Joint Committee On Human Rights Sixteenth Report


Written evidence

1 Letter from the Chair to Rt Hon David Blunkett MP, Secretary of State for the Home Department

The Joint Committee on Human Rights is considering whether to report to each House on the human rights implications of the above Draft Code, laid before Parliament pursuant to section 103(4) of the Anti-terrorism, Crime and Security Act 2001. When the Committee reported on the Anti-terrorism, Crime and Security Bill in 2001, it 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. The Committee was disappointed that the Home Office did not explicitly seek its views, preferably before the laying of the order bringing the Code into effect.

The Committee would therefore be grateful for your response to the following questions.

Applicability of the Human Rights Act 1998 to service providers holding communications data

The Draft Code, paragraph 5, says that it has been drawn up in accordance with legislation, including the Human Rights Act 1998. That appears to be the only reference to that Act. Of the Convention rights, ECHR Article 8 (right to respect for private life and correspondence, among other things) is particularly relevant. No guidance is given to service providers as to their responsibilities under the Act. Service providers are not likely to be public authorities for all purposes. If they are under a legal obligation to comply with Article 8, it will normally be because they are 'functional' public authorities under section 6(3)(b) of the Human Rights Act 1998 ('any person certain of whose functions are functions of a public nature') when holding data for an extended period for non-business purposes in order to comply with a requirement made under Part 11 of the Anti-terrorism, Crime and Security Act 2001.

1. Does the Government consider that service providers holding information for the purposes of the Anti-terrorism, Crime and Security Act 2001 are to be regarded as functional public authorities for the purposes of the Human Rights Act 1998?

Across-the-board standard retention periods for communications data in various categories: necessity and proportionality

Paragraphs 7 and 8 state that the Secretary of State considers it to be necessary for the purpose of national security for service providers to retain communications data for the periods set out in Appendix A to the Draft Code. Paragraph 8 explains that the Secretary of State would, if necessary, issue a certificate under section 28(2) of the Data Protection Act 1998 to exempt such data from the fifth data protection principle (data not to be kept for longer than necessary for the purposes of processing).

This would not deal with the position under ECHR Article 8 and the Human Rights Act 1998. If a service provider is a functional public authority when retaining data for national security purposes, it would have to show both that the retention is necessary (in the sense of being a response to a pressing social need) and proportionate (interfering no more than is essential in the circumstances of the case with the right to respect for private life and correspondence). A retention which fails to meet those criteria will not be justifiable under ECHR Article 8.2.

2. If the Government takes the view that service providers will be functional public authorities for this purpose, why does it consider that it would be proportionate to retain communications data by reference to across-the-board standard periods of time, without reference to the identity of the user of the service or the circumstances in which the communications took place?

Whether or not the service provider is a functional public authority, the state might have an obligation under ECHR Article 1 and Article 8 to take positive steps to safeguard the service user's right to respect for private life and correspondence. In this context, appropriate safeguards might, for example, take the form of legislation imposing on the service providers an obligation to ensure that an assessment of proportionality is made in relation to different pieces of data. However, neither the Anti-terrorism, Crime and Security Act 2001 nor the Draft Code indicates that there is a requirement of proportionality, let alone offers advice on how it should be applied.

3. Why does the Government consider that a Code which does not mention the requirement of proportionality would discharge the United Kingdom's obligations under ECHR Article 8?

Use of retained data for purposes unrelated to national security

Although the Draft Code sets extended periods of retention for communications on the ground of national security, it says nothing about the use which could be made of data retained under it which could not otherwise have been lawfully retained for that period: see paragraph 25 of the Draft Code. As it stands, it appears that communications data retained for an extended period under the Anti-terrorism, Crime and Security Act 2001 could be obtained by or disclosed to public authorities for a variety of other purposes, including but not limited to the investigation of crimes unrelated to national security under the Regulation of Investigatory Powers Act 2000. The Committee notes that a Draft Order in Council, the Draft Regulation of Investigatory Powers (Communications Data) Order 2003, has been laid before each House. This Draft Order would greatly extend the range of bodies by whom communications data can be obtained and to whom they can be disclosed lawfully under the 2000 Act.

This could be seen as an unacceptable way of avoiding the restrictions placed by Parliament on the obtaining or disclosure of such data in cases unrelated to national security when the 2000 Act was passed. That Act represents a careful assessment of the appropriate balance between individuals' rights and public interests for the purpose of ECHR Article 8.2. If arrangements permit communications data retained under the Anti-terrorism, Crime and Security Act 2001 to be obtained, disclosed or processed for the purposes of other legislation, when the data could not lawfully have been retained under that legislation, there must be doubt about the proportionality of that obtaining, disclosure or processing of the data.

