Investigatory Powers Bill (HL Bill 62)

Investigatory Powers BillPage 200

SCHEDULES

Section 7

SCHEDULE 1 Monetary penalty notices

Part 1 5Monetary penalty notices

Payment of monetary penalties

1 (1) A monetary penalty imposed by a monetary penalty notice must be paid to
the Commissioner within the period specified in the notice.

(2) The period specified under sub-paragraph (1) must not be less than 28 days
10beginning with the day after the day on which the notice is served.

(3) Any sum received by the Commissioner by virtue of a monetary penalty
notice must be paid into the Consolidated Fund.

Contents of monetary penalty notices

2 A monetary penalty notice must, in particular—

(a) 15state the name and address of the person on whom it is to be served,

(b) provide details of the notice of intent served on that person (see
paragraph 4),

(c) state whether the Commissioner has received written
representations in accordance with that notice of intent,

(d) 20state the grounds on which the Commissioner serves the monetary
penalty notice,

(e) state the grounds on which the Commissioner decided the amount of
the monetary penalty imposed by the monetary penalty notice,

(f) state the details of how the monetary penalty is to be paid,

(g) 25provide details of the person’s rights of appeal under paragraph 8 in
respect of the monetary penalty notice,

(h) provide details of the Commissioner’s rights of enforcement under
paragraph 9 in respect of the monetary penalty notice.

Enforcement obligations

3 (1) 30The Commissioner may include an enforcement obligation, or enforcement
obligations, in a monetary penalty notice if the Commissioner considers that
the interception to which the notice relates is continuing.

(2) Each of the following is an enforcement obligation—

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(a) a requirement on the person on whom the notice is served to cease
the interception on a specified day or within a specified period;

(b) (where appropriate for achieving such a cessation) a requirement on
the person to take specified steps within a specified period, or to
5refrain from taking specified steps after the end of a specified period.

(3) An enforcement obligation may not have effect before the end of the period
of 7 days beginning with the day after the day on which the notice is served.

(4) Where an enforcement obligation is included in a monetary penalty notice
under this paragraph, the notice must state what the obligation is and the
10grounds for including it.

Consultation requirements before service of monetary penalty notices

4 (1) The Commissioner must proceed in accordance with sub-paragraphs (2) to
(7) before serving a monetary penalty notice on a person.

(2) The Commissioner must serve a notice of intent on the person.

(3) 15A notice of intent is a notice that the Commissioner proposes to serve a
monetary penalty notice on the person.

(4) A notice of intent served on a person must, in particular—

(a) state the name and address of the person,

(b) state the grounds on which the Commissioner proposes to serve the
20monetary penalty notice,

(c) provide an indication of the amount of the monetary penalty that the
Commissioner proposes to impose and the Commissioner’s grounds
for deciding that amount,

(d) state whether the monetary penalty notice is to include any
25enforcement obligation and, if so, what the obligation is and the
grounds for including it,

(e) state the date on which the Commissioner proposes to serve the
monetary penalty notice,

(f) inform the person that the person may make written representations
30in relation to the Commissioner’s proposal within a period specified
in the notice, and

(g) inform the person that the person may, within a period specified in
the notice, request an oral hearing before the Commissioner in order
to make representations of the kind mentioned in sub-paragraph
35(6)(b).

(5) No period specified as mentioned in sub-paragraph (4)(f) or (g) may be less
than 21 days beginning with the day after the day on which the notice is
served.

(6) Where the person has requested an oral hearing within the period specified
40for the purpose in the notice—

(a) the Commissioner must arrange such a hearing, and

(b) the person may make representations at the hearing about—

(i) any matter falling within section 7(3)(c), or

(ii) any other matter relating to the Commissioner’s proposal
45which, by virtue of section 53, the person would be unable to
raise on an appeal under paragraph 8.

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(7) The Commissioner must consider any representations which have been
made by the person in accordance with the notice or sub-paragraph (6).

(8) If the Commissioner decides not to serve a monetary penalty notice on a
person as a result of any representations which have been made by the
5person in accordance with a notice of intent or sub-paragraph (6), the
Commissioner must inform the person of that fact.

5 (1) The Commissioner may not vary a notice of intent except as set out in sub-
paragraph (2).

(2) The Commissioner may vary a notice of intent by extending the period
10mentioned in paragraph 4(4)(f) or (g).

