Crime (Overseas Production Orders) Bill [HL]
Wednesday 27th June 2018
(6 years, 5 months ago)
Lords ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text
Crime (Overseas Production Orders) Bill [HL]
Wednesday 11th July 2018
(6 years, 5 months ago)
Lords ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the aim of this Bill is to provide the framework to address the problem of obtaining electronic evidence when it is stored outside the UK. Too often, criminals—including terrorists—are using global communications services to facilitate their criminal activities, and in many cases the companies providing the services being used are located outside the UK. UK law enforcement officers consider this information as a vital source of evidence in the investigation and prosecution of serious crime and we need to make sure that they have timely access to it.
Our existing powers for obtaining stored electronic data are effective when the company or person holding the data is located in the UK. In those circumstances, a law enforcement officer or a prosecutor can apply to a court for a production order to obtain the data. If the judge agrees that the material is required to support the investigation or prosecution, he or she will issue the production order, and the UK-based target will be required to comply.
However, as Members of this House will know, advances in technology, and the increasing globalisation of communications services, mean that it is not always the case that it is a UK-based entity that holds this data, which can be vital evidence. Where evidence is held outside the UK, we must rely on our international partners to help. We must use mutual legal assistance channels—a form of judicial co-operation between states that allows law enforcement officers and prosecutors to obtain evidence from a foreign jurisdiction via the authorities in that jurisdiction. However, the mutual legal assistance process can be slow, and in some cases it may not be timely enough to support an investigation or a prosecution. It requires a formal request to be made to another country, which then assesses it to consider whether it can comply. That country may require a court order or warrant from its own courts to obtain the evidence. This is usually the case for stored electronic data. It would then serve that order or warrant on the service provider in its territory. This process takes time and in some cases might result in delayed or abandoned investigations or prosecutions. It can also delay people being eliminated from a criminal investigation.
The Bill will create an overseas production order. It will provide law enforcement officers and prosecutors with the power to apply here in the UK for an overseas production order, which would allow them to seek stored electronic data directly from service providers based outside the UK in certain circumstances. They would be able to apply for an overseas production order for the purposes of investigating and prosecuting serious crime, including terrorist offences. They would be able to apply for an overseas production order only where a relevant international co-operation agreement is in place between the UK and the territory in which the overseas data holder is based.
This will mean that UK law enforcement officers and prosecutors will need to deal only with domestic UK courts and will have much quicker access to this data to support investigations and prosecutions of serious crime. The Bill will put on an equal footing the way in which a UK law enforcement officer or prosecutor can apply to the court for access to electronic evidence when the data is held by an entity based in the UK with circumstances when they are based in another territory with which the UK has a relevant international co-operation agreement.
The process of applying for an overseas production order will be similar to the existing domestic process for applying for a production order. The Bill’s provisions reflect our existing high levels of privacy protection, respect for freedom of speech and international human rights law. An overseas production order can be sought only for serious criminal offences. The court will, as it does currently, apply robust scrutiny to any application, and stringent tests will need to be satisfied before an order can be granted. These include that the information is reasonably believed to be of substantial value to the investigation or proceedings and that it is in the public interest for the electronic data to be provided.
The Bill also makes it clear what data cannot be sought, such as that which is legally privileged, or the circumstances in which additional protections might apply, such as when confidential journalistic material is sought. Critically, the Bill makes it clear that an overseas production order can be approved by a court only where it is clear that a relevant international arrangement exists. UK law enforcement officers and prosecutors will be obliged to deal with any data they receive under an overseas production order in accordance with existing protections under the Data Protection Act 2018, as is the case with material received under an existing production order or through mutual legal assistance.
I am sure that noble Lords will agree that the increasingly global nature of crime means that we need a global solution to tackle this problem. This means working with international partners to find ways to maximise our efforts in evidence gathering for the safe and effective investigation and prosecution of serious crime. This Bill will provide another avenue—an expedient means for law enforcement officers to seek stored electronic data. Mutual legal assistance will still exist and will remain critical for other types of evidence that are not within the scope of the Bill, and for electronic evidence outside the scope of relevant international arrangements. This Bill seeks to give those agencies that we rely on to investigate and prosecute serious crimes an additional tool to allow them to get timely access to electronic evidence in tightly defined circumstances.
This is a short and straightforward Bill. The safeguards it contains and the tests that must be satisfied before an overseas production order can be granted will be familiar to many who have law enforcement experience. It will help provide more timely access to vital evidence for our operational partners. I beg to move.
Lord Paddick (LD)
My Lords, this has been a very short debate; in fact, there has been an absence of debate. However, I am grateful to the Minister for meeting us prior to today to discuss the Bill; speaking with officials was very helpful. I offer the apologies of my noble friend Lady Hamwee, who has an important committee meeting this afternoon and is unable to speak in this debate, but the House can be reassured that she will submit amendments to which she will speak in Committee.
I am grateful to techUK for its advice on this matter. The Bill looks very much like the equivalent of the United States Clarifying Lawful Overseas Use of Data, or CLOUD, Act, which sets out how the US Government can access overseas data for law enforcement where an international agreement is in place. When the United States passed the Act, the British Prime Minister, Theresa May, was the first leader to indicate that the United Kingdom would be willing to establish an agreement with the US on the basis of its Act, which I presume is why we are bringing forward equivalent legislation here.
My briefing on the CLOUD Act is that it clarifies how and when the US and other countries can gain access to data stored in different jurisdictions, allowing bilateral deals with foreign countries on data sharing for law enforcement purposes. The legal clarity which that Act provides, which I presume this Bill will also provide, has been welcomed by tech giants such as Microsoft, Google, Apple and Facebook.
Noble Lords will know that we are part of the Five Eyes group of countries that share intelligence on terrorism issues, along with the United States, Canada, Australia and New Zealand, so it is no surprise that we are looking through the mechanisms of this Bill to establish a reciprocal arrangement with the USA and presumably with the other Five Eyes countries in due course, in addition to other countries as we are able to strike arrangements with them.
It makes sense, rather than relying on mutual legal assistance treaties, to allow law enforcement agencies to apply to the British courts to access data directly from an overseas service provider rather than going through government channels, provided an international agreement is in place with the country concerned. Bearing in mind the vast volume of data handled by service providers based in the United States of America, America will obviously be a priority for the mechanisms in this Bill. I am grateful for the House of Lords briefing on this issue, which outlines the tortuous process of MLAT, which can take up to 10 months to complete, so the need for this Bill is clear.
There are issues of privacy here and therefore of compliance with the GDPR—the general data protection regulation that has recently been introduced—and the UK’s ability to secure a certificate of adequacy from the European Union if we were to become a third-party country after Brexit. Noble Lords will recall that the EU allows data exchange only with third-party countries whose data regulations and privacy laws are considered by the EU to meet EU standards. If the UK enters a bilateral arrangement with a non-EU country whereby it can apply directly to UK service providers to hand over sensitive personal information, presumably the EU will have to be satisfied that the safeguards in the Bill are sufficient for the EU not to withdraw any adequacy certificate for the UK. Perhaps the Minister can explain.
For example, in Clause 3 “excepted electronic data” goes beyond legal professional privilege to include confidential records such as medical records, evidence from the confessional—“spiritual counselling”—and welfare counselling, but in Clause 3(5) these exceptions do not apply to terrorist investigations. Noble Lords will recall that as a member of the European Union we have carte blanche to make whatever arrangements we want as far as terrorist investigations are concerned, but once we become a third-party country the EU will scrutinise those arrangements and take them into consideration in deciding whether an adequacy certificate should be issued: the devil will be in the detail of the Bill.
The European Commission in April 2018 published its own e-evidence proposals for European production orders, which is the EU version of the CLOUD Act. It sets out when law enforcement officers can request data and what the response times from the tech companies should be. These proposals will apply across all EU countries, whereas the US arrangements, which President Trump is said to prefer, deal only with individual countries—they are bilateral arrangements. How do these proposals fit with the EU e-evidence proposals?
As with all UK law that has extraterritorial effect, there are issues of enforcement. The Minister and her officials were good enough to explain to us that, clearly, if the international service provider has offices in the UK, sanctions could be applied, but it would be more difficult if the overseas company had no assets in the UK. One has to ask whether contempt of court is an effective enforcement process if that overseas service provider has no assets in the UK.
I shall very briefly outline some other areas where we may need to explore further. Clauses 4(5) and 4(6) say that the judge must be satisfied that some or all of the data will be of “substantial value” to the investigation or proceedings and that it is “in the public interest”. The judge will have to weigh the benefit to the proceedings and the circumstances under which the person came into possession or control of the data. This appears to be vague. How high a threshold is this for the applicant investigator to surmount?
In Clause 8, the order may forbid the person against whom it is made to disclose the existence or contents of the order without the permission of the judge or the applicant. This appears to have consequences for open justice.
In Clause 10, is the use of the data as evidence restricted to the offence for which the order is made? What happens if other offences are disclosed? Would a further application be necessary?
Overall, we welcome the Bill, but we will be probing to ensure that the rights of UK citizens are not infringed and that securing an adequacy certificate from the EU if we leave the European Union will not be jeopardised by these proposals.
Lord Rosser (Lab)
My Lords, this is perhaps a fairly unique Second Reading, in that the Minister will be making the same number of speeches as the rest of your Lordships’ House. I apologise in advance for the fact that I will probably speak for longer than either the Minister has so far, or the noble Lord, Lord Paddick.
The primary purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as such a court could if the information were located or controlled in the UK. This is achieved in the Bill by creating a new overseas production order that has extraterritorial scope. However, this jurisdiction can be exercised only if an international co-operation arrangement or bilateral agreement enabling this to happen, and to which we are a party or in which we participate, has been agreed. UK law enforcement officers would apply to a judge for an order requiring the production of electronic evidence for the purposes of investigating or prosecuting serious crime, including terrorism offences. The effect of the overseas production order, if granted, would be to require an overseas provider to disclose electronic information held by them, provided that this is supported by an international co-operation agreement with the country concerned.
The present position in respect of electronic data that is outside the reach of domestic UK court orders and is needed for evidential purposes is that mutual legal assistance is available where a mutual legal assistance treaty has been signed. In 2016, the UK had bilateral mutual legal assistance treaties with some 40 countries and was also party to multilateral MLATs through bodies such as the EU and the Council of Europe. This present form of judicial co-operation means that a requesting country can seek assistance from an executing authority or country, and that authority or country is then responsible for collating the evidence using its own judicial or other processes and orders.
However, as the Minister said, the MLA process can be slow, requiring as it usually does significant government-to-government liaison, and may not be speedy enough in some cases to enable the evidence being sought to be obtained in the timespan required to contribute meaningfully to an investigation or help to secure a successful prosecution. Indeed, MLAT requests submitted to the United States take an average of approximately 10 months to complete. Sir David Anderson, the then Independent Reviewer of Terrorism Legislation, said in a 2015 report,
“there is little dispute that the MLAT route is currently ineffective”.
With electronic information becoming increasingly important in the investigation and prosecution of criminal offences, this is regarded as an increasingly serious lacuna in the pursuit of those committing serious offences, since the companies providing services that generate or store electronic data or do both are often located outside this country. This means that the data they generate or store is currently outside the reach or range of the orders of our courts, which lack extraterritorial scope and cannot be used to require overseas providers to provide timely information.
The impact assessment for this Bill states:
“The issues with access to electronic data held by overseas providers and the use of MLA has been recognised for a while with discussions taking place between the UK and other countries to explore options to address the issues with the MLA process”.
We know from the impact assessment that one of those other countries is the United States, but which are the other countries with whom we have been discussing this issue?
Apparently our law enforcement and security agencies have indicated that US communication services are used by 90% of their suspects and that, in almost every terrorism investigation, those they investigate use services provided by US communications service providers. As far as the United States is concerned, the impact assessment tells us that a bilateral data access agreement is being finalised with the UK, but that,
“in anticipation and preparation for it, the US passed its Clarifying Lawful Overseas Use of Data (CLOUD) Act in March 2018, enabling the US legislative change required to give effect to this agreement”.
The CLOUD Act provides authorisation for a new form of international agreement to be concluded by the United States through which foreign Governments can seek data directly from US companies without such requests having to be reviewed individually by the US authorities. However, the CLOUD Act also requires that when the US concludes an agreement with another country, such as the UK, that country must allow the US reciprocal rights of data access.
Since bilateral agreements with another country or countries will need to be concluded for the provisions of this Bill to be implemented, presumably we shall be required to provide the same access arrangements to electronic data in this country as we are seeking from them—namely, that an order made in their courts will be capable, if necessary, of being enforced here with apparently little or no judicial oversight in this country. The Explanatory Notes say that the electronic data in question may include the “content of private communications” being made available to the state, and that:
“These intrusions into ECHR rights can be justified as necessary in a democratic society for the prevention of disorder and crime and in the interests of national security and public safety, and are proportionate in light of the requirements that must be met before a judge can make an overseas production order, and the other safeguards set out in the Bill. To the extent that the electronic data made available may include journalistic material, the requirement that an order is made by a judge provides prior judicial oversight for the exercise of the power, and accordingly an Article 10 compliant safeguard”.
Those words might not be accepted without question by everyone.
Clause 4 sets out the conditions and restrictions under which an overseas production order may be made. These include that the judge must be satisfied,
“that there are reasonable grounds for believing that an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated”.
Alternatively, the judge must be satisfied that,
“the order is sought for the purposes of a terrorist investigation”.
According to the Explanatory Notes:
“This reflects the criteria under which production orders may already be sought against those in the UK”,
under the Terrorism Act 2000. The judge must also be satisfied,
“that there are reasonable grounds for believing that all or part of the electronic data”,
applied for will be of “substantial value” to the investigation or proceedings, and that it is “in the public interest” that this data is made available to the investigation or proceedings.
In considering whether something is in the public interest, the judge must consider the benefit to the proceedings or investigation that this electronic data is likely to have and,
“the circumstances under which the person against whom the order is sought has possession or control of any of the data”.
Further additional requirements that must be met in order for an overseas production order to be made can be specified by the Secretary of State through regulation under the terms of the Bill. Some of the factors on which the judge has to be satisfied before granting an order are potentially subjective, including whether an order being sought is for the purpose of what could be regarded as a terrorist investigation, whether the data being applied for will be of substantial value to the investigation or proceedings, and that it is in the public interest that the data is made available.
The UK has to be a party to an international co-operation agreement for the terms of the Bill to apply. However, will that arrangement or agreement with another country—and there could be up to 40—have to incorporate the same standards and criteria, and interpretation of those criteria, that would apply in our courts before making an order when a court in that other country makes an overseas production order for a British national or company based here to produce stored electronic data or give access to it? If that is the case—and the Bill has a potential problem if it is not—how will we be able to satisfy ourselves that the other country making such an order will, for example, be interpreting the requirements relating to “substantial value”, “public interest”, “terrorist investigation” and “excepted electronic data” in the same way as we would anticipate our courts interpreting those words in determining whether or not the case has been made for granting an overseas production order?
If we believe that a country with which we have an international co-operation agreement or bilateral agreement has not been applying an appropriate interpretation of the criteria for determining whether to make an overseas production order, can we step in and stop it being enforced against the named person or company in this country? If so, who or what body or authority in the UK can nullify the production order in question? If that cannot be done, is that not a potential concern about the proposed bilateral arrangements set out in the Bill, particularly as they are geared to giving greater speed to the process than the MLA route? Is there any right of appeal in this country against an overseas production order applicable here but made in another country with which we have a bilateral co-operation agreement?
If the Government’s view is that, under the new overseas production orders, there will be no change, in either direction, in the interpretation of the criteria or basis for making or declining overseas production orders for electronic data compared with the current mutual legal assistance arrangements, surely that cannot definitely be the case in the future, because at present it is the court in the country in which the order for electronic data has to be executed that makes the order, whereas under the new arrangements in the Bill it will be the court in the country where the order is being sought that will make the order and determine whether or not the case for the overseas production order has been established. What would be the position if the overseas production order for the electronic data in question was being sought in respect of a case or investigation where the outcome for a defendant, if found guilty, could be the death penalty, as might apply in the United States? Would we allow the electronic data to be handed over or accessed in such circumstances, as we would apparently be required to under the terms of the Bill and any bilateral agreement?
Can the Minister say within what timescale it is expected that overseas production orders will produce the required electronic data or access to it, compared with the time taken through the present mutual legal assistance process? While I appreciate that many service providers and technology companies in other countries, including the US, are likely to provide the electronic data being sought once the overseas production order has been made by a UK court—and, no doubt, vice versa as well—can she confirm what will happen if they decline to do so, since neither the US CLOUD Act nor any international agreement made under it would create a legal obligation for US service providers to comply with a data request from a foreign Government, including that of the UK?
The Explanatory Notes suggest that non-compliance with an overseas production order made by a UK judge could give rise to contempt of court proceedings but, if I am correct, some further detail from the Government as to how this course of action would in practice work and be effective in this situation would be helpful. Likewise, can the Government explain what action could or would be taken if a person or company in this country named in a production order from a country with which we have a bilateral agreement declined to hand over or give access to the electronic data sought under that order?
The Bill, as we know, seeks to provide a speedier alternative to the mutual legal assistance route in respect of electronic data by enabling UK domestic courts to issue a production order rather than, as now, requesting a foreign court to do so following an MLA request. Under the required international agreement with the country concerned, this would almost certainly be a two-way process. Under the current MLA process, first, how many orders have we been seeking per year in respect of electronic data which have required the assistance of another country under MLA in making and executing those orders, and from which countries have we required such assistance? Secondly, how many orders per year sought by other countries have we been asked to make and execute under MLA arrangements in respect of electronic data, and by which other countries? What percentage of overseas orders in both directions under MLA are currently in respect of electronic data per year? What is the anticipated increase in each direction for orders for electronic data under the new arrangements for overseas production orders set out in the Bill, since the Explanatory Notes suggest that applications for overseas production orders for electronic data have been suppressed because of the time delay in executing such orders under the MLA process?
As the noble Lord, Lord Paddick, said, in April this year the European Commission published proposals for EU legislation to create a European production order as part of a package of measures on electronic evidence. The proposed European production order would allow a judicial authority in one EU member state to request electronic evidence directly from a service provider offering services in the EU and established or represented in another member state, regardless of the location of data. Where does the proposed European production order fit in relation to the new overseas production order process set out in the Bill? Do the Government intend to opt into the European production order measure or regulation? Finally, I say simply that while we support the objectives of the Bill, we want responses to the potential concerns we have raised about the possible application of its provisions.
Baroness Williams of Trafford
My Lords, there have been so few speakers this afternoon that anyone would think there might be a football match on tonight. However, I thank both noble Lords for their very constructive comments and questions. I have been furiously writing everything down and I hope I also have the answers but if I have not, I will follow them up in writing.
The noble Lord, Lord Paddick, asked whether this could allow for an agreement with the EU. Obviously, we are going through negotiations with the EU on Brexit, but it is absolutely possible that we could eventually make an agreement either with specific countries or with multiple states in the EU. That is almost certainly a possibility. He also quite sensibly asked whether this will affect the adequacy judgment in the context of Brexit. It is about getting data from outside the UK into the UK, but UK providers responding to requests under any agreement would need to comply with data protection law, which is of course aligned with EU standards, as we saw when we were going through the Data Protection Bill recently.
The noble Lord also asked how the Bill affects the evidence proposal published by the Commission. EU member states and wider international partners are considering this very question of cross-border access to electronic data. The European Commission has published proposals on this issue which we are currently considering. The UK’s opt-in applies to the regulation and the Government are committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision-making process. We are currently scrutinising the regulation, and we will make a decision on whether to participate in due course. The proposed evidence directive could be implemented before the end of the envisaged implementation period.
The noble Lord also asked whether contempt of court is enough if the CSP has no assets in the UK, which slightly goes to the point the noble Lord, Lord Rosser, made about seizing assets. Both are a possibility, but we anticipate working closely with overseas providers to create a high compliance environment. Given the general support for this, we hope that is the case. It is possible that some providers may have no UK assets, but those firms are unlikely to be within reach of any enforcement mechanism. We can always resort to MLA in the case of non-compliance.
The noble Lord, Lord Paddick, asked about what happens if you get more evidence than you asked for. The data received will be subject to the usual data protection laws and existing laws on data handling and retention. Law enforcement will be provided with guidance on how to handle data when using an overseas production order. I think he also asked about what happens if you need multiple different requests.
Lord Paddick
The question was: if you identify further offences from the information that you have requested, would you then need to go back to a judge to enable that evidence to be used?
Baroness Williams of Trafford
My view would be that, yes, you would because it would be a new request, but I will confirm that in writing. I would not wish to give the noble Lord misinformation at the Dispatch Box.
The noble Lord, Lord Rosser, asked how the US or other countries will be able to get information from the UK. The proposed agreement will be reciprocal and we would expect any country with which we have an international co-operation arrangement also to benefit from this more streamlined process for data and evidence gathering. The condition for any international arrangement or future arrangement is that each country recognises the other’s rule of law—that is an important concept for the Bill—due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime. Each agreement will be specific in scope in respect of the circumstances in which it can be used. Section 52 of the IP Act 2016 will be used to designate international agreements, and that will be the basis for another country to request information from UK service providers. The Secretary of State has the power to impose additional conditions when designating an agreement under that section.
The noble Lord, Lord Rosser, asked what would happen if the other country had a lower threshold for what is regarded as reasonable belief. What do we do if this arrangement is all about the mutual recognition of legal systems? The UK would not agree to any arrangement where the threshold for obtaining data did not provide similarly protective standards to those in the UK. The agreements will recognise a shared acceptance of the laws in another country with which we are entering into an agreement. It will recognise the other’s rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime.
Under any proposed agreement the UK would require the other country to set out the powers it intended to use in pursuance of requests made under the agreement. The UK would also ask the other country to commit that it would not rely on another power unless agreed by both parties. In addition, it would specify the evidential standard required before requests were made and ensure that the UK was satisfied with those standards before designating an agreement for incoming requests.
The noble Lord asked which countries we are negotiating agreements with. We expect the first relevant international arrangement to be with the US, unlocking the potential for streamlined access by UK law enforcement, but any future international arrangements would, like the agreement with the US that we have been discussing, be based on the recognition that robust protections for privacy are present in each country. Of course, not every country would meet those high standards, and any agreement that we reached with another jurisdiction would be subject to parliamentary scrutiny in the usual way. As discussed, that usually involves laying the agreement in Parliament for 21 sitting days without either House having resolved that it should not be ratified.
The noble Lord asked what powers exist to nullify incoming requests. The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders and, if they do, must comply with data protection law. The agreement itself will be subject to the usual scrutiny by Parliament, as I have said.
The noble Lord also asked about the timescales for production orders versus MLA. Under an overseas production order, the standard time for compliance is seven days. However, the judge may shorten or extend this time depending on the circumstances of the case. Therefore we expect this to be a much quicker process compared with MLA, which can take up to 10 months unless there is a particular urgency. The noble Lord asked how many we were anticipating. We anticipate approximately 40 to 50 outgoing requests for electronic data. I will write on the other point regarding MLA numbers. I am guessing that there are more because it has a broader scope, but I will write to the noble Lord.