4. What legal or technological measures are being taken or are planned to ensure that the communications data retained for the purposes of Part 11 of the Anti-terrorism, Crime and Security Act 2001 will not be available for purposes other than the protection of national security, in order to ensure the proportionality and so the compatibility of the retention with rights under ECHR Article 8?

The consultation process

Before publishing a Draft Code, section 103(2) requires the Secretary of State to consult with (a) the Information Commissioner and (b) the communications providers to whom the code will apply. The process of consultation could have begun as early as December 2001 or January 2002, but it is not clear to the Committee how thorough the consultation has been, when it was commenced, or how long was allowed for it.

5. What views did the Information Commissioner express when consulted on the Draft Code?

6. What steps were taken to consult with the communications service providers; when and over what period did these consultations take place; and what views did the communications service providers express?

The timetable for seeking approval

The Committee notes that the Government has laid before Parliament a draft Order, the Retention of Communications Data (Extension of Initial Period) Order 2003, which would extend for two years from 13 December 2003 the power of the Secretary of State to give directions for retention of communications data under section 104 of the Anti-terrorism, Crime and Security Act 2001. If this is approved, it would seem to remove much of the urgency from the process of obtaining approval of the Draft Code of Practice. The Committee has commented above on the impact on the Convention right under ECHR Article 8 of the inter-relationship between retention under the 2001 Act and retention under the Regulation of Investigatory Powers Act 2000, and of the proposed extension to the range of bodies entitled to obtain or receive disclosure of communications data under the latter Act in the Draft Regulation of Investigatory Powers (Communications Data) Order 2003, for which approval is due to be sought from Parliament in the near future.

7. Does the Government consider that it is necessary to press ahead with these Draft Orders and Draft Code of Practice at this time, and if so, why?

8. Are there any pressing considerations which would weigh against allowing the issues relating to these proposed items of legislation be dealt with according to a timetable which allowed more time for parliamentary scrutiny and further consultation?

If the Government still intends to seek approval of the Draft Regulation of Investigatory Powers (Communications Data) Order 2003 and related draft orders in the immediate future, I would be grateful for a reply to this letter not later than midday on Friday 7 November 2003 so that your reply can be considered by the Committee and a report provided to each House, if necessary, before 12 November.

If on the other hand the Government is willing to withdraw that Order for the time being, or to postpone parliamentary debate upon it, to allow time for further consideration of its implications alongside those of the Draft Code, a reply by Monday 17 November 2003 would be sufficient.

30 October 2003

2. Letter from Rt Hon David Blunkett MP, Secretary of State for the Home Department, to the Chair

Thank you for your letter of 30 October about the draft Code of Practice we have laid before Parliament under section 103(4) of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act). I am reluctant to delay consideration by both Houses and I hope that you will find the details in this letter helpful in expediting your scrutiny of our proposals.

I entirely accept that the blanket retention of communications data and its access by public authorities constitutes a potential interference with the right to respect for private life enshrined in Article 8 of the European Convention of Human Rights. The issue is whether it is necessary and proportionate for data to be retained for the periods set out in the Appendix to the Code. The Government's view, in light of the advice it has received from the security, intelligence and law enforcement agencies, is that it is. But clearly this is an important step and that is why we have consulted extensively on the draft Code (I attach the consultation document published in March) before bringing it forward for Parliamentary consideration. I hope that the information I am providing for the Committee is a useful way of adding to that consideration. Let me deal with each of your questions in turn.

Q. 1 Does the Government consider that service providers holding information for the purposes of the Anti-terrorism, Crime and Security Act 2001 are to be regarded as functional public authorities for the purposes of the Human Rights Act 1998?

The Government does not consider that communication service providers who retain data in accordance with the voluntary Code of Practice should be regarded as functional public authorities for the purposes of the Human Rights Act 1998. The purpose of section 6(3)(b) is to deal with hybrid bodies that have both public and private functions. The Government's view is that the communication service providers are not such a body and that the retention of communications data is not a public function, whether it is done for the communication service providers' own business purposes or under the Code of Practice. Rather, it is a private function that arises out of the commercial service that the communication service providers provide.

