The Data Retention and Investigatory Powers Bill ... The Data Retention and Investigatory Powers Bill

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  • The Data Retention and Investigatory Powers Bill

    Standard Note: SN/HA/6934

    Last updated: 16 July 2014

    Author: Philip Ward

    Section Home Affairs

    On 10 July 2014 the Government announced that emergency legislation would be introduced

    on access to telecommunications data. The Data Retention and Investigatory Powers Bill,

    with accompanying Explanatory Notes, was published in draft on 10 July. The final Bill, with

    further accompanying documents, was published and given first reading on 14 July. All

    remaining Commons stages were set for 15 July. The Lords will consider it on the two

    following days and it will return to the Commons if necessary on 17 July for consideration of

    Lords amendments (if any).

    The Government argues that emergency legislation is needed to ensure that UK law

    enforcement and intelligence agencies can maintain their ability to access the

    telecommunications data they need to investigate criminal activity and protect the public.

    There is cross-party agreement on the need for the Bill.

    In April 2014, the European Court of Justice declared invalid a Directive enabling

    communication service providers to retain communications data for law enforcement

    purposes for periods of between six months and two years. This Directive has been

    transposed into UK law by way of secondary legislation. The Bill provides powers to replace

    those 2009 Regulations.

    The ability to access content (rather than metadata) requires a warrant signed by a Secretary

    of State. The Bill amends the Regulation of Investigatory Powers Act 2000 (RIPA) to put

    beyond doubt that requests for interception and communications data to overseas

    companies that are providing communications services within the UK are subject to the

    legislation.

    At the same time the Prime Minister announced other measures, including a review of RIPA

    with a view to reforming and updating it, the establishment of a Privacy and Civil Liberties

    Oversight Board, annual “transparency reports” on the use of surveillance powers and a

    restriction on the number of public bodies able to request communications data.

    This note summarises the background, the Bill and criticisms that have been made of it.

    This information is provided to Members of Parliament in support of their parliamentary duties

    and is not intended to address the specific circumstances of any particular individual. It should

    not be relied upon as being up to date; the law or policies may have changed since it was last

    updated; and it should not be relied upon as legal or professional advice or as a substitute for

    it. A suitably qualified professional should be consulted if specific advice or information is

    required.

    This information is provided subject to our general terms and conditions which are available

    online or may be provided on request in hard copy. Authors are available to discuss the

    content of this briefing with Members and their staff, but not with the general public.

    http://services.parliament.uk/bills/2014-15/dataretentionandinvestigatorypowers/documents.html http://www.parliament.uk/site-information/copyright/

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    Contents

    1 Introduction 2

    2 The value of communications data 4

    3 The Data Retention Directive 5

    4 Transposition of the Directive into UK law 5

    5 The ECJ judgment 7

    6 A domestic legal challenge 9

    7 RIPA 10

    8 The Bill 12

    9 Criticism of the Bill 13

    10 Further steps 15

    11 Commons amendments on 15 July 15

    1 Introduction

    On 10 July 2014 the Government announced that emergency legislation would be introduced

    on access to telecommunications data. The resultant Bill was approved by a special Cabinet

    meeting and announced at a joint press conference by the Prime Minister and Deputy Prime

    Minister.

    The Data Retention and Investigatory Powers Bill (Bill 73 2014-15), with accompanying

    Explanatory Notes, was published in draft on 10 July. The final Bill, with further

    accompanying documents,1 was published and given first reading on 14 July. All remaining

    Commons stages were set for 15 July.2 The House of Lords will consider it on the two

    following days and it will return to the Commons if necessary on 17 July for consideration of

    Lords amendments (if any).

    The stated context for the Bill is the continuing threat from serious organised crime and the

    growing threat from international terrorism. The Government argues that emergency

    legislation is needed to ensure that UK law enforcement and intelligence agencies can

    maintain their ability to access the telecommunications data they need to investigate criminal

    activity and protect the public. This has cross party agreement.

    The Government says that it is taking this action following two recent developments. First,

    the European Court of Justice (ECJ) has struck down regulations enabling communication

    service providers (CSPs) to retain communications data for law enforcement purposes for a

    specified period. The Government is concerned that, unless they have a business reason to

    hold this data, internet and phone companies, fearing legal action, will start deleting it. This

    1 Explanatory Notes, Impact assessments and draft secondary legislation - Provisional draft of the Data

    Retention Regulations 2014. There was no difference between the texts of the draft and final Bill. 2 HC Deb 15 July 2014 cc682-834

    http://services.parliament.uk/bills/2014-15/dataretentionandinvestigatorypowers/documents.html http://services.parliament.uk/bills/2014-15/dataretentionandinvestigatorypowers/documents.html https://www.gov.uk/government/publications/the-data-retention-and-investigatory-powers-bill https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/329785/Provisional-DRR2014-with-cover-sheet.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/329785/Provisional-DRR2014-with-cover-sheet.pdf http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140715/debtext/140715-0001.htm#14071546000002

  • 3

    could have serious consequences for investigations – investigations which can take many

    months and which rely on retrospectively accessing data for evidential purposes.

    Secondly, some companies are calling for a clearer legal framework to underpin their

    cooperation with law enforcement and intelligence agencies to intercept what terrorists and

    serious criminals are saying to each other. This is the ability to access content with a warrant

    signed by a Secretary of State.3

    Following the Cabinet meeting, the Prime Minister and Deputy Prime Minister gave a joint

    press conference. Mr Cameron said that his main priority was national security:

    “As events in Iraq and Syria demonstrate, now is not the time to be scaling back on our

    ability to keep our people safe. No government introduces fast-track legislation lightly.

    But the consequences of not acting are grave.”4

    Mr Clegg insisted that the emergency Bill was not the prelude to a reintroduction of the

    controversial Communications Data Bill, the so-called “snooper’s charter”, which was

    opposed by the Liberal Democrats and subsequently dropped. That Bill would have required

    companies to keep records for at least a year of every website visited by a subscriber.5

    “Liberty and security must go hand in hand”, he told the conference. “We can’t enjoy our

    freedoms if we don’t have the capability to keep ourselves safe”. Both leaders stressed that

    the new Bill did not, in their view, represent an extension of the state’s powers, merely a

    restoration of the status quo ante. However, the Government cannot predict, in a fast-

    changing environment, what will happen after the next Election. In the words of the

    Explanatory Memorandum:

    32… This Bill does not enhance data retention powers, although it is envisaged that

    when communications data policy is considered in the next Parliament, legislation

    conferring further powers may be proposed.

    The Home Secretary made a statement to the Commons on the same day. Mrs May

    reiterated the points made by the Prime Minister. Without this legislation, she said,

    we face the very prospect of losing access to this data overnight, with the

    consequence that police investigations would suddenly go dark and criminals would

    escape justice. We cannot allow that to happen. (…)

    In the face of such a diverse range of threats, the Government would be negligent if

    they did not make sure the people and the organisations that keep us safe—the police,

    other law enforcement agencies and the security and intelligence agencies—have the

    legal powers to utilise the capabilities they need. They are clear that we need to act

    immediately. If we do not, criminals and terrorists will go about their work unimpeded,

    and innocent lives will be lost.6

    Responding to the statement, Yvette Cooper, shadow Home Secretary, indicated that the

    measures had Opposition support, albeit with reservations:

    3 Summary of the Government’s position taken from: Prime Minister’s Office p