I am sure that that issue will be presented in representations made to David Anderson as part of his examination. Clearly, none of us will wish in any way to prejudge the way in which that evidence is presented. He intends to report back by May. That is the right timing to ensure that the new Parliament after the next general election has the benefit of seeing his report, which will have examined these issues in close and careful detail.
The hon. Member for Kingston upon Hull North asked about the role of the interception of communications commissioner. He will oversee the acquisition of data retained under clause 17, just as he oversees the acquisition of all communications data retained under DRIPA. The Home Office will ensure that he has the necessary resources to discharge his function.
The hon. Lady referred to multiple requests for traffic and subscriber data. Public authorities can request communications data only when it is considered necessary and proportionate for one of the purposes set out in DRIPA. A communications service provider could disclose only data that have been requested. It is an operational matter for the public authority as to how it makes such requests for data. Where it holds limited information at the outset of the investigation, it is likely that it will need to make more than one request, which means there may be multiple requests relating to a particular criminal inquiry.
The hon. Lady highlighted the issue of costs. The totals that were put into the impact assessment published alongside the Bill were based on studies of IP resolution conducted by the industry and prior work with service providers and the industry on similar projects. This has been an informed process in which there has been consultation with individual service providers likely to be most affected by the provisions of the Bill.
I am grateful to the hon. Lady for tabling new clause 2 to highlight the oversight of the acquisition of communications data retained under these provisions. The data retention regulations passed earlier this year specifically require communications service providers, subject to a data retention notice, to retain data in such a way as to ensure that they are available without undue delay in response to requests. I assure the Committee that in the vast majority of cases, data retained under this obligation are disclosed in a timely fashion. Of course, things may not always work perfectly, but there are systems in place that seek to resolve such issues should they arise. Indeed, there are industry groups that work on precisely that. The law enforcement community works closely with the communication service providers, and the Home Office seeks to establish the best technical solutions to support that.
The issue that we hear about more often than that highlighted by the hon. Lady is the broader one of key categories of communications data which communication service providers do not currently retain and which are therefore unavailable to the law enforcement and security agencies that require them. The hon. Lady raised the issue of additional regulations. The provision amends the definition of “relevant communications data”. The regulations use that definition, so there is no need to amend further or to put it in other regulations, because the intention is that they will follow the change being made to this Bill.
On deep packet inspection, no solution will provide for the retention of or access to the content of a communication. Obviously, it is for the companies themselves to decide how best to implement the legal requirements that would be put upon them, but I wanted to make that point clear.
On compatibility with the European Court judgment, we are confident that the legislation passed by Parliament this summer, and this Bill, are fully compliant with all relevant legal provisions.
Although I share the Opposition’s wish to see the most efficient and timely provision of data, I do not believe that the special review proposed by new clause 2 is required. Indeed, if there are concerns they can be referred to David Anderson as part of his review. With that assurance, I hope the hon. Lady will be minded to withdraw her amendment.
In new clause 1, the hon. Member for Hayes and Harlington (John McDonnell) raises the specific and important issue of the position of journalists and others in relation to sensitive provision. He and I debated the issue when the Data Retention and Investigatory Powers Act 2014 made its way through Parliament this summer. Let me be clear that a free press is fundamental to a free society, and the Government are determined that nothing be done to put that at risk. Although most of the focus in the debate has been on journalists, the same issues arise equally in respect of other sensitive occupations, as Members have highlighted. Individuals should be able to speak freely and frankly to their lawyers if we are to have justice in this country. Similarly, patients must be able to speak freely to doctors, and constituents to their Members of Parliament.
I do not believe that anyone would question that those are important principles, but equally I hope that no one would take issue with the proposition that our law enforcement and intelligence agencies need the tools to carry out their vital roles. They carry out a difficult job day in, day out, protecting the public from crime and from terrorism. The Regulation of Investigatory Powers Act 2000 provides a clear legal basis for many of their critical investigative powers, including the acquisition and disclosure of communications data. The current process is clear and accountable and includes a strong and rigorous system of oversight. I have already explained what communications data are, but they do not contain the content of the communication.
I should like to point out that the interception of communications commissioner has said that communications data
“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs 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.”
The point that the data do not attract any form of legal or professional privilege is important. Nevertheless, the Government recognise that they are sensitive data that need to be protected accordingly.
The process of acquiring communications data requires a designated person—a senior officer of a rank stipulated by Parliament—to examine applications for such data, which can be authorised only when the officer is fully satisfied that it is both necessary and proportionate to acquire those data. The applications are facilitated by individuals known as single points of contact, who are trained in this area and can provide expert advice and support to the designated person.
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During the passage of DRIPA, the Government made it clear that they would fortify the already rigorous regime, including by strengthening the requirement for
the designated person’s independence from the operation for which data are needed. We have also made it clear that new requirements will deal with the very area—those in sensitive professions—covered by new clause 1. Designated persons will have to give extra consideration to a communications data request involving those in professions with duties of confidentiality, such as journalists, and records must be kept of such applications.
The changes will be made in an updated acquisition and disclosure of communications data code of practice. I can announce to the Committee this afternoon that we are launching a consultation on the draft acquisition and disclosure of communications data code of practice and on the draft retention of communications data code of practice. I will put copies of the drafts in the Library of the House. There will be a public consultation on the codes before they are finalised for approval by the House. To reassure the hon. Member for Hayes and Harlington, and to meet the commitment I made to him during the passage of DRIPA, we are now consulting on the codes to ensure that they are properly considered and assessed.
I have dealt with DRIPA and existing provisions under the Regulation of Investigatory Powers Act, but what the hon. Gentleman is suggesting goes further and therefore touches on broader issues. A system of judicial authorisation was considered in significant detail by the Joint Committee on the draft Communications Data Bill. Its view was that
“the current internal authorisation procedure is the right model.”
It went further, stating that it was
“not convinced that in reality a magistrate would provide a tougher authorisation test than the current system. Magistrates would not have access to the SPoC expertise to advise them on the necessity and proportionality of each request.”
As Members will be aware, the Home Affairs Committee examined the very issue of access, under RIPA, to the communications data of those with duties of confidentiality, and it published its report on Saturday. The report includes recommendations about those with duties of confidentiality. The changes we make to the code of practice will reflect the substance of the Select Committee’s recommendations. Notably, the Committee did not recommend the form of judicial oversight suggested in new clause 1.
David Anderson, the independent reviewer of terrorism legislation, is reviewing the powers and capabilities needed under DRIPA, including communications data, and he is due to report by 1 May. As I have already highlighted, the Intelligence and Security Committee is also considering that very point.
The hon. Member for Hayes and Harlington will be aware that the interception of communications commissioner is conducting a separate inquiry on this matter. He will report back every six months. He is in the middle of an inquiry into police access to the communications data of journalists, and we fully support that inquiry. The commissioner has said that he expects to complete it by 31 January, which may help the hon. Gentleman. We will of course consider very carefully any recommendations made by the commissioner, and I am sure his conclusions will be studied by the whole House. Indeed, the timing of his report will inform our consideration of the consultation on the codes of practice. I can certainly assure the Committee that the Government
will take any recommendations very seriously and, where appropriate, we will reflect them in the new code of practice.