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

(4) The Commissioner may cancel a notice of intent.

(5) A variation or cancellation of a notice of intent is effected by serving on the
15person on whom the notice was served a notice setting out the variation or
cancellation.

6 (1) The Commissioner must not serve a monetary penalty notice on a person in
respect of an interception if any notice of intent in respect of that interception
was served on the person more than 3 months earlier.

(2) 20But the Commissioner may serve a monetary penalty notice on a person
where the service of the notice would otherwise be prevented by sub-
paragraph (1) if the Commissioner—

(a) considers it reasonable to do so, and

(b) includes the reasons for doing so in the monetary penalty notice.

25Variation or cancellation of monetary penalty notices

7 (1) The Commissioner may vary or cancel a monetary penalty notice.

(2) But the Commissioner may not vary a monetary penalty notice in a way that
is detrimental to the person on whom it was served (whether by increasing
the amount of the monetary penalty, by reducing the period specified in the
30notice as the period within which the penalty must be paid, by imposing a
new enforcement obligation or making an existing enforcement obligation
effective earlier or otherwise more onerous, or otherwise).

(3) The Commissioner must—

(a) in the case of a variation which reduces the amount of a monetary
35penalty, repay any excess already paid in accordance with the notice,
and

(b) in the case of a cancellation, repay any amount already paid in
accordance with the notice.

(4) A variation or cancellation of a monetary penalty notice is effected by
40serving on the person on whom the monetary penalty notice was served a
notice setting out the variation or cancellation.

(5) The Commissioner may not serve another monetary penalty notice on a
person in respect of an interception if the Commissioner has cancelled a
previous notice served on the person in respect of the same interception.

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(6) If the Commissioner refuses a request by a person to vary or cancel a
monetary penalty notice which has been served on the person, the
Commissioner must inform the person of that fact.

Appeals in relation to monetary penalty notices

8 (1) 5A person on whom a monetary penalty notice is served may appeal to the
First-tier Tribunal against—

(a) the monetary penalty notice or any provision of it, or

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

(2) 10Where there is an appeal under sub-paragraph (1)(a) in relation to a
monetary penalty notice or any provision of it, any requirement in the notice
or (as the case may be) provision which does not relate to the imposition of
an enforcement obligation need not be complied with until the appeal is
withdrawn or finally determined.

(3) 15Sub-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
monetary penalty notice as could have been served by the Commissioner if
the Tribunal considers—

(a) 20that 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) 25In 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) 30The First-tier Tribunal must direct the Commissioner to serve, on such terms
as the Tribunal considers appropriate, a notice of variation or cancellation in
relation to the monetary penalty notice if the Tribunal considers that the
monetary penalty notice ought to be varied or cancelled on those terms.

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

(10) 35The 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 monetary penalty notices

9 (1) This paragraph applies in relation to any penalty payable to the
Commissioner by virtue of a monetary penalty notice.

(2) 40In England and Wales or Northern Ireland, the penalty is recoverable—

(a) if the county court in England and Wales or a county court in
Northern Ireland so orders, as if it were payable under an order of
that court, and

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(b) if the High Court so orders, as if it were payable under an order of
that court.

(3) In Scotland, the penalty is recoverable as if it were payable under an extract
registered decree arbitral bearing a warrant for execution issued by the
5sheriff for any sheriffdom in Scotland.

10 (1) A person on whom a monetary penalty notice containing an enforcement
obligation is served must comply with the obligation.

(2) The duty imposed by sub-paragraph (1) is enforceable by civil proceedings
by the Commissioner for an injunction, or for specific performance of a
10statutory duty under section 45 of the Court of Session Act 1988, or for any
other appropriate relief.

Guidance

11 (1) The Commissioner must prepare and issue guidance on how the
Commissioner proposes to exercise the Commissioner’s functions under
15section 7 and this Schedule.

(2) The guidance must, in particular, deal with—

(a) the manner in which the Commissioner is to deal with claims of a
description specified in the guidance which may give rise to grounds
for serving a monetary penalty notice,

(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 7;

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  • “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.

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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,

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(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.

(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 7 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);

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  • “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 7;

  • “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 12(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 237 and 238 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 237 and 238 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 237 and 238 of that Act).”

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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 237 and 238 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 237 and
    238 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 238 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
    237 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