I have tried to cover every point; I am not sure that I have but I will of course follow up in writing any that I have not. In the meantime, I beg to move.
Crime (Overseas Production Orders) Bill [HL]
Wednesday 5th September 2018
(6 years, 3 months ago)
Grand CommitteeRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-I Marshalled list for Grand Committee (PDF) - (3 Sep 2018)
Baroness Hamwee
“( ) A judge may order that notice of an application for an overseas production order be served on a controller or a data subject.”
Baroness Hamwee (LD)
My Lords, I am speaking for these well-populated Benches. It would be right to start by saying that the number of amendments that we have tabled does not indicate outright opposition to the Bill—the Minister is grinning. There are serious issues to be considered, particularly the human rights aspects of the proposals in the Bill, and we welcome in particular the judicial element which it provides. I anticipate that the response to many of our amendments will be that we are saying rather inelegantly what the Government in fact propose, or something very like it, and that we do not need to worry. We feel it important to have on the record, at the very least, how the Government will operate the Bill. Some things are not clear; I am not suggesting that what is in the Government’s mind is in any way malign, but things should be on the record at least and—better—in clear terms in legislation, whether primary or secondary. I wanted to make those points before speaking to the first of the amendments, which is Amendment 1, grouped with Amendments 2 and 40.
This grouping is about transparency. There is somebody else in the Grand Committee who can speak to this matter with far more experience than me, but I think it unusual for a court to be asked to make an order without hearing both sides of a case. We want to hear the reason for this procedure. I do not believe it can just be speed, because we can have procedures for urgent situations as an exception, as we have in other legislation; I do not believe that the requirements will be urgent in every case—we cannot know that, but it is unlikely. Amendment 1 therefore provides for a notice of application to be given to those affected: the data controller or the data subject.
Amendment 40 would import definitions from the Data Protection Act. I want to get my defence in first: the Data Protection Act cross-references other parts of the Bill, so the amendment is technically flawed, but we are only probing and it was the summer and I bottled out of substantial drafting. A data controller or subject can apply to vary or revoke an order, but that would be after the event. It is important that they be able to defend their interests initially. There is a discretion in respect of Clause 3. We will come to confidential personal records later in the Committee, which might add to the arguments for providing for a notice in Clause 1. We think that significant protections are required. We will come later to the issue of balance and how the court will weigh the interests.
We also propose in Amendment 2 the appointment—or the possibility of an appointment; it is discretionary—of an independent adviser in connection with assessing whether the requirements for the order have been met. I use this opportunity to ask the Minister to explain how this not very usual procedure will operate. I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank the noble Baroness for her introduction and I am very glad that the number of amendments does not reflect the level of controversy of the Bill. To address her first point, I say that the Bill does not preclude a judge from being able to require that notice be given to anyone affected by an order pursuant to court rules. Court rules will provide the judge with the ability to require that notice be served on anyone affected by the order, which is the case at the moment under court rules dealing with domestic production orders. This means that a data controller or a data subject may be given notice of an application, but while in principle any person affected by an order should be given notice, there will be cases where it is not appropriate because the giving of a notice to a particular person could prejudice the investigation to which the order pertains: for example, where a notice to a data subject might tip off a suspect where law enforcement agencies are seeking data for the prosecution or investigation of a serious crime.
I thank the noble Baroness for giving me the opportunity to set this out in greater detail. However, given that court rules provide a judge with the power to consider notice being given, I suggest that the amendment is unnecessary. She knew that I was going to say that.
With respect to Amendment 2, the court already has the applicant, who has a duty to assist the court, so it is an established principle that an applicant seeking an order without giving prior notice to the person on whom the order is to be served or to whom it relates is obliged to provide full and frank disclosure to the court. This includes disclosure of relevant legal principles and facts, even if they are not in the applicant’s favour. The principle therefore already ensures that the information put before the court must be balanced.
I stress that the Bill reflects the existing position in relation to production orders that can be served on a company based in the UK, and the court will be dealing with the same considerations where an existing production order is sought. Such domestic orders apply the same legal considerations without the need for an independent adviser, and I do not see why we should deviate from that existing practice simply because an order can be served on an entity based elsewhere.
The third amendment aims to define the terms “data controller” and “data subject” referenced in the amendments to Clause 1. Given that we do not believe that the Bill should be amended in the way suggested by the noble Baroness, it follows that there is no need to include definitions of data controller and data subject in Clause 17. I hope that in the light of those clarifications, the noble Baroness will feel free to withdraw her amendment.
Baroness Hamwee
I do not challenge the applicant’s duty to assist the court, but there is no opportunity for challenge at the initial stage, which is what I am concerned about. That feeds into my question: if a no-notice procedure will, as the Minister suggested, not be the norm and may be the exception, why does the Bill not provide that a judge may, in exceptional circumstances, make the order on a no-notice application? It seems to me that that would reflect what the Minister has said in explaining how this would operate. I do not imagine she will have a direct answer to that at this moment, but it might be helpful if we could discuss it further. The Minister has already invited us to discuss the Bill between today and the next day in Committee, so perhaps we can talk further about this issue. The Bill launches us straight into the no-notice procedure and, whatever the court rules may say, I suggest that people will look at the Act first. Having said that, I beg leave to withdraw Amendment 1.
Lord Paddick
“( ) The Secretary of State may not make regulations designating an international co-operation arrangement with a state which is a party to or participates in it which has not abolished the death penalty unless the agreement provides that it will apply only if the other party or participant has given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.”
Lord Paddick (LD)
My Lords, in moving Amendment 3 in my name and that of my noble friend Lady Hamwee, I will speak to Amendments 4 and 7 in our names. I will also mention very briefly Amendment 8 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.
Before I launch into the meat of the amendment, I hope the noble Lord, Lord Anderson of Ipswich, does not mind me mentioning that, on the way into the Moses Room, he said that he enjoyed reading my amendments. I am extremely grateful for the extensive work carried out by my noble friend Lady Hamwee with regard to these amendments—if you know what I mean.
As we have heard, the purpose of the Bill is to allow UK law enforcement agencies to more easily obtain electronic evidence when it is sought outside the UK. Of course, evidence so secured would be subject to safeguards in the UK, but presumably the countries that enter into international co-operation agreements with the UK—a prerequisite for the operation of overseas production orders—will expect their own law enforcement agencies to be able to apply through their own domestic courts for equivalent orders that would allow them to seek stored electronic data directly from service providers based in the UK; the reciprocal agreement. Amendments 3 and 4 seek to probe how legal and human rights concerns over privacy and the security of personal data will be addressed and the issue of such evidence potentially resulting in the death penalty being passed on a subject. Amendment 3 requires that the Secretary of State may not make regulations entering into an international co-operation agreement in relation to states where the death penalty can be imposed unless the agreement restricts access to UK-held data to cases where an assurance has been given that the death penalty will not be imposed.
Article 2 of the European Convention on Human Rights—together with Protocol 13, of which the UK is a signatory—provides for the total abolition of the death penalty. My recollection of a meeting with the Minister on this very issue is that the UK would not hand over evidence in the knowledge that it would result in the possibility of the suspect being executed. However, since that meeting, noble Lords will recall the case of two former British citizens accused of being members of an ISIS cell. In a leaked letter, the Home Secretary apparently agreed to co-operate with the United States by sharing evidence but said that he would not seek a death penalty assurance. In an apparently totally inconsistent statement, he went on to say that,
“it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty”.
We now appear to be in a situation where government policy is to ensure that evidence does not lead to the suspect potentially facing the death penalty and to encourage the global abolition of the death penalty, except when the Home Secretary decides otherwise. How can the Government advocate the abolition of the death penalty globally on a case-by-case basis? Amendment 3 seeks to put into the Bill that an international co-operation agreement cannot be entered into with a state unless there is an agreement that the sharing of evidence would not lead to the imposition of the death penalty.
Lord Rosser (Lab)
My Lords, as the noble Lord, Lord Paddick, has said, we have tabled Amendment 8 and its objectives are obviously similar to those of the amendments that he has moved and spoken to. At Second Reading, we expressed our concerns over potential difficulties with the implications of the Bill and our amendment seeks to probe this point further.
The Explanatory Notes state that the electronic data in question may include the “content of private communications” being made “available to the state”, and that:
“These intrusions into ECHR rights can be justified as necessary in a democratic society for the prevention of disorder and crime and in the interests of national security and public safety, and are proportionate in light of the requirements that must be met before a judge can make an overseas production order, and the other safeguards set out in the Bill. To the extent that the electronic data made available may include journalistic material, the requirement that an order is made by a judge provides prior judicial oversight for the exercise of the power, and accordingly an Article 10 compliant safeguard”.
We said at Second Reading that those words might not be accepted without question by everyone.
Our amendment is intended to seek further detail and clarification from the Government about the extent of the safeguards on international human rights obligations, the similarity of interpretation of subjective wording in the Bill and the position in respect of the death penalty—not least in the light of the Home Secretary’s recent apparent change, which the noble Lord, Lord Paddick, referred to, in this Government’s previous position of principle on this issue.
Bilateral agreements with another country or countries will need to be concluded for the provisions of the Bill to be implemented. Presumably, we shall be required to provide the same access arrangements to electronic data in this country as we are seeking from those countries: namely, that an order made in their courts will be capable if necessary of being enforced or implemented here with apparently little or no judicial oversight in this country. What then will be the position if the overseas production order for the electronic data in question was being sought in respect of a case or investigation where the outcome for a defendant—if found guilty—could be the death penalty, as might apply for example in a number of states in the United States, as the noble Lord, Lord Paddick, has said? Will we allow the electronic data to be handed over or accessed in such circumstances, as we would apparently be required to do under the terms of the Bill in any bilateral agreement?
At Second Reading, the Government said:
“The agreements will recognise a shared acceptance of the laws in another country with which we are entering into an agreement. It will recognise the other’s rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime”.—[Official Report, 11/7/18; col. 929.]
What exactly do those words mean in relation to handing over electronic data to another country with which we have a bilateral agreement which could lead to a defendant being found guilty of a crime which carries the death penalty in that other country? Some clarification of those Government words at Second Reading will help.
The Minister wrote in a letter dated 20 July that:
“With regards to death penalty implications, it is the long-standing policy of the UK to oppose the death penalty as a matter of principle. We will ensure that the operation of any agreement, including with the US, is consistent with this position”.
One could argue that those two sentences are open to more than one interpretation. One might argue that you could oppose the death penalty in principle—tell the world that that was your position—but nevertheless still allow electronic data to be handed over under the terms of the bilateral agreement with the other country concerned, even though the crime being prosecuted or investigated was one that, in that other country, carried, or could carry, the death penalty.
Will the Government give an unequivocal statement that under no circumstances under the bilateral or other agreements enabled under the Bill will electronic data be handed over to another country or access to it given to another country if it could contribute to a defendant being found guilty for a crime which carried the death penalty? No such unequivocal assurances appear to have been given at Second Reading and no such unequivocal assurance appears to have been given in the Government’s letter following it.
Amendment 8 also states that:
“The Secretary of State may not make regulations designating an international co-operation agreement unless they have laid before both Houses of Parliament a statement certifying that—
(a) all parties to the agreement adhere to international human rights obligations”.
What is the difficulty in the Government agreeing to this amendment—or to its spirit—unless they envisage circumstances in which all parties to the agreement will not be able to signify their adherence to international human rights obligations?
The amendment refers to,
“freedom of opinion, expression and association”,
but how far does the Bill protect that in relation, for example, to journalistic data, about which certain representations have been made? A later clause provides that an application for an order must be made on notice if there are reasonable grounds for believing that the electronic data consists of or includes confidential journalistic data. However, who will draw the distinction when making the application between confidential journalistic data and other journalistic data? How will they know what is confidential and what is not? Why did not the Government decide that any journalistic material should require an order to be made on notice and illuminate this problem?
Clause 12, which concerns this, also excludes material as being created or acquired for the purposes of journalism. If it was created or acquired with the intention of furthering a criminal purpose, that must mean that if at any point in its history information was intended to be used for a criminal purpose, it will not be protected under the Bill as journalistic material. That appears to apply, even if the criminal purpose never transpired and had nothing to do with the material being held by the journalist or how the journalist acquired it. Could not the issue of criminal intent be taken into account by the judge when deciding whether to make an order rather than an issue which loses the material to journalistic classification and with it its procedural protection? Amendment 8 raises that issue.
Amendment 8 also refers to the terms “public interest”, “substantial value” and “terrorist investigation” being interpreted in substantially the same way in the courts in each of the parties to an international co-operation agreement. Once again, we raised the issue at Second Reading when we asked whether any arrangement or agreement with another country would incorporate the same standards and criteria and interpretation of those criteria that would apply in our country before making an order when a court in that other country makes an overseas production order for a British national or company based here to produce stored electronic data or give access to it. If that will be the case—and surely there is a strong possibility of different interpretations of the wording concerned in different countries, or perhaps even within states of America, for example, where we know we have advanced some way towards reaching an agreement—we also asked how we will be able to satisfy ourselves that the other country making such an order was interpreting the criteria in the same way as we would anticipate our courts would do. If we were not so satisfied, what means are available, and to whom, to step in and stop the order being enforced against the named person or company in this country? I do not intend to go into the issue of enforcement or rights of appeal, since this is addressed in later amendments.
The issues I have referred to are those on which we seek some clarification and further explanation from the Government as to exactly what is meant by the wording in the Bill: that is the purpose of Amendment 8, to which I have just referred.
Baroness Williams of Trafford
Both noble Lords rightly raised the point of the death penalty in relation to any designated international agreement, through Amendments 3 and 8. It may be useful if I make it clear at the outset that the Bill is about outgoing requests from the UK: it puts into legislation the ability for our law enforcement agencies and prosecuting authorities to request access to electronic data stored by companies based outside the UK. The Bill is a framework within which international agreements can operate but any such agreement will, of course, be subject to parliamentary scrutiny in the usual way, as both noble Lords alluded to, following the procedure set down in the Constitutional Reform and Governance Act 2010—otherwise known as CRaG. It usually involves laying the agreement in Parliament for 21 sitting days before it can be ratified by the Government.
The negotiation and operation of any international agreement must be compliant with the Government’s guidance on overseas security and justice assistance, which deals with the death penalty and human rights considerations. As part of that rigorous process, a detailed assessment of any human rights risks associated with a particular international agreement must be carried out. As part of reaching an agreement with any country, we can impose restrictions on how the other country can use information sought from a UK service provider. This would be considered as part of the process of developing and entering into a potential agreement and will depend on the risks that are identified during the OSJA assessment process. As I have said, these amendments focus on the extremely important issue of human rights, and the OSJA guidance and assessment process already exists to ensure that human rights considerations are taken into account.
In relation to the death penalty in particular, the Government do not believe that these amendments are the appropriate way to address concerns about it but I recognise the strength of these concerns. As the noble Baroness, Lady Hamwee, said, we are going to discuss this issue in more detail on Report.
Lord Rosser
Before the noble Lord, Lord Paddick, gives his answer, as I understand it this matter has been under formal discussion with the United States since at least 2016; I think that was indicated previously in Parliament. We seem to be dancing around a bit on the issue of the death penalty. If this matter has been in discussion with the United States since 2016, why has it not been ironed out in that period of two years? I do not think a clear answer has necessarily been given on the question—or at least if it has, I have not understood it—of what our approach will be. Under an overseas production order, are we going to ensure that the information would not be used against a defendant in a case where, if they were found guilty, the death penalty could apply?
Maybe I misinterpreted or misunderstood the wording but, since the Minister talked about enforcement on this, at Second Reading she said on behalf of the Government:
“The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders”.—[Official Report, 11/7/18; col. 929.]
If that is the case—and perhaps the Minister could confirm that they will not be required to comply with overseas orders—presumably there is no issue over enforcement because they will just decide not to comply. Have I misunderstood the significance of what the Minister said at Second Reading in her response?
Baroness Williams of Trafford
To deal with the first point on the death penalty, I thought I had made it clear but clearly I have not. We have meetings scheduled and I would like to discuss it further before Report. I hoped that I had explained that the OSJA process was effectively a risk assessment process that sought protections and risk assessment on such things as the death penalty and other human rights issues, but I would be very grateful if we could discuss that before Report. On the other issue, that of compliance, UK companies are not compelled by UK law but they may be compelled by the other jurisdiction—that is the point that I made at Second Reading—depending on the country in question.
Lord Kennedy of Southwark
It is not only my noble friend Lord Rosser who is confused about the death penalty, as I am confused as well. It is not just that the Minister has not been clear with us; it also involves some of her right honourable friends in the department and the comments they have made. We need to address the problem there. Comments are made but then if we look at the policy on paper, they do not add up. That is the problem we have.
Baroness Williams of Trafford
I understand the point that the noble Lord is making. I, not least, look forward to the discussion that we are going to have.
Lord Paddick
My Lords, I am very grateful for the comments of all noble Lords on this group of amendments. I do not want to prolong the agony; I accept that the Bill is about outgoing requests but in order for outgoing requests to be complied with, there would be an expectation by the foreign state that a similar application to the UK would be met. We are potentially talking about UK service providers providing evidence to a foreign state that would enable that state to carry out the death penalty on a suspect. Having agreements based on trust and mutual respect, rather than a legally binding agreement, where if there are differences of opinion about what particular terms mean there would be some form of dispute resolution—no more reassurance than that—while the IP Act 2016 could impose restrictions, but might not, all seems rather vague and general. When we are talking about someone’s life potentially being ended, we would seek more concrete reassurances that evidence provided by the UK is not going to lead to that.
I understand that the intention is to have an agreement with the United States of America as a whole. However, bearing in mind that the death penalty is an issue in some states but not others, and that other agreements would be on a case-by-case basis—presumably on the basis of the human rights record of the states that the agreement was entered into with—it seems odd that a blanket agreement could be entered into with the USA when there is that crucial difference between states as to whether the death penalty could be carried out. Obviously, we are in Committee, which is about understanding concerns and the Government’s position. We need to further develop that in meetings and on Report. In the meantime, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, our exchange on the previous group of amendments, when the Minister gave a lot of assurances, makes me even keener on Amendment 5, which would require writing into the Bill that a designated international co-operation agreement must be in the form of a treaty. I understand that that is what was intended, so I think it would be more than appropriate to say so. Taking only the discussion about the death penalty, it argues for the amendment, given that the procedures for dealing with the treaty under the Constitutional Reform and Governance Act 2010 include safeguards to be met before a treaty can be ratified which include transparency, debate in public, and so on.
The Minister gave a list of matters—I failed to write down all of them—to which the Government would have regard. I got down trust, mutual respect, judicial oversight and “must be compliant with HMG guidance”. The reference to guidance has my antennae twitching in this context. We do not want to rely on guidance; we want to rely on legislative certainty and the involvement of Parliament.
The Minister said either at Second Reading or in a meeting before Second Reading—we are always grateful for such discussion—that the Government would not enter into an agreement with North Korea. I could add to that nightmare not a treaty but a memorandum of understanding with North Korea, which would come nowhere near Parliament. Our laws have protection against a mad Executive and we should commit to using them.
We have had a long but inconclusive discussion about how human rights would be protected. A statement to Parliament under the 2010 Act procedure would deal with this. It might also set out standard clauses. I am unclear whether we should expect standard clauses in different co-operation agreements. They should be relatively straightforward in most cases.
For similar reasons, Amendment 38 would apply the affirmative procedure to regulations designating the co-operation arrangement. We all know about the problems with scrutinising secondary legislation.
Amendment 6 is to ask what is meant by participation in this context. Clause 1(5) refers to an arrangement,
“to which the United Kingdom is a party or in which the United Kingdom participates”.
What is participation in this context? I beg to move.
Lord Kennedy of Southwark
My Lords, the noble Baroness has done her usual forensic job of going through the Bill and done a service to the Grand Committee. It is important that we are clear about what we are agreeing. I look forward to hearing the Minister’s response. It is right that Amendment 5 makes it clear that we are talking about the treaties which are subject to the Constitutional Reform and Governance Act 2010. It is a sensible move.
Amendment 6 is a probing amendment at this stage. What is meant by participation? If you are a party to something, then there is what you are participating in, so clearly the Government think that there are two different things. It will be good to hear the Minister’s view on the difference between those two things and why they both need to be in the Bill. I am sure that “form of a treaty” needs to be in the Bill.
Finally, Amendment 8 ensures that whatever regulation is agreed will be subject to the affirmative resolution procedure in the House. Again, I think that is important. Will the Minister confirm that the Government would do that anyway and, if so, say why it is not in the Bill?
Baroness Williams of Trafford
I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, for their points. I turn first to Amendment 5. Clause 1 outlines the circumstances in which an overseas production order can be made. This includes that an application must specify a designated international co-operation arrangement. This is defined in Clause 1(5), to which the noble Baroness has proposed her amendment. The amendment would ensure that only treaties as defined by the Constitutional Reform and Governance Act 2010 would be capable of designation as an international co-operation arrangement under the Bill.
The definition of “designated international co-operation arrangement” in Clause 1(5) has been drafted to take into account that there may be circumstances in which a relationship with another country is established which would not attract the procedures set out in Part 2 of the Constitutional Reform and Governance Act. Those procedures require that, prior to ratification, a treaty is to be laid by a Minister of the Crown before Parliament for 21 sitting days without either House having resolved that it should not be ratified. The process does not apply to certain types of treaties including those covered by Section 5 of the European Union (Amendment) Act 2008, which include treaties that amend the founding EU treaties.
Also, some treaties can come into force on signature and do not require formal ratification and are therefore not subject to the Part 2 procedure. The definition of “treaty” in the Constitutional Reform and Governance Act also excludes instruments made under a treaty, so EU instruments would not be capable of being designated. Without necessarily knowing which countries the UK may choose to operate this arrangement with, the clause had been intentionally drafted to be wider than the definition of “treaty” under the Constitutional Reform and Governance Act to ensure that the UK can enter into arrangements with international partners where both have committed to remove any barriers to compliance for an overseas production order. In reality, it is unlikely for either the UK or another country to commit to complying with orders that have extraterritorial scope without acknowledging this through a formalised agreement or arrangement.
The noble Baroness also mentioned the point about standard clauses in all international agreements. This is a new approach to cross-border data access for law enforcement purposes. Actually, there are no templates to follow. If she means something different by “standard clauses”, perhaps we could have a further discussion. We are working with the US to develop an agreement as a matter of priority and we hope that this will act as the template for future arrangements with other appropriate countries.
