33. The Section 94 Handling Arrangements set out provisions in respect of each of
the stages of the lifecycle of BCD.
Acquisition
34. §§4.1.1-4.1.2 sets out the key considerations which must be presented to the
Secretary of State when he/she considers whether to make a Section 94
Direction. These include the family considerations of necessity and
proportionality, including whether a less intrusive method of obtaining the
information is available, and the level of collateral intrusion involved:
“4.1.1 Where the head of the relevant Intelligence Service has decided to
request a Section 94 Direction from the relevant Secretary of State, it is
essential that a submission is then presented to the Secretary of State by the
Home Office/Foreign Office in order to enable them to consider:
- whether acquisition and retention of the BCD to be authorised by the
Direction is necessary in the interests of national security or international
relations;
- whether the acquisition and retention of the BCD would be proportionate to
what is sought to be achieved;
- whether there is a less intrusive method of obtaining the BCD or achieving
the national security objective;
- the level of collateral intrusion caused by acquiring and utilising the
requested BCD.
4.1.2 The submission must also outline any national security or international
relations argument as to why the Secretary of State cannot lay the Direction
before each House of Parliament in accordance with 94(4) of the Act.”
35. Clear guidance is provided to staff on the considerations of necessity and
proportionality:
“When will acquisition be “necessary”?
4.1.3 What is necessary in a particular case is ultimately a question of fact
and judgement, taking all the relevant circumstances into account. In order to
meet the ‘necessity’ requirement in relation to acquisition and retention,
before presenting the submission referred to in paragraph 4.1.1 above, staff in
the relevant Intelligence Service must consider why obtaining the BCD in
question is ‘really needed’ for the purpose of discharging a statutory function
of that Intelligence Service. In practice this means identifying the intelligence
aim which is likely to be met and giving careful consideration as to how the
data could be used to support achievement of that aim.
The obtaining must also be “proportionate”
4.1.4 The obtaining and retention of the bulk communications dataset must
also be proportionate to the purpose in question. In order to meet the
‘proportionality’ requirement, before presenting the submission referred to in
paragraph 4.1.1 above, staff in the relevant Intelligence Service must balance
(a) the level of interference with the right to privacy of individuals whose
communications data is being obtained (albeit that at the point of initial
45