Letter from Vernon Coaker MP, Minister
of State, Home Office
Thank you for your letter of 9 October in relation
to your ongoing inquiry on the constitutional implications of
the collection and use of surveillance and other personal data
by the State. You asked for clarification on two points.
When the Regulation of Investigatory Powers Act 2000,
(RIPA), was going through its Parliamentary passage, local authorities
were not included in the list of public authorities that could
have access to communications data. Provision was made for an
order making power that would enable other public authorities
and additional purposes to be added. The making of an order requires
affirmative resolution in both Houses of Parliament.
During the passage of the Bill there was a debate
on why the order making power was required and in an exchange
of correspondence the then Minister of State, Charles Clarke,
confirmed that there was no intention to extend the provisions
in RIPA to enable local authorities access to communications data.
This was because a number of public authorities, including local
authorities, already had access to communications data either
by arguing individual exemptions under the Data Protection Act
1998 or by other statutory powers such as Production Orders under
the Police and Criminal Evidence Act (PACE), and various other
pieces of legislation including the later Social Security Fraud
Act 2001. When reviewing the use of communications data it was
decided that a more consistent approach was needed to ensure that
proper consideration was given to necessity and proportionality.
A consultation exercise "Access to Communications
Datarespecting privacy and protecting the public from Crime"
was launched in March 2003. The consultation document is still
available on the Home Office website on the following link http//www.homeoffice.gov.uk/documents/coms-data-2003/.
This consultation document clearly sets out the issues and proposals
for the inclusion of other public authorities, including local
authorities, in the list of authorities that could access communications
data through RIPA. It became clear that a more systematic approach
was required that ensured public authorities were subjected to
the same regime and to ensure a more consistent and accountable
approach to all aspects including authorisations, consideration
of necessity and proportionality, independent oversight and appeals
Following the consultation exercise an order
was laid before Parliament (Statutory Instrument 2003 No. 3172
"The Regulation of Investigatory Powers (Communication Data)
Order") and passed by affirmative resolution in both Houses.
The order came into effect on 5 January 2004 and gave a number
of additional public authorities, including local authorities,
access to communications data within the RIPA regime. In the case
of local authorities, this access is limited to subscriber data
and billing data. Local authorities cannot access the more sensitive
traffic data nor can they have access to the content of communication.
Your second point relates to the recent media
coverage of "alleged plans to create a centralised database
which will place a `live tap' on every electronic communication
in Britain". As you will be aware, the Government's draft
legislative programme published on 14 May set out plans for a
new Communications Data Bill. I think it is important to make
clear that whilst we are looking at ways of retaining communications
data in the future, this does not include the content of the communications,
as the phrase "live-tap" implies.
Our ability lawfully to intercept communications
and obtain communications data (CD) is critical to combating the
threat proposed by terrorism and in tackling serious and organised
crime. This includes counter-terrorism work as well as cases of
child sex abuse, kidnap, murder and drug-related crime.
Communications data is used to support lawful
interception by providing the key identifiers (such as telephone
numbers) that are necessary to target interception correctly,
and in a proportionate way. There are also other important uses
of communications data; it has significant value as intelligence
in and of itself, and it is used as evidence in criminal trials.
You may recall the recent trial of Levi Bellfield for the murder
of Amelie Delagrange. In this trial it was the use of communications
data, from tracking the location of Mr Bellfield when he was using
his mobile telephone, which tied him to the location and time
of the murder.
However, the way we are communicating with one
another is changing rapidly, with a much greater reliance on Internet-based
forms of communications like email, instant messaging, social
networking sites and Voice Over Internet Protocol (VOIP). There
was already been a big increase in the take-up of internet-based
communications. This trend will continue to grow as the UK's major
providers of communications networks move toward more internet-based
methods of communications, with internet protocol networks being
rolled out across the country.
These changes pose significant challenges; it
has been assessed that if we take no pre-emptive action, our capability
to intercept communications will fall drastically from the coverage
available today. Similarly, our ability to paint a persuasive
picture about a subject's whereabouts and actions from communications
data will be severely decreased, due to the fragmentation of data
caused by internet protocols being used in core communications
networks, and the proliferation of services (including third party
and international services) where data will be harder to obtain
or may not be obtainable at all. Without access to information
provided by lawful intercept and CD, the law enforcement and security
agencies' capabilities in terms of protecting national security,
counter-terrorism and preventing crime will be severely affected.
A cross-Government programme led by the Home
Office has been set up to maintain our interception and CD capabilities
during this time of great technological change. This aims to ensure
that law enforcement, intelligence and security agencies will
still have access to the same vital information that they use
today in order to prevent terrorism and to tackle all forms of
You will be aware that the Home Secretary announced
during her speech to the Institute for Public Policy Research
on 15 October that the Government will be consulting on proposals
in this area. The consultation will focus on explaining what communications
data is and how it is currently accessed; what it is used for;
the changing technology environment and the options we are considering
to counteract the changes in technology and the safeguards that
will apply to any new proposals.
Our intention is that we take this opportunity
to listen to the public and understand their concerns and views
on this. We will then look at options for legislation. Any proposals
that are bought forward as a result will be published in draft
for consideration before being introducedthereby ensuring
that the very valuable scrutiny which we had planned for any legislation
is this area can still be achieved.