On Amendment 6, the definition of an international co-operation arrangement is expansive to account for a situation where the UK itself is a contracting party to an arrangement, in the form of a bilateral treaty or multilateral convention, as well as a situation where the UK is a member of a supranational body and that body is a contracting party to such an arrangement in its own right, or has created its own internal rules which apply to its members. In the latter case, those rules would be the international arrangement in which the UK participates. Current membership of the EU is a good example whereby, in many cases, the EU—not the individual member states—is the party to an arrangement between it and a non-EU country. Further, the EU creates internal rules in the form of regulations and directives in which the UK participates as a member state. In both these scenarios, the UK participates by virtue of its membership of the EU. I hope that is as clear as mud to everyone.
I accept that with the UK’s imminent departure from the EU, a scenario in which the UK participates indirectly in an arrangement through its membership of a supranational organisation is less likely to happen. However, until that time and as long as the UK remains an EU member state, legislating along these lines recognises the status quo as now, which is that the UK can be a participant to an arrangement without necessarily being a party to it.
On Amendment 38, I refer noble Lords to the Delegated Powers and Regulatory Reform Committee memorandum, which sets out our justification for the approach that we have taken. In the memorandum, the Government state that:
“The Bill specifies in full what the implications of a designation are, and does not permit the implementation into UK law of any international arrangement in relation to the investigation or prosecution of offences, but only one that reflects the terms of the Bill. The provisions of the Bill will ensure that an order is only served where it meets the requirements of the designated international co-operation arrangement … Further, most international arrangements entered into will be subject to the procedure in Part 2 of the Constitutional Reform and Governance Act 2010, so Parliament will have had an opportunity to scrutinise the arrangement before it is ratified by the Government … Accordingly, since any exercise of the power is subject to the safeguards set out in the Bill and Parliament will already have had an opportunity to scrutinise the arrangements, the negative procedure is proposed”.
For the purposes of outgoing requests which the Bill is to be used for, any international co-operation arrangement would set out the terms of our UK law enforcement being able to make requests from another country. Although the terms will set out the reciprocal process, the arrangement will also be designated under regulations made under Section 52 of the IP Act 2016, which is how the UK will recognise any international arrangement for an incoming request. Regulations under Section 52 are also subject to the negative procedure, so the approach taken here is consistent. With those words, I hope that the noble Lord and the noble Baroness might feel happy to withdraw or not press their amendments.
Lord Kennedy of Southwark
I thank the Minister very much as I have learned something today about participants, which is useful and very good. I think the Minister was saying that Amendment 5, moved by the noble Baroness, Lady Hamwee, was too restrictive—that it would remove other treaties and arrangements. Can she maybe say a bit about what would then be the parameters if the Bill stays as it is? If I accept her point about it being too narrow, what parameters are the Government actually asking for? It is important that we are clear what we are passing.
Baroness Williams of Trafford
Put simply, I think the parameters we are discussing are that there might be circumstances in which a relationship with another country is established, which would not attract the procedures set out in Part 2 of the Constitutional Reform and Governance Act. In my view, that would therefore appear to be the scope of this. The noble Lord does not look entirely convinced.
Baroness Hamwee
The noble Lord, Lord Kennedy, may be thinking, as I am, that that begs another question. Clearly, the Minister’s reply will require and deserve reading. As she started, I thought that I should thank her for giving me some material for an amendment on Report; that may still apply. She talked about circumstances which depend on the relationship with international partners. It is the interface between politics and the law that needs resolving here. I am not sure that I can suggest anything now, but we will certainly think about it.
On standard clauses, a question was asked by the chair of the Joint Committee on Human Rights, of which I am a member—although the term there was “model clauses”. During the recess, she wrote to the Home Secretary raising a number of questions about the Bill and the Minister for Security responded, but I cannot immediately find a direct answer to that. This is linked with our earlier discussions about human rights. If there are model clauses which deal particularly with human rights, the reassurance given would be considerable.
The amendment regarding the affirmative procedure for regulations was to my mind an alternative to dealing with the arrangements by way of a treaty.
Baroness Williams of Trafford
I do not usually intervene, but the noble Baroness’s words are worthy of reflection before Report. Let us have another discussion. It sounds like we can have Committee stage in the form of a meeting shortly.
Baroness Hamwee
Of course, I am grateful for that. I was going to say that we have the delegated powers memorandum, but we do not yet have the report of the Delegated Powers and Regulatory Reform Committee, which may or may not have something to say on this. We will have another discussion when we have had an opportunity to digest the Minister’s comments on these amendments. I beg leave to withdraw Amendment 5.
Lord Paddick
Lord Paddick
My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 10.
Clause 2 lists appropriate officers who can make an application for an overseas production order. The list clearly indicates what this legislation is about: securing evidence to present before a court. It is not, for example, a search for intelligence; intelligence officers are not listed. Clause 2 is a list of law enforcement officers and, as such, subsection (1)(a)(vii) and (b)(v), which allow the Secretary of State by regulation to specify others as appropriate officers, should be restricted to specified law enforcement officers and not simply be left open to any person of a description specified in regulations. Our amendments would place such a restriction on the regulating powers of the Secretary of State. I beg to move.
Lord Kennedy of Southwark
My Lords, the noble Lord raises an important point. In response, I am sure that the noble Baroness will explain to us why the Government deem it necessary to take this wider power and not restrict it, as the noble Lord, Lord Paddick, has sought to do, to officers from wherever who are actually enforcing law enforcement functions. On the face of it this seems a very sensible amendment, and I look forward to hearing why the Government think they need this wider power in this context.
Baroness Williams of Trafford
My Lords, I hope that this amendment will not require any further meetings or probing on Report. The Bill provides that an appropriate officer is able to apply for an overseas production order where an indictable offence has been committed, where proceedings in relation to that indictable offence have been instituted or investigated, or where the order is sought for the purpose of terrorist investigations. Therefore, the clause is already limited to officers who are exercising law enforcement functions. In fact, the clause already makes clear that where a listed appropriate officer has functions other than for law enforcement purposes, it is only where the appropriate officer is exercising functions in relation to the investigation or prosecution of criminal conduct that they may apply for an overseas production order. For example, a person appointed by the FCA can conduct both civil and criminal investigations and the clause ensures that they can apply for an overseas production order only in connection with criminal investigations or prosecutions. I hope that that provides reassurance.
Lord Paddick
My Lords, I am very grateful for that explanation provided by the Minister. The meeting of 20 minutes we have scheduled before Report will not be further extended as a result of this amendment and I beg leave to withdraw it.
Lord Paddick
Lord Paddick
My Lords, Amendment 11 is in my name and that of my noble friend Lady Hamwee. We debated long and hard in this House about when and how law enforcement agencies and the security services can secure authority to access bulk data. The Investigatory Powers Act 2016—not to be confused with the investigatory powers Act 2018, which exists only on BBC1 on Sunday evenings—contains some safeguards against state access to bulk data and it is essential that those safeguards are not circumvented by the Bill. The Government will no doubt say that accessing bulk data held overseas is not the purpose of the Bill, but what other reassurances can the Minister give that the powers under the Bill will not be used inappropriately by law enforcement agencies? Amendment 11 seeks to achieve this by amending Clause 3(2), changing the definition of “electronic data” to exclude bulk data. I beg to move.
Baroness Williams of Trafford
Again, I hope that I can provide clarity on the noble Lord’s amendment. When applying for an overseas production order an officer must specify or describe the electronic data sought under an order. In addition, the judge must be satisfied that a number of requirements are met before making an order under Clause 4. These include that the judge must be satisfied that the person against whom the order is sought has possession or control of all or part of the data specified in the application; that the data requested is likely to be of substantial value; and that it is in the public interest for all or part of the data to be produced. It is very difficult to see how a judge could be satisfied that these requirements are met if they were considering an application for an order seeking bulk data.
The reason is that bulk data requests are for sets of information, often about a large number of individuals who may or may not be known to law enforcement agencies. The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place, because of the processes I have outlined, and I hope that the noble Lord will feel happy to withdraw the amendment.
Lord Paddick
My Lords, I am grateful for the Minister’s explanation. I am not sure that it entirely satisfies us about the potential for misuse of the legislation, but we will reflect on what she said and perhaps discuss it with her before Report.
Lord Rosser
If there is any doubt in this matter, as I understand it from the briefing that we had from the House of Lords Library, the UK’s Deputy National Security Adviser, giving testimony to the US House of Representatives’ Judiciary Committee in June 2017, said that the UK Government were “in full agreement” with the US Department of Justice that a UK-US bilateral data sharing agreement should limit access to targeted orders for data and not bulk access to data.
Baroness Williams of Trafford
I thank the noble Lord because that underlines my point.
Lord Paddick
If that is the case, there is no reason why it should not be stated in the Bill.
Baroness Williams of Trafford
I am sorry, but I think I need to intervene. All sorts of things could be stated in the Bill, but given its purpose, I do not think it is necessary. I think that the noble Lord, Lord Rosser, pointed that out.
Lord Paddick
With the greatest respect to the noble Lord, Lord Rosser, he is talking about a bilateral agreement with United States of America and not a global reassurance given by every country with which we might enter into an agreement. Therefore, my concerns remain but, at this stage, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
This amendment is in my name, that of my noble friend Lord Kennedy, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It would delete Clause 3(5), which states:
“Where an application for an overseas production order is made for the purposes of a terrorist investigation other than a terrorist financing investigation, this Act applies as if references to excepted electronic data did not include electronic data that is a personal record which is a confidential personal record”.
Confidential personal records are generally included as excepted data in the Bill, but this subsection provides an exception so that in terrorism cases, confidential personal records can be requested in an order.
A confidential personal record is defined in Clause 3 as a personal record,
“created in circumstances giving rise to an obligation of confidence owed to,”
an individual, whether living or dead,
“and the obligation continues to be owed”,
or the personal record,
“is held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment (whenever passed or made)”.
I seek to find out why this subsection is in the Bill, why the Government seek to make this exception or distinction in respect of terrorism investigation and what substantial electronic data information the Government think could be secured in terrorist investigations through Clause 3(5) which would otherwise be impossible to secure.
I and indeed others have already raised the question in an earlier debate of how consistently the parties to a bilateral agreement will interpret the term “terrorist investigation”. If more electronic data can be obtained through determining that an investigation was a terrorism one, and that would be the case for other serious crimes, there could be a temptation to define an investigation as a terrorism one under an overseas production order, purely or largely for that objective. What safeguards will there be to prevent that happening? If the view is taken that the term “terrorist investigation” is being rather loosely interpreted by a party to an international agreement on overseas production orders, how can that decision be challenged? I beg to move.
Baroness Hamwee
My Lords, my noble friend and I put our names to the amendment from the noble Lord, Lord Rosser—strictly speaking, we put down the same amendment, but the noble Lord got there first. I shall add just this question to his comments: would it not be a different way of dealing with this to allow for specific application in the case of terrorism investigations? That might be more satisfactory from every angle.
Our Amendment 13 deals with Clause 3(7)(c), on the counselling or assistance, or a record of it, that is excepted. It is only when the counselling is given by the entities listed that it is excepted. Why does counselling given by someone who is not within paragraphs (i) to (iii) not come within the clause? To put it another way, who is the Home Office seeking to exclude? If the individual was “counselled” by a friend who was a person of interest to the security services, one could understand that just claiming that the record was of counselling would not be sufficient. However, Clause 3(8) defines a confidential personal record by reference to obligations of confidence and restrictions on disclosure, and I would have thought that adequate.
Amendment 20, to Clause 5, is about the contents of the order. Clause 5(2) provides that:
“The judge must not specify … data that the judge has reasonable grounds for believing … includes excepted electronic data”.
I wondered whether this meant that there would not be entirely objective approach to this issue—in other words, an objective approach to the order not specifying excepted data. How do you appeal against or apply to vary or revoke an order, given the wording of this clause? Would you not be appealing against the judge’s reasonableness when actually you should be addressing the character of the data? I do not know, but I am worried. Similar points would apply to Amendment 27 to Clause 7, which is about variation or revocation. There is a lot more to get our teeth into and, as my noble friend said, that half-hour meeting is not going to be adequate.
Baroness Williams of Trafford
It sounds as if the meeting could last more than a day. Amendment 12 would amend Clause 3(5) by excluding from scope any confidential personal records that may be in electronic form from terrorist investigations.
Police are currently able to apply for a domestic production order for confidential personal records for the purposes of a terrorist investigation under Schedule 5 to the Terrorism Act 2000. Paragraph 4 of the schedule provides that a production order can be made for material consisting of special procedure material or excluded material. These terms are defined in paragraph 3 of the schedule to have the same meaning as in the Police and Criminal Evidence Act 1984. Sections 11 and 12 of the 1984 Act define “excluded material” to include confidential personal records. The definition is essentially the same as that used in the Bill at Clause 3 (7) and (8).
The noble Lord asked about the value of confidential personal records for terrorist investigations. The value of such information is determined at operational level and obviously depends on the circumstances of each case. There may be clear operational value in having access to confidential records in the investigation, pursuit or prosecution of an offender accused of terrorist offences. However, in any event, the judge will grant such an order only if the conditions listed in Clause 4 are met. These include that the information is of substantial value to the proceedings or investigation and that it is in the public interest to seek this data.
The intention behind the provision was to ensure parity with production orders made at home and new production orders capable of being served overseas. The drafting is therefore intended to reflect the powers that currently exist for domestic production orders made under the Terrorism Act 2000. Our law enforcement in the UK should be able to access the same information from overseas as they would in the UK, and Clause 3(5) reflects this.
Parliament has long recognised that a power to require the production of confidential and personal records, subject to the important safeguard of judicial authorisation, is both necessary and proportionate in order to protect the public in the exceptional circumstances of terrorism investigations. The power in the 2000 Act replaced an equivalent one in the Prevention of Terrorism Act 1989. Given the high level of threat to public safety that can arise in a terrorism investigation and the need to be able to investigate quickly and to disrupt such threats, this is an important power in the police investigative toolkit and it is right that it should be available for international production orders. In the context of the current heightened terrorist threat, its omission would be irresponsible.
The Government resist Amendment 12 on the grounds that it causes disparity when gathering evidence here or abroad and would erode a well-established and operationally important power which is routinely used by the police in counter-terrorism investigations.
Amendment 13 relates to Clause 3(7) which defines “personal record” when providing counselling or assistance to an individual for their personal welfare. I reiterate the Government’s position in respect of the Bill: it has been drafted to ensure parity with domestic production orders. The intention is to avoid disparity between gathering evidence in this country compared with gaining evidence abroad. The same powers for law enforcement should exist for overseas production orders as for those in the UK.
The noble Baroness, Lady Hamwee, asked why—I cannot read the writing. Shall I send it back?
Baroness Williams of Trafford
She asked: why only professional counselling? The Government believe this to be an expansive definition drawing on professional counselling services rather than conversations between friends or family who can be deemed to be giving counselling advice or assistance. The definition leaves little doubt as to what is considered as counselling or support to a person’s welfare. Broadening the definition does not provide the certainty required when deciding whether or not to grant an order based on whether the material sought is excepted data.
Baroness Hamwee
My Lords, we have two definitions: “personal records” and “confidential personal records”. It is the latter that is important. Clause 3(8) makes it quite clear that there has to be some restriction or obligation of confidence, which you would certainly find in connection with professional “counselling”—and I am grateful for that way of describing it in one word. That criterion would be applied in the context of this clause overall. It may be unlikely that a non-professional counsellor would be able to meet the criteria in Clause 3(8), but it is not impossible. It seems to me that, as long as Clause 3(8) can be relied on, we should not attempt to narrow what is meant by “counselling” in Clause 3(7).
Baroness Williams of Trafford
The noble Baroness may now have confused me. Both Clauses 3(7) and (8) have been drafted to reflect existing protections in domestic production orders, which are intended to afford protection to legally enforceable relationships of trust and confidence, as well as to relationships between an individual and someone who holds a position of trust in a professional capacity—for example, a doctor—where such relationships may generate confidential information from an individual. This is different from a person who voluntarily shares information in confidence with a friend or family member who does not formally or professionally hold a position of trust and is not under a duty of confidentiality in respect of the person sharing the information.
Baroness Hamwee
My Lords, I think that was my argument. Might it be possible, between now and Report, for us to be given the references to the other legislation that this reflects?
Baroness Williams of Trafford
We can certainly do that—in fact, magically, we have it here. It reflects the definition in the PACE Act 1984, Section 12 of which defines “personal records”. As such, this material is excluded from the scope of a PACE production order.
The noble Baroness asked about safeguards. The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. Clause 5(2) includes one of these safeguards: that a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing that the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is used in other parts of the Bill—for example, in Clauses 1 and 7, where further safeguards place a similar restriction on the applicant applying for an overseas production order and where an applicant is applying to vary an order.
At the time of considering an application for an order, there will be cases where neither the judge nor the applicant can be certain whether the data sought does in fact include excepted data. This is simply because the contents of the data cannot be known by the judge or the applicant until they are produced. In my view, it is therefore appropriate for the term “reasonable grounds for believing” to remain in the Bill to make clear that the judge has the ability to consider whether excepted data might be obtained, taking into account the other factors that might help them reach such a conclusion. With that explanation, I hope that the noble Lord feels happy to withdraw the amendment.
Baroness Hamwee
My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.
Lord Rosser
I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?
Baroness Williams of Trafford
I am not sure that I answered that point, other than to say that we would not want to narrow the scope so that omission would lead to a terrorism investigation being curtailed. Perhaps I could come back to the noble Lord on the other point.
Lord Rosser
Yes, I am sure that we can discuss that on another occasion or at the intended meeting. However, I hope that the Minister will take my point that some countries may have a rather looser definition of who or what is a terrorist than we would in this country. Although I appreciate that the Bill is about orders made in this country, nevertheless, before we have that arrangement there has been an agreement the other way, so it is relevant to talk about what other countries might demand or seek from us.
Baroness Williams of Trafford
I am sorry to intervene on the noble Lord, but at the heart of the Bill lies the principle that we would not be dealing with countries with hugely differing levels of legal thresholds or judicial considerations, and all the other things that we have talked about. But yes, perhaps we can talk about that further.
Lord Rosser
I understand the point that the noble Baroness has made more than once: that we are unlikely to be signing a deal with North Korea. I fully accept and understand that, but I think that there may be one or two other countries with whom we might sign a deal who may have a slightly different definition of who or what is a terrorist than we might choose to apply. That is important under this, because it gives you access to information that you would not otherwise have.
Again thanking the Minister for her response, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I have been consulting my noble friend as to whether I should be moving an adjournment so that we can all get a cup of tea or possibly soup, but he thinks that that is a matter for the Government Whip. So I will instead move Amendment 14—I do not think it will be exciting enough to warm us up.
Clause 4(1) applies requirements for seeking an overseas production order set out in subsections (2) to (6), and such additional requirements as the Secretary of State adds through regulations. I acknowledge that the regulations will be subject to the affirmative procedure but, as I said earlier this afternoon, we all know the problems of scrutinising secondary legislation and the almost insurmountable problem of amending or stopping it. We also know about the importance of protecting against an overweening or out-of-control Executive.
My amendment refers to the characteristics of the additional requirements as being consistent with the provisions of what will be Section 4, because the very fact that no limiting factor is expressed raises the issue. I accept, before the Minister says it, that these are additional requirements, so, in any event, they should comply with subsections (2) to (6).
Amendment 15 would leave out “(so far as applicable)”, because I for one do not understand what,
“additional requirements … specified in regulations … (so far as applicable)”,
means. The words must mean something. If the additional requirements are not applicable, they will not apply, so what are we worried about? I beg to move.
The Deputy Chairman of Committees (The Countess of Mar) (CB)
I tend to sympathise with the noble Baroness. I was warned to bring my coat in before I came.
Baroness Williams of Trafford
My Lords, if I were Whip, I would allow a short break if for no reason other than to go and get a hot water bottle. I am still in summer clothes.
Subsections (2) to (6) of Clause 4 set out the substantive requirements for a judge to consider when making an overseas production order. These include the judge being satisfied that there are: reasonable grounds for believing that a person on whom an order is served operates or is based in a country outside the UK with which the UK has a designated international co-operation agreement; reasonable grounds for believing that an indictable offence has been committed and is being investigated—or proceedings have been instituted—or that the application relates to a terrorism investigation; reasonable grounds for believing that the data sought is likely to have substantial value to the proceedings or investigation; and reasonable grounds for believing that it is in the public interest for the electronic data to be produced.
The amendment would ensure that any additional requirements made by way of regulations under Clause 4(1)(b) are consistent with the requirements under Clause 4(2) to (6). Any further requirements made by way of regulations will be in addition to existing requirements already set out in Clause 4. It follows therefore that any additional requirements cannot contradict the provisions already set out, as these will have to be complied with. There will not be a scenario where only additional requirements as set out in regulations are complied with. In every case, the requirements under Clause 4 must be satisfied before granting an order.
In addition, unless there is express provision in the enabling Act, delegated legislation cannot amend or vary it. Therefore, an additional requirement as set out in regulations under this clause could not have the effect of contradicting or undermining the requirements of the Bill. For example, a regulation which sought to change the type of offence as already set out in Clause 4(3) from an indictable offence to a summary offence could not be adopted under the provisions of the Bill.
Furthermore, the scope of secondary legislation is limited by the scope of the enabling legislation. As the power is to provide for “additional” requirements, it follows that those requirements will be compatible with those already in Bill. The power to provide additional requirements and regulations is subject to the affirmative procedure. Should additional regulations be required, the House will have an opportunity to scrutinise the proposed requirements before they come into law.
The language in Clause 4(1), which the noble Baroness is seeking to amend, clarifies that the additional requirements set out in the regulations may not apply in all cases or in every application for an order. There may be international agreements the terms of which do not warrant additional requirements to be specified in regulations to be made by the Secretary of State. This could be because both the UK and the other country participating or party to the arrangement may choose a wide-ranging agreement that does not place any further restrictions on that which is already proposed in the Bill. The clause therefore reflects the reality that in some cases a judge need only be satisfied of the requirements met in Clause 4(2) to (6) without necessarily having regard to all additional requirements that may have been specified in regulations made by the Secretary of State. With those words, I ask the noble Baroness to withdraw her amendment.
Lord Rosser
Before the noble Baroness responds, I have a question for the Minister. I have listened hard to what the Minister said. Is the clause in there because the Government think it would be helpful as there might be a need to make additional requirements, or do they actually have a view at this stage on what kind of additional requirements those might be?
Baroness Williams of Trafford
In a sense, this is the same issue that the noble Lord referred to before. Because this is a framework Bill, as I said, a judge may be satisfied that the Bill itself provides enough but the additional requirements—as yet unknown—may be applicable in another agreement, as yet unspecified. It gives that scope where it might be required in future.
Baroness Hamwee
My Lords, I would like to think about the response to Amendment 15. I think I made clear that I anticipated the Minister’s response to Amendment 14 but she said it much more nicely and fully, and I am glad to have it on the record. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is another amendment in my name and that of my noble friend. Under Clause 4(5) the data must be of “substantial value”. I read that as meaning that it must not be trivial. I wonder whether it should be “significant value”, which I think would make a difference to the proceedings or the investigation. I may be told that this repeats language in other legislation, and if that is the case then again I would be grateful for the reference. However, I wonder whether there is a distinction between something that adds weight to what you already know and something that, if it is not a game-changer, you would not get from elsewhere.
