 

reasons beyond the defendant’s control or it would have been

 

unreasonable in the circumstances for the defendant to have been a

 

member at that time), the court must not award costs against the defendant

 

unless satisfied that—

 

(a)    

the issues raised by the claim could not have been resolved by using

 

an arbitration scheme of the approved regulator, or

 

(b)    

it is just and equitable in all the circumstances of the case to award

 

costs against the defendant.

 

(3)    

If the defendant was not a member of an approved regulator at the time

 

when the claim was commenced (but would have been able to be a member

 

at that time and it would have been reasonable in the circumstances for the

 

defendant to have been a member at that time), the court must award costs

 

against the defendant unless satisfied that—

 

(a)    

the issues raised by the claim could not have been resolved by using

 

an arbitration scheme of the approved regulator (had the defendant

 

been a member), or

 

(b)    

it is just and equitable in all the circumstances of the case to make a

 

different award of costs or make no award of costs.

 

(4)    

This section is not to be read as limiting any power to make rules of court.

 

(5)    

This section does not apply until such time as a body is first recognised as

 

an approved regulator.

 

(6)    

Subsections (2) and (3) shall apply to any claim issued after this section

 

comes into force.

 

(7)    

For the purposes of this section “approved regulator” shall have the same

 

meaning as in section 42 of the Crime and Courts Act 2013, and “relevant

 

publisher” shall have the same meaning as in section 41 of that Act.”

Clause 21

16

Page 17, line 31, at end insert—

 

“( )    

The fact that the information which would be obtained under a warrant

 

relates to the activities in the British Islands of a trade union is not, of itself,

 

sufficient to establish that the warrant is necessary on grounds falling

 

within subsection (4).”

Clause 24

17

Page 19, line 24, at end insert—

 

    

“and section 23(5) does not apply in relation to the refusal to approve the

 

decision.”

Clause 27

18

Page 20, line 41, leave out “and (3)” and insert “to (3A)”

 
 

 


 
 

4

 
 

19

Page 21, line 12, at end insert—

 

“( )    

In deciding whether to issue the warrant, the person to whom the

 

application is made must have regard to the public interest in the

 

confidentiality of items subject to legal privilege.”

 

20

Page 21, line 16, after “authorise” insert “or require”

 

21

Page 21, line 22, at end insert—

 

“(3A)    

But the warrant may not be issued if it is considered necessary only as

 

mentioned in section 20(2)(c).”

 

22

Page 21, line 22, at end insert—

 

“( )    

For the purposes of subsection (3)(a), there cannot be exceptional and

 

compelling circumstances that make it necessary to authorise or require the

 

interception, or the selection for examination, of items subject to legal

 

privilege unless—

 

(a)    

the public interest in obtaining the information that would be

 

obtained by the warrant outweighs the public interest in the

 

confidentiality of items subject to legal privilege,

 

(b)    

there are no other means by which the information may reasonably

 

be obtained, and

 

(c)    

in the case of a warrant considered necessary as mentioned in

 

section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the

 

information is necessary for the purpose of preventing death or

 

significant injury.”

 

23

Page 21, line 28, leave out “and (3)” and insert “to (3A)”

 

24

Page 21, line 44, at end insert—

 

“(7A)    

Subsections (7B) and (7C) apply if—

 

(a)    

an application is made by or on behalf of an intercepting authority

 

for a warrant under this Chapter,

 

(b)    

the purpose, or one of the purposes, of the warrant is—

 

(i)    

in the case of a targeted interception warrant or mutual

 

assistance warrant, to authorise or require the interception

 

of communications that, if they were not made with the

 

intention of furthering a criminal purpose, would be items

 

subject to legal privilege, or

 

(ii)    

in the case of a targeted examination warrant, to authorise

 

the selection of such communications for examination, and

 

(c)    

the intercepting authority considers that the communications (“the

 

targeted communications”) are likely to be communications made

 

with the intention of furthering a criminal purpose.

 
 

 


 
 

5

 
 

(7B)    

The application must—

 

(a)    

contain a statement that the purpose, or one of the purposes, of the

 

warrant is to authorise or require the interception, or (in the case of

 

a targeted examination warrant) the selection for examination, of

 

communications that, if they were not made with the intention of

 

furthering a criminal purpose, would be items subject to legal

 

privilege, and

 

(b)    

set out the reasons for believing that the targeted communications

 

are likely to be communications made with the intention of

 

furthering a criminal purpose.

 

(7C)    

The person to whom the application is made may issue the warrant only if

 

the person considers that the targeted communications are likely to be

 

communications made with the intention of furthering a criminal

 

purpose.”

After Clause 27

25

Insert the following new Clause—

 

“Confidential journalistic material

 

(1)    

This section applies if—

 

(a)    

an application is made by or on behalf of an intercepting authority

 

for a warrant under this Chapter, and

 

(b)    

the purpose, or one of the purposes, of the warrant is—

 

(i)    

in the case of a targeted interception warrant or mutual

 

assistance warrant, to authorise or require the interception

 

of communications which the intercepting authority

 

believes will be communications containing confidential

 

journalistic material, or

 

(ii)    

in the case of a targeted examination warrant, to authorise

 

the selection for examination of journalistic material which

 

the intercepting authority believes is confidential

 

journalistic material.

 

(2)    

The application must contain a statement that the purpose, or one of the

 

purposes, of the warrant is—

 

(a)    

in the case of a targeted interception warrant or mutual assistance

 

warrant, to authorise or require the interception of communications

 

which the intercepting authority believes will be communications

 

containing confidential journalistic material, or

 

(b)    

in the case of a targeted examination warrant, to authorise the

 

selection for examination of journalistic material which the

 

intercepting authority believes is confidential journalistic material.

 

(3)    

The person to whom the application is made may issue the warrant only if

 

the person considers that the arrangements made for the purposes of

 

section 51 or (as the case may be) section 140 (safeguards relating to

 

retention and disclosure of material) include specific arrangements for the

 

handling, retention, use and destruction of communications containing

 

confidential journalistic material.

 

(4)    

For the meaning of “journalistic material” and “confidential journalistic

 

material”, see section (General definitions: “journalistic material” etc.).”

 
 

 


 
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Revised 31 October 2016