Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015
(Limited Text - Ministerial Extracts only)
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Lord Bates
That the draft order laid before the House on 2 March be approved.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
At the same time as moving the above order, I invite the House to approve the Retention of Communications Data (Code of Practice) Order 2015.
I should inform the House that the Joint Committee on Statutory Instruments and the Lords Secondary Legislation Scrutiny Committee have both considered the instruments that we are debating today. It might help the House in its consideration of these two communications data codes of practice if I briefly outline what the Government seek to achieve by them and why we have brought them forward at this time.
Communications data are the “who, where, when and how” of a communication, but not its content. It is crucial for fighting crime, protecting children and combating terrorism. The House will recall that last summer we enacted emergency legislation—the Data Retention and Investigatory Powers Act 2014. This Act preserved and added safeguards to our data retention powers. These codes are directly consequential on that legislation.
We are debating two codes today because communications data policy can broadly be split into two areas: acquisition and retention. Acquisition is carried out by relevant public authorities, such as law enforcement agencies. Retention is carried out by communications services providers. Noble Lords will see immediately that these areas are linked: data need to be retained in order to be accessed. These codes—a revised acquisition code and a new data retention code—set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers to ensure the highest standards of professionalism and compliance in this important investigatory power. We are bringing these codes forward now to ensure that the important safeguards within them—some of which follow concerns raised by the European Court of Justice judgment last year—come into force before Parliament rises.
I turn to possibly the most important new safeguard contained in the acquisition code: police access to journalists’ communications data. As your Lordships will know, the Interception of Communications Commissioner recently conducted an inquiry into this subject. He made two specific recommendations. His first was:
“Judicial authorisation must be obtained in cases where communications data is sought to determine the source of journalistic information”.
His second was:
“Where communications data is sought that does not relate to an investigation to determine the source of journalistic information (for example where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation) Chapter 2 of Part 1 of the Act may be used so long as the designated person gives adequate consideration to the necessity, proportionality, collateral intrusion, including the possible unintended consequence of the conduct”.
He said that the revised code of practice, which had been consulted on,
“contains very little guidance concerning what these considerations should be and that absence needs to be addressed”.
The Government immediately accepted both recommendations. We have amended the code to implement the first recommendation as far as is possible in this Parliament and the second recommendation in full.
The acquisition code, which we are debating, now stipulates that law enforcement must use production orders under the Police and Criminal Evidence Act 1984, or equivalents in Scotland and Northern Ireland, when seeking to acquire communications data to identify or determine the source of journalistic information. This is because production orders require judicial approval. This will help to protect the freedoms that journalists and their sources enjoy in the UK. Whenever law enforcement wishes to access communications data to determine journalistic sources—including whenever law enforcement wishes communications data to support other evidence or intelligence of the identity of a journalistic source—the decision on the application will be made by a judge under PACE. However, this is only a stopgap until we can put this requirement in primary legislation in the next Parliament. Therefore, we have also published a draft clause that sets out how we would do this.
Changes to the guidance in the acquisition code have been made to implement the commissioner’s second recommendation. The code expands on the considerations of rights needed—in particular, the right to freedom of expression must be taken into account when appropriate—and it also contains additional guidance on the considerations of necessity and proportionality, including collateral intrusion and unintended consequences.
I turn briefly to some of the other key provisions in the codes. The revised acquisition code enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new, enhanced protections for those who work in professions with a duty of confidentiality or privilege. We have not gone further in this regard because it is important to remember that we are debating communications data, which are not the content of a communication. In his report, the Interception of Communications Commissioner made it clear that communications data,
“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.
This important distinction explains why, while we are enhancing the protections for others in sensitive professions, we are making the change to judicial approval only where communications data are sought to determine a journalist’s source. The fact that someone spoke to, say, a doctor does not reveal what was said. However, if you are trying to establish the source of a leak, knowing who spoke to a journalist may be more important than knowing what was said. The acquisition code also sets out expanded record-keeping requirements for public authorities, improving transparency and implementing recommendations of the Interception of Communications Commissioner.
Lord Bates
My Lords, I am grateful to the noble Lord for his comments, some of which I will have to come back to him about in writing, but I can certainly deal with his question about where the 300 responses are. They are now on the Home Office website. I can certainly send him a link to that but they are there, along with details of how they were considered and which elements have been included in the revised codes.