We are told that this legislation is likely to be used to enable access to data held by American companies so, as well as wondering whether the terminology reflects other legislation in this country, it occurred to me that maybe it reflects something in American legislation in the cloud. This is of course a probing amendment. I beg to move.
Baroness Williams of Trafford
I am very happy to tell the noble Baroness that this is purely British. “Substantial” is a well-established test laid out in PACE 1984. Under Section 8 of that Act a justice of the peace must be satisfied that the material on the premises is likely to be of substantial value before authorising a production order application. “Substantial” is a familiar term to appropriate officers, who will be making applications. They will have many powers at their disposal, and creating a consistent regime is clearly beneficial to quickly understand what will be required to apply for an overseas production order. Given that the term “substantial” is well-established, it is obvious that there exists a body of case law that helps further define and interpret the term, both for appropriate officers and, of course, for the judiciary.
The case law establishes that “substantial” is to be given its plain and ordinary meaning, which will please the noble Baroness, who likes the plain and ordinary in linguistic terms. For example, in the case of Malik v Manchester Crown Court, the High Court found that “substantial” was an ordinary English word and that “substantial value” was a value which is more than minimal: it must be significant. I hope that that provides great clarity to the noble Baroness and that she will feel happy to withdraw her amendment.
Baroness Hamwee
My Lords, I think I ought, after today, to consult my noble friend, who will know all about PACE, as I do not. Yes, of course, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, these amendments are about public interest and the balance between public interests. Clause 4(6) requires the judge to consider the public interest and whether it is in the public interest for the data to be produced or accessed, having regard to the matters set out in Clause 4(6). There is a public interest as well in access to data and privacy and it seems to me that the various interests here cannot be judged in isolation. I should like to insert a reference to the public interest in privacy, but in any event to understand at this stage how that balance is dealt with, since the judge is required to have regard to one public interest only. There is a public as well as an individual interest in privacy rights, and I beg to move.
Baroness Williams of Trafford
My Lords, Amendments 17 and 18 do not add any protections for privacy rights to those already contained in the Bill and under the Human Rights Act 1998. Without these amendments, the judge would still be required to take into account the impact on an individual’s right to privacy when determining whether the public interest requires production of the data sought.
We understand the need to balance a citizen’s rights and interests against the public interest in law enforcement officers’ ability to investigate crimes and use powers to obtain evidence. This is why the existing requirements in Clause 4 consider not only whether data sought would be in the public interest but whether it would be of substantial value to the investigation or proceedings. A judge is under an obligation to balance the rights of an individual against the state’s need to investigate a crime and to reach a decision which is compliant with the individual’s rights under the ECHR.
I hope that, with those reassurances, the noble Baroness feels happy to withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful for those helpful remarks. I beg leave to withdraw the amendment.
Lord Paddick
“( ) The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data.”
Lord Paddick
My Lords, in moving Amendment 19 in my name and that of my noble friend Lady Hamwee, I will speak to our Amendments 33 and 34 in this group.
Journalistic data of any kind is not excepted electronic data as set out in Clause 3, despite representations made by media organisations that it should be. Instead, under Clause 12 the application for an overseas production order, if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data, must be made on notice. Confidential journalistic data consists of data created or acquired for the purposes of journalism and in circumstances that give rise to an obligation of confidence that continues or is held subject to a restriction on disclosure or an obligation of secrecy.
This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations? To probe these issues, Amendment 19 inserts the requirement that:
“The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data”.
Clause 13 prohibits the overseas parties from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else, once they are given notice of the application. What sanction can be imposed for failing to comply? Can it be contempt of court, bearing in mind that at that stage the judge has made no order, only given notice that an application for an order has been made?
Amendment 33 provides that Clause 12(1) should specify that the notice should be served on the data controller and the data subject specifically, as well as anyone else the judge considers necessary. Amendment 34 amends Clause 12(4) to specify that notices should be served on a person R, referred to in Clause 12(3): that is, the person who receives electronic data from another person who intended it to be used for journalistic purposes. I beg to move Amendment 19.
Lord Rosser
I referred to the general issue that is the subject of the amendments spoken to by the noble Lord, Lord Paddick, when I spoke to Amendment 8. We share the concerns expressed by the noble Lord, subject to what the Minister may have to say in response, about the possible difficulties or issues that might arise.
Baroness Williams of Trafford
I thank the noble Lord, Lord Paddick, for his points and the noble Lord, Lord Rosser, for his intervention. The effect of Amendment 19 would be to exclude confidential journalistic material from the scope of an application and order. I should first point out that Clause 4 reflects the position in the PACE Act 1984. Journalistic material can already be sought under Schedule 1 to PACE through special procedure, and under Schedule 5 to the Terrorism Act 2000, when it is held by a company or person based in the UK. The Bill extends this to circumstances where the data is held by an entity based outside the UK and where a relevant international arrangement is in place.
I do not think that we should introduce in the Bill a difference between material that can be obtained—subject of course to appropriate requirements and safeguards—when it is held in the UK, as opposed to being held by an entity based on the country with which we have entered into an agreement. I should also stress that similar standards are set out in the Bill as already exist in domestic legislation, and that the term “reasonable grounds for believing” is readily used by our court system. Reasonable belief requires more than just a guess or a hunch. It will require the judge, marshalling all the facts before them, to come to an assessment on whether the information sought does or does not contain this type of data. It is not the first time that that standard has been used in legislation, and of course it will not be the last. Where confidential journalistic material is sought, the Bill requires that such applications can only be made on notice. That means that anyone put on notice, which can and may include the journalist whose data might be sought, has the opportunity to make representations to the court as to whether it is appropriate for the data to be obtained.
The effect of Amendment 33 as drafted would be that an application for an overseas production order that included confidential journalistic material had to be made on notice to a data controller and the data subject. I understand the sentiment behind the amendment but I do not agree that it is required, for two reasons. First, the rules of court will set out the process by which a judge can ensure that anyone affected by the order is notified of any given case. Consideration of notice by the judge relating to such a request is left to his or her discretion to allow for the circumstances where notice to a data controller, data subject or anyone else is deemed appropriate by the judge when granting an overseas production order. I think giving the judge discretion to determine which is appropriate in any given case is the right approach.
Secondly—this is a point that I have made before and will make again—we are providing in the Bill the means to serve an order on a company based outside the UK in a country with which we have a relevant agreement, in the same way as is currently the case with a company based in the UK. In those cases the respondent and any other person affected by the order would ordinarily be given notice and therefore the opportunity to make representations, unless under rules of court the judge is satisfied that there are good reasons for not doing so—for example, because of the risk of prejudice to the investigation. We are proposing that the same should apply to overseas production orders.
The intention of Clause 12 is to require an application for an overseas production order to be made on notice where there are reasonable grounds for believing that the electronic data sought consists of, or includes, confidential journalistic data. The effect of the clause as drafted is that notice should be served on the respondent—that is, the person who would be required to produce the data if the order is made. In most cases, this would be a service provider rather than the customer on whose behalf the data is stored. However, a requirement to give notice to the respondent under Clause 12(1) does not preclude the judge considering the application from exercising his or her own discretion under rules of court. Under rules of court they may require notice to be given to other persons who may be affected by an order requiring the production of confidential journalistic material, including a person who in his or her professional capacity has acquired that data. It will be a matter for the judge’s discretion, but he or she is likely to insist on notice being given unless the applicant can demonstrate that doing so would prejudice the investigation—for example, where the journalist himself or herself is the subject of the investigation or prosecution.
An example of where it might not be appropriate is where there is a hacking investigation and the journalist might actually be the subject of an inquiry. The judge may decide that putting someone on notice could potentially harm the investigation or risk the dissipation of the material. It is the Government’s intention, however, to ensure that where an application relates to confidential journalistic data, notice can and should be served on journalists and on whoever the judge deems appropriate given the circumstances of the application. The PACE Act 1984, for example, requires service to be made on the respondent only, otherwise notice requirements are set out in court rules.
The noble Lord, Lord Paddick, made an important point about sanctions to comply. It is difficult to construct a proportionate regime to ensure nondisclosure prior to an order being made and, in practice, law enforcement would not apply for an order where there was an unacceptable risk of damaging disclosure. I ask noble Lords not to press their amendments and I shall consider their comments before Report, if that is amenable to them.
Lord Paddick
I am very grateful to the Minister for her explanation and her offer to consider further the issues that the noble Lord, Lord Rosser, and I have raised in connection with these issues. Obviously, Amendment 19 is a probing amendment, a mechanism by which to debate these issues, but with the promise of further discussions to come before Report—perhaps the Minister could also establish whether the Government have consulted the National Union of Journalists on these issues—I beg leave to withdraw the amendment.
Crime (Overseas Production Orders) Bill [HL]
Monday 10th September 2018
(6 years, 3 months ago)
Grand CommitteeRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-II Second marshalled list for Grand Committee (PDF) - (6 Sep 2018)
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume again after 10 minutes.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, before we start today’s proceedings I will take the opportunity to correct something that I said last Wednesday in response to Amendment 16. I said that Section 8 of the Police and Criminal Evidence Act 1984 requires a justice of the peace to be satisfied that material on the premises is likely to be of substantial value before authorising a production order. In fact, Section 8 concerns the authorisation of a search warrant, not a production order. A production order is made under Schedule 1 to the Act. None the less, there is still reference to a judge needing to be satisfied that the material is likely to be of substantial value to the investigation, whether by itself or with other material, before issuing a production order. I apologise for that.
Clause 5: Contents of order
Baroness Hamwee
“( ) the mechanism for enforcement.”
Baroness Hamwee (LD)
My Lords, this amendment is grouped with Amendment 22 in the name of the noble Lord, Lord Rosser. We are both interested in how orders are to be enforced. I have to say that I think both amendments are slightly circular. That might mean that they are elliptical—I am not sure. However, we are probing at this stage; I hope that the Minister will take that point.
There are obvious difficulties with enforcement in respect of data held by an entity that is not in the UK and which does not have a base or assets in the UK. We are told in Clause 6(4)(a) that the provisions apply regardless of where the data is stored. I do not know whether “extraterritorially” in the sense of outside the earth, as distinct from in another country, applies here. I simply do not understand how the technology works.
It seems to me that the enforcement will have two aspects: a sanction for non-compliance and ensuring the actual production of the data. So my first question is: will the mechanism for enforcement be in the co-operation arrangement and, generally, how are we to expect the issues that I have raised to be dealt with? I beg to move.
Lord Rosser (Lab)
I shall speak to the amendment in my name, which, as the noble Baroness, Lady Hamwee, said, has in effect the same objective as the amendment which she has just spoken to and moved. The purpose of our amendment is likewise to find out to what extent and by what means overseas production orders can and will be enforced where there is a bilateral or wider international agreement for an overseas production order made by a court in this country and one made in another country and served on a provider in the UK.
In Committee last Wednesday the Government stated that the reference at Second Reading that,
“UK-based providers will not be compelled to comply with overseas orders”,—[Official Report, 11/7/18; col. 929.]
meant that while,
“UK companies are not compelled by UK law”,
to comply with a production order,
“they may be compelled by the other jurisdiction … depending on the country in question”.—[Official Report, 5/9/18; col. GC 143.]
Bearing in mind that considerable progress appears to have already been made towards concluding a bilateral agreement on overseas production orders with the United States in line with the Bill, will an overseas production order made by our courts in respect of an American-based service provider be enforceable—and, if so, how, by whom and with what sanctions available if there is non-compliance?
Likewise, in the light of the Minister’s comment last Wednesday that UK companies might be compelled by the other jurisdiction to comply with their production order, how will such an order made by an American court in respect of a British-based service provider be enforceable, by whom and with what sanctions available if there is non-compliance? In addition, what do the Government consider would be the basis of appropriate and acceptable enforcement arrangements in both directions for any other countries with whom we might conclude bilateral arrangements in respect of production orders under the Bill?
Last Wednesday in Committee, the Government said that,
“it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order”.—[Official Report, 5/9/18; col. GC 141.]
That statement was, of course, in line with what the Government had said in the Minister’s letter of 20 July following Second Reading. That letter referred to the Government expecting any bilateral agreement to include a mechanism for escalating any dispute over compliance.
But should the letter not have said that the Government “will” require a bilateral agreement to include such processes and procedures, rather than just that they expect that it will? Would the decision of such a dispute resolution mechanism be legally binding? If so, on whom? If not, what would happen if the dispute resolution mechanism failed to resolve the dispute? As I understand it, some service providers have welcomed the Bill because it will provide them with cover when making available electronic data, if done under the Bill’s provisions, from other potential legal proceedings. If that is the case, would that legal protection be provided by the Bill if it was not capable of being legally enforced in one or both directions?
What kind of issues in dispute could be addressed through the suggested dispute resolution procedure mechanism? Who would mediate or arbitrate if such a mechanism was in place? Would there be legal representation? How would the mechanism be activated and by whom? Who would pay the costs? Would the dispute procedure have to reach a conclusion or decision within a fixed maximum timescale? Would the dispute resolution mechanism for any bilateral agreement on production orders with the United States be the same in the United States and the UK, working to the same standard and principles and applying or not applying the same sanctions? If there is to be any enforcement by the courts, through which court would an overseas production order made in this country be enforceable, and through which court would an overseas production order made in the US or another country in respect of a British service provider be enforceable? After at least two years of discussion with the United States on the proposed agreement, the Government must have some specific answers to these questions.
Baroness Williams of Trafford
I thank both noble Lords for their points. As they said, overseas production orders will be used where an international co-operation arrangement exists and, as such, orders will be used in an environment where they are readily complied with or where there is confidence that such orders will be complied with.
As I explained when the Bill was read for a second time, the Bill provides an alternative route to accessing evidence to the existing mutual legal assistance channels. However, those channels will still be available. As such, if there is any doubt about compliance, appropriate officers may well opt to seek the evidence required via that existing route to ensure that compliance can be effected through another country’s own domestic sanctions.
Amending this provision to include the means by which an order could be enforced would be a departure from legislation in relation to existing production orders. It goes without saying that non-compliance of an order is a breach of such an order. To answer one of the noble Lord’s questions, the very nature of this being a Crown Court order is that it attracts contempt of court proceedings if there is non-compliance—which will be dealt with by way of court rules.
Failure to comply with an overseas production order made by an English judge will carry the same consequences as failure to comply with a domestic production order—namely, the person will become liable to punishment for contempt of court in the same way as if an order of the Crown Court had been breached. Specifying on the face of the order the means by which contempt proceedings will be brought will not change the legal position.
On the point made by noble Lords about enforcement. I accept that the Bill does not provide an enforcement mechanism in respect of Clause 13(1), which prohibits a person from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else once they are given notice of the application. This is currently the case with domestic orders made under Schedule 1 to PACE. As I mentioned, these orders can be made only where the relevant international arrangement exists. Orders will be applied for and used in an environment where they are readily complied with and where there is confidence that such orders will be complied with.
In reality, enforcement mechanisms for such requirements are unlikely to be needed—again, this reflects the domestic position. I say this because, where there is a risk that a person on whom an order is served might tip off a subject of interest or destroy evidence, a search warrant is likely to be used or the evidence would not be sought at all. Therefore, where there is a risk of concealing, destroying, disposing of or altering the data, an overseas production order will not be an appropriate method of obtaining that information. As I said, MLA will still be available and, where there is doubt about compliance with an overseas production order, appropriate officers may well opt to seek the evidence required via the MLA route to ensure that the information can be obtained by other means.
The noble Lord, Lord Rosser, asked whether the enforcement mechanism would be in the co-operation agreement. We envisage that the co-operation arrangements will require obstacles to compliance to be removed, but the requirement to comply with an order will be a matter for the law of the jurisdiction in which it is made. We have provided for enforcement orders in the Bill via the contempt of court mechanism.
The noble Lord also asked about dispute resolution. Any mechanism for dispute resolution will be subject to negotiation with any country with which we wish to enter into an agreement. Therefore, it would not be appropriate to speculate on the terms of such dispute resolution mechanisms—although I can of course discuss this further with noble Lords ahead of Report. With those explanations, I hope that the noble Baroness will feel able to withdraw her amendment.
Lord Rosser
Perhaps I may ask for clarification. As I understand from what the noble Baroness said— I may well have misunderstood it—if an overseas production order made in this country had to be enforced, it would be on the basis of contempt of court. That would be enforced against a provider in America if we were talking about the agreement with the States. How would contempt of court proceedings against a court decision in this country work in practice in relation to a provider in the United States who did not comply?
Baroness Williams of Trafford
I think it would be made under Schedule 1 of PACE—no, I am wrong. The answer is winging its way to me. While I am waiting, clearly if there was any doubt about that—
Lord Rosser
In the other direction, would an order made in an American court against a British provider that is not complied with lead to contempt proceedings in a United States court, and how would that court enforce it against a British provider?
Lord Paddick (LD)
While we are waiting, am I right in thinking that in the recent Facebook case it was not that the service provider did not want to provide the information that would be of use to UK law enforcement but that domestic law in America did not allow it to provide that information, and that in the overwhelming majority of cases to which this legislation would apply we anticipate that the service provider would be more than keen to provide the data, provided it can be done lawfully, and that this mechanism provides the lawful means of doing that?
Baroness Williams of Trafford
I think the noble Lord is probably quite right. It goes back to what I was saying at the beginning of my response. If there were doubts about compliance, or that began to become apparent, MLA would be the process that we would revert to if this was not forthcoming. Ditto, the American side would probably institute the MLA process to ensure compliance.
Lord Rosser
On the point the noble Lord, Lord Paddick, made, does it stand up that the service provider—he spoke about the situation in America, I think—would be protected from any other legal action if it provided the data under a law that it did not have to comply with?
Baroness Williams of Trafford
The current Facebook case is a good case in point. There is no requirement for it to provide the information because of its terms, conditions and processes. I am sure that this would ensure that it had to comply with the process, because we are introducing this agreement with the US which places an obligation on CSPs to comply—whereas at this point in time they do not have to.
Baroness Hamwee
My Lords, perhaps when I read all this I will understand it a little better than I have while listening to it. It is not how I had approached the Bill. As it has been described, there is an element of optionality which I had not expected.
We will want to ask our colleagues who practise in this area to comment on how contempt of court is dealt with. I have just turned up the notes made by my noble friend Lord Thomas of Gresford, who had a look at the Bill before Second Reading. He wrote—I assume this is rhetorical—“Is contempt of court a realistic and effective sanction in respect of international bodies?” Of course we will discuss this, as the Minister said, before Report. This is certainly going to be a matter on which we will want to put down another amendment for Report in order to tidy up, as far as we can, in the Bill, or to get on the record in Hansard, the quite unusual situation which we are discussing.
Baroness Williams of Trafford
I do not usually intervene on noble Lords but, if I may, the noble Baroness is absolutely correct when she talks about optionality. There is now optionality. There is MLA, which by its very nature is a longer process—and this is the option for a much speedier access to data requirement.
Baroness Hamwee
Indeed it is optional, but one expects there to be an effective sanction. In this context, contempt of court really amounts to little more than a slap on the wrist, with probably nothing much to follow.
Baroness Williams of Trafford
But of course—I am sorry to interrupt the noble Baroness again—there is also reputational damage, as for example with Facebook.
Baroness Hamwee
Yes, I take that point. I had wondered whether I should have apologised at the beginning of this debate that I had so little to say, in comparison with the stacks of paper which officials behind the Minister have in front of them. However, perhaps we have given this more of an airing than I expected. I look forward to discussing it further and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 6(4)(c) provides that the requirements in the Bill have effect,
“in spite of any restriction on the disclosure of information (however imposed)”.
This amendment seeks to understand what the impact is of that. I am not of course impugning what the Minister said about compliance with human rights and so on, but can we be sure, given that exception, about how that will fit in with legal and human rights protections? What if there is a clash with the local laws or the terms of the co-operation agreement? Given our previous discussion, I wonder whether, if there were to be such a restriction, this route would be not taken at all. Specifically, does this subsection allow for Clause 3, which is about excepted data, to be overridden? That would be concerning. I beg to move.
Baroness Williams of Trafford
I thank the noble Baroness for her amendment, which gives me the opportunity to set out to the Committee the intention of Clause 6(4)(c). First, let me stress that the aim of an overseas production order is to provide law enforcement officers and prosecutors with the ability to apply to the court to acquire electronic data that can be used in proceedings or an investigation into serious crime. The effects of such an order are outlined in Clause 6.
The Government accept that a company may have obligations to the customers who use its services. The effect of subsection (4)(c) is to make it clear that, in spite of those obligations or any that a company may owe to its shareholders, for example, it is obliged to comply with the requirement to give effect to an overseas production order. Of course, there will be duties on those who are served an order to adhere to data protection obligations, but the Government are satisfied that the rights and duties that would be imposed by the provisions of the Bill are compliant with data protection legislation. On receipt of any evidence, for example, the appropriate officer would be required to handle such data in accordance with the Data Protection Act 2018—as they would any other data, including that sought under an existing production order issued under PACE for data held in the UK for the purpose of investigating or prosecuting serious crime.
Any international arrangement that is concluded will be premised on a requirement that the two contracting countries will make compliance possible. The purpose of this clause is therefore to ensure that the recipients of a disclosure can comply with it even where there is conflict in the law of the UK. For example, where the recipient owes a duty of confidence in respect of a third party, Clause 6(4)(c) will allow the recipient to produce the data without breeching that duty. This approach reflects the domestic framework used for making and granting production orders under Schedule 5 to the Terrorism Act 2000 and Section 348(4) of the Proceeds of Crime Act. A judge cannot issue an overseas production order unless it meets the criteria set out in the Bill. The provision in Clause 6(4) of the Bill is only about ensuring that a lawful order has absolute effect. It does not provide that the courts can sidestep other statutory provisions such as the Data Protection Act 2018 when making an overseas production order.
The noble Baroness asked about safeguards. The Bill contains robust safeguards governing the application and issuing of an overseas production order. The judge must be satisfied that there are reasonable grounds for believing that the data sought is likely to be of substantial value to the investigation, and that it would be in the public interest for this data to be produced before an order is granted. The judge is also required to exercise the power to consider and grant orders compatible with human rights obligations, including privacy.
These orders are intended to be used where law enforcement officers and prosecutors are investigating terrorism or have reasonable grounds to believe that an indictable offence has been committed, or proceedings in respect of an offence have been instituted. The Bill does not provide access to any data that is not already available through mutual legal assistance. It simply ensures that the data can be obtained more quickly.
The noble Baroness, Lady Hamwee, talked about clashes with local laws. The point of an agreement is that an international arrangement removes those barriers to compliance, as I have already said, so it will be a prerequisite for a country to ensure that compliance is possible. The noble Baroness also asked whether this paragraph allows for Clause 3 on “excepted data” to be set aside. Clause 6(4)(c) does provide that an overseas production order made by the court has effect in spite of any restrictions. A court will not make an order in respect of excepted data as the Bill provides that it cannot—so Clause 6(4)(c) does not allow for orders to be made in respect of excepted data.
