Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011

My Lords, the Government are pleased to bring forward these regulations which, through amendments to the Regulation of Investigatory Powers Act 2000, will provide additional protection for the users of electronic communications. The regulations address concerns expressed by the European Commission that the UK had failed adequately to transpose EU law requirements concerning the confidentiality of electronic communications, specifically concerning the interception of communications. RIPA provides that interception of communications can be lawfully undertaken either in accordance with a warrant signed by the Secretary of State or, in other specified circumstances, without a warrant. The changes brought about by these regulations will impact on interception without a warrant. Communications service providers may lawfully and legitimately intercept communications when it is necessary for them to do so—for example, in order to manage their networks. Where businesses choose to carry out interception to provide value-added services, an activity that is carried out at the discretion of service providers, RIPA requires the consent of both the sender and the recipient of the communications that will be intercepted. RIPA also provides for criminal sanctions against the intended, unlawful interception of communications. However, to address deficiencies in the statutory regime identified by the European Commission, these regulations amend RIPA in two significant respects. First, they create a civil sanction for the unlawful interception of electronic communications that does not constitute an offence under Section 1 of RIPA. In other words, we are establishing a sanction for unintentional and unlawful interception of electronic communications. Fines of up to £50,000 can be imposed, together with a requirement that activity that has been determined to be unlawful under these regulations must stop. Secondly, the regulations clarify the nature of the consent that must be given by a party consenting to the interception of a communication in order to render that interception lawful. Reasonable grounds for believing that consent has been obtained will no longer be sufficient. Under the regulations, the administration of the new civil sanction will be undertaken by the Interception of Communications Commissioner, whose expertise and independence will ensure that the new requirements are rigorously and fairly applied. He will be able to draw on technical assistance from Ofcom as and when required. The regulations also provide for a comprehensive appeals process to the first tier tribunal. This will deal with appeals against the imposition of either monetary penalties or a requirement to stop an activity that the commissioner has determined is unlawful. The regulations reinforce and clarify the statutory regime under which interception of communications can be carried out lawfully and with proper respect for a person’s right to a private life. When interception is carried out unlawfully, appropriate penalties will be imposed. The regulations address the two main concerns raised during the consultation on these issues with communications service providers, civil liberties groups and others. They provide for an appropriate maximum monetary penalty for the new civil sanction and ensure that the scope of the sanction is sufficiently broad to cover all instances of relevant unlawful interception. We expect any business impact on communications service providers to be minimal. The regulations will not stop activities that providers wish to undertake—for example, providing value-added services to their customers. However, when such activity amounts to the interception of communications, the regulations strengthen the requirement that the interception must be consensual and that there must be evidence of the consent of those affected. This will provide welcome reassurance to customers that their privacy is being properly respected, together with greater clarity to the industry on how to ensure that its activities are lawful. We have worked constructively with the European Commission to ensure that its concerns have been addressed. The regulations will provide confidence that interception of communications is in all circumstances carried out lawfully and with due respect for fundamental rights. Where such respect is not observed and interception is unlawful, appropriate penalties can be imposed. I commend the regulations to the Committee.