Investigatory Powers Bill — Report (3rd Day) — 19 Oct 2016 at 16:45

Moved by Lord Keen of Elie

180: Clause 137, page 110, line 4, leave out subsection (6)

Moved by Earl Howe

181: After Clause 137, insert the following new Clause-“Approval of major modifications by Judicial Commissioners(1) In deciding whether to approve a decision to make a major modification of a bulk interception warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must-(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 137, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 137, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”

Moved by Earl Howe

182: Clause 138, page 111, line 6, leave out “fifth” and insert “third”

183: Clause 138, page 111, line 15, at end insert-“and section (Approval of major modifications by Judicial Commissioners)(4) does not apply in relation to the refusal to approve the decision.”

Moved by Earl Howe

184: Clause 141, page 113, line 41, after “(5)” insert “and section 143”

Moved by Earl Howe

185: Clause 142, page 114, line 21, after “(5)” insert “and section 143”

Moved by Earl Howe

186: Clause 144, page 116, line 26, at end insert-“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”

Moved by Earl Howe

187: Clause 144, page 116, line 34, at end insert-“( ) For the purposes of subsection (3)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless-(a) the public interest in obtaining the information that would be obtained by the selection of the intercepted content for examination 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) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Moved by Earl Howe

189: Clause 144, page 116, line 34, at end insert-“(3A) Subsection (3B) applies if, in a case where intercepted content obtained under a bulk interception warrant is to be selected for examination-(a) the selection of the intercepted content for examination meets any of the selection conditions in section 143(3)(a) to (c),(b) the purpose, or one of the purposes, of using the criteria to be used for the selection of the intercepted content for examination (“the relevant criteria”) is to identify communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(c) the person to whom the warrant is addressed considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.(3B) The intercepted content may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(3C) A senior official may give an approval under subsection (3B) only if the official considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.”

190: Clause 144, page 116, line 36, after “examination,” insert “for purposes other than the destruction of the item,”

Moved by Earl Howe

191: Clause 144, page 116, line 40, at end insert-“(4A) The Investigatory Powers Commissioner may-(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4B) The Investigatory Powers Commissioner-(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (4A), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4C) Each of the following is an “affected party” for the purposes of subsection (4B)-(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”

Moved by Earl Howe

194: After Clause 144, insert the following new Clause-“Additional safeguard for confidential journalistic materialWhere-(a) a communication which has been intercepted in accordance with a bulk interception warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a warrant, see section 141.)”

Moved by Lord Janvrin

195: After Clause 144, insert the following new Clause-“Offence of breaching safeguards relating to examination of material under bulk interception warrants(1) A person commits an offence if-(a) the person selects for examination any intercepted content or secondary data obtained under a bulk interception warrant,(b) the person knows or believes that the selection of that intercepted content or secondary data for examination does not comply with a requirement imposed by section 143 or 144, and(c) the person deliberately selects that intercepted content or secondary data for examination in breach of that requirement. (2) A person guilty of an offence under this section is liable-(a) on summary conviction in England and Wales-(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland-(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland-(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted-(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

Moved by Earl Howe

196: Clause 146, page 117, line 21, at end insert-“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”

Moved by Lord Paddick

196A: Clause 147, page 118, line 48, at end insert-“( ) A bulk acquisition warrant may not require data which relates to or includes internet connection records.”

Ayes 82, Noes 321.

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