The noble Baroness looks quite confused, but I hope that I have satisfied her and persuaded her that her amendment can be withdrawn.
Baroness Hamwee
My Lords, this is another occasion when I shall have to read the reply carefully. But, with regard to the relationship between Clause 6(4)(c) and Clause 3, can I be clear that the Minister said that it does not allow for Clause 3 provisions to be set aside? I see the Minister is nodding. I thank her for that and, as I said, I will read the response. I beg leave, for the moment, to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, my Amendments 25, 26, 28 and 35 are also in this group. The noble Lord, Lord Rosser, has given notice that he intends to oppose Clause 7 standing part of the Bill. I assume that that is to probe the operation of the clause. I am sure he takes the view that I do—that one would not want to accept that these orders can be made without the possibility of variation, revocation or, in the most general sense, appeal.
On Amendment 24, I am ready to be told that it is not necessary to spell out that revocation or variation can be,
“in whole or in part”.
I realise that a part-revocation is probably a variation. We also find the non-disclosure requirements rather troublesome. Amendment 25 seeks to probe the procedure for opposing the non-disclosure requirements. Amendment 26 is part of the same question about how you appeal against them.
Clause 8 provides for non-disclosure of the existence of an order, as distinct from non-disclosure of its contents. There is something rather concerning about not being able to say that an order is in existence. If a data subject asks the internet service provider, it cannot even say, “We will have to refer to the judge”—or can it? I am not sure. The sanction here, presumably, would be contempt of court. I have already referred to whether that is an effective sanction in the case of an overseas or international body. I was reminded of super-injunctions when I read this. They do not have the greatest reputation. Presumably the Minister will remind us that disclosing the existence of an order to a subject could hamper the work of law enforcement or security. All my instincts are that somebody who is affected by an order should know about it. Perhaps the Minister could take this opportunity to explain the operation of it.
Amendment 35 is another probing amendment, about how one appeals, in this case against Clause 13. But my major concerns are around Clause 8. I beg to move.
Lord Rosser
As the noble Baroness, Lady Hamwee, said, I have tabled a Clause 7 stand part debate, which is intended to provide an opportunity for the Government to explain in a bit more detail why this clause is deemed necessary and how and in what circumstances it is intended to operate. In what kinds of circumstances do the Government envisage it being necessary to vary or revoke an overseas production order, and how many times has that happened in respect of domestic production orders, compared to the number of such domestic orders issued? Does the varying or revoking referred to in Clause 7 apply to overseas production orders made in this country or to such orders made in the country with which we have a bilateral agreement and applying to British service providers—or, indeed, does it apply to both? In what circumstances would the Secretary of State, rather than the appropriate officer who applied for the order or any person affected by the order, be likely to seek to vary or revoke an overseas production order?
Will the application to vary or revoke be heard by the judge who made the original order, and what information, or indeed anything else, will be required from an applicant seeking to vary or revoke an overseas production order before court time is granted to hear their application? What will be the test, if any, in terms of the extent or otherwise of a proposed variation being sought before it can be considered or granted? Does the reference in Clause 7 to the requirements in Section 4(2) to (6) continuing to be fulfilled, or being fulfilled, apply to the variation that is being sought or to the original overseas production order as altered by the variation?
Once an overseas production order has been served, the recipient has, I believe, as a standard, seven days to act on it. Presumably that means that an application to vary or revoke by the recipient as a person affected by the order has to be made within those seven days. Is that in fact the case? If it is, is it not a very short period of time, particularly if it is also envisaged that a judge will have to deal with any application to vary or revoke within that seven-day period, or will a judge be able to extend the period already laid down for the electronic data specified in an overseas production order to be produced if an application to vary or revoke has been made?
Finally, what will be the maximum period of time within which applications to vary or revoke must be determined by a judge, and who will be given notice of an application to vary or revoke an overseas production order, and in what circumstances, and thus have the opportunity to support or contest the application?
Baroness Williams of Trafford
I thank the noble Baroness and the noble Lord for their points. I will give them a very long answer because a full explanation is being sought. I shall speak first to Clause 7 standing part of the Bill and then cover the individual amendments.
The purpose of Clause 7 is to allow an appropriate officer who applied for the order, or an equivalent officer, any person affected by the order, the Secretary of State or the Lord Advocate the ability to apply to a judge to vary or revoke an overseas production order. The clause broadly reflects the existing domestic framework; for example, a production order made under the PACE Act 1984 does not contain provision about applications that can be made to vary or revoke a production order. However, court rules allow for the respondent of an order, or any person affected by it, to apply for the order to be varied or discharged. In addition, a judge’s decision to make a domestic production order may be challenged by way of judicial review.
Inclusion of this clause is an important safeguard to ensure that anyone affected by an order has an opportunity to challenge it and its contents, especially because appeal rights as such do not exist in respect of production orders. The intention behind Clause 7 was to make clear the existence of the power to vary or revoke an overseas production order and the circumstances under which that power might be used, and to set out the categories of persons who might apply for such variations or revocations. These persons include the person subject to the order, who is therefore required to produce the data sought, the person who applied for the order and anybody else who might be affected by it; for example, the person to whom any personal data sought relates. For example, where notice is given, an innocent third party who was communicating with the suspect over email may not want certain data to be disclosed or may challenge the existence of the order to protect information of a private nature disclosed to the suspect. Ultimately, a judge, when considering whether such an order should be varied, will need to be satisfied that the requirements in Clause 4 continue to be fulfilled.
Clause 7 also recognises that in some cases an appropriate officer may wish to apply to vary or revoke an order; for example, the electronic data sought may not be valuable to the investigation any more or the data may have been sourced elsewhere. In addition, the power to apply to vary or revoke an order exists for the Secretary of State and the Lord Advocate. Given that they are responsible for serving an order on a person, they will need to ensure that the order reflects the international co-operation arrangement terms.
It is right that any application to vary an order should satisfy the same requirements as those that should be satisfied when an application for such an order is made in the first instance. This will include specifying the international co-operation arrangement and specifying or describing the electronic data for which the varied order is sought. Similarly, an application may not be made to vary an order to include data which the applicant reasonably believes consists of or includes excepted electronic data. When considering a varied order, the judge will need to take into account the same factors as when the order was originally granted. This will ensure that the data sought still serves a purpose to the investigation.
Amendment 24, moved by the noble Baroness, Lady Hamwee, seeks to clarify that the power to vary or revoke an overseas production order given to a judge under Clause 7(1) can be used to revoke part of an order. I reassure her that the amendment is not needed. Subsection (1)(a) already gives a power to vary an overseas production order, which would include revoking it in part—for example, by narrowing the scope of electronic data to be produced—and I therefore hope that she will withdraw the amendment.
The noble Baroness asked whether a provider can say that it will refer this to the judge. The noble Lord, Lord Rosser, asked a similar question. The provider must refer to the judge but cannot actively say it is doing so because of a potential non-disclosure requirement. It is up to the judge whether an order can be disclosed, including the fact of it.
On Amendment 25, when making an overseas production order, a judge may also include a non-disclosure requirement as part of that order, in line with my previous comment. It is not mandatory and whether a non-disclosure requirement is necessary will depend on the facts of each case. Clause 7(1) already includes a provision for revoking or varying an overseas production order. Where a non-disclosure requirement is part of that production order, Clause 7(1) will also apply, allowing the judge to consider an application to vary the order so that it no longer includes such a requirement. There are further provisions in subsections (4) and (5) of Clause 8 that provide a discretion for the judge, when revoking an overseas production order, to order that an unexpired non-disclosure requirement continues to operate. The judge can specify a time when the non-disclosure requirement is to expire that is different from that specified in the revoked overseas production order.
It is the Government’s intention that such orders—that is, an order which maintains a non-disclosure requirement even when the overseas production order has been revoked to ensure that an ongoing or future investigation is not prejudiced—should be capable of being varied or revoked on application. We intend to use court rules to provide for this. The Government will review whether these provisions can be made in court rules and will come back to this issue on Report.
On Amendment 26, the Bill makes it clear that a non-disclosure requirement can be imposed as part of an overseas production order. With the leave of the judge under Clause 8(2)(a), or with the written permission of the appropriate officer who applied for the order or an equivalent officer under Clause 8(2)(b), a person who is subject to a non-disclosure requirement could disclose the making of an order or its contents to any person.
Therefore, a mechanism exists by which a person against whom the order is made has a route to challenge and disapply the provisions of the non-disclosure order under Clause 8. Furthermore, when a non-disclosure requirement is included as part of an overseas production order, that order is capable of being varied under Clause 7 in its entirety as it currently stands. No further clarification is needed for non-disclosure requirements separately, as is proposed by Amendment 25.
Lord Rosser
Could I ask for some clarification? Do the seven days apply at present for domestic orders? In other words, has a view been taken that if seven days is sufficient for a domestic order, it is presumably also sufficient for an order made in this country affecting somebody in the States to apply within seven days? Will it not be a rather more complicated process to apply within a seven-day period, if it is an order made in this country applying to somebody in the States? Does this clause work in the situations of an overseas production order made in this country and orders made in the country with which we have a bilateral agreement applying to British service providers, or does it apply in only one direction?
Baroness Williams of Trafford
As I understand it, seven days is a standard timeframe. I totally take what the noble Lord says in the sense that we are talking about overseas production orders, but the whole purpose of the Bill is that it is a simpler process in the governing of electronic data. It is a standard period of time that we feel to be proportionate.
Lord Rosser
Would the Minister not agree that somebody in the United States must have a pretty good working knowledge of our legal system to know where to apply if they want to revoke or vary an order within seven days?
Baroness Williams of Trafford
I take the noble Lord’s point. I imagine that all of that would be laid out in the agreement, given that it would be set out, but I can certainly have a think about that. Perhaps we can talk about it when we meet.
Baroness Hamwee
My Lords, I am grateful for the long explanation. I had correctly anticipated what the Minister would say about non-disclosure and the impact it might have on an operation. Perhaps I may pursue what happens if a customer asks, “Is there a non-disclosure order in force?” When receiving that inquiry should the answer be, “No comment”, which implies yes? What should it be and how is this dealt with in the real world?
Baroness Williams of Trafford
My guess—I am sure that the Box will correct me if I am wrong—is that if a non-disclosure order is in train then nobody can comment on it, so whether one was in train or not it would be a “no comment” procedure anyway because there would otherwise be a breach.
Baroness Hamwee
I thank the Minister. I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
I will be very brief. Clause 9(1) states that an overseas production order that is not served within a period of three months is automatically quashed. My Amendment 29 would reduce the three months in the Bill to two months. The purpose of the amendment is to give the Government the opportunity to say why it is felt that as long a period as three months is needed before an order is quashed if it has not been served.
As the Minister said in the previous discussion, the purpose of the Bill is to provide a much faster means of obtaining electronic data than is currently available under the mutual legal assistance process, which can and does take months. Bearing in mind the need for greater speed in respect of serious crime and terrorism offences or investigations, why could it then take as long as three months to serve an overseas production order once it had been made, and for the specific requirements set out in Clause 4(2) to (6) to be met? Why would two months, as suggested in this amendment, be insufficient, and if it is deemed by the Government to be insufficient, in what kind of cases or circumstances would that be the position? I beg to move.
Baroness Hamwee
I have not got a lot to say on this—but I will say it nevertheless. On Amendment 29, I agree with the noble Lord, Lord Rosser, that if there is an order it should be served quickly—although my reaction was, “If it’s so objectionable that the period should be reduced, there shouldn’t be an order at all”. However, in light of his remarks, perhaps I misunderstood the direction in which he is going.
Amendments 36 and 37 are grouped with Amendment 29 and relate to Clause 14, which is about “means of service”. Clause 14(3) refers to service on a person outside the UK by delivering the order or notice, or whatever it is, to that person’s office or place of business. I wonder whether a person could be outside the UK but at the same time have an office in the UK—unless its base is outside. I am not quite sure what those words mean in context.
Amendment 37 relates to Clause 14(3)(a), which says that service can be made by delivery to a place,
“in the United Kingdom where the person carries on business or conducts activities”.
What does “conducts activities” mean if it does not amount to carrying on business? Is this just a bit of belt and braces? If it is, I would not take exception, but I wonder whether the phrase is normally used, because it seems to be part of carrying on business.
Baroness Williams of Trafford
I thank the noble Baroness and the noble Lord for their comments. The noble Lord, Lord Rosser, made a valid point about consistency. The aim of the Bill is to strike a balance between the operational need to have flexibility for serving such an order and the legal certainty of the obligations that are placed on those who are subject to an order. There is a similarity with PACE, which also provides a three-month time limit from the date an order is issued for an entry and search to be completed. The Government do resist the amendment—but, given what the noble Lord pointed out, I would be open to discussing this ahead of Report.
On Amendment 36, the notice provisions under Clause 14 have been drafted to allow for flexibility, and reflect the complexity surrounding the service of notices on those based overseas. A “person” is taken to mean an individual or a body corporate. In addition, the Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate identities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are fulfilled, a production order can be served. Adding terminology such as “resident” will confuse what is otherwise a straightforward matter of being able to serve on those persons, legal or otherwise, based outside the UK.
On Amendment 37, Clause 14(3)(a) seeks to reflect the model in the Investigatory Powers Act 2016 where the availability of a method of service is not based solely on the establishment of a business pursuant to any domestic or foreign law but instead should depend on where a person actually conducts their business activities. Amendment 37 would narrow the availability of the method of service described in Clause 14(3)(a) in cases where the person is outside the UK but has no principal office here. The Bill currently provides that that service could be effected by delivering the notice,
“to any place in the United Kingdom where the person carries on business or conducts activities”.
The amendment would restrict this to places where the person carries on business. I hope that that is not too complicated. I think that the restriction would be unhelpful. Perhaps it would help if I explained what is intended by “conducts activities”—which is the very question the noble Baroness asked.
The Government intend that “activities” in this sense would mean the corporate activities or business activities according to a common interpretation of the provision. The Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate entities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are made, a production order can be served. Limiting the service to places where business is conducted will introduce complexity where it is not required. However, if there is more we can do to make clear what is intended by “conducts activities”, I am happy to consider whether it is possible to clarify these terms further in the Explanatory Notes.
Baroness Hamwee
I am grateful for that. Reading the clause, it occurs to me that one could avoid being served by moving around from place to place, whether “carrying on business” or “conducting activities”, because at the point of service you might no longer be conducting activities in that place. The terminology is in the present tense. Has thought been given—I am sure it has, because officials are always way ahead of me—to whether that is an issue?
Baroness Williams of Trafford
As I said, if the noble Baroness is confused, that is an indication to me to look at what the Explanatory Notes say—because if she is confused by it, others will be, too.
Baroness Hamwee
I am a bit confused, but that last point is not something to answer now. It is about whether we are talking about the present or whether, having been at an address in, say, Newcastle at one point, and you have moved to Liverpool, there can be service in Newcastle.
Lord Rosser
Bearing in mind that the Minister has said, without making any commitment, that she will reflect further on the amendment, I beg leave to withdraw it.
The Deputy Chairman of Committees
I have to inform the Committee that if Amendment 30 is agreed to, I cannot call Amendments 31 or 32 for reason of pre-emption.
Amendment 30
Baroness Hamwee
Baroness Hamwee
I do not suppose that that will trouble us in Grand Committee.
Clause 10 deals with the retention of data and its use as evidence. Clause 10(1) provides that data,
“may be retained for so long as is necessary in all the circumstances. This includes retaining it so that it may be used as evidence in proceedings in respect of an offence”.
“Necessary in all the circumstances” is quite a wide term. It may be unkind of me but, when I reread it yesterday, it felt as though the writer had run out of steam. One example is given but I would have expected more information about protections and clarification; otherwise, how does one challenge this? Therefore, the amendment is intended to ask the Minister how the Home Office envisages that this clause will operate in practice.
Given the example included, I wonder whether the Home Office anticipates producing guidance regarding retention, and that is the subject of Amendment 31. Amendment 32 is intended to probe the term “an offence”. Does this mean any offence? In particular, if an offence other than the object of this exercise is disclosed, is a fresh application needed or can this be—I will use the extreme term—an unending fishing expedition? I beg to move.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the noble Baroness, Lady Hamwee, raises three important amendments here and I look forward to the Minister’s response. She is right that, as written, the provision appears to be very wide in scope, and it would be better to have more clarification. The terms “in all the circumstances” and “an offence” are very wide, and it would be good to hear what they are. As the noble Baroness said, it would appear that there could be a never-ending fishing expedition, which in itself would not serve justice. I look forward to hearing the response to the very valid points raised.
Baroness Williams of Trafford
I thank the noble Baroness and the noble Lord for their points. I turn to the first point that the noble Lord, Lord Rosser, made—I am sorry, he did not speak, so it must have been the noble Baroness, Lady Hamwee; they do not look anything like each other. Where material is provided in compliance with a PACE production order, police are in principle able to use that material where it is relevant and necessary for another policing purpose, including a separate criminal investigation. The intention behind the overseas production order is basically to replicate the powers available to law enforcement under current domestic production powers. Under the Bill, the same will apply to electronic data obtained under overseas production orders. This ensures that law enforcement officials can use their independent discretion to consider what is appropriate to help with the conduct of their duties.
The effect of Amendment 32 would be to restrict the retention of the evidence produced in respect of an overseas production order to the offence for which the order was made. The Bill’s provisions do not dictate when an officer should apply for a new production order in respect of data received that is to be used for a different purpose. Again, this is consistent with existing practice. The Bill simply makes the same provisions in relation to orders which can be served on an entity outside the UK, where a relevant agreement is in place, as in relation to orders which can be served on a company based here.
It will always be appropriate for law enforcement officers and prosecutors to consider what can be used in an investigation and for evidential purposes. They will assess the likelihood of challenge in court where evidence produced in relation to a production order is adduced for a separate criminal offence. That is already their bread and butter. In all likelihood in those situations an appropriate officer may well decide that it would be more appropriate for a new production order to be obtained for the material produced that points to a separate offence.
A question was asked about guidance. The Government will consider whether it is necessary to produce policy guidance to assist an appropriate officer in these circumstances but, given that the Bill reflects existing practice in relation to production, I do not see that it brings about a new challenge for our law enforcement or prosecution professionals and I do not think it is necessary to mandate it in the Bill. For these reasons, I ask the noble Baroness to withdraw the amendment.
Lord Kennedy of Southwark
That was a very long explanation of why the clause is as it is and I thank the Minister for it. She referred to how this in effect mirrors what we have in PACE. Is guidance provided on PACE?
Baroness Williams of Trafford
There is a code of practice for PACE. We will look at whether some guidance is necessary for this replicated process.
Lord Kennedy of Southwark
I thank the Minister for saying she will look at those points. If we are mirroring PACE then we can mirror the guidance as well.
Baroness Hamwee
My Lords, I think I am going to have to spend some time between now and Report familiarising myself with PACE or hand this over to my noble friend Lord Paddick, whose bread and butter it was at one time. I take the point made by the noble Lord, Lord Kennedy, but I remain faintly uneasy about how open this is. Nevertheless I thank the Minister and I beg leave to withdraw the amendment.
Lord Paddick
“Priority
In the event of any conflict between this Act and the Data Protection Act 2018 (“the DPA”) or the General Data Protection Regulation 2018 (“the GDPR”), the provisions of the DPA or the GDPR shall prevail.”
Lord Paddick
My Lords, Amendment 39 is in my name and that of my noble friend Lady Hamwee. I am grateful for the briefing from techUK, which raises concerns about how this legislation might affect a deal between the EU and the UK on adequacy should the UK leave the European Union. We are unsure how to address those concerns and this amendment is very unlikely to be the means by which to do so, but at this stage it is a means of raising them. It is a bit of a Second Reading amendment, if noble Lords get my drift.
Throughout our debates it has been emphasised that the sole purpose of this legislation is to enable UK law enforcement agencies to find a faster legal means to secure data held overseas that may contain vital evidence in serious criminal cases being prosecuted in the UK than the current mutual legal assistance treaty process. Data handled in the UK is subject to the protections of the Data Protection Act 2018 and the EU general data protection regulations. Indeed, the Data Protection Act ensures that the GDPR continues to have effect, even if the UK does leave the EU.
Throughout our debates on this legislation we have expressed our concerns that the designated international co-operation arrangements that enable overseas production orders to have effect in the target state will give as much right to overseas law enforcement agencies to demand data from UK service providers as the right this legislation will give UK law enforcement agencies to demand data from a service provider in a foreign state. Those foreign states, such as the United States of America, are not bound by the Data Protection Act or the GDPR.
For a third country to exchange data with the EU it must persuade the EU that it has adequate protections for personal data equivalent to or exceeding the standards that EU countries have to comply with under the GDPR. Indeed, EU states are not bound by EU regulation relating to data used for national security purposes, but third-party states are. For the first time, if we leave the EU, the EU will scrutinise the way we handle data in relation to national security because we will become a third-party country, involving more scrutiny than currently takes place. I think that is called “taking back control”. Whether in relation to national security or not—we have already debated the weaker safeguards proposed in relation to terrorism offences—such arrangements could result in personal data from an EU country and shared with a UK service provider being passed to a law enforcement agency in a state that falls short of the protections provided by the GDPR.
In summary, our concern is that, by entering into international co-operation agreements enabling overseas law enforcement agencies directly to access personal data held in the UK by UK service providers, sensitive personal data will be accessed by overseas law enforcement agencies whose standards fall below those set out in the Data Protection Act and the GDPR, thereby jeopardising the EU granting the UK an adequacy certificate. Could the Minister explain what discussions have taken place with the EU on this issue and how the UK’s adequacy status will be protected? I beg to move.
Lord Kennedy of Southwark
My Lords, I fully support the amendment moved by the noble Lord. I recall our debates in the Chamber on the GDPR and how important it is to get the adequacy certificate to make sure that we are compliant with all these regulations, and we cannot put that at risk in subsequent legislation. I am looking for the Minister to address that point. The noble Lord has raised a very valid point. We need to get this right before this legislation reaches the statute book.
Baroness Williams of Trafford
I thank the noble Lord, Lord Paddick, for the point that he has made, and the noble Lord, Lord Kennedy, for backing it up. I smiled when the noble Lord, Lord Paddick, asked about countries that fall short of our data protection laws. We are probably at the top of the EU league table in terms of the rigour of our data protection legislation—I can think of some countries that might fall into the category that the noble Lord talks about—but the Bill will put on an equal footing the means by which UK law enforcement officers or prosecutors can apply to the court for access to electronic evidence, irrespective of whether the data is held by an entity based in the UK or based elsewhere in the world. UK law enforcement will be bound by the very robust Data Protection Act 2018 when processing personal data obtained pursuant to an overseas production order or where access has been given to data pursuant to such an order.
