“The Secretary of State shall not give a direction under subsection (1)
or (2) unless he believes that the conduct required by the direction is
proportionate to what is sought to be achieved by that conduct.”
Mr. de la Mare submits that these words are directed only or principally at
Article 1, Protocol 1 ECHR to ensure that telecommunications providers and
internet service providers are not required to bear the cost of interference with
their property rights in communications data. We disagree. There is no reason
so to limit the occasions on which the obligation can arise. The words are
especially apt to cover interference with the Article 8 rights of the users of
communications services. S.94, and its power to give directions, thus
amended, was left effective.
43
The Data Retention and Investigatory Powers Act 2014 (“DRIPA”) made new
provision for the retention and disclosure of communications data in s.1(1) and
(6):
“(1) The Secretary of State may by a notice (a ‘retention notice’)
require a public telecommunications operator to retain relevant
communications data if the Secretary of State considers that the
requirement is necessary and proportionate for one or more of the
purposes falling within paragraphs (a) to (h) of section 22(2) [of
RIPA] …
(6) A public telecommunications operator who retains relevant
communications data by virtue of this section must not disclose the
data except -- (a) in accordance with (i) Chapter 2 of Part 1 of [RIPA]
…”
The regime created by these provisions is self-contained: it only applies to
data retained by a public telecommunications operator pursuant to a retention
notice “by virtue of [that] section”. It does not apply to arrangements already
in place to comply with a direction under s.94. This is consistent with the
Retention of Communications Data Code of Practice of March 2015 paragraph
8.1 and 8.2.
44
Mr. de la Mare submits that Part I Chapter II of RIPA provides a
comprehensive and exclusive statutory scheme for the acquisition and
disclosure of communications data and that s.94 cannot lawfully be used to
circumvent it. It is necessary therefore to set out the RIPA scheme. S.21(1),
(2) and (3) provides:
“(1) This Chapter applies to -(a) any conduct in relation to a postal service or telecommunications
system for obtaining communications data, other than conduct
consisting in the interception of communications in the course of their
transmission by means of such a service or system; and
(b) the disclosure to any person of communications data.
(2) Conduct to which this Chapter applies shall be lawful for all
purposes if --
18