Part 11 of the Bill: retention of communications
29. Part 11 of the Bill would give wide discretion
to the Secretary of State to issue a code of practice relating
to the retention of communications data by communications providers.
These data include very detailed information about geographical
locations from which telephone calls are made, as well as other
information relating to individual communications. The Secretary
of State would also be able to enter into agreements with communications
providers about practices to be followed, and to take power by
statutory instrument to give directions to communications providers.
30. In our Second Report, we expressed concern about
the lack of express limits to these powers, which 'could be used
to secure highly sensitive data for the purpose of investigating
very minor offences, or even for monitoring people's communications
without any ground for suspecting them of any offence or of threatening
national security.' In view of the absence of safeguards for the
principle of proportionality, 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 practicable, on the face of the legislation.
We note that the House of Lords Delegated Powers
and Regulatory Reform Committee, with its immense experience in
scrutinizing provisions in Bills which would confer power to make
subordinate legislation, has endorsed this view, and has recommended
that we should be responsible for scrutinizing a draft of any
code of practice to be issued under clause 102.
31. We regard this 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. We recommend that clause 102 should be amended
to require parliamentary scrutiny of any such code of practice
in draft. We accordingly draw this once more to the attention
of each House.
46 Second Report,
op cit, para 71 Back
47 Delegated Powers
and Regulatory Review Committee, Seventh Report, Session 2001-02,
op cit, paras 23 and 24 Back