Q. 2 If the Government takes the view that service providers will be functional public authorities for this purpose, why does it consider that it will be proportionate to retain communications data by reference to across the board standard periods of time, without reference to the identity of the user of the service or the circumstances in which the communications took place?

As I have indicated, the Government does not consider that communications service providers will be functional public authorities for this purpose. Nevertheless, we fully accept that the approach to retention of communications data taken in the Code of Practice needs to comply with Article 8 of the European Convention on Human Rights. It must be necessary and proportionate for the Government to ask that the different types of data are retained for the periods set out in the Code. As a starting point the Government needs to demonstrate why there needs to be blanket data retention at all, rather than data preservation. This is the issue the Committee identify in this question.

In this regard "data preservation" means the retention by communication service providers of specific data at the request of agencies on a case by case basis as such data is created. By way of contrast the Code covers "data retention" by which is meant routinely keeping an identified set of data for a specific period in the event of a subsequent need for access. The Government does not consider that data preservation is an adequate tool for fighting terrorism and in safeguarding national security. This is because data preservation will never aid investigation of a person who is not currently suspected of involvement with, say, a terrorist organisation. For example, if a bomb warning is given prior to a terrorist attack by someone whose data is being preserved then investigators can use communications data to trace the originator of the call and later establish a profile of that individual and identify their contacts and whereabouts in the period prior to the bomb warning. However, if the call is made from a previously unknown source, there will have been no reason to preserve data associated with that particular subscriber. A sophisticated terrorist would be likely to have taken steps to minimize his traceability, consequently it may take some time to identify him. By this time the communication service provider may have erased the data relating to both the suspect's communications and those of his co-conspirators. It is the ability to use historical communications data to build up a pattern of association that can be crucial to an investigation of a terrorist attack. It is for this reason agencies responsible for national security believe that data preservation can be used to supplement data retention but not to replace it. Furthermore, it was the need for data retention rather than data preservation that was recognised by Parliament when it passed the Part 11 of the 2001 Act.

Q. 3 Why does the Government consider that a code which does not mention the requirement of the proportionality would discharge the United Kingdom obligations under ECHR of Article 8?

I am not sure that the Committee is correct in appearing to assume that it will be communication service providers who will be deciding whether the retention periods set out in the Code are necessary and proportionate. The purpose of the Code is to set out the periods for which the Secretary of State himself considers it necessary and proportionate to retain different types of communications data for the purposes of safeguarding national security and for the purposes of the prevention and detection of crime or the prosecution of offenders which may relate directly or indirectly to national security. The purpose of the Code being approved by way of affirmative resolution is to allow Parliament, if it chooses, to endorse this view. But communication service providers do not need to reach a view on this. Rather, in deciding whether to retain data under the voluntary Code they are entitled to rely on the fact that the Secretary of State and Parliament will have concluded that the retention periods set out in the Code are necessary in order to safeguard national security.

In reaching his decision on the appropriate retention periods the Secretary of State has taken into account a number of factors. These include the potential infringement of the right to privacy under Article 8 of the European Convention on Human Rights that retention and access communications data might entail and the fact that communications data are an essential tool for the security, intelligence and law enforcement agencies in carrying out their work to safeguard UK national security. As is expressly set out in paragraph 11 of the Code, having considered all these matters the Secretary of State has concluded that the retention periods set out in the Code are both necessary and proportionate.

Q. 4 What legal or technological measures are being taken or are planed to ensure that the communications data retained for the purposes of Part 11 of the Anti-terrorism, Crime and Security Act 2001 will not be available for the purposes other than protection of national security in order to ensure the proportionality and so the compatibility of the retention with rights under ECHR Article 8?

The disparity between the purpose for which data is retained under the Code and the purposes for which data can be accessed from communications service providers under the Regulation of Investigatory Powers Act 2000 (the 2000 Act) was raised with the Home Office during consultation on the Code. It is addressed in the consultation paper. The Government do not consider that the fact that data is held by communications service providers under the Code of Practice for national security purposes should in itself prevent the police or other public authorities having access to that data for another purpose. It is considered that this would be wrong as a matter of policy and that legally no such automatic restriction exists.