The noble Lord asked what discussions have been taking place. Those discussions are above my pay grade. I have not been involved in them personally but I know that they will have been going on, certainly in the background. However, the noble Lord makes a very good point about the adequacy decision. He also asked how we will ensure that data is used for the correct purposes. That is all part and parcel of what our Data Protection Act provides for. I am absolutely convinced that we in the UK have the right data protection safeguards in place and, when it comes to data protection and other countries, we will ensure that the same rigour is in place in the country with which we have made an agreement.
Clause 6(4)(c) states that an overseas production order,
“has effect in spite of any restriction”.
The noble Lord asked whether that means that UK CSPs do not need to comply with data protection. Having effect “in spite of any restriction” relates only to the effect of an order served on a CSP outside the UK, so the restrictions can only be in UK law, as we obviously cannot seek to override laws in other countries.
It might be helpful to reiterate that, when making a production order, a judge must consider the requirements set out in Clause 4. In doing so, he or she will need to consider whether the evidence is of substantial value to the investigation or proceedings and whether it is in the public interest to produce the information, balancing these factors with the right to privacy. It stands to reason that the more sensitive the data, the harder it will be for the applicant to justify the public interest test. I hope that the noble Lord will be happy to withdraw his amendment.
Lord Kennedy of Southwark
The noble Lord’s amendment seeks to put it into the Bill that, in cases of dispute, the GDPR shall prevail. Is the noble Baroness saying that this is implied anyway, or not necessary? If we end up with this on the statute book as it is now, and the matter of which Act applies were to become a matter of dispute in the courts, that is not where we would want to be.
Baroness Williams of Trafford
I agree with the noble Lord, but I am saying there would be an underlying basis for data protection, which is the Data Protection Act. Therefore, while there are many things we could put on the faces of many Bills, it is not necessary in this case—we already have laws governing the protection of data.
Lord Kennedy of Southwark
With that comment, is the Minister saying that, actually, GDPR will prevail?
Baroness Hamwee
My Lords, as the Minister is responding, it seems that this falls into a similar category to a point we raised last week about how one balances the different public interests involved. I think the Minister is saying that there is a public interest in the application of the Data Protection Act and the GDPR, which takes us back to the clause about assessing public interest. The Minister is nodding at that. Perhaps, before Report, we should go back and look at how that might apply in this context as well.
Lord Paddick
My Lords, I am grateful to the Minister, and to other noble Lords, for their contributions. In essence, my question is: if the EU has to assess whether we are safeguarding its data, yet we are entering into agreements to give away that data to another country, will the EU need to be satisfied that that other country also has standards of data protection equivalent to or better than the GDPR? If not, we might be putting the adequacy judgments at risk. That is the essence of the amendment. I would be grateful for an opportunity to discuss this further with the Minister in the meetings between now and Report but, at this stage, I beg leave to withdraw the amendment.
Crime (Overseas Production Orders) Bill [HL]
Monday 22nd October 2018
(6 years, 2 months ago)
Lords ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-R-I Marshalled list for Report (PDF) - (18 Oct 2018)
15:41 - Division on Amendment 2 - Ayes: 108 / Noes: 185 - Amendment 2 disagreed.
15:58 - Division on Amendment 1 - Ayes: 208 / Noes: 185 - Amendment 1 agreed.
16:38 - Division on Amendment 6 - Ayes: 200 / Noes: 205 - Amendment 6 disagreed.
The Lord Speaker
Sorry, there is this old rule in this House that when the Speaker is up, Members are down. Perhaps that could be remembered. The question is that this Report be now received.
Lord Rosser
“(4A) The Secretary of State may not make regulations designating an international agreement under section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests) where that agreement provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned.(4B) Subsection 4A does not apply if the country or territory has, within the international agreement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.”
Lord Rosser (Lab)
The Bill is intended to assist in the fight against serious crime, not least terrorism, by making it possible to conclude agreements with other countries that would provide for electronic data in the possession of a service provider, in that other country to the agreement, to be passed to the UK authorities upon that service provider being served with an overseas production order made by a court in this country. Such arrangements would almost certainly have to be reciprocal, so that the authorities in that other country could make an overseas production order or equivalent in respect of the provision of electronic data by a service provider in this country. The necessity for having these provisions in the Bill is that the current procedure for obtaining such data, which is increasingly used in major crimes or in their planning as the technology rapidly develops, is what is known as mutual legal assistance. Under this process, the application for such data must be through the authorities and a court in the country of the service provider from which that data is being sought. If the application is agreed, there is still the process of actually obtaining the data from the service provider.
In reality, obtaining electronic data under the existing mutual legal assistance arrangements can take many months—apparently up to 12—which is not exactly conducive to fighting effectively serious crime and terrorism, with the length of time taken to obtain that data acting either as a disincentive to seeking it at all or it being obtained so late as to seriously negate its relevance and effectiveness. As I understand it, discussions have already taken place between the United Kingdom and the United States of America about concluding reciprocal arrangements for securing electronic data under the Bill’s provisions on overseas production orders. Indeed, I think the United States has already passed its necessary legislation to enable such arrangements or agreements to be concluded with the UK. We are not in any way opposed to the introduction of these new arrangements in principle but we have two significant areas of concern, one of which is the implications for the UK’s stance on opposition to the death penalty. That is the subject of Amendment 1, which is also in the names of my noble friend Lord Kennedy of Southwark, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee.
An order from this country for an overseas production order applying to a service provider in the USA would, under the Bill, be made in a UK court. The service provider in the USA would, under the terms of the arrangements likely to be concluded, be expected to comply. In fact, as I understand it again, our Government have stated that they will not seek such an order unless they know that the provider would be willing to comply voluntarily.
As understand it again, service providers are likely to be willing to comply because the Bill will provide them with legal protection for releasing such electronic data. Likewise a service provider in this country would, in the normal course of events, be expected to comply with an overseas production order made by a court in another country—such as America, with which it looks as though we are close to concluding an agreement—under the terms of the Bill. I am not sure that there has been an indication from the American authorities that they would seek such an order only if they knew that the relevant service provider over here would comply, so some form of enforcement action could be the result if there was non-compliance.
Our concern in respect of the death penalty, to which this amendment relates, is that in a number of states in the USA it can be handed down as the sentence if a defendant is found guilty of certain serious crimes, including acts of terrorism. In the UK we are opposed to the death penalty—government Ministers have repeatedly stated that—and do not apply it as a sentence. However an overseas production order made by a court in the USA for electronic data from a service provider in this country could result in a situation whereby that electronic data might be significant in or key to enabling a court in America to convict a defendant who could be a citizen of any country, including Britain, of an offence carrying the death penalty as a possible sentence.
There is no issue with an individual being convicted of a serious offence they have committed, not least terrorism, as a result of electronic data obtained from a service provider in the UK and receiving an appropriate sentence, but we have an issue with the provision of such information from this country under the terms of the Bill without an assurance that the death penalty could not be imposed. We cannot as a nation say we are opposed to the death penalty and then sign an agreement with another country, whether the USA or another nation, knowing that a court in that other country could then make an order for a service provider here to provide electronic data which could make the difference between a defendant, perhaps a British citizen, being convicted or not convicted of an offence that led to the death penalty being applied.
This amendment provides that, in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from this country contributed in any way to securing that conviction.
I believe the Government have previously said that there will need to be some form of disputes procedure against an overseas production order made in another country with which we have concluded a reciprocal agreement. However the Government have not been able to say what form that dispute procedure will take, how it will operate or, crucially, on what grounds an overseas production order made in that other country could successfully be challenged. Since the Government have resisted any suggestion of the Bill specifically stating that no reciprocal agreement or arrangement can be made with a country that will not give a cast-iron assurance that any electronic data from this country would not be used to help convict a defendant of an offence for which the death penalty would be applied, it seems extremely unlikely that grounds for a successful objection to an overseas production order under any disputes procedure could be that the data being sought could be used to help secure a conviction that could lead to the death penalty being imposed.
I repeat that the amendment does not preclude a reciprocal agreement being reached with other countries on overseas production orders to secure electronic data in the battle against serious crime, not least terrorism, by improving the prospects of securing convictions and, with them, the prospects of lengthy sentences of imprisonment to reflect the severity of the crime. The amendment seeks to ensure that our policy as a nation of opposing the death penalty is not compromised by service providers here being required by a court in another country with which we have reached an agreement under the terms of the Bill being expected to hand over data when there is no guarantee that that information will not be used to assist in securing a conviction, which could be of a British citizen, for which the death penalty could be applied. We cannot claim that we did not know that that would be the outcome. It will have come about through passing the Bill at the behest of the Government and the Government concluding an international agreement with another country, such as the USA, where the death penalty can still be applied in some states, without securing an assurance as part of that international agreement that the death penalty will not be applied where data secured under the Bill has played a part in securing that conviction. I beg to move.
Lord Paddick
“(4A) The Secretary of State may not make regulations designating an international co-operation agreement providing for the use of—(a) section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests), or(b) any other enactment which provides for the collection of electronic data,unless the condition in subsection 4B is met.(4B) The condition is that the states party to or participating in the international co-operation agreement have”
Lord Paddick (LD)
My Lords, unusually, I shall be supporting Amendment 1 but I shall also speak to Amendments 2 and 3 in this group. My noble friend Lady Hamwee and I have added our names to Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy, but we feel that the amendment to Clause 1 as drafted does not go far enough.
Before I come to that, however, I wish to say that I wholeheartedly support what the noble Lord, Lord Rosser, has said about the provisions of the Bill. Bearing in mind that they are likely to be mutual, in that similar provisions would be in a Bill in a country with which we are going to enter into a treaty, it is very important to have a death penalty assurance in that treaty, which is what the amendment seeks to do. In addition to what the noble Lord has said about UK Ministers saying that we in the UK are opposed to the death penalty, Article 2 of the European Convention on Human Rights, together with Protocol 13 to which the UK is a signatory, provides for the total abolition of the death penalty. In early meetings with the Minister, we were led to believe that that death penalty assurance would be part of any treaty. However, we feel we need that reassurance in the Bill.
As I say, we took the unusual step of both supporting and amending the Labour amendment on the basis that we both agree on the principle of Amendment 1— that the Government should not enter into a treaty that would require UK companies to provide electronic data to law enforcement in a country that had the death penalty unless the treaty contained assurances that the death penalty would not be implemented if data provided by UK companies was used. We believe that the prohibition on entering into a treaty with a country that has the death penalty should be broader than just the data covered by Section 52 of the Investigatory Powers Act 2016, which is what Amendment 1 covers, because that provision covers only the interception of communications in the course of transmission—wiretaps, listening in to telephone conversations and that type of electronic data. A British company could hold personal information about an individual that could be crucial in an investigation for an offence that carries the death penalty in the country making the request. Such electronic data would not necessarily be in the course of transmission but held on servers in the UK.
Our Amendment 2 would therefore include,
“any other enactment which provides for the collection of electronic data”.
Amendment 3 makes it clear that the prohibition on entering into a treaty would not apply if an assurance had been given that the death penalty would not be imposed whether either intercepted communication or any other kind of electronic data had been provided under the Act. That amendment is consequential on Amendment 2.
We want to ensure that no UK company is complicit in providing electronic data of any kind that could lead to someone being executed. I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank both noble Lords for speaking to their amendments today and express my gratitude to all Members of the House for their contributions both in Committee and today on Report—I think it is the same two noble Lords, but perhaps there are one or two more.
I stress to the House the importance of the UK-US data access agreement. The agreement will allow the UK authorities access to valuable evidence and intelligence directly from US communication service providers. The House should be made aware that the vast majority of CSPs and their data reside in the US, not the UK. The Bill gives our law enforcement a strategic advantage in the fight against the threat we face.
Indeed, in almost every serious criminal investigation, we expect those we investigate to be using services provided by CSPs based in the US. The agreement will make a significant contribution to the detection, investigation, prevention and prosecution of serious crime and terrorism. The Government have been working towards the agreement with the help of US CSPs and the US Government for several years following the recommendation from the then Prime Minister’s data envoy Sir Nigel Sheinwald.
All Governments and any future Governments have the duty to put the security of their people first. It will always be in the public interest to ensure that our police and agencies have access to the necessary intelligence and evidence in order to fulfil that duty. Just as it was under the previous Labour Government and as it is today, Ministers must always be mindful of the current threat environment they find themselves in. That is why we believe that better scrutiny of these agreements and accountability for future treaties is the best way to ensure that the Government’s principles are tested, rather than prescribing a rigid format for treaties that have not yet even been mooted, let alone being currently under negotiation.
Of course, the Government’s objective is to obtain a satisfactory death penalty assurance, but negotiations are ongoing and not yet concluded. Playing the discussions out in public may make it much harder to conclude them effectively.
Let me be clear to the House: there will be an assurance in the agreement. We can expect it to rule out the direct use of information obtained under the agreement as evidence in a prosecution where the death penalty might apply. Parliament will scrutinise the final detail of any agreement and the assurance it contains. We have already tabled an amendment today clarifying that the Constitutional Reform and Governance Act 2010 process will always apply to relevant international agreements, ensuring that Members have two opportunities to scrutinise a treaty.
But I am willing to go further. Noting the concerns that noble Lords have expressed, the Government will commit to bringing forward an amendment in the Commons. Such an amendment would not pre-empt negotiations with the US, or any future agreement with another country, but would instead absolutely guarantee that Parliament has the chance to conduct proper, thorough scrutiny of relevant agreements and death penalty assurances.
The amendment I envisage would ensure that Ministers cannot make regulations to designate any agreement with a country which retains the death penalty for incoming requests without first laying before Parliament the agreement and details of any assurances obtained. There would then be a defined period during which Parliament would have a chance to examine those details, and this could include scrutiny by any relevant committees.
Finally, the Secretary of State would be obliged to consider any recommendations made by a committee in relation to the assurances before laying regulations to designate the agreement. Of course, the regulations themselves would then be subject to the usual process of parliamentary scrutiny, during which time Members of both Houses could consider any recommendations and respond to them.
Ultimately, it is right that Parliament has a say on the difficult decision between not concluding negotiations on agreements and securing the death penalty assurances we would like. Both the amendments tabled by Labour and Liberal Democrat Peers could lead to our being unable to conclude a data access agreement with the US. If we find ourselves in that situation, law enforcement agencies and the UK intelligence community will continue to be denied timely access to valuable evidence and intelligence.
The noble Lord, Lord Paddick, said that Section 52 of the IPA covers only material intercepted in the course of transmission. That is not entirely correct. It can authorise obtaining stored communications as well as intercept. As I said, there is a balance to be struck here. That is why I ask Members not to tie the Government’s hands in negotiations. Instead I will commit to amending the Bill in the Commons to ensure that Parliament has ample opportunity to scrutinise any future treaty and, if relevant, its death penalty assurance.
Lord Paddick
My Lords, I am grateful to the Minister. Unless she wishes to contradict me, I think she just said that these treaties are very important to the extent that the British Government are prepared to allow people to be executed on the basis of data provided by British companies to overseas law enforcement. The essence of these amendments is that that should not be allowed and we want that reassurance on the face of the Bill.
Baroness Williams of Trafford
I do contradict the noble Lord. I am asking noble Lords not to tie the Government’s hands in negotiation.
Lord Paddick
Forgive me, but I do not see the difference between what I said and what the Minister has just said, unless she wants to clarify further.
We are concerned about this because of the recent case of Kotey and Elsheikh, in which the American authorities asked for information from the British on two people who were part of an ISIS cell. The Home Secretary decided that the information would be provided without a death penalty assurance. We are concerned that what might considered a one-off case which contradicts the British Government’s usual global opposition to the death penalty is now going to be enshrined in treaties. I understand what the Minister said about Section 52 of the Investigatory Powers Act, but that is not our understanding and I therefore wish to test the opinion of the House on Amendment 2.
Lord Rosser
I thank the Minister for the Government’s response to my amendment—or rather the amendment I have moved; it is not purely my amendment. The Government’s argument appears to be based on two or three strands. The first is an inference that another country—realistically, we are talking about the USA—might not be willing to conclude an agreement with us under the Bill, including of course a reciprocal agreement, if this amendment is passed with its provisions for prior assurances on non-application of the death penalty. Why, though, should we not have the assurances that this amendment seeks, when we are talking about information from this country? Why should we have to compromise on our stance of opposition to the death penalty by having to hand over electronic data following an order in a court, or made in a court in another country, which could lead to the death penalty being applied if that information helped in securing a conviction in that other country?
I notice that the Government said that such information would not be used in evidence. However, information can be of value in securing a conviction without that evidence in itself being produced in evidence, since it may point people in directions which will lead to other evidence being produced which could assist in securing a conviction. It surely is not opposition to the death penalty—and government Ministers keep telling us that we are opposed to it—if you conclude an agreement that you know could allow the death penalty to be applied thanks to our assistance and co-operation over the provision of data. We need the safeguard that the death penalty will not be applied.
The other point is that orders will be made in that other country that the international agreement we conclude with it will expect to be adhered to and data supplied without any ability of a British court or the Government to say no on the ground that the death penalty could be applied. No assurances have been given that that will not be the case. In the absence of any detail about any disputes procedure and the circumstances in which it would operate, we will not be able to stop information being handed over on the ground that it could allow the death penalty to be applied.
In that regard, we do not know how many overseas production orders will be served on service providers in the UK by other countries with which we reach an agreement and where the death penalty could be applied. It could be a considerable number, and the Government cannot deny that. We could, in fact, be assisting in the application of the death penalty on a not infrequent basis.
As I understand it, the Government have now indicated that they will put down an amendment when the Bill reaches the Commons. It appears that that amendment might provide—I am really not sure—for some kind of review of any agreement reached on overseas production orders with another country, the outcome of which would presumably be available to Parliament before Parliament decides whether or not to ratify the agreement. But Parliament will presumably have to say yes or no to the agreement and will not be able to amend it, and neither will there be any requirement on the Government to accept the findings of any prior review or investigation of an agreement with another country reached under the terms of this Bill and, in particular, on any recommendation that an assurance should be sought on the non-application of the death penalty if it applies in the country concerned.
I really do not think that the assurance given and the statement made about the nature of a possible amendment in the Commons meet the provisions of this amendment, which clearly state that, if we are going to conclude such agreements with other countries on overseas production orders, and if it is a country where the death penalty can apply, firm assurances must be sought that, where information is handed over by service providers in this country, it will not be used to secure a conviction that could lead to the death penalty being imposed. I wish to test the opinion of the House.
(a) relates (in whole or in part) to the provision of mutual assistance in connection with the investigation or prosecution of offences, and (b) is designated by the Secretary of State by regulations.(5A) For the purposes of subsection (5) a treaty is a relevant treaty if a Minister of the Crown has laid before Parliament a copy of the treaty under section 20(1)(a) of the Constitutional Reform and Governance Act 2010.(“Treaty” and “Minister of the Crown” have the same meaning for the purposes of this section as they have for the purposes of Part 2 of that Act.)”
Baroness Williams of Trafford
My Lords, the Government recognise that, when it comes to agreements for direct access to data, it is unlikely that either the UK or another country would commit to complying with orders that have extraterritorial scope without acknowledging this through a formalised agreement or arrangement. Therefore, in reality, any arrangement we choose to enter into for direct access to data will likely be in the form of a treaty requiring formal ratification before entry into force. It is not the Government’s intention to conclude such international arrangements by memoranda of understanding, for example. We do not think that such informal arrangements would afford the appropriate level of certainty that such international arrangements require.
As noble Lords know, treaties that require ratification are subject to formal parliamentary scrutiny in the form of a procedure under Part 2 of the Constitutional Reform and Governance Act 2010—CRaG—which must be followed before the Government can complete the ratification process necessary to bring the agreement into force. The text contained in the Bill introduced to this House was intended to allow the UK to consider other measures, such as EU instruments that do not fulfil the definition of “treaty” under CRaG. However, we have since concluded that it is highly unlikely that the UK, or any other country we enter into agreements with, would accept anything less than a formal treaty. I therefore propose to make an amendment to Clause 1 to make this clear.
The amendment provides that a designated international co-operation arrangement must be a “relevant treaty”. It would further provide that a “relevant treaty” is one that has been laid before Parliament under Section 20(1)(a) of CRaG. The effect of the amendment would be to ensure that where the Secretary of State, by way of regulations, wishes to designate an arrangement under the Bill, they can do so only if that arrangement is a treaty that has been laid before Parliament for scrutiny under CRaG. Only treaties that have been laid before Parliament under CRaG can be designated. However, it is still possible for an agreement to be designated before ratification. There may be operational reasons why one would want to designate an agreement before ratification has been finalised. For example, an agreement may come into force on ratification—depending on the terms of the agreement—in which case designating after ratification may be too late and there may be a risk of breach of obligations under the agreement.
The effect of Amendment 5 in the names of the noble Baroness and the noble Lord would preclude any designation of an international co-operation agreement until it has been ratified. Ratification is a process which requires an act—for example, the exchange of diplomatic notes between the parties—which signals in international law the parties’ consent to be bound by the agreement. However, the amendment could cause a detrimental effect, as I have explained, where the terms of an agreement require that it comes into force on the day of ratification. The amendment would make it impossible to designate until after the ratification process, which may put the UK in breach of any obligations under the agreement. I should also make clear that even where an agreement is designated after having be laid under CRaG but before it is ratified, an agreement could not come into force until the process of ratification is complete and therefore any requests could not be made until the agreement is entered into force, following ratification. I hope that the noble Baroness will be happy to withdraw Amendment 5. I beg to move.
Amendment 5 (to Amendment 4)
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, we welcome the Government’s significant movement towards the use of the treaty procedure, which we and, I believe, the Labour Benches argued for at the previous stage. I was concerned that the amendment was incomplete, and the Minister has explained why her amendment refers to “laying” the treaty, but not the other provisions of Section 20 and several subsequent sections of the Constitutional Reform and Governance Act.
As the Minister has told the House, it is quite a complicated and potentially long drawn-out procedure. I accept that, but it is long drawn-out because it is designed to give Parliament a proper opportunity to have input into the final product of the treaty, with various stages for its consideration, ending up in ratification. The Minister, in arguing on the first group of amendments, stressed the importance of the procedure. She has just said that the Government might want to make a designation before ratification. It seems to me that this nullifies the impact of the procedure process, and assumes that Parliament will ratify—in other words, will vote as the Government tell it to, which is precisely the arrangement we do not want in place.
The Minister has, however, just talked about the treaty not coming into force until ratification—she is nodding at that, for which I am grateful. I wonder whether she would be prepared to have a discussion—she has been prepared for lots of discussions on the Bill already, for which we are grateful—about an amendment we might table at Third Reading to tidy this up, encapsulating what she has just said to the House about delaying the process until the parliamentary process has been completed. I had better move this amendment, and then we can debate it.
Baroness Williams of Trafford
My Lords, I am sorry that I have not been very clear. I am very happy, should the noble Baroness wish to withdraw Amendment 5 and accept Amendment 4, to have a discussion before Third Reading—we have discussed our way through this Bill—but in the meantime I ask her to withdraw Amendment 5.