My noble friend Lady Hamwee was right to stress the importance of the protection of journalists. That links to the previous debate, when we were talking about the importance of freedom of speech and academic freedom within university settings and how these were going to be upheld. Equally, the freedom of the press is one of our cherished principles and we need to maintain it. Therefore, having this review undertaken by Sir Anthony May, who is the Interception of Communications Commissioner and a former High Court judge—he is widely respected—was a helpful step. He came forward with two additional requirements to ensure that there were extra safeguards in place and immediately the Government responded to say that they would do just that.
There had been a suggestion to go still further. I know that some of the respondents, particularly the NUJ, were concerned about issues in relation to seeking the journalist’s permission or notifying the journalist beforehand. But that was not something that Sir Anthony May felt was appropriate at this stage. Of course, that would result in a tipping-off situation, which would potentially put lives at risk.
The noble Lord, Lord Rosser, asked why there was no impact assessment of these codes. A full impact assessment was provided for the underpinning primary legislation, DRIPA, which was enacted last summer, so that contains the elements he referred to. He asked whether the code would need to be updated. Clearly, if Parliament enacts new primary legislation, there might be a requirement to produce new secondary legislation, including replacing these codes.
My noble friend Lady Hamwee asked why paragraph 3.75 of the acquisition code says that the Interception Commissioner should be notified of cases involving sensitive professions at his next inspection rather than right away, as this would mean waiting for nearly a year. We have of course consulted extensively with the Interception of Communications Commissioner in drawing up the code. The formulation is that the code is based on what the commissioner believes will best enable him to carry out a rigorous oversight function.
The noble Lord, Lord Rosser, asked whether we have maintained a dialogue with the communications service providers. As my ministerial colleague James Brokenshire said last week, we work very closely with the telecommunications sector and it alerts us to new technological developments that may have an impact on its obligations.
The noble Baroness, Lady Hamwee, asked why the requirement for judicial authorisation provides only for journalists—oh, I do not think that she did ask that, did she?
Lord Bates
It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.
The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:
“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]
RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.
Lord Rosser
In the light of what the Minister has said, does that mean that it does cover social media or it does not?
Lord Bates
To the extent that social media are messages communicated machine to machine, it does. As to whether the specific examples that the noble Lord, Lord Rosser, talked about, such as tagging on a Facebook page or a tweet, I am going to have to get some further clarification on that and will write to him. But certainly messaging over those platforms would of course be covered.
Lord West of Spithead (Lab)
Surely those aspects that the Minister has just touched on, and about which he says he will write to the noble Lord, Lord Rosser, have to be covered otherwise we have not got the coverage that we require.
Lord Bates
I do not want to be drawn too much, at this stage, into the content of it. I have said that I will write to the noble Lord, Lord Rosser, and clarify that point. The noble Lord, Lord West, is absolutely right. Here, I tread very carefully, with my noble friend Lord King of Bridgwater waiting in the wings, but the communications data Bill, which David Anderson is undertaking a review on—he will report on 1 May—will need to be considered urgently. The types of deep web communications within the communications data Bill were felt to be an important part of providing our security services with the ability that they need to tackle the growing terrorist threat against us. That will be returned to as a matter of urgency in the new Parliament.
Lord King of Bridgwater (Con)
I am grateful for what my noble friend the Minister said. I think that he covered it in his opening remarks. I understood him to say that, as we go forward, both sides of the House now recognise the need for urgent legislation. I think that Mr Alan Johnson has just joined the club of people saying how impermanent this is. In that case, we have to make clear that there will probably need to be some form of revision of the code of practice to take account of what new forms might come forward. There is not much doubt about the speed with which they are coming forward through social media, WhatsApp and the other things that are happening. Probably a few more that we have never heard of will be in operation by the time that we tackle this legislation.
Lord Bates
My noble friend is absolutely right. If there is new primary legislation, it is likely that what will follow is new secondary legislation. If there is new secondary legislation, it is almost certain that the codes that we are talking about today will need to be updated to reflect that. However, I have given undertakings that I will write to noble Lords and I give my appreciation to them for their comments.