Appendix 6: Memorandum from Delegated
Powers Committee
The Joint Committee sought the Delegated Powers Committee's
views on the draft Bill, in particular on clauses 1, 9 and 21.
Our conclusions are as follows.
8. The Committee viewed clauses 1, 9 and 21 not
just as separate items, but also as an integrated whole. The
cumulative effect of the delegated powers in the draft Bill add
to their individual significance, and we understand why they may
be of concern to the Joint Committee. For example, the significance
of clause 1 would be less if Part 2 of the Bill was more restrictive
of the ability of public authorities to access the data which
was required to be held and ensured effective remedies and protection
for the citizen. We were concerned that the draft Bill lacked
sufficient clarity in defining the scope and potential use of
delegated powers; and that the delegated powers memorandum lacked
sufficient justification for the powers contained in the draft
Bill.
9. The fact that aspects of the power may be
insufficiently clearly defined will of course impact on other
aspects of the draft Bill which the Joint Committee may consider,
such as the efficacy of the remedies provided in the Bill for
breaches of its requirements, not just for telecommunications
operators, but also for those whose data is held. We recognise
the importance of the problems this legislation seeks to address
but precisely because of its gravity we are concerned that the
legislation should be tightly drawn to avoid the need for delegated
powers being inappropriately used.
10. Clause 1(1) enables the Secretary of State,
by order subject to affirmative procedure, to ensure that communications
data (defined in clause 28 on page 59 of the Command Paper) is
available to be obtained from telecommunications operators by
relevant public authorities in accordance with Part 2, or otherwise
to facilitate the availability of communications data to be so
obtained. Clause 1(2) and (3) give examples of things for which
the order may in particular provide, though they do not limit
the extent of the power. But the examples are significant - for
instance, it is clear that an order may require an operator to
collect information for which it would have no use in the ordinary
course of its business.
11. One of the things which an order can do is
provide for the imposition of requirements or restrictions on
telecommunications operators by notice of the Secretary of State.
When that happens, the draft Bill provides a mechanism for referral
to the Technical Advisory Board (clause 7) and for enforcement
(by civil proceedings - clause 8). The draft Bill is silent as
to any enforcement of requirements imposed by the order itself,
rather than by notice under the order.
12. There are provisions in the draft Bill dealing
with the security of data (clause 3), the period for its retention
(clause 4), access to it (clause 5) and its destruction (clause
6). But the draft Bill contains no coherent framework for what,
or whose, data is to be collected or generated or to what requirements
the telecommunications operators will be subject. Paragraph 6
of the memorandum gives as the reason for this the need for flexibility,
but this does not necessarily justify the potentially very intrusive
nature of the requirements that may be imposed by an order under
clause 1. There are possibly very significant implications not
just for the telecommunications operators but also for every person
whose communications data may be required to be obtained and held
(and so would be accessible under Part 2 for any of a number of
purposes, not just combating crime, let alone serious crime).
We do not consider that it is appropriate to delegate to the Secretary
of State the power, subject to so limited a framework, to establish
a regime which could amount to wholesale general retention of
subscriber, traffic and use data about the population at large.
We consider that the regulatory structure for the scheme should
be in the Bill itself, even though the details of particular requirements
for particular operators might be left to subordinate legislation
or a notice procedure for which the Bill itself would provide.
13. This Henry VIII power to make orders essentially
reproduces section 22(2)(h) of the Regulation of Investigatory
Powers Act 2000 ("RIPA"). It enables the Secretary of
State to add to or restrict the permitted purposes for which communications
data may be obtained. The orders are subject to affirmative procedure.
14. In relation to the Bill which became RIPA,
our Committee recommended that the equivalent power should be
restricted to the two purposes for which the then government said
it may wish to use it. But the House did not amend the Bill despite
that recommendation. There is a limitation on the power in that
it cannot be exercised incompatibly with the Convention rights
under the Human Rights Act 1998 (as explained in paragraphs 8
and 9 of the Department's memorandum), and the use which has been
made of the equivalent power under RIPA is limited. But the significance
of this power is all the greater because of the effect of Part
1 and, were a Bill to be introduced containing the same power
as in the draft, we would not necessarily find it acceptable just
because it derives from existing legislation.
15. These powers enable the Secretary of State
to alter the list of relevant public authorities, that is those
authorities whose senior officers may authorise obtaining data
under Part 2 of the draft Bill. An order is subject to affirmative
procedure if it designates a new authority or consequentially
amends primary legislation. Otherwise, the orders are subject
to negative procedure. Both the powers and the procedure follow
section 25(1), (4) and (5) of RIPA.
16. In relation to the Bill which became RIPA,
our Committee recommended that the order making powers should
be restricted to making changes that are necessary as a consequence
of changing structures within an authority. The House did not
amend the Bill despite that recommendation and the power in RIPA
has been used to add well over 20 authorities to the list. The
draft Bill would repeal the relevant provisions in RIPA and the
Joint Committee may perhaps wish to question the uses to which
the equivalent new powers will be put, bearing in mind that paragraph
38 of the memorandum says that the powers will most commonly be
used to address changes consequent on the abolition of a body
or the transfer of its functions to a successor. The use to which
the existing powers have been put does not seem to have been so
limited. We share the doubts of our predecessor committee about
the appropriateness of so open-ended a delegation.
18 October 2012
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