Draft Communications Data Bill - Draft Communications Data Bill Joint Committee Contents

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.

  • General approach
  • 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.

  • Clause 1 - Availability of communications data
  • 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.

  • Clause 9(7) - Permitted purposes
  • 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.

  • Clause 21(1), (7) and (8) - Relevant public authorities
  • 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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    Prepared 11 December 2012