Legally, the Government does not consider that the 2001 Act itself, the Human Rights Act or the European Convention on Human Rights places any blanket restriction on the purposes for which data held under the Code can be accessed. First, there is no explicit restriction in section 102 of the 2001 Act. Further, it was not the intention of Parliament at the time to impose such a restriction. Rather, when this question was raised in the House of Lords Lord Rooker made it explicitly clear that restricting the purposes in what became section 102 would not restrict access via the 2000 Act to data retained under the Code (see Hansard 4 December 2001 page 773-777). This was recognised by the Opposition in the Lords who laid an amendment to the 2000 Act designed to expressly prevent access for non national security purposes. However, that amendment was not pressed, so no restriction was placed in either the 2001 Act or the 2000 Act on the purposes for which data retained under the Code could be accessed. In light of this and, considering the wording of section 102, the Government does not consider that section 102 imposes any implicit restriction on the purposes for which data retained under the Code might be accessed.

The Committee appear to suggest that the human rights principle of proportionality would itself somehow prevent such access. However, the very essence of proportionality as a concept is that it does not impose blanket restrictions. Rather, in these circumstances, it involves considering in each case whether the privacy infringement access might entail is outweighed by the potential value of the data to the investigation in question. The Government finds it difficult to see that this balancing exercise is wholly dependent on the purpose for which the communication service provider holds the data in question, particularly where it is very clear that when the 2001 Act was passed Parliament did not intend access to be restricted in that way.

Furthermore, as a matter of policy the Government considers that it is right that whether data can be accessed by public authorities should not be restricted by the fact that it is held by a communications service provider under the Code rather than for its own business purposes. For example, in the course of a murder inquiry, say, a new suspect comes to light some 10 months after the murder itself. The police may need to obtain mobile phone location data to help identify the location of this suspect at the time of the murder. In the future this data might still be in existence only because it is retained by a communications service provider under the Code. Under the 2000 Act and the draft Regulation of Investigatory Powers (Communications Data) Order 2003 the police will be able to access location data for the purposes of preventing or detecting crime if it is necessary and proportionate to do so. However, say the murder does not relate to national security. Is it right that the police should not have access to the data simply because the communications service provider holds it under the Code rather than for its own business purposes? The Government thinks not, considering instead that whether access to such data should be allowed should depend on whether it is necessary and proportionate for the police to have access to that data in light of the circumstances of the particular case they are investigating. Accordingly, no legal or technological measures are being taken or are planed to ensure that the communications data retained for the purposes of Part 11 of the 2001 Act will not be available for the purposes other than protection of national security.

Q. 5 What views does the information commissioner express when consulted on the Draft Code?

The views on the Information Commissioner on the Draft Code are set out in section 11 of the Consultation Paper issued in March 2003. The Information Commissioner accepts that the processing of personal data involved in the retention of communications data by communication service providers in excess of the period required for their normal business purposes for the specific purposes identified in the 2001 Act will not in itself be unlawful processing under the Data Protection Act 1998 nor would it necessarily be unlawful on human rights ground.

Q. 6 What steps should be taken to consult with the communication service providers, when and over what period these consultations take place; and what views do the communications service providers express?

The Home Office undertook an extensive consultation with Industry which started in early 2002. The Home Office formed a Technical Working Group made up of representatives from Industry as well as the intelligence community to discuss the technical aspects of the draft Code of Practice. One day meetings were held every month for several months and culminated in a two day meeting in March 2003. The Home Office also organised a Government Industry Forum every six months which again gave the Industry a platform to speak to the Government. At the same time the Home Office met with the Operators Group and the Internet Service Providers Association, again giving Industry an opportunity to voice its opinions. In January 2003 the Home Office began visiting most of the larger communications service providers to discuss the draft Code of Practice with them individually. Having talked to the major players in the Industry, the Home Office then began visiting many of the smaller companies in order to explain its objectives and again discuss the draft Code of Practice. These meetings enabled the Government to assess the impact that the Code would have on both the large and smaller communication service providers. The Home Office public consultation began on the 11th March 2003 for three months and again Industry was encouraged to participate in this consultation.

The communications service providers expressed concerns over the legality of a voluntary Code of Practice and its compliance with European Convention on Human Rights. The Government gave repeated assurances on both these issues and the Information Commissioner also published a letter aimed at allaying these fears.

Q. 7 Does the Government consider that it is necessary to press ahead with these Draft Orders and Draft Code of Practice at this time, and if so, why?

These draft Orders and the draft Code of Practice are high on the list of government priorities and consequently the government is determined to press ahead with them at this time.

The 2001 Act was an emergency piece of legislation which was introduced as a consequence of the terrorist attacks on America on 11th September. That terrorist threat is still with us. It is therefore critically important to put these measures in place as soon as possible, in order to provide investigators with the necessary tools to fight terrorism and safeguard national security.

