Communications Data: The 2012 draft Bill and recent developments

The draft Communications Data Bill was announced in the Queen’s Speech in 2012 and published on 14 June 2012. The Bill was subject to pre-legislative scrutiny and some aspects of the Government’s proposals were criticised. The Bill, frequently referred to by critics as a “snooper’s charter”, was not taken forward in the 2012-13 session. New Government proposals on cybercrime were foreshadowed in the 2013 Queen’s Speech, but these appeared more limited than the plans set out in the draft Bill.

The draft Communications Data Bill was scrutinised by a Joint Committee of both Houses of Parliament (the Joint Committee), and was also considered by the Joint Committee on Human Rights (JCHR) and the Intelligence and Security Committee (ISC).

The Government indicated the purpose of the draft Bill was “to protect the public and bring offenders to justice by ensuring that communications data is available to the police and security and intelligence agencies.” The draft Bill would have extended powers to cover web browsing activity, messages sent on social media, webmail, voice calls over the internet and gaming in addition to emails and phone calls. The data could have included the time, duration, originator and recipient of a communication and the location of the device from which it is made. However, it would not have included the content of messages (i.e. what was being said or communicated). The draft Bill also contained provisions that would have restricted the type of information available to local authorities and other public bodies.

Reaction to the draft Bill was mixed, with privacy groups and other NGOs expressing concerns. The Joint Committee published its report on 11 December 2012. It concluded that the scope of the Bill should be significantly narrowed, whilst recognising that more needed to be done to provide law enforcement and other agencies with access to data they cannot currently obtain. The Intelligence and Security Committee published a separate report (relating to the intelligence services) on 5 February 2013.

Initially, it was suggested that the Bill would be redrafted to meet concerns that had been raised; however in April 2013 it was reported that the then Deputy Prime Minister had said in a radio interview that “what people have dubbed the snooper’s charter” was “not going to happen”. The 2013 Queen’s Speech noted Government proposals on the investigation of crime in cyberspace and stated that there might be forthcoming legislation in this area. The proposals appear to correspond to the measures on storing IP addresses which appeared in the Counter-Terrorism and Security Bill in the 2014-15 session.

In 2015, following the attacks at the offices of Charlie Hebdo magazine in Paris, there was renewed interest in the earlier draft legislation. The Prime Minister and Home Secretary indicated that, if elected, a future Conservative government would introduce new powers for the security services. In the Lords, a cross-party quartet of Members sought to add new clauses to the Counter-Terrorism and Security Bill which would have achieved some of the aims of the abandoned draft Bill. However, there was resistance to adding substantive new clauses to the Counter-Terrorism Bill so late in its passage through Parliament. The clauses did not command support from the Government or Opposition and, after substantial debate at both Committee and Report stages, the clauses were withdrawn at Report stage in the Lords. In the course of debate the Government confirmed that it had prepared a revised draft Bill in response to the Joint Committee’s criticisms of 2012 but was not in a position to share that draft with the House.

After the Conservatives’ victory in the 2015 General Election, the Home Secretary indicated that the Government would reintroduce the Communications Data Bill, in some form, at the earliest opportunity. The Liberal Democrats and Scottish National Party oppose the legislation, while Labour said that they would await the recommendations of the Independent Reviewer of Terrorism Legislation.

The Queen’s Speech in May 2015 included an undertaking that “new legislation will modernise the law on communications data”. The Investigatory Powers Bill will be presented in draft form in autumn 2015 with a substantive Bill to follow in early 2016.

The new draft Bill is expected to take account of the recommendations of the report from the Independent Reviewer of Terrorism Legislation, which was published in June 2015. The Reviewer was asked to look at, among other things, “the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation.”