HOUSE OF LORDS Delegated Powers and Regulatory Reform Committee 4th Report of Session 2014 15 Data Retention and Investigatory Powers Bill Ordered to be printed 16 July 2014 and published 17 July 2014 Published by the Authority of the House of Lords London : The Stationery Office Limited price HL Paper 28
The Delegated Powers and Regulatory Reform Committee The Committee is appointed by the House of Lords each session and has the following terms of reference: (i) To report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; (ii) To report on documents and draft orders laid before Parliament under or by virtue of: (a) sections 14 and 18 of the Legislative and Regulatory Reform Act 2006, (b) section 7(2) or section 15 of the Localism Act 2011, or (c) section 5E(2) of the Fire and Rescue Services Act 2004; and to perform, in respect of such draft orders, and in respect of subordinate provisions orders made or proposed to be made under the Regulatory Reform Act 2001, the functions performed in respect of other instruments and draft instruments by the Joint Committee on Statutory Instruments; and (iii) To report on documents and draft orders laid before Parliament under or by virtue of: (a) section 85 of the Northern Ireland Act 1998, (b) section 17 of the Local Government Act 1999, (c) section 9 of the Local Government Act 2000, (d) section 98 of the Local Government Act 2003, or (e) section 102 of the Local Transport Act 2008. Membership The members of the Delegated Powers and Regulatory Reform Committee are: Baroness Andrews Lord Bourne of Aberystwyth Baroness Drake Baroness Farrington of Ribbleton Baroness Fookes Countess of Mar Lord Marks of Henley-on-Thames Baroness O Loan Baroness Thomas of Winchester (Chairman) Viscount Ullswater Registered Interests Committee Members registered interests may be examined in the online Register of Lords Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be inspected in the Parliamentary Archives. Interests related to this Report are in the Appendix. Publications The Committee s reports are published by the Stationery Office by Order of the House in hard copy and on the internet at www.parliament.uk/hldprrcpublications. General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/business/lords/. Contacts for the Delegated Powers and Regulatory Reform Committee Any query about the Committee or its work should be directed to the Clerk of Delegated Legislation, Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020 7219 3103 and the fax number is 020 7219 2571. The Committee s email address is dprr@parliament.uk. Historical Note In February 1992, the Select Committee on the Committee work of the House, under the chairmanship of Earl Jellicoe, noted that in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion (Session 1991 92, HL Paper 35-I, paragraph 133). The Committee recommended the establishment of a delegated powers scrutiny committee which would, it suggested, be well suited to the revising function of the House. As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed experimentally in the following session. It was established as a sessional committee from the beginning of Session 1994 95. The Committee also has responsibility for scrutinising legislative reform orders under the Legislative and Regulatory Reform Act 2006 and other acts specified in the Committee s terms of reference
Fourth Report DATA RETENTION AND INVESTIGATORY POWERS BILL 1. The Bill is due to have its Second Reading on 16 July and its remaining stages on 17 July. Clauses 1 and 2 make provision for the retention of communications data by public telecommunications operators to replace the regime contained in the Data Retention (EC Directive) Regulations 2009 ( the 2009 Regulations ). The 2009 Regulations were made under section 2(2) of the European Communities Act 1972 to implement a European Directive, and that Directive was held to be invalid by the Court of Justice of the European Union (CJEU) on 8 April 2014. Clauses 3 to 5 are concerned with investigatory powers under the Regulation of Investigatory Powers Act 2000 ( RIPA ) and are intended to put beyond doubt that those provisions have extraterritorial effect. Clause 6 increases the frequency with which the Interception of Communications Commissioner is required to report under section 58 of RIPA so that the reports are half-yearly. Clause 7 requires the Secretary of State to appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers. 2. The Home Office has provided the Committee with a delegated powers memorandum. 1 The delegated powers in the Bill, apart from a commencement order power in clause 6, all appear in the provisions of the Bill dealing with retention of communications data by public telecommunications operators. Clause 1(1) Power to give notice requiring retention of relevant communications data 3. Clause 1(1) enables the Secretary of State, by notice, to require a public telecommunications operator to retain certain communications data. Such data are referred to in the Bill as relevant communications data, and cover the kinds of communications data falling within the scope of the 2009 Regulations. A retention notice under clause 1(1) may only be given if the Secretary of State considers that the requirement to retain the data is necessary and proportionate for one or more of the purposes of section 22(2) of RIPA. Clause 1(2) makes further provision about retention notices. It allows a retention notice to be given to a particular operator or to any description of operators. It also allows a notice to require the retention of all data or data of a particular description and to contain other requirements or restrictions, including the period for which data may be retained. A retention notice may relate to future data as well as data in existence at the time of giving the notice. 4. In our view, the delegation of power under clause 1(1) is the delegation of a legislative power because it confers on the Secretary of State the power to impose binding legal requirements on operators through the giving of notices. The exercise of the power is not however made subject to any form of Parliamentary scrutiny. The reasons for the delegation are given in 1 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powersand-regulatory-reform-committee/bills-considered/
