31. We are very concerned that the communications
providers who will be retaining communications data under the
provisions of Part 11 of the Anti-terrorism, Crime and Security
Act, often for long periods, as a matter of course will not (if
the Government's view is correct) be functional public authorities
for the purposes of the Human Rights Act 1998, and so will not
be subject to any of obligations arising under ECHR Article 8.
In our view, this makes it particularly important to ensure that
the Draft Code, and the standard periods of retention which it
contains, are necessary for a legitimate aim and are proportionate
to the objective sought to be achieved. The Home Secretary has
convinced us that making communications data accessible is likely
to be a useful investigative tool, but we are not able to say
that we are satisfied that the arrangements in the Draft Code
would be proportionate to legitimate objectives (see paragraphs
11 to 12 and 18 to 19 above).
32. We also have some reservations about the Government's
approach to the possible accessibility of retained data to investigators
inquiring into matters unrelated to national security. However,
on balance we are satisfied that other safeguards, within the
structure of the Regulation of Investigatory Powers Act 2000 and
the procedures for judicial review, are likely to provide adequate
safeguards for Convention rights (see paragraphs 24 to 26 above).
33. Finally, we regret that more time has not been
allowed to permit Parliament to consider more fully these far-reaching
proposals, and their relationship to the other Draft Orders currently
before the two Houses in relation to powers under the Regulation
of Investigatory Powers Act 2000 (see paragraphs 29 to 30 above).