Retention of Communications Data (Further Extension of Initial Period)Order 2005

My Lords, I am grateful to the noble Lord and the noble Baroness for their contribution in this short discussion. I am also grateful to the noble Lord, Lord Phillips, for his compliments on the way the Government have conducted themselves on this matter. We do not often receive compliments and it is quite nice to receive one or two. Although it may have been an irritation to the government at the time, the way in which Lord Alexander conducted himself in those debates and brought forward his amendments made the government focus very carefully on how it subsequently managed its relations with service providers and so on. One could say that it is one of Lord Alexander’s lasting legacies to us. As the noble Lord, Lord Phillips, knows, the voluntary code of practice was the subject of lengthy discussions between the Home Office and the Information Commissioner’s office. Data are retained in line with the code and fall within paragraph 5 of Schedule 2 to the Data Protection Act 1998. Rightly, providers are entitled to rely heavily on the fact that the Secretary of State and Parliament have concluded that an extension of communications data is necessary to safeguard national security. I am sure that the noble Lord, Lord Phillips, will be pleased to know that the Information Commissioner continues to support that position. The noble Lord, Lord Phillips, asked whether service providers would want to be directed. I think that they accept that, in choosing to retain data in line with the code, they are party to a decision to retain data and to any challenge about the lawfulness of the processing of data. But, if they were directed to retain data by the Government, only the Government would be challengeable, and I suppose that that is why they see a benefit in that arrangement. The legal position was explored in detail with the Information Commissioner before the voluntary code was consulted on publicly and approved by Parliament. Again, the Information Commissioner shares the view that retention of data, even under the voluntary code, complies with the Data Protection Act. We are happy to rely on that. The noble Lord asked one or two questions about cost. The costs will obviously be unique to each provider. One project—perhaps the largest so far—involves a major mobile phone service provider with a significant market share of roughly 20 per cent. It has undertaken to extend the network traffic data retention period from two days to provide all-round cover. There is a significant cost to that. We have to recognise that and ensure that there is proper funding. We are budgeting around £6 million annually to meet appropriate data collection, retention and associated retrieval costs. It is not a small cost. In terms of the global government budget, it is quite small, although it is large in itself and large in terms of the service provider. There is a funding process. The Government are making appropriate contributions to the costs incurred by providers that undertake to retain data for extended periods. In practice, those contributions are 100 per cent. That does not mean that every provider is being funded—that would be neither practical nor proportionate. The allocation and prioritisation of funding to providers is determined very much according to the provider’s market share and interest to the intelligence and law enforcement agencies, whether or not the provider is providing novel, or perhaps unique, leading-edge services. The costs of any data retention must be proportionate to the value that the data may have in the investigation of serious crime and terrorism in the UK. Currently the focus is, rightly, on telephony traffic data, whether fixed, mobile or, in the future, Internet-provided. I think that I have probably gone as far as I can in providing information. To do more would be inappropriate and perhaps commercially sensitive. I hope that the noble Lord will be satisfied with the advice that I have given.