Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015 — House of Lords, 2015-03-23
Topic: Law and Crime
Michael Bates (Conservative, Centre-right): 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.