Joint Committee On Human Rights Sixteenth Report


1 Introduction

Background to the Draft Voluntary Code of Practice

1. Part 11 of the Anti-terrorism, Crime and Security Act 2001 provides for arrangements to be put in place whereby communications service providers retain information about communications sent by their customers for longer than would be required for business purposes. These "communications data" are said to be valuable sources of information for the police and other agencies in combating terrorism. Section 102 of the Act requires the Secretary of State to issue, and allows him to revise from time to time, a code of practice relating to the retention of such data by communications providers. It also allows him to enter into agreements with providers in relation to the retention of communications data. Failure to comply with a Code of Practice or agreement is not to give rise to criminal or civil liability, but the Code or agreement is admissible as evidence in legal proceedings in relation to any question as to whether or not the retention of communications data is justified on the ground that failure to retain the data would be likely to prejudice national security, the prevention or detection of crime or the prosecution of offenders.

2. Before issuing a Code of Practice, the Secretary of State is required by section 103 to consult the Information Commissioner and the communications providers to whom the Code will apply, then to prepare and publish a draft of the Code. Thereafter he must consider any representations made to him about the draft, and may modify the draft in the light of them. After a draft has been laid before and approved by resolution of each House of Parliament, the Secretary of State is to bring the Code into force by statutory instrument.

3. The Secretary of State has now laid before each House a Retention of Communications Data under Part 11: Anti-terrorism, Crime & Security Act 2001 Draft Voluntary Code of Practice (hereafter "the Draft Code"), together with a draft Retention of Communications Data (Code of Practice) Order 2003, and now seeks the approval of each House for them.[1]

4. When the Anti-terrorism, Crime and Security Bill was before Parliament in November and December 2001, the Joint Committee on Human Rights reported on the human rights implications of Part 11. 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 possible, on the face of the legislation".[2] Subsequently, we endorsed the suggestion of the House of Lords Delegated Powers and Regulatory Reform Committee that the Joint Committee should scrutinize any draft Code laid before Parliament under what is now section 103(4) of the Act.[3] The Committee is now undertaking that scrutiny, although we were disappointed that the Home Office did not explicitly seek our views before laying the draft order bringing the Draft Code into effect. The Joint Committee on Statutory Instruments has written to the Home Secretary to ask him not to proceed further until we have reported.[4]

The effect of the Draft Code of Practice

5. The Draft Code would provide for communications providers to retain communications data for longer than would be required for the communications providers' ordinary business purposes. Appendix A to the Draft Code sets out the periods for which, in the Secretary of State's view, it is necessary for communications data to be retained for the purpose of national security. The Draft Code specifies different periods for different classes of data: four days for Web activity logs, six months for SMS, EMS and MMS data, E-mail data and ISP data, and 12 months for personal information about subscribers and telephony data. In addition, there are other types of data in relation to which the period of retention would vary relative to the service provided or the data to which they are related. The essential point is that highly personal data (including data which could be used to identify individuals and track their use of the Internet, and their credit card numbers) would have to be held, without their permission or knowledge, for a standard period of 12 months, and other similarly sensitive data would be held for shorter standard periods.

6. During these periods, retained data could be lawfully obtained by or disclosed to a range of official agencies. While the justification for retention of data under the Draft Code would be a need to retain it for national security purposes, data in the possession of a communications provider would apparently be accessible to agencies for wider purposes: a wide range of agencies have access to such data under the Regulation of Investigatory Powers Act 2000 for the purposes of criminal investigations, and the range of such agencies would be considerably extended by the Draft Regulation of Investigatory Powers (Communications Data) Order 2003 for which the Secretary of State is currently seeking approval by resolution of each House.[5] This is a matter to which we return below.


1   The Draft Voluntary Code of Practice on the Retention of Communications Data and the Draft Retention of Communications Data (Code of Practice) Order 2003 were laid before Parliament under the Anti-terrorism, Crime and Security Act 2001 on Thursday 11 September 2003 Back

2   Joint Committee on Human Rights, Second Report, Session 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, para. 71. Back

3   Delegated Powers and Regulatory Reform Committee, Seventh Report, Session 2001-02, Anti-terrorism, Crime and Security Bill, Office of Communications Bill, and Request for Evidence for the Proposal for the Draft Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) Order 2002, HL Paper 45, paras. 23 and 24; Joint Committee on Human Rights, Fifth Report, Session 2001-02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 52, HC 420, paras. 30-31. Back

4   Joint Committee on Statutory Instruments, Thirtieth Report, Session 2002-03, HL Paper 177, HC 96-xxx, para 1.8. Back

5   See Appendix 3 Back


 
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Prepared 14 November 2003