Investigatory Powers Bill

COMMONS DISAGREEMENT (lORDS AMENDMENTS 15b, 15c, 338b, 339b AND

339c) AND REASONS

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

LORDS AMENDMENT 15

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.

 

(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—

 
 
HL Bill 7056/2

 
 

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(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.”

 

COMMONS DISAGREEMENT AND REASON

 

The Commons disagree to Lords Amendment No. 15 for the following Reason—

15A

Because it would not be appropriate to make such provision in relation to claims under

 

clause 8 while consideration is being given to commencing section 40 of the Crime and

 

Courts Act 2013.

 

LORDS NON-INSISTENCE AND AMENDMENTS IN LIEU

 

The Lords do not insist on their Amendment 15, to which the Commons have disagreed for

 

their Reason 15A, and do propose Amendments 15B and 15C in lieu—

15B

Insert the following new Clause—

 

“Civil liability for certain other unlawful interceptions

 

(1)    

An interception of a communication is actionable at the suit or instance

 

of—

 

(a)    

the sender of the communication, or

 

(b)    

the recipient, or intended recipient, of the communication,

 

    

if conditions A to C are met.

 

(2)    

Condition A is that the interception is carried out in the United Kingdom.

 

(3)    

Condition B is that the communication is intercepted in the course of its

 

transmission, by means of a public telecommunications system.

 

(4)    

Condition C is that the interception is carried out without lawful authority.

 

(5)    

For the meaning of “interception” and other key expressions used in this

 

section, see sections 4 to 6.”

15C

Insert the following new Clause—

 

“Interception without lawful authority: awards of costs

 

(1)    

This section applies where—

 
 

 
 

3

 
 

(a)    

a claim is made under section (Civil liability for certain other unlawful

 

interceptions) against a person (“the defendant“), or a claim is made

 

for misuse of private information arising from an interception of a

 

communication carried out before the date on which section (Civil

 

liability for certain other unlawful interceptions) comes into force,

 

(b)    

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

 

(c)    

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

 

(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 (1) to (3) shall only apply to a claim issued after this section

 

comes into force.

 

(7)    

For the purposes of this section “approved regulator”, “material time” and

 

“news-related material” 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.”

 

COMMONS REASONS

 

The Commons disagree to Lords Amendments No. 15B and No. 15C for the following

 

Reasons:

15D

Because it is inappropriate to extend civil liability in respect of the interception of

 

communications.

15E

Because it would not be appropriate to make such provision before the conclusion of the

 

public consultation on press regulation.

 
 

 
 

4

 
 

 

LORDS AMENDMENT 338

Clause 243

338

Page 191, line 38, leave out “(2) and” and insert “(1A) to”

 

COMMONS DISAGREEMENT AND REASON

 

The Commons disagree to Lords Amendment No. 338 for the following Reason—

338A

Because it is consequential on Lords Amendment No. 339 to which the Commons disagree.

 

LORDS NON-INSISTENCE AND AMENDMENT IN LIEU

 

The Lords do not insist on their Amendment 338, to which the Commons have disagreed

 

for their Reason 338A, and do propose Amendment 338B in lieu—

338B

Page 191, line 38, after “(2)” insert “, (2A)”

 

COMMONS REASON

 

The Commons disagree to Lords Amendment No. 338B for the following Reason:

338C

Because it is consequential on Lords Amendment No. 339B to which the Commons

 

disagree.

 

 

LORDS AMENDMENT 339

Clause 243

339

Page 191, line 40, at end insert—

 

“(1A)    

Sections 8 and (Interception without lawful authority: award of costs) come into

 

force on the day following that on which this Act is passed.”

 

COMMONS DISAGREEMENT AND REASON

 

The Commons disagree to Lords Amendment No. 339 for the following Reason—

339A

Because it is inappropriate for clauses 8 and 9 to come into force before the other provisions

 

of the Bill relating to interception.

 

LORDS NON-INSISTENCE AND AMENDMENTS IN LIEU

 

The Lords do not insist on their Amendment 339, to which the Commons have disagreed

 

for their Reason 339A, and do propose Amendments 339B and 339C in lieu—

339B

Page 192, line 2, at end insert—

 
 

 
 

5

 
 

“(2A)    

Sections (Civil liability for certain other unlawful interceptions) and

 

(Interception without lawful authority: awards of costs) come into force on the

 

day following that on which this Act is passed.”

339C

Page 192, line 4, at end insert—

 

“(3A)    

Sections (Civil liability for certain other unlawful interceptions) and

 

(Interception without lawful authority: awards of costs) are repealed at the end

 

of the period of six years starting with the day on which they come into

 

force.”

 

COMMONS REASONS

 

The Commons disagree to Lords Amendments No. 339B and No. 339C for the following

 

Reasons:

339D

Because it is inappropriate for the new clauses that would be inserted by Lords

 

Amendments Nos. 15B and 15C to come into force before the other provisions of the Bill

 

relating to interception.

339E

Because it is consequential on Lords Amendments Nos. 15B and 15C to which the

 

Commons disagree.

 

 

 

15 November 2016