The current situation is that communications data is held by the many communication service providers for varying lengths of time depending on the individual company's business requirement. As technology has advanced the need to retain data for business purposes has diminished and this trend is set to continue. The government must act quickly in order to ensure that enough data is being retained. Failure to do so could lead to less data being retained than there is at present which could significantly prejudice the fight against terrorism and the safeguarding of our national security.

Q. 8 Are there any pressing considerations which would weigh against allowing the issues relating to these proposed items of legislation being dealt with according to a timetable which allowed more time for parliamentary scrutiny and further consultation?

The Retention of Communications Data (Extension of Initial Period) Order 2003 must be debated in both Houses before the 13th December 2003 deadline set out in the 2001 Act. It is therefore critical that this Order be dealt with immediately otherwise the powers set out in section 104 of the 2001 Act, giving the Secretary of State the authority to issue directions, will lapse.

The Order relating to the Code of Practice was laid before Parliament on the 11th September and the Government believes that sufficient time has already been allowed for the document to be adequately scrutinised by Parliament.

As I have indicated, extensive consultation with the Industry has already taken place. We have consulted the Industry through the Operators Group, Internet Service Providers Association and with the Technical Working Group set up by the Home Office. In addition, the Home Office visited the majority of the major communication service providers to discuss the draft Code of Practice and made a huge effort to visit as many smaller companies as was possible. A three month public consultation has also been undertaken.

7 November 2003

3. Letter from the Chair to David Tredinnick MP, Chairman, Joint Committee on Statutory Instruments

I am aware that the Joint Committee on Statutory Instruments considered the above Draft Orders and reported on them in its Twenty-Eighth Report. At its most recent meeting, various matters relating to them were drawn to the attention of the Joint Committee on Human Rights. Your Committee might find it helpful to know of the concerns of the JCHR in relation to the human rights implications of the Draft Orders, which link to our concerns about an order proposed to be made under the Anti-terrorism, Crime and Security Act.

1. Draft Regulation of Investigatory Powers (Communications Data) Order 2003

This would extend the class of bodies currently allowed to obtain communications data or to receive disclosures of communications data under the Regulation of Investigatory Powers Act 2000, section 25(1). Retention and disclosure of communications data represent an interference with private life, and require to be justified under the Human Rights Act 1998 and ECHR Article 8.2 if they are not to amount to a violation of the right to respect for private life under ECHR Article 8.1. If the interference is not justified, the retention or disclosure is unlawful except so far as it is required by the terms of primary legislation which cannot be read or given effect in a manner compatible with the right: Human Rights Act 1998, sections 3 and 6. To be justifiable under Article 8.2, a disclosures must be in accordance with the law, and necessary in a democratic society for one of the purposes specified in Article 8.2. 'Necessary in a democratic society' means that the interference must be a response to a pressing social need, and must be proportionate, i.e. must not interfere with the right more than is necessary in order to achieve the legitimate objective and must be shown to strike a fair balance between the right in question and the public interest.

At present, the class of bodies authorized under section 25 of the 2000 Act is tightly confined. This restriction can be seen as an important aspect of the balance struck by Parliament between the right to respect for private life and the public interest in the prevention and detection of crime.

By vastly increasing the range of bodies allowed to obtain access to communications data, and thereby extending the variety of purposes for which the communications data could be used, the Draft Order would risk undermining the proportionality of the statutory scheme. Such an Order might as a result be ultra vires, because subordinate legislation which is not compatible with a Convention right is liable to be struck down on that ground unless the incompatibility is required by primary legislation. The Order might also purport to authorize requests from public authorities for disclosure which, because of section 6(1) of the 1998 Act, would be unlawful by virtue of incompatibility with a Convention right as being unjustifiable under ECHR Article 8.2. If a communications service provider is regarded as a 'functional' public authority under section 6(3)(b) of the 1998 Act, it too would act unlawfully if it made a disclosure which could not be justified under ECHR Article 8.2.

The JCHR was concerned that there might be insufficient justification for allowing, for example, ambulance services to seek communications data, and that a provision permitting it might be disproportionate to any legitimate aim and so unlawful under the Human Rights Act 1998.

