Commentary on Sections Overview Section 104 Directions about retention of communications data
268.This section permits the Secretary of State to issue compulsory directions if he is not satisfied that the operation of the voluntary code of practice is effective. Directions may only be given if the Secretary of State is authorised to do so by affirmative order and for the purposes of safeguarding national security and the prevention and detection of crime or the prosecution of defenders which may relate directly or indirectly to national security.
269.Subsection (1) provides that the Secretary of State may by order authorise the giving of directions under this section.
270.Subsection (2) explains that the mandatory directions may apply to any of three categories: either all communications providers, a particular type of communications providers, or one or several specific communications providers.
271.Subsection (3) explains that the statutory order authorising the giving of directions must specify the maximum period for which any communications provider can be directed to retain any particular type of data.
272.Subsection (4) obliges the Secretary of State to consult with those who may be affected by the mandatory directions, or their representatives, before giving them. If the requirement is only being placed on particular communications providers (as in subsection 2(c) above), the Secretary of State must consult with them directly.
273.Subsection (5) explains that any direction must be explicitly brought to the attention of those to whom it applies.
274.Subsection (6) puts a duty on the communications provider to comply with any direction given under this section that applies to him.
275.Subsection (7) sets out the consequences of non-compliance with any direction. The Secretary of State may bring civil proceedings against the communications provider, seeking an injunction, or other appropriate relief.
276.Subsection (8) requires that the Secretary of State lay a draft of any order made under subsection (1) before Parliament and seek the approval of both the House of Commons and the House of Lords for that order.