Baroness Hamwee
Of course I am happy to do that. I am sorry, I thought that was implied. I do not wish any more exercise on noble Lords than we need to have during the course of this afternoon. I look forward to that discussion and I beg leave to withdraw the amendment.
Lord Rosser
“(8A) “Journalistic data” means electronic data that—(a) was created or acquired for the purposes of journalism, and(b) is stored by or on behalf of a person who created or acquired it for the purposes of journalism.(8B) Where a person (“R”) receives electronic data from another person (“S”) and S intends R to use the data for the purposes of journalism, R is to be taken to have acquired the data for those purposes.(8C) Journalistic data is “confidential journalistic data” if—(a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or (b) it is communications data of a person acting in their capacity as a journalist, or(c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).”
Lord Rosser
The Bill extends the ability of law enforcement agencies through overseas production orders to obtain electronic data held by service providers overseas for the purposes of fighting serious crime, including terrorism. Since the assumption is that an agreement with another country will be reciprocal, the terms of the Bill when implemented will also, in reality, allow law enforcement agencies in that other country with which we have a reciprocal agreement to more easily obtain electronic data held by service providers in this country. But the Bill does not appear to provide adequate safeguards against confidential journalistic material being handed over in a way that results in sources losing their anonymity. We thus appear to have a Bill that potentially compromises the position and values of our free press. If sources of information do not feel that their anonymity will be protected, they are much less likely to provide information to journalists—information that might bring to light corruption, fraud, sexual offences, adverse environmental activity or failings by large organisations or government, for example, that those involved might wish to keep secret.
Clause 12 requires that where an overseas production order is made in respect of confidential journalistic data, it must be made on notice. The agency applying for the overseas production order would have to judge whether the material sought was ordinary or confidential journalistic material, but there is no guarantee under the Bill as it stands that the journalist, or indeed media organisation, will be able to make representations to the court. There is no requirement in the Bill for the journalist or media organisation that acquired the confidential material to be informed. The judge has a discretion to notify the journalist but not a duty. Without a requirement to notify the journalist or media organisation, take representations from them and have regard to what they say, there is no means by which journalists or media organisations can seek to protect their source.
This amendment seeks to address this concern by providing the right of journalists or media organisations to be given notice that an order in respect of confidential material is being sought, and to then be able to make representations to oppose the making of an order involving such journalistic material. It would also provide that the judge must be satisfied that there is a public interest that overwrites the confidentiality of the data sought before an order is made. If the Government have concerns that there might be journalists whom they would not wish to inform of an application for an order, then the advice could be given to the media organisation for whom that journalist worked.
The amendment seeks to ensure the continuation of an important safeguard. I beg to move.
Baroness Hamwee
My Lords, from these Benches we had an amendment in Committee requiring the court to be,
“satisfied that … data … is not confidential journalistic data”.
We were concerned that the Government had not consulted the NUJ or other organisations; I wonder whether they have had an opportunity for a discussion since then. The News Media Association certainly made its views clear with its concern about what it described as an artificial distinction between “journalistic material” and “confidential journalistic material” and what might flow from that distinction.
New subsection (8C)(b) proposed in Amendment 6 seems to make all data held by a person acting as a journalist “confidential journalistic data”. I see the attraction in that but I wonder whether this is the place to treat material differently from how it is treated elsewhere in UK law—in other words, I wonder about making that provision apply for the purposes of this piece of legislation only, which is a fairly small piece of the jigsaw of legislation that applies to journalism. Can the noble Lord, Lord Rosser, confirm when he winds up whether I have read this correctly: is he eliminating a distinction in this piece of legislation only, and only in the circumstances to which it will apply?
With regard to Amendment 11, we support a requirement to give notice of an application. We had an amendment to that effect in Committee, and we have amendments in the next grouping that are an attempt to respond to the Minister’s comments on the issue then.
Baroness Williams of Trafford
My Lords, the Bill provides that journalistic material which is non-confidential can be obtained through an overseas production order without having to give notice. This type of material may, for example, be the manuscript or copy that the journalist is working on. A judge must be satisfied that the material is relevant to a UK investigation and in the UK public interest before he can approve an order to obtain it. The Bill implicitly recognises that a person named in an order may merely store data on behalf of a person, including those who create or acquire it for journalistic purposes. Journalistic material that is already published is unlikely to form part of an application for an overseas production order. That is because this material can already be freely accessed by law enforcement agencies, and there would be no need to compel production of information that was already in the public domain.
However, where information relates to confidential journalistic material—that is, it is created subject to an obligation that it would be held in confidence and that obligation continues to be held, or it is held subject to a restriction on disclosure or obligation of secrecy contained in legislation—that material will be subject to the notice provisions under Clauses 12 and 13. Therefore, if a journalist stores information—whether in their manuscript, copy or otherwise—that relates to or contains such confidential material, that can be sought but only if an application is made “on notice”. We expect court rules to set out that such an application cannot be determined by the court in the absence of a respondent unless they have waived the opportunity to attend. That already exists in court rules in relation to domestic production orders if, for example, the police wish to obtain access to a journalist’s notebook.
Our objective is to protect legitimate journalism, ensuring that those who may wish to harm us cannot hide behind claims of the data being journalistic to evade investigation or prosecution. Coupled with that, we have been clear that material acquired or created by the journalist to further a criminal purpose is not considered journalistic material. That terminology is borrowed from the Investigatory Powers Act 2016, which sought to ensure that safeguards and protections were targeted at legitimate forms of journalism.
The reason that the Government have carved out material,
“created or acquired with the intention of furthering a criminal purpose”,
is to follow the direction that the Investigatory Powers Act identified, which is that safeguards should not exist for those who intend, through media channels, to do us harm, but then seek to hide behind spurious claims of journalism. One example is the media wing of Daesh, which may use an internet blog designed to disseminate harmful information and claim that it was journalistic material and therefore not caught by the provisions. Conversely, if a journalist acquires a leaked document from a source which alludes to criminal conduct, the journalist acquires it for journalistic purposes, not with the intention of themselves furthering a criminal purpose.
Lord Harris of Haringey (Lab)
I may have misheard the Minister and therefore misunderstood her argument, but she seemed to be saying at one point that my noble friend’s amendments were not necessary because this is already covered under the PACE regulations. Is that the reason for resisting it—it is not necessary because it goes no further—or is she suggesting that there are elements of it which do go further that the Government are resisting? If the latter is the case, perhaps she could indicate to us what has gone further that she does not like. If it is simply that it is not necessary, can she explain why the Government are resisting it?
Baroness Williams of Trafford
I think I have already explained at length why it is not necessary. If Clause 12 were to be amended, a court would not be able to make an overseas production order in relation to confidential journalistic material unless the requirements set out there were satisfied.
Lord Harris of Haringey
So there is no objection to what my noble friend has tabled; the Minister is saying simply that it is not necessary?
Lord Rosser
The protection of sources in relation to confidential journalistic data is very important to the free press in our country. I pointed out—and, as far as I understand it, this is not being contested by the Government—that there is no requirement in the Bill for the journalist or media organisation which acquired the confidential material to be informed. That seems to be a significant hole in the legislation. Surely in that situation the journalist or media organisation concerned should be able to make representations and to oppose the granting of an order; in other words, their voice should be heard—perhaps, from their point of view, to seek to protect their confidential sources.
I note the Government’s argument that this is already provided for in other legislation. I say only that we are dealing with something here which can relate also—under reciprocal arrangements, presumably—to orders made by a court in another country and not only in relation to orders made by a court in this country. In that situation it is absolutely vital, even if the Government believe that the safeguards are already there, that the ability of a journalist or media organisation to be informed of an application for an order, and the chance to appear and make representations in connection with that order, should be repeated in the Bill. I wish to test the opinion of the House.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 7 is an amendment to Clause 5, which deals with the contents of an order. If my amendment were agreed to, subsection (2) would read:
“The judge must not specify or describe in the order electronic data that … consists of or includes excepted electronic data”.
The clause would not include the phrase,
“the judge has reasonable grounds for believing”,
includes excepted data. That may sound as if I am dancing on the head of a pin but I think it is quite an important issue. In Committee I explained that I was seeking a formula that was objective. The Minister responded by referring to the phrase “reasonable grounds” being used elsewhere in the Bill. Indeed, the clauses that she mentioned, Clauses 1 and 7, include that phrase but they are not about an order; they are about the basis for making an application, which I suggest is a rather different matter.
I accept that, as she said, the contents of data may not be known until they are produced, but without our amendment, or some such amendment, the judge could make an order that it later turned out did include excepted data. I was looking for an objectively based exception because how otherwise do you appeal? Would you be appealing against the judge’s reasonableness? That would not be the same as appealing on the basis that the data was excepted. I would find it very uncomfortable to have to appeal against whether or not a judge was reasonable. What really should be at issue is the character of the data, and we are not satisfied that the Bill really addresses that. I beg to move.
Baroness Williams of Trafford
I thank the noble Baroness for moving her amendment and for raising this point again. Perhaps my response in Committee was not persuasive enough for her.
The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. “Excepted electronic data” means electronic data that is either an item subject to legal privilege or a confidential personal record. The Government do not want to see overseas production orders being used to obtain such information, nor do we expect our officers to target it.
First, Clause 1(3) sets out that an appropriate officer must not apply for an overseas production order in respect of electronic data where that officer has reasonable grounds for believing that it consists of excepted electronic data. Clause 5(2) includes another one of these safeguards: a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is important given that there is no guarantee, at the time of considering an application, that either the judge or the applicant can be certain if the data sought will, in fact, contain excepted data.
Let me put it in this context: say the email records of criminal X were requested from June in a certain year because law enforcement agencies believed they had been communicating for criminal purposes with someone else. It would be impossible for either the law enforcement agency or the judge to know for certain that within those emails, there also happened to be correspondence between criminal X and their doctor.
I understand that the noble Baroness’s concerns in Committee were about the objectivity of the judge in allowing an order including potentially excepted data. The Government believe that the term “reasonable grounds for believing” gets us as close to objectivity as practicable. If a judge has “reasonable grounds for believing” that excepted data is included in the data sought in an application, they will not specify that excepted data when making the order. But if they do not have “reasonable grounds for believing”, as long as the other criteria are satisfied, the judge can make the order.
Indeed, should the respondent in receipt of an order know that it includes excepted data, Clause 6(4)(b) ensures that, despite the terms of the order, they are not required to produce that data. The noble Baroness asked in Committee how, if electronic data was within an order, it could be varied or revoked. The fact that the respondent is under no obligation to produce the excepted data removes any need for the respondent to apply to vary or revoke the order. To the extent that the order includes excepted data, it has no effect.
If we return briefly to criminal X, if a judge has allowed an order to be served on a communication service provider where the judge did not know that the emails requested included medical records, but the CSP did, that CSP would not be required to produce those emails. If the CSP provided the emails, knowingly or by accident, the data would then be sifted out by the appropriate body during the sifting exercise. It is therefore reasonable and proportionate for the Bill to retain the term “reasonable grounds for believing”, and it is a sensible reflection of what would happen in practice with overseas production orders.
I hope that, with that explanation, the noble Baroness will feel happy to withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful to the Minister. Much of what we said was what we rehearsed in Committee. I have been looking to see whether Clause 6, which deals with the effect of the order, would meet my point. It takes us straight to the provision about the order having effect despite any restriction on the disclosure of information, which we found a difficult provision when we discussed it in Committee.
I will not tax the House by continuing with this at this stage, but I hope that the Minister will understand that I was not simply playing with words; there is real concern that the way that the Bill has been framed raises questions which people may have to grapple with in practice. I hope that they do not have too hard a time. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 9 is grouped with Amendment 10. I thought that the point about court rules might get a bit lost in the debate on journalistic data, which is why I separated them when we were asked to approve the groupings.
In the context of journalistic data, in Committee the Minister relied heavily on how rules of court would operate. Clause 11 provides that the rules “may” make provision. I appreciate that rules will be made, because that is the way things are, but drafting styles change. I find this quite difficult; I get left behind with what is the up-to-date style. In ordinary speak—and I understand that attempts are being made to make parliamentary drafting as close to that as it can be—“may” is not the same as “must” or “shall”. I appreciate that there are differences between “may” and “must” elsewhere in the Bill, for instance in Clauses 8(1) and 8(3).
Baroness Williams of Trafford
My Lords, the noble Baroness has suggested amendments stipulating that court rules must make specific provision for certain things. Amendment 10 prescribes that court rules must be made relating to service of notice on a data controller, a data subject or where the application relates to journalistic data. I hope that I have already set out how we intend rules to include notice provisions in respect of the respondent and anyone else affected by an order. The rules already made by the Criminal Procedure Rule Committee in England and Wales for applications for production orders under Schedule 1 to the Police and Criminal Evidence Act 1984, and under other legislation, already include provision for the service of notice of applications, and additional special requirements where what is sought is the product of journalism. I refer the House to Part 47 of the Criminal Procedure Rules. The Criminal Procedure Rule Committee has already settled draft rules that, if this Bill passes, would be in terms corresponding with those existing rules.
We expect the court rules to include the same provisions as are currently in place for domestic orders. They would provide that a court must not determine any application for an overseas production order in the absence of the respondent, or other person affected, except in the following circumstances. First, the person has at least two days in which to make representations. Secondly, the court is satisfied that the applicant cannot identify or contact the person. Thirdly, the court is satisfied that it would prejudice the investigation if that person were to be present. Fourthly, the court is satisfied that it would prejudice the investigation to adjourn or postpone the application so as to allow the person to attend. Fifthly, the person has waived the opportunity to attend. In the case of an application which would require the production of confidential journalistic material, the court must not determine the application in the absence of the respondent until they have waived the opportunity to attend. I hope that that satisfies the noble Baroness on Amendments 9 and 10.
Baroness Hamwee
My Lords, we have learned about the draft of the new rules and I am grateful for that. It is obviously difficult to take them in simply by listening and not reading them, although I noted the wording that one of the exceptions was that the court was satisfied that the person concerned—I am not sure what the technical term would be—“cannot” contact somebody. That is not the same as “will not” contact: anybody “can” contact someone, so I suspect that there might be a little more reflection on that.
Throughout the Bill’s progress, we have been told that the Government “intend” something or “expect” something. There comes a point when one hears that rather too often not to want to see something on the face of the Bill when it is material to the Bill. However, I am glad to have heard that progress has been made with regard to the rules and I beg leave to withdraw the amendment.
Lord Paddick
“Priority
In the event of any conflict between this Act and the Data Protection Act 2018 (“the DPA”) or the General Data Protection Regulation 2018 (“the GDPR”), the provisions of the DPA or the GDPR shall prevail.”
Lord Paddick
My Lords, were we to leave the European Union, the EU would examine our data protection regime to satisfy itself that it would be safe for the EU 27 to continue to exchange electronic data with the UK. This continued exchange of data is essential not only for law enforcement and counter- terrorism purposes but for commercial transactions.
The Government have recently passed the Data Protection Act 2018, which not only provides the necessary infrastructure to enable the UK to comply with the general data protection regulation, a piece of EU legislation, but ensures that the UK complies with EU standards of data protection in relation to law enforcement and national security that are not covered by the GDPR. In other words, the UK is ensuring that it complies with all EU data protection standards, so as to guarantee that it will be issued with a certificate of adequacy that will enable continued exchange of electronic data if we leave the EU.
If, as a result of this Bill or the treaties associated with it, UK companies were required to provide law enforcement agencies in other countries with personal data covered by the Data Protection Act and/or GDPR, and those foreign law enforcement agencies’ data protection standards were deemed by the EU to be inadequate, there is the potential for the EU to withdraw its adequacy certificate from the UK. Basically, if member states of the EU share data with the UK, and the UK shares that data under this Bill with law enforcement agencies that have inadequate data protection standards, the EU might stop sharing data with the UK. This amendment is designed to ensure that this does not happen. I beg to move.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the noble Lord, Lord Paddick, raised an issue about which Act would take precedence in the event of a conflict between this Bill—when it becomes an Act—and the Data Protection Act 2018. His amendment makes it clear that, in the case of a conflict, the DPA, along with the GDPR, would take precedence. That seems quite sensible: it gives us certainty on the matter, for the reasons outlined by the noble Lord. I support his amendment.
Baroness Williams of Trafford
I thank both noble Lords for their points. There has been nothing in our own domestic law that requires a UK provider to comply with an overseas order. There will therefore be no conflict with domestic law if a CSP decides that complying with a foreign order would put it in breach of its obligations under the GDPR.
The existence of any conflict with UK data protection law does not have the effect of making the order from the other country invalid. Equally, the existence of the order does not compel the UK CSP to ignore its data protection obligations under UK law. It will be for the CSP on which an order is served to reconcile and comply with all legal obligations it is under. It could apply for the variation or revocation of the order, or use the dispute resolution mechanism that we expect all specific international agreements to include. That said, we do not think that this is likely to be necessary in practice. The GDPR contains several “gateways” which permit the cross-border transfer of personal data, including in response to a request or order from overseas law enforcement.
I know the noble Lord’s concerns about data protection, and I absolutely sympathise with him. We have discussed this before, and I think that ultimately we all want the same thing: adequate protection for the privacy rights of individuals. I hope that my explanation will satisfy the noble Lord that the Bill does not in any way threaten data protection rights, which are robustly protected by existing legislation. UK CSPs will continue to be bound by the GDPR and the Data Protection Act. Therefore, I hope that the noble Lord will feel happy to withdraw Amendment 12.
Lord Paddick
I am grateful to the Minister. I understand that she has just said that a communications service provider could refuse to comply with an order coming from overseas if the CSP believes that that would bring it into conflict with the GDPR and the Data Protection Act, so I beg leave to withdraw the amendment.
“( ) References in this Act to proceedings relating to an overseas production order include proceedings for the making, variation or revocation of an order under section 8(4) or 13(3) or (4)(b).”
Baroness Williams of Trafford
My Lords, I explained in Committee that Clause 7(1) creates a power for the judge to vary or revoke an overseas production order. Where a non-disclosure requirement is included in an overseas production order—by virtue of Clause 8— Clause 7 will apply so that the non-disclosure requirement can also be varied or revoked by a judge.
However, as I said to the Grand Committee, it is the Government’s intention that judges should be able to vary or revoke all orders made under the Bill. As well as overseas production orders, this includes other orders made under provisions in the Bill; for example, an order made under Clause 8(4) which maintains an unexpired non-disclosure requirement when an overseas production order has been revoked. It has also been the intention of government that the procedure and process for varying and revoking an order would be governed by court rules, mirroring current legislation for production orders under the Police and Criminal Evidence Act 1984 or the Terrorism Act 2000.
We gave a commitment in Grand Committee to review whether provisions that can be made in court rules relating to non-disclosure requirements when an overseas production order has been revoked should themselves be capable of being varied or revoked on application. Clause 11 provides that court rules may make provisions in relation to the practice and procedure to be followed when making an overseas production order. But the Government accept that this could give rise to doubt as to whether court rules could make provision in respect of other orders made under the Bill. I have therefore proposed an amendment to Clause 17 that puts beyond doubt that court rules can be made not only in relation to overseas production orders but in respect of the types of orders made under Clause 8(4) and Clause 13(3) and (4)(b). This will include making provision for the practice and procedure to be followed when applying to vary or revoke such orders.
Noble Lords raised questions in Committee about the process concerning how someone could vary or revoke an order. The future appeals process also arose in the context of notices that could be served on UK companies by another country party to an agreement. While the Bill deals only with outgoing orders—that is, ones issued by a UK court—we have ensured that the remedies available to someone served with a domestic production order are available to a person served with an overseas production order, and we would expect the other country to do the same.
In addition, we envisage a dispute resolution mechanism as part of any agreement we might designate under the Bill, which would allow a service provider concerned about whether the order that was sought complied with the terms of the agreement to raise objections with the authorities of the country concerned. This would allow a UK service provider to raise objections if it believed that a particular order should not have been served under the agreement. At first instance, these objections would be raised with the issuing country. If the service provider was still not satisfied, it could then go to the relevant UK authority. There may be ongoing discussions between the two parties to the agreement, but ultimately it would be a decision for the relevant UK authority to say whether or not the request from the other authority could safely be given effect to. I hope this addresses the concerns raised in Committee.
Baroness Hamwee
My Lords, I think it must be lucky 13 for the Minister. However, I have a question. It may be that I did not properly follow the latter part of her explanation but I come back to “normal speak”. The amendment says that the references,
“include proceedings for the making, variation or revocation of an order”.
Is “include” here a synonym for “mean”? Do we read it as “references mean”? I am sorry to throw that at her at this point. Perhaps I should talk inconsequentially for a moment or two until she receives information via semaphore. The term does suggest that something else might be within the references. I think the Minister is about to get a response to that question.
Baroness Hamwee
With the leave of the House, I suggest that the Government return to this tiny thing before the next stage.
Crime (Overseas Production Orders) Bill [HL]
Tuesday 20th November 2018
(6 years, 1 month ago)
Lords ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 134(a) Amendment for Third Reading (PDF) - (15 Nov 2018)
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I want to raise two areas of questioning of which, I hope, the Minister has had notice. We have had correspondence and I am grateful to her and her officials, but I am keen to get the explanation in Hansard. Clause 1 provides for the making of overseas production orders, and Clause 1(8) provides for a treaty to be laid before Parliament under the Constitutional Reform and Governance Act 2010. I tabled an amendment covering this question on Report and I regret that I am still not entirely clear about the answer. Can we not provide for a reference to ratification on the face of the Bill? It would deal with Parliament’s involvement in the process and I think it is important that legislation is as clear as possible to the reader.
The Act provides for a two-stage process. One is the laying of a treaty; the other is Parliament’s role in ratifying it—or perhaps not ratifying it. I have asked the Home Office what the problem would be. I understand from the Minister that there may be operational timing reasons why one would want to designate an agreement after it had been laid before Parliament but before it has been ratified, and the Minister has also told me in correspondence that an agreement that came into force on ratification would impose that obligation immediately, which would be a problem. I am a little puzzled as to why one cannot provide, in the parliamentary process, either that a designated agreement comes into force at a future date linked to the designation, or that the designation is linked to ratification. I would be grateful if she could help me and the House as to the need not to include a reference to the second stage of the process.
The importance of this is that Clause 1 deals with designation of an agreement under Section 52 of the Investigatory Powers Act. That section relates to the interception of a communication in the course of transmission, as I understand it, not to other data. My noble friend Lord Paddick raised this in the debate and we would be grateful if the Minister would explain how all data is covered, not just data intercepted in the course of transmission. That phrase implies data intercepted before or at the same time as it reaches the recipient, so would it not include itemised phone bills, geolocation data and internet connection records?
