Human Rights Committee concerned about Data Retention Code of Practice

The JCHR, a Parliamentary committee which considers draft legislation in the light of their compliance with the European Convention on Human Rights and other human rights legislation, is concerned that rights to respect private life and correspondence will be jeopardised by an Order produced under the Anti-Terrorism, Crime & Security Act (ATCSA), which was enacted in the aftermath of the September 11th terrorist atrocity.

This Act required the retention of communications data on the grounds that these were needed for the purpose of fighting terrorism. These data, retained on anti-terrorism grounds, will be accessible by provisions under the Regulation of Investigatory Powers Act (RIPA) to a range of public authorities for purposes unconnected with terrorism.

Communications data are those data, retained by telcos (including ISPs and interactive television service providers), which describe the caller and the means of communication (e.g. subscriber details, billing data, e-mail logs, personal details of customers and records showing the location where mobile phone calls were made). Communications data do not contain the content of the communications.

The draft Retention of Communications Data (Code of Practice) Order 2003 laid before Parliament in September proposes a voluntary Code of Practice to which telecoms companies are expected to sign up. It details the means by which the companies will retain communications data and the length of time such data are retained. For example, contacts made by telephone are retained for one year.

However, in their most recent report, the JCHR warns that communications providers who sign up to the Code and retain communications data under the terms of ATCSA will not actually be "functional public authorities" and therefore not directly subject to the term of the European Convention. As a result, says the JCHR:

"In our view, this makes it particularly important to ensure that the Draft Code, and the standard periods of retention which it contains, are necessary for a legitimate aim and are proportionate to the objective sought to be achieved."

The report goes on:

"The Home Secretary has convinced us that making communications data accessible is likely to be a useful investigative tool, but we are not able to say that we are satisfied that the arrangements in the Draft Code would be proportionate to legitimate objectives."

The report expresses concerns "about the Government's approach to the possible
accessibility of retained data to investigators inquiring into matters unrelated to national security." It then states that on the issue of accessibility:

"On balance we are satisfied that other safeguards, within the structure of the Regulation of Investigatory Powers Act 2000 [the Act permitting access by other agencies] and the procedures for judicial review, are likely to provide adequate safeguards for Convention rights."

Finally the JCHR expressed disappointment over the short time offered to the Houses in which to debate the Orders:

"In our view, this is not sufficient in view of the importance of the measures, their potential to affect human rights, and the long period of gestation of the proposals."

The JCHR has drawn the attention of both Houses of Parliament to the issues raised in the report. Parliament will now consider whether to accept or reject the Order. It cannot make amendments to it or the draft Code.

The draft Order, and in particular the Code of Practice, highlight a particular problem in the scrutiny of Statutory Instruments (SIs) - a type of secondary legislation that is used, among other things, to fill in details after broader legislation, such as an Act, has been debated and passed in Parliament.

These are not subject to the same scrutiny as Acts of Parliament, and are given, at best, around 90 minutes of time in the House of Commons, before being either enacted or rejected.

All Statutory Instruments are subject to limited scrutiny by the Joint Committee on Statutory Instruments (JCSI). The remit of this committee is narrow, and limited to ensure that the Minister creating the SI has not overstepped his legal authority. In such circumstances the JCSI can bring the SI to the special attention of both Houses.

However, the committee cannot consider the merits of the SI. And in the case of the draft Retention of Communications Data (Code of Practice) Order, the Code of Practice could not be considered at all. It was not, after all, an SI.

Consequently there was a risk that a law, which would allow for personal details to be retained on the majority of adults in the UK, would be passed without any proper Parliamentary consideration at all. In the event the JCHR was keen to consider the draft Code, but Harry Cohen, MP for Leyton and Wanstead, wrote to the JCSI to protest the issue, saying:

"It seems to me quite bizarre that a Committee is expected to say that an SI is properly formed if the SI advances a Code or Practice whose content could well be improper."

He added:

"Can the Committee really consider its remit in relation to the lawfulness of the draft Order in isolation about serious questions concerning the legality of the voluntary Code of Practice?"

The JCSI appears to have agreed with him. In its own report, published this week, the JCSI drew the attention of both Houses to the draft Order and took the unusual step of recommending that the draft Order was not debated in either House until the JCHR has completed its consideration of the Code of Practice.

OUT-LAW News understands that the issue of scrutiny of delegated legislation is to be examined by the House of Commons Procedure Committee next Session, and that the difficulty of considering the Data Retention Code of Practice has been raised with the Chairman of that Committee, Sir Nicholas Winterton.

Dr Chris Pounder, consultant at the international law firm Masons commented:

"The way the legislative procedure works at the moment provides too much power to the executive branch of government. The intervention from these Committees is welcome, but at the end of the day, the relevant SIs or Codes of Practice which impact on every individual in the country will not have been given the Parliamentary scrutiny they deserve."

The JCSI report is available here.

The sixteenth report of the JCHR can be found here