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