Joint Committee on Statutory Instruments Thirtieth Report


Instruments reported


The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified.

1 Draft Retention of Communications Data (Code of Practice) Order 2003: elucidation

Retention of Communications Data (Code of Practice) Order 2003

1.1 The Committee draws the special attention of both Houses to this draft Order on the grounds that its form and purport call for elucidation.

1.2 The draft Order, if approved and made, will bring into force a Code of Practice under section 102 of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act) about the retention by communications providers of communications data. Section 103 of that Act sets out the procedure for codes of practice under section 102. In particular, section 103(1) requires the Secretary of State, before issuing a code of practice, to:

- prepare and publish a draft of the code; and

- consider any representations made to him about the draft.

1.3 The Secretary of State is expressly permitted to incorporate in the code finally issued any modifications made by him to the draft after its publication. Section 103(2) requires the Secretary of State, before publishing a draft of the code, to consult the Information Commissioner and communications providers to whom the code will apply. Section 103(4) requires him to lay before Parliament the draft code of practice prepared and published by him under section 103. Section 103(5) provides that the code issued by the Secretary of State under section 102 shall not be brought into force except in accordance with an order.

1.4 Section 103(4) appears to require the Secretary of State to lay before Parliament a draft of the code as published after consultation with the Information Commissioner and communications providers (under section 103(2)) but before representations are considered under section 103(1)(b) and any modifications are made to the draft after its publication.

1.5 In a memorandum printed at Appendix 1, the Home Office explain that the only draft laid before Parliament is that to be brought into force by the Order, incorporating modifications made since the draft was originally prepared and published. The drafting of the Order reflects this.

1.6 In explaining the practice which has been followed, the Home Office acknowledge that there is an ambiguity as to the procedure under section 102 and 103. They suggest that Parliament could not have intended that the version of the code to be laid before Parliament be the initial version, though they do not explain the Government's intention when they drafted the relevant provisions. In the Committee's view, the ambiguity has led to at least an element of doubt about whether the procedure followed complied fully with the relevant requirements. But it is a familiar procedure under other Acts and has the merit that the version of the code which is proposed to be brought into force by the draft order is laid before Parliament. The draft Code is not subject to Parliamentary proceedings, and is thus not a document which falls directly within the Committee's remit. But the Committee reports the draft order because recitals (3) and (4) and Article 2 require elucidation, provided by the Home Office in its memorandum.

1.7 During the passage of the Anti-terrorism, Crime and Security Bill through Parliament, the Joint Committee on Human Rights and the House of Lords Committee on Delegated Powers and Regulatory Reform (the Delegated Powers Committee) both reported on the provisions on retention of communications data contained in Part 11 of the Bill.[1] The Delegated Powers Committee endorsed the view of the Joint Committee on Human Rights that measures should be put in place to ensure that any code of practice or directions on the retention of communications data should be examined for compatibility with the right to respect for private and family life, home and correspondence under Article 8 of the European Convention on Human Rights.[2] The Delegated Powers Committee further considered that a draft of any code of practice issued under Part 11 of the Act might be submitted to the Joint Committee on Human Rights for scrutiny.[3] The Joint Committee concurred with that view, regarding it 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."[4]

1.8 The 2001 Act makes no explicit provision for Parliamentary scrutiny of codes of practice issued under section 102 of the Act, save that a draft of any code shall be laid before Parliament under section 103(4) and that both Houses must approve the draft Order bringing the code of practice into force. The Committee considers that the Joint Committee on Human Rights, which has indicated its interest in examining any draft code, should be afforded an adequate opportunity to examine the draft Code and report to both Houses in time to inform any debate on the draft Order which brings it into effect. The Committee therefore recommends that the draft Order should not be debated in either House until the Joint Committee on Human Rights has completed consideration of the draft Code of Practice referred to in article 2 of the draft Order.


1   Second Report of the Joint Committee on Human Rights, Session 2001-02, Anti-Terrorism, Crime and Security Bill, HL Paper (2001-02) 37/HC (2001-02) 372, paras 69-71; Seventh Report of the House of Lords Committee on Delegated Powers and Regulatory Reform, Session 2001-02, HL Paper (2001-02) 45, paras 21-23; Fifth Report of the Joint Committee on Human Rights, Session 2001-02, Anti-Terrorism, Crime and Security Bill: Further Report, HL Paper (2001-02) 51/HC (2001-02) 420, paras 29-31. Back

2   HC (2001-02) 372, para 71 (JCHR); HL Paper (2001-02) 45, para 23 (Delegated Powers) Back

3   HL Paper (2001-02) 45, loc. cit. Back

4   HC (2001-02) 450, paras 30-31 Back


 
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