Joint Committee On Human Rights Fifth Report

Part 11 of the Bill: retention of communications data

29. Part 11 of the Bill would give wide discretion to the Secretary of State to issue a code of practice relating to the retention of communications data by communications providers. These data include very detailed information about geographical locations from which telephone calls are made, as well as other information relating to individual communications. The Secretary of State would also be able to enter into agreements with communications providers about practices to be followed, and to take power by statutory instrument to give directions to communications providers.

30. In our Second Report, we expressed concern about the lack of express limits to these powers, which 'could be used to secure highly sensitive data for the purpose of investigating very minor offences, or even for monitoring people's communications without any ground for suspecting them of any offence or of threatening national security.' In view of the absence of safeguards for the principle of proportionality, we took the view that—

... measures should be put in place to ensure that the Code of Practice and any directions are compatible with the right to respect for private and family life, home and correspondence under Article 8 of the ECHR, and that those measures should be specified, so far as practicable, on the face of the legislation.[46]

We note that the House of Lords Delegated Powers and Regulatory Reform Committee, with its immense experience in scrutinizing provisions in Bills which would confer power to make subordinate legislation, has endorsed this view, and has recommended that we should be responsible for scrutinizing a draft of any code of practice to be issued under clause 102.[47]

31. We regard this as an appropriate way forward to ensure that Parliament can satisfy itself that any Code plays its part in securing adequate safeguards for rights under Article 8 of the ECHR. We recommend that clause 102 should be amended to require parliamentary scrutiny of any such code of practice in draft. We accordingly draw this once more to the attention of each House.

46   Second Report, op cit, para 71 Back

47   Delegated Powers and Regulatory Review Committee, Seventh Report, Session 2001-02, op cit, paras 23 and 24 Back

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