4 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE paragraphs 21 and 22 of the Home Office s memorandum. The memorandum states that it is appropriate that the Secretary of State should be able to determine the precise requirements to be placed on a particular operator, taking account of the particular operator s circumstances and the necessity for the retention of the data and its proportionality. The absence of any Parliamentary scrutiny is explained in paragraphs 23 and 24 of the memorandum. Reference is made to the fact that the scope of the Secretary of State s discretion is set out in primary legislation and in secondary legislation subject to the affirmative procedure. The point made in the memorandum appears to be that regulations under clause 1(3), which allows the Secretary of State to make further provision by regulations about the retention of relevant communications data, will have the effect, along with the primary legislation, of limiting the scope of the otherwise very wide discretion conferred on the Secretary of State under clause 1(1) and (2). 5. We understand that the Secretary of State needs to be able to exercise a discretion to determine the precise retention requirements to be placed on an individual operator. This is particularly so in the light of the requirement under clause 1(1) that any data retention requirement should only be imposed to the extent it is necessary and proportionate to do so in order to meet one of the purposes set out in section 22(2) of RIPA. However, we are also mindful of the fact that the powers which are conferred under clause 1(1) and (2) are very wide and in an area of sensitivity, particularly in the light of CJEU s decision and the fact that, as acknowledged in paragraph 40 of the memorandum, they allow a significant intrusion into the privacy of members of the public. 6. Given this context, we are concerned that, as drafted, there is no duty on the Secretary of State to make regulations under clause 1(3) providing for the matters in clause 1(4) and (5). Instead, clause 1(3) merely confers a power to make regulations. Accordingly clause 1, as it stands, would allow the powers conferred by clause 1(1) and (2) to be exercised by the Secretary of State without any Parliamentary scrutiny and without any additional limitations on the scope of those powers through regulations under clause 1(3). Also, the Bill is structured so that the powers conferred by clause 1(1) and (2) will come into force on passing, with regulations under clause 1(3) subject to the draft affirmative procedure. Given the forthcoming period of recess, it seems the earliest that any such regulations could be in force would be late October. Therefore, as things stand, there will necessarily be a period of three months without any regulations under clause 1(3) in place to govern the exercise of the powers under clause 1(1) and (2). 7. We consider that, since the powers conferred by clause 1(1) and (2) are very wide, and in an area of sensitivity because of the intrusion they allow into the privacy of individuals, the provisions of the Bill ought to ensure that regulations governing the exercise of the powers are in force before the powers can be exercised. We appreciate that, in the light of the CJEU s decision, there is a need to have in place as soon as possible provisions which will replace the 2009 Regulations. However, we consider this could still be achieved if regulations under clause 1(3) were capable of being made immediately, with the affirmative procedure applying after making (the made affirmative procedure) rather than the regulations being subject to a draft affirmative procedure. In our view, there should be a duty to make regulations under clause 1(3), with the regulations required to contain provisions
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 5 dealing with the matters in clause 1(4) and (5); and the powers under clause 1(1) and (2) should only be capable of being exercised subject to and in accordance with those regulations. Clause 1(3) Power to make further provision about the retention of relevant communications data 8. As noted above, clause 1(3) confers a power on the Secretary of State to make further provision by regulations about the retention of relevant communications data. Clause 1(4) sets out a list of the provisions which may be included in the regulations, but the list is non-exhaustive and does not restrict the scope of the powers conferred by clause 1(3). 9. The Home Office has very helpfully produced draft Regulations under clause 1(3) and it appears from those Regulations that the intention is to use the regulation-making power solely to make provision about the exercise of powers under clause 1(1) and (2). But the wording of clause 1(3) suggests that the powers are more wide-ranging, and it appears that the powers could be used to authorise the retention of relevant communications data in other circumstances. Accordingly, the House may wish to invite the Minister to confirm that the powers conferred by clause 1(3) will not be used for purposes other than to supplement or to limit the powers conferred by clause 1(1) and (2).
6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE APPENDIX: MEMBERS AND DECLARATIONS OF INTERESTS Committee Members registered interests may be examined in the online Register of Lords Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be inspected in the House of Lords Record Office and is available for purchase from The Stationery Office. Attendance: The meeting on the 14 July 2014 was attended by Lord Bourne of Aberystwyth, Baroness Drake, Baroness Farrington of Ribbleton, Baroness Fookes, Countess of Mar, Lord Marks of Henley-on-Thames, Baroness Thomas of Winchester and Viscount Ullswater.