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

I am grateful to noble Lords for their thoughtful consideration of and warm welcome for the regulations. The regulations will provide additional protection by ensuring that users consent to the interception of their communications if obtained in circumstances where such consent is required. I will elaborate a little further. A new sanction for the unintentional unlawful interception of electronic communications will provide an important and additional reassurance to users that their privacy will be respected. I will try to respond to some of the questions that noble Lords have asked. The noble Lord, Lord Rosser, asked if we were forced by the EU to take on this extra instrument to protect users. We agree that we had to correct the transposition of the privacy and data protection directives in two respects. We have welcomed the opportunity to be able to provide members of the public with that additional protection. The noble Lord asked when guidance would be produced. The Interception Commissioner is producing guidance, and we understand that it will be ready in approximately three weeks’ time. The noble Lord asked why we did not accept that Article 28 of the data protection directive required us to establish an independent supervisory body to deal with unlawful interception. We are confident that the Interception Commissioner’s new role will provide oversight of unlawful interception and—excuse me, I am trying to read my official’s writing; I told them to write big because I cannot see—that this will satisfy the Commission. I thank my noble friend Lord Shipley for giving me prior notice of his questions. He asked why the regulations had taken so long. It is because they are complex and we wanted to make sure that they fulfilled the transposition of the EU directives correctly. Furthermore, not only were we in discussion with the European Commission, we carried out a consultation to ensure that we listened to parties likely to be affected by these regulations. Noble Lords asked whether the Information Commissioner was happy with the regulations and the consultation. He concluded in his response to the consultation that he recognised the need to make these changes to the legislation and welcomed the proposed amendments. He added: "““It is hoped these will provide some much needed clarification of the nature of consent required for lawful interceptions””." Noble Lords should be assured that the Information Commissioner is very much satisfied and on side with the regulations and the powers that they undertake to ensure that the protection of users is at the forefront of what we are trying to achieve. What form of consent was required by users? We have deleted the reference in RIPA to reasonable grounds for believing that users’ consent has been obtained. It will now be necessary for CSPs to satisfy themselves that they have required consent. Therefore, a greater onus is on them to ensure that they have met all the necessary safeguards to ensure that they are not breaking the law. The EU privacy directive requires that consent should be freely given, specific and informed. The noble Lord, Lord Rosser, asked: what are the additional costs to the commissioner’s office? They are likely to be minimal and, in the first instance, we do not expect there to be any requirement for additional resources. Noble Lords asked whether I can confirm that infraction issues have been resolved to the satisfaction of the Commission. The Commission referred the UK to the European Court in September 2010. We have been in dialogue with the Commission to resolve those matters, and we believe that we have done all that is required to ensure that the effective transposition of the relevant EU directives has taken place. If I have failed to answer noble Lords’ questions, because this is a hugely technical issue, I turn to my officials while I promise that we will write to noble Lords, but the regulations will ensure that we responsibly meet our obligations under EU law. I thank noble Lords for their warm words about the regulations, and I put on record my appreciation to my officials—who let me down slightly at the last minute with their small writing—who have shown me great patience and skill in helping me to navigate incredibly difficult, complex and technical details. I commend the Motion. Motion agreed.