The JCHR was also concerned that the greatly increased class of bodies allowed access to communications data under the Draft Order might also have access to data which could not lawfully be retained under the 2000 Act but would be available on account of being retained for an extended period for the purposes of Part 11 of the Anti-terrorism, Crime and Security Act 2001 under the Draft Voluntary Code of Practice which has been laid before Parliament. The Committee considered that this 'leakage' of information, retention of which is justified only to protect national security, into other inquiries might compromise the proportionality of the interference with ECHR Article 8 through both Part 11 of the 2001 Act and section 25 of the 2000 Act. The JCHR has written to the Home Secretary to ask about this aspect of the relationship between the Draft Voluntary Code of Practice under the 2001 Act and the Draft Regulation of Investigatory Powers (Communications Data) Order 2003. I enclose a copy of this letter.

2. Draft Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence) Order 2003

This would extend the class of bodies entitled under Part II of the Regulation of Investigatory Powers Act 2000 to authorize directed surveillance, and in the case of some of the bodies also to authorize the use of covert human intelligence sources, under sections 28 and 29 of, and Schedule 1 to, the Act.

The authorization and use of these powers represents an interference with the right to respect for private life under ECHR Article 8 and the Human Rights Act 1998. As this brings into play considerations of pressing social need and proportionality (as noted above) under ECHR Article 8.2, the JCHR was concerned that the Government should be able to establish the lawfulness of the extension by showing why the extension of the powers to these additional bodies is necessary and proportionate.

3. Draft Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003

This would designate the Northern Ireland Office, and specifically the Northern Ireland Prison Service, as a body authorized to undertake intrusive surveillance under Part II of the Regulation of Investigatory Powers Act 2000. Intrusive surveillance can intrude on the most intimate aspects of people's private and family lives. It always engages the right to respect for private life, and often engages the right to respect for family life, under ECHR Article 8 and the Human Rights Act 1998. Because of the sensitivity and intimacy of the fields into which the surveillance intrudes, it requires very strong justification.

The JCHR was concerned that the Government should be able to show that it is really necessary for the Northern Ireland Prison Service to have this power, and that its use would be likely to be proportionate to a pressing social need and advance one of the legitimate aims under ECHR Article 8.2, since a failure to establish that those requirements are met could lead to either the Draft Order, or actions taken pursuant to it, or both, being ultra vires and unlawful.

As the JCSI has reported these instruments without comment, we do not intend to report on them separately. However, I thought it would be helpful to make your Committee aware of these concerns, since it appears the instruments are to be prayed against in the Lords on 12 November. I expect to publish this letter as an appendix to a report from the JCHR before then if possible.

3 November 2003

4. Letter from David Tredinnick MP, Chairman of the Joint Committee on Statutory Instruments, to the Chair

Thank you for your letter of 3 November concerning the above draft Orders. The Joint Committee considered the matter at its meeting this afternoon.

As you note, my Committee completed consideration of these draft Orders at its meeting on 21st October, and determined that the special attention of both Houses did not need to be drawn to any of them on any of the criteria against which it is instructed to assess instruments. It may be helpful if I set out the reasons why the Committee arrived at this decision, given the concerns which your Committee has raised about the draft Orders.

Generally speaking, in cases such as these, concerns about an instrument turn on an assessment of whether the provision made is necessary and proportionate to the legitimate aim of the instrument. Any such assessment is likely to involve an investigation of the merits of the instrument or the policy which lies behind it.

My Committee is not well-placed to make this assessment because, consistently with its standing order, its consideration of an instrument is limited to aspects other than its merits or underlying policy. For this reason, my Committee will not usually require the Government to demonstrate that an instrument is necessary and proportionate in human rights terms. However, it would, for example, request a memorandum from the Department concerned if the instrument were of a kind for which the Government has agreed to provide the equivalent of a section 19 statement and no such statement has been provided.

In the case of each of these three Orders, the explanatory memorandum contained a statement of the Minister's view that it was compatible with the Convention rights. The main effect of each of the orders is to enable additional public bodies to operate (subject, in the case of two of the Orders, to restrictions) procedures already set out in the Regulation of Investigatory Powers Act 2000 itself. Those procedures include requirements as to proportionality and necessity. Accordingly, while recognising that there may well be issues for your Committee, my Committee did not consider it necessary to investigate further whether the act of making any of the orders (if approved) would be incompatible with a Convention right and so unlawful under section 6 of the Human Rights Act 1998.

In the past, where the question of the compatibility of an instrument with the Convention has turned on the fine judgments referred to above, my Committee has been willing to draw matters to the attention of your Committee for further investigation. We are entirely happy for this collaboration to continue.

I am content for this letter, and your letter of 3 November, to be printed as appendices to the relevant report of your Committee.

11 November 2003



 
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