Draft Retention of Communications
Data (Code of Practice) Order 2003: memorandum from the Home Office
Retention of Communications Data (Code of Practice)
1. This draft Order, which was laid on 29 October
2003, replaces a draft with the same title which was laid on 11
2. In letters dated 21 and 23 October the Committee
had raised questions in respect of that earlier draft. The Department
had answered those questions in a memorandum dated 27 October.
In its letter dated 28 October, the Committee indicated that the
points (1), (2) and (3) of the 21 October letter would have required
the elucidation provided by the memorandum, but for the Department's
stated intention to withdraw the earlier draft of this Order.
3. Those points are repeated in the letter of 28
October. They are related and it is convenient to deal with them
together. They are -
(1) Is the draft Code of Practice referred to
in Article 2 of the draft Order the draft Code as prepared and
published under section 103(1)(a) of the Anti-terrorism, Crime
and Security Act 2001, or that draft as modified, as mentioned
in recital (3) to the draft Order?
(2) If it is the latter, was the (unmodified)
draft Code prepared and published under section 103(1)(a) laid
before Parliament under section 103(4)? If so, on what date was
(3) If the intention is to give effect to the
Code issued under section 102 (incorporating, as permitted by
section 103(1), any modifications made to the draft after its
publication) why does Article 2 of the draft Order refer to the
draft Code laid before Parliament, rather than, as section 103(5)
does, to the Code issued under section 102?
4. The questions relate to the procedure adopted
by the Department in its preparation of the code of practice under
sections 102 and 103 of the Anti-terrorism, Crime and Security
Act 2001 ("the 2001 Act"). This involves the proper
interpretation of those sections. In the light of the points raised
by the Committee, the Department acknowledges that there is an
ambiguity in these sections.
5. As respects question (1), the draft Code to which
article 2 and recital (4) of the draft Order refer is not the
Code as prepared and published under section 103(1)(a) of the
2001 Act but the draft as modified (as mentioned in recital (3)
to the draft Order). As respects question (2), the unmodified
version of the Code was not laid before Parliament. What was laid
before Parliament was the Code which it is proposed to issue under
section 102. In answer to the third question, in the Department's
view, no code has yet been issued under section 102.
6. The procedure which the Department adopted in
the belief that it complied with the statutory requirements (and
which it still believes to be in compliance with those requirements)
was as follows. A draft code was prepared and published for consultation.
The code in that form was not laid before Parliament. What was
laid before Parliament was a revised version of that code following
consultation. It was laid with a view to each House of Parliament
approving this draft Order which would bring that version of the
code into force and which was laid at the same time. Once each
House has approved the draft Order and the Order is made, the
code will be issued under section 102.
7. By way of background, this was the procedure which
was adopted in respect of three codes of practice under the Regulation
of Investigatory Powers Act 2000 last year. The relevant provisions
of that Act (subsections (1), (3), (4) and (5) of section 71)
correspond in all material respects with section 102(1) and subsections
(1), (4) and (5) of section 103 of the 2001 Act to which the Committee
has referred. The relevant Orders under the 2000 Act were the
Regulation of Investigatory Powers (Interception: Code of Practice)
Order 2002 (S.I. 2002/1693); the Regulation of Investigatory
Powers (Covert Surveillance: Code of Practice) Order 2002 (S.I. 2003/1933);
and the Regulation of Investigatory Powers (Covert Human Intelligence
Sources: Code of Practice) Order 2002 (S.I. 2002/1932). The
Committee did not ask for memoranda in respect of these Orders
or otherwise comment on them.
8. The Department concedes that, on one interpretation
of section 103(4) of the 2001 Act, the version of the draft code
of practice which is to be laid before Parliament is the initial
version as prepared and published for consultation. But if this
construction is what Parliament intended, one would expect a requirement
to lay before Parliament the revised version of the code for which
Parliament's approval is sought (by means of the approval to the
draft Order bringing it into force). No such requirement is included.
This seems to be so absurd a result that the Department does not
consider this strict construction to be correct.
9. The Department also concedes that, on one interpretation
of section 103(5), the code of practice is to be issued under
section 102 prior to Parliament approving the draft Order that
is to bring that code into force. But this construction produces
results which are bizarre and confusing. If this construction
is correct, what is issued under section 102 prior to the requisite
parliamentary approval would need to be clearly marked in a way
to indicate that it was not yet in force. The most obvious way
to do this would be to refer to the code as a "draft code".
But this option is clearly not available because section 103(1)
concerns the publication of a draft code whereas section 102(1)
concerns the issue of a code. Accordingly, what is issued would
need to carry a clear marking to indicate that it was not in force.
Once approved, it would need to be re-issued without such marking.
10. The Department has difficulty in believing that
Parliament intended a procedure to be followed that is so liable
to confuse those using the code. This is all the more serious
as the code has an impact in legal proceedings by virtue of section
102(4) and (5).
11. The interpretation of section 103(4) and (5)
described in paragraphs 8 and 9 above produces bizarre and potentially
confusing results. The Department's interpretation avoids such
results and accords with a practice that has been tried and tested
(see paragraph 7 above).
12. The letter of 23 October raised the further point
set out below. This is also point (4) in the letter of 28 October.
(4) The explanatory memorandum submitted with
the draft Order indicates that the results of the consultation
on the draft Code are available on the Home Office website. Paragraph
5 and Criterion 6 of the Cabinet Office Code of Practice on Written
Consultation states that the decisions made in light of the consultation
should be made public promptly. Please indicate:
i. what decisions were made in the light of the
ii. what changes were made to the draft Code in
the light of the consultation.
13. As respects question (i), the result of the consultation
was that the Department decided to proceed with laying a revised
version of the draft Code of Practice, together with the draft
Order bringing it into force, before Parliament.
14. In answer to a request in the letter of 28 October,
the Department confirms that the consultation referred to in the
explanatory memorandum accompanying the draft Order laid on 11
September (i.e. the consultation which took place between 11 March
and 3 June 2003) was a consultation undertaken in order to elicit
representations for consideration by the Secretary of State (pursuant
to section 103(1)(b) of the 2001 Act) and not the statutory consultation
with the Information Commissioner and communications providers
required by section 103(2) of the 2001 Act. That consultation
took place between January 2002 and March 2003.
15. The purpose of the consultation was to invite
comments on the voluntary code of practice produced in accordance
with section 102 of the 2001 Act. However, most of the responses
received were critical of the principle of voluntary data retention
rather than providing comments on the particular voluntary code
of practice in the consultation paper. Section 104(1) requires
that a voluntary code of practice be in place and reviewed before
consideration is given to the question of any orders under that
section. It follows that a voluntary code needs to have been in
place before compulsory measures can be taken. The formal response
to the public consultation is published on the Home Office website.
16. As respects question (ii), minor changes were
made to appendix A of the draft code. These changes clarified
the fact that the technical specification of appendix A of the
draft code listed examples of the types of data that could be
retained rather than providing an exhaustive list. This was achieved
by the addition of "e.g." seven times in the text. Minor
changes were also made to the title of the document and to a reference
to appendix D which became a reference to appendix C.
17. On the face of it, few changes were made as a
result of the consultation exercise. However, the contents of
the draft code, as published, reflected the results of the statutory
consultation with the Information Commissioner and the communications
29 October 2003