Communication, the word used in the relevant section, is defined in the Investigatory Powers Act and the term “communications data” is also defined: they are different. The great importance of this is that at the previous stage your Lordships inserted a requirement for death penalty assurances—or to put it the other way around and more accurately, that an agreement should not be designated without death penalty assurances in the case of an agreement where it is possible that a person may receive a death penalty as a result of, or in connection with, the provision of data under that agreement. I hope that those two separate but closely linked areas of questioning are clear and I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Baroness for her explanation of her amendment. The powers in the Crime (Overseas Production Orders) Bill will work only if a relevant international agreement is in place. The effect of the amendment would be that an international treaty could not be designated under the Bill until it had been fully ratified. Ratification is the process by which relevant parties signal their consent to be bound by a treaty, contract or agreement. I hope I will be able to reassure the noble Baroness as to why it is not needed, and that she might be persuaded to withdraw it.
There may be operational reasons why a Government would want to designate an agreement under the Bill before the process to ratify a relevant treaty is finalised. If we had to wait until the agreement had been ratified before making the regulations that designate the agreement under the Bill, and the agreement came into force on ratification, there would be a delay, as the noble Baroness said, in respect of our use of the agreement. We may want the regulations to be in place when the agreement comes into force so that officers in the UK can immediately start applying for overseas production orders. I am concerned that we should not unnecessarily delay their access to vital evidence. I make it clear that designating the agreement under the Bill prior to ratification will not permit applications to be made until such time as the agreement has been ratified and is in force.
I will give a practical example of this. An example of an operational reason to designate an agreement under the Investigatory Powers Act prior to ratification arises in the context of the development of an agreement with the US. One of the core obligations of the agreement with the US will be the removal of any legal barriers that would prevent a UK company complying with a request from the US. The IP Act itself contains one of those barriers, in that it criminalises the interception of communications, save for where a person has lawful authority.
However, Section 52 of that Act provides lawful authority to carry out interception where it is at the request of,
“the competent authorities of a country or territory outside the United Kingdom”,
and the request has been made pursuant to an agreement which has been designated by regulations under that section. In effect, the designation of the agreement under Section 52 will be the removal of the legal barrier, thereby fulfilling our obligation. As the US agreement will come into force immediately upon ratification, regulations under Section 52 must have been made and laid before that point so that we can fulfil our obligations from the moment the agreement enters into force.
I stress that making regulations designating an agreement prior to it being ratified would not permit UK communications service providers to intercept communications in response to requests by foreign law enforcement authorities. Such activity would be permitted only once those regulations and the agreement came into force, which would happen on or immediately after ratification. This in no way changes or undermines the process of ratification or the scrutiny that Parliament is afforded of a treaty. Indeed, if Parliament resolved that the treaty should not be ratified, what is provided for in any agreement and the powers in the Bill could not be used. I hope that the noble Baroness is reassured on that point.
The noble Baroness’s second point was about how Section 52 of the IP Act covers all data, not just data intercepted in the course of transmission. As I said on Report, Section 52 can authorise obtaining stored as well as intercepted communications. Section 52 should be read alongside Section 4 of the IP Act, which outlines the definition of “interception” and related terms. According to that section, “interception” refers to the interception of a communication,
“in the course of its transmission by means of a public telecommunication system or a public postal service”.
A person intercepts a communication in the course of its transmission if the effect is to access any content of the communication “at a relevant time”. It is the meaning of “relevant time” that is significant. It can mean a time when the communication is transmitted but it can also mean, as Section 4(4) of the IP Act says,
“any time when the communication is stored in or by the system (whether before or after its transmission)”.
Baroness Hamwee
My Lords, obviously I am not going to challenge the Minister on that but I will comment, if I may, on her latter point. The distinction between the definitions of communication, which is the subject of Section 52, and communications with data, which is defined as data held or obtained, including what relates to the provision of the service or is,
“logically associated with a communication”,
as it relates to the use of a telecommunication service, still defeats me, I am afraid. Why is it worded in that way? I see in the definitions the distinctions between communication and communications data, and the Minister referred to “the relevant time”. On the parliamentary process, there are two parts to it: laying regulations, which is the Executive’s job, and ratification, which is Parliament’s task. I was seeking to be quite clear that those are both covered.
It also baffles me that there cannot be conditional arrangements, with the laying of regulations which are conditional on designation or designation which is conditional upon the whole process under the Constitutional Reform and Governance Act. It may be that American practice would not allow it, although I am sure that I have dealt with American arrangements which are conditional. But because of the importance of the death penalty issue, I felt it was important to air these to the best of my ability, which may not be as extensive as it might have been. At least it will all be there in Hansard for others who may be exercised to satisfy themselves. I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, in moving this Motion I thank all noble Lords who have participated in debate on the Bill, in particular the noble Lords, Lord Rosser and Lord Kennedy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Of course we can never do anything without our fabulous Bill team, who have been on hand to explain some quite complex and technical matters. I always think that your Lordships’ House improves a Bill as it passes to the other place, and I hope that it will agree when it has time to consider it. Thank you.
Lord Rosser (Lab)
I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.
Lord Paddick (LD)
My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.
Crime (Overseas Production Orders) Bill [Lords]
Monday 3rd December 2018
(6 years ago)
Commons ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 134(a) Amendment for Third Reading (PDF) - (15 Nov 2018)
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That the Bill be now read a Second time.
As a simple soldier, it is nice to follow a debate full of so many learned colleagues. I have sat in wonder at the lawyers and their questioning over the last two and half hours. It was incredibly generous of the Attorney General to give so much of his time and to answer so many of my colleagues’ questions. I fear that we cannot normally afford lawyers for that long, but I hope the House managed to get to the bottom of it all.
This year, Dr Matthew Falder was sentenced to 25 years in prison. His charges included 137 offences of encouraging child sexual abuse, blackmail, forced labour and possession of indecent images. He tricked his vulnerable victims into sending him images of themselves naked or partially clothed and then blackmailed them into sending increasingly sickening images. He traded these abuse pictures on “hurtcore” forums, whose users revel in controlling and inflicting pain on victims. These hurtcore sites—hidden dark web forums—are dedicated to the discussion, and the sharing of images and videos, of rape, murder, sadism, torture, paedophilia, blackmail, humiliation and degradation. Long delays in getting vital evidence to our law enforcement agencies help people such as Dr Matthew Falder to continue abusing vulnerable children. It is our duty to protect victims from people such as him as quickly as possible.
The Bill is a straightforward piece of legislation designed to remove the bureaucratic barriers we currently face in investigating and prosecuting serious criminals when evidence is held by companies based outside the UK. The Bill provides a new route to allow law enforcement agencies and prosecuting authorities quick and efficient access to electronic data held by overseas communication providers. As I am sure hon. Members are aware, communication service providers are increasingly based outside the UK, and although we can currently access data held or controlled by these providers using mutual legal assistance channels, these processes are often long and bureaucratic, delaying serious criminals being brought to justice. In some cases, that even leads to investigations being abandoned.
Under MLA, there are several obstacles to overcome before law enforcement agencies can obtain data for use in an investigation. The requests must go through both countries’ executing authorities and both countries’ central authorities before getting to the relevant CSP. It can take anything from six months to two years to receive what could be vital evidence, meaning that the prosecution of criminals such as child sexual abusers can be severely delayed, in which time they can continue abusing. Indeed, less than 1% of child sexual abuse content stored online is hosted on UK platforms, meaning that 99% is hosted on platforms owned by companies overseas. The Bill will ensure that law enforcement officers and prosecutors can more effectively investigate and prosecute these horrific offences, so that children in all our constituencies can be kept safe.
Officials in the Home Office have been working closely with operational partners to understand the scale of the problem. Child exploitation and abuse is a very real, very serious and growing epidemic. The National Crime Agency received more than 80,000 individual referrals of horrific online content from the tech industry in 2017, a 700% increase since 2012. In 2014, the NCA made more than 1,600 referrals to UK police forces following tech companies highlighting horrific online content. After just three years, in 2017, the figure rose to nearly 10,000. The agency estimates that in the UK a minimum of 66,0000 to 80,000 individuals present some kind of threat to children. In one operation, it worked with overseas partners to take down a site that contained more than 100,000 videos of child sexual abuse material that had been downloaded more than 1 million times.
All the case studies that I have been given make chilling reading. There are examples of people abusing children online—people whom our agencies struggle to identify and prosecute because of the delays in accessing the data that they need. It is our duty to do something about it and to protect those who are vulnerable online. Of course, online crime goes beyond child sexual abuse. Electronic messages in the form of texts or emails can incriminate arms dealers, drug traffickers, people traffickers and those involved in other types of serious crime, including terrorism. We must ensure that our laws reflect the modern, technological world in which we live.
The overseas production order process offers a much simpler and quicker alternative to MLA for obtaining certain types of electronic data. An overseas production order could be served directly on the relevant overseas CSP rather than via that country’s courts and central authority, which means that our law enforcement agencies and prosecutors will be able to gain access to the data that they need in a matter of days or weeks rather than months or years. The orders will operate in a similar way to domestic production orders. To that end, the Bill was designed to reflect existing domestic legislation as far as possible. Of course, the necessary stringent safeguards will exist to govern access to the data. That includes a requirement that UK courts must be satisfied that the data is of substantial value to the investigation or proceedings, and that there is a public interest in its being produced before an order can be granted.
For the power to make an overseas production order to be available, a relevant international agreement needs to be in place. We envisage that the first agreement will be with the United States, given that a large majority of CSPs are based in North America. Parliament will have an opportunity to scrutinise each international agreement properly and thoroughly before it is ratified in the usual way.
Members of the other place have already expressed their broad support for the Bill, but a non-Government amendment was made to clause 1(6), on international agreements. As it stands, the subsection is technically deficient, because it refers to data that the UK provides “under this Act”. The Bill is only about the UK’s outgoing requests for data from overseas providers, so the UK would not be providing data under it. Because that subsection would not achieve what the Government understand to be the Opposition’s intended effect, “this Act” will need to be amended to “the agreement.” I have listened carefully to the arguments advanced by Members of the Lords, and I look forward to working with Members of this House to address their concerns.
Members may accept that bureaucracy is sometimes a necessary evil, but when electronic data could be obtained in a much quicker way and further criminal activities could be prevented, it needs to be reduced. The overseas production order process, together with the international agreements that will underpin it, will remove the unnecessary bureaucratic delay that currently exists in accessing the same electronic data through MLA.
Delay extends the investigation when someone has molested children. Delay leads to continued offending, and those children continue to be abused. Delay leads to serious criminals absconding before they can be brought to justice. Delay could even lead to our law enforcement agencies and prosecutors issuing fewer MLA requests to seek evidential data as they lose faith in the system, and thereby failing to pursue these vile criminals. We do not want to end up in that position: such delay is unacceptable. That illustrates why the Bill is so important, and the heavy price that we continue to pay every day without it.
Mr Jim Cunningham (Coventry South) (Lab)
Other countries are guilty of delays—indeed, long delays.
Mr Wallace
Under the current system, we present an MLA to a country’s central Government authority, which will take it to that country’s courts. Once it is out of our hands, the pace will be that of the country concerned. Its courts will recognise the order and enforce it against the CSPs overseas, which are predominantly in the United States—for instance, Facebook and Google—and will then bring it back to us. That whole process involves many bureaucratic delays. For instance, there is the time that it takes for the case to go to the central authority and then to the courts, and the time that it takes for the volume of the orders to be decided, and sometimes challenged, in the courts. We are simply seeking to introduce a system whereby our police go to a court in the United Kingdom, the court makes the order, and the international treaties allow our orders to be recognised by overseas CSPs.
Mr Cunningham
May I pursue the point a little further? Can the Minister give us a rough idea of the timescale, and what the delays actually cost?
Mr Wallace
As I have said, some of them have gone on for years. Some cases are still sitting in courts overseas. It is predominantly a matter of months and years at present, and we want to reduce that to days and weeks. Every day on which we cannot access content in this area—and let us remember that it is the court, not me, that must be satisfied that a request from the police is valid—is a day on which, in many cases, the offenders are still offending. That is why we think the Bill is so important. It reflects the changes in how offending is happening, and the fact that it is now happening online. For many months, Members on both sides of the House have asked what more the Government can do about not only online radicalisation but online offending. This is a concrete step to ensure that we can do more to counter it.
The MLA process will continue to exist. It remains critical to other types of evidence that are not within the scope of the Bill and to any electronic evidence that may not be provided for by the relevant international agreement. However, one of the biggest pitfalls of the current system is the long wait to secure electronic data that, by its nature, can be shared very quickly. The Bill provides the solution in the form of an additional, streamlined alternative: the overseas production order.
I do not doubt that Members will support the crucial purpose of the Bill, which is to provide a significantly faster mechanism for obtaining vital electronic data that is held by overseas providers in order to prosecute the most serious offenders and to safeguard vulnerable people in our society from further unnecessary harm. I commend it to the House.
Nick Thomas-Symonds (Torfaen) (Lab)
The Minister began by saying that he was grateful for the contribution of lawyers during the previous two and a half hours. Alas, I have not had a chance to leave yet, but hopefully that contribution will continue.
Nick Thomas-Symonds
I doubt that even I could match the rates of the Attorney General.
As the Minister has explained, the purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as a court could if the information were located or controlled in the United Kingdom. That will be done via the overseas production order for which clause 1 provides. An order can be operative only if the UK signs a treaty enabling it to be exercised. UK law enforcement authorities will be able to apply for an order that requires the production of electronic evidence for the purpose of investigating or prosecuting crimes such as terrorism offences. At present, if UK law enforcement requires electronic data from another country, it must go via a mutual legal assistance treaty, but that process can be slow to complete.
I very much appreciate and accept that electronic information is crucially important for the investigation and prosecution of criminal offences, and indeed is gaining in importance. The Minister set out the case of Dr Matthew Falder and some of the horrific child sex abuse images found on various websites, and it is clear that having a smooth, fast, efficient process to obtain this information is important, which is why the Opposition support the aim of this Bill; we do need a faster system.
I should also point out that I recognise the particular importance of the United States, first because this is the country where so much of the data is held and so many communication services providers—CSPs—are based, and, secondly, because the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015.
The Minister knows that the Opposition are always happy to work with him in trying to reach consensus on matters, but there are aspects of this Bill about which I and my colleagues in the other place have concerns. First, I say to the Minister that we will be looking in Committee to pursue issues such as bulk data, confidential personal records and non-disclosure requirements.
There are also two other specific points of controversy that I will draw to the Minister’s attention now. The first of them relates to assurances on the use of the death penalty in cases where this country hands over data. The Bill is reciprocal, which allows countries with which a treaty is negotiated to seek a court order for electronic data stored in the UK to be transferred to another country. The current treaty is being negotiated with the US, and US law enforcement could apply via its courts for electronic data in the UK to be used as evidence in a particular case. There are currently 30 states in America that retain the death penalty.
I appreciate the Minister’s efforts to make this a more transparent process than has previously been the case, when Home Secretaries could, in private, make decisions in individual cases that are capital cases about handing over information. My right hon. Friend the shadow Home Secretary asked an urgent question on one issue in this House in July, which was due to a leaked letter from the Home Secretary to the then US Attorney General, Jeff Sessions. In the letter, the Home Secretary stated:
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”
The Minister responding to my right hon. Friend stated at the Dispatch Box:
“I can reassure the House that our long-standing position on the use of the death penalty has not changed.”—[Official Report, House of Lords, 24 July 2018; Vol. 792, c. 1612.]
While I accept that the Government cannot control whether another Government provide assurances that are asked for, they can control, where assurances are not forthcoming, whether information will be handed over, and that includes information which could lead to evidence being gathered for use in a court, as well as evidence itself.
My noble Labour colleagues in the other place tabled a strong amendment in this regard which passed by 208 votes to 185 and was added to the Bill. The effect of it is to prevent such handing over of information unless there are assurances that the death penalty will not be imposed. This is important for those of us on these Benches who oppose the death penalty in all its forms and are passionate about human rights here and around the world. Furthermore, while we are, quite rightly, focused on the United States for the reasons I have set out, this Bill could be used, alongside a treaty, as the basis for reciprocal information exchange with other countries around the world where the rule of law is not respected by the regimes in power there, making the need for safeguards in this Bill even more pressing.
Secondly, there is a concern regarding the protection of journalists’ confidential information.
Sir Edward Davey (Kingston and Surbiton) (LD)
I agree very much with what the hon. Gentleman has said on the death penalty reassurance point. He will note that the Minister said in his speech that the amendment was somehow defective. Does he agree that if that is so the Minister needs to make his case in detail and put forward another amendment so he can ensure that these death penalty assurances can be given?
Nick Thomas-Symonds
The right hon. Gentleman puts his finger on a crucial point. The amendment passed the other place with a comfortable majority, and if it is to be argued that there is, perhaps, a technicality that renders it defective, the Minister must identify it in Committee so the House can on Report at least take a firm view on it.
On the protection of journalists’ confidential information, while the Government have argued that provisions in the Bill match those of the Police and Criminal Evidence Act 1984, there are specific instances where it does not quite match PACE, and I will give a few examples, which no doubt can be explored in Committee.
Under PACE, notice is required in all applications for journalistic material, and there are two types: confidential or “excluded material” and non-confidential or “special procedure material”. However, under clause 12(1) of the Bill, provision is made to notify organisations only when the material is confidential journalistic material:
“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”
An application for non-confidential material—for example, where a journalist made a documentary and had some notes—often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally. The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.
Conditions must be met for the court to grant a production order for special procedure material under PACE, including the following: there are reasonable grounds for believing the material is likely to be of substantial value to the investigation; disclosure is in the public interest; and there are reasonable grounds for believing that the material is likely to be relevant evidence. While clause 4(5) and (6) include both public interest and “substantial value” tests, they do not include a “relevant evidence” test. That is again a matter we will look to pursue in Committee.
Adopting a threshold of what data is “relevant” to an investigation is both necessary and proportionate; as well as helping to enable clarity and consistency in cases, it is in line with human rights principles. Judges considering these applications will be familiar with the application of these recognised legal standards, and it would be a simple and sensible safeguard to bring these provisions in line with those under PACE.
Under PACE, tests are only limited to “investigations”, while the Bill is worded in such a way that the tests could be applied to include investigations and proceedings. It is not clear why this should be required right up to trial.
There is a further concern with regard to protection for “excluded material”, or journalistic material that is held subject to a duty of confidence. Under PACE, “excluded material” has a different set of conditions that need to be met. Why should that be different in this Bill?
Journalists play a fundamental role in holding those in power to account, and we must ensure that this legislation does not in any way suppress investigative journalism or the exposure of public interest matters. Thus while the Opposition do not oppose the Bill’s purpose and welcome measures for the speedy exchange of electronic data, we will be looking to put safeguards into the Bill on handing over information, to protect the clear will of the other place with regard to the death penalty assurances and to protect the long-cherished principle of confidentiality of journalists’ sources.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The way in which we communicate with one another has changed dramatically as a result of the digital age. The rapid growth of social media platforms has led to a sea change in how information is shared, conveyed and consumed. Indeed, the use of these platforms is ubiquitous in this House, and not a day goes by without Members’ WhatsApp messages being conveniently “leaked”. However, the convenience, accessibility and anonymity of these platforms has not been lost on those with more nefarious intentions, from terrorist groups looking to spread their hateful propaganda to child abuse rings sharing horrific images, and they are enthusiastically embracing this technology. As those who intend to cause harm change their methods of communication, so must our laws change to counteract that. The Bill will help us to keep pace with the increasing use of global electronic communications by criminals.
The current regime of mutual legal assistance is too slow and bureaucratic to make an effective contribution to an investigation. An MLA request to the United States can typically take nine months to produce what is being sought. This results in delayed or abandoned investigations and can delay people from being eliminated from criminal investigations. It is clear that when dealing with fast-moving dynamic criminal threats, this system is not fit for purpose. A nine-month wait for crucial information can be nine months too long. Overseas production orders, as provided by the Bill, will make the process far faster and more reliable, as they will get the information directly from companies. Rather than waiting for another country to consider whether it can comply with a request, then issue a court order or warrant and serve it, a judge in the UK will be able to go straight to a foreign company and get the information required in days, rather than months.
The new system that the Bill provides for will help us to tackle one of the most heinous crimes: child abuse. As the Minister outlined, there has been an exponential increase in the reports of child sexual abuse. As a paediatric consultant, I have treated far too many children who have fallen victim to this crime, sometimes with horrific physical injuries resulting from the abuse and with the mental health consequences that can occur at the time and later. The National Crime Agency estimates that a minimum of 66,000 to 80,000 individuals in the UK present some kind of threat to children. Each child is an individual, and each family can be badly affected. Any measure that helps to prevent one more child from suffering this fate deserves our full support. The Bill will ensure that child sexual abusers will see swift justice for their actions, and I welcome it.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The Scottish National party welcomes the aims of the Bill, with some caveats, and the Scottish Government believe that investigations and proceedings relating to serious offences in Scotland could benefit from the use of overseas production orders as a quicker and more streamlined process for obtaining electronic data. Notwithstanding the Minister’s point, which I am sure we will discuss further in Committee, we also welcome their lordships’ amendment that provides safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.
However, we are concerned about the lack of proper safeguards for journalistic material, and I hope that we will be able to strengthen the measures in that important area in Committee. Although I welcome the fact that an order must be for specific, targeted information, the fact that it will in all likelihood be able to access bulk datasets to retrieve that information is disappointing and goes against the strong points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) during the passage of the Investigatory Powers Act 2016. I shall return to those issues a little later.
The ability to apply for an overseas production order through the domestic courts will make the process for gaining cross-border access to electronic data faster and more reliable than the current processes, which rely on mutual legal assistance treaties. MLAs have been criticised for being too bureaucratic and time-consuming. The UK’s deputy national security adviser on intelligence, security and resilience to 2018, Paddy McGuinness—not the one we are all familiar with—explained in an interview how the current process causes difficulties for UK investigators and prosecutors. He stated:
“It does not make sense that criminals plotting a major drug deal, a murder, a kidnap, trafficking people or sexually abusing a child in the UK can have their communications intercepted if they communicate via text message, but if they use a US company’s services their data should be out of reach of UK law enforcement.”
Those of us who sat through the Committee stage of the Investigatory Powers Bill will never forget the fact that electronic information is becoming increasingly important to the investigation and prosecution of criminal offences, including terrorism. The companies that provide services that generate or store this data, such as Facebook, Twitter and Google, are often located outside our jurisdiction. This puts the data beyond the reach of existing domestic court orders, which either cannot be made when the data is not in or accessible from the UK, or cannot be served extra-territorially. According to Access Now, a digital rights campaign group, there has recently been a “huge growth” in MLA requests to access online records such as subscriber details, email content, metadata and social media from companies such as Google, Facebook, Yahoo and Twitter, which treat the vast majority of their data as being located in California and therefore subject to Californian jurisdiction.
According to the Home Office’s own figures, as of 2016—the figures are now out of date—the UK was party to 40 bilateral MLA agreements. As we have heard, the MLA process can be slow, requiring significant Government-to-Government liaison. This can cause lengthy delays, which can cause problems for investigations and prosecutions. Lord David Anderