My Lords, I am grateful to my noble friend for tabling this amendment. He slightly wandered off it into more general objections, which he might have made at Second Reading yesterday.
On his particular amendment, the requirements in Clause 1(1) of the Bill respond to the European Court’s criticisms of the data retention directive, to ensure that no more data than is required is retained. It is worth reiterating that the judgment concerns the EU data retention directive, not the UK data retention regulations. In the UK we have always taken a tailored approach—if I might use that word—to retention notices. We do not and have never required every communications provider to retain all its data. Ministers have always issued retention notices to selected companies based on the nature of the company and the threat, and we have required the retention only of the data types listed in the schedule of regulations.
Following the judgment, we are putting that good practice in the legislation. This Bill will require the Secretary of State to issue data retention notices to communications service providers on a selective basis: only if she considers the obligation to be necessary and proportionate for one of the authorised purposes. We also add a requirement to keep notices under review. I think therefore that we are in close agreement on what is required.
Ministers have not required an operator to retain data without first going through a serious and careful consideration of the value to be gained by law enforcement and intelligence agencies from the data retained. This Bill ensures that these considerations are law. We feel
that it is appropriate for Ministers to “consider” these issues. They have never taken this consideration lightly and I can assure noble Lords that they have no intention of doing so in future. I do not believe that a Minister having due consideration to the issue of a notice could decide to proceed if he or she did not believe that to do so was necessary and proportionate.
In other words, I do not believe that changing the word “considers” would have any material effect. I know that my noble friend met with parliamentary counsel this morning and was told that it does not. Accordingly, I invite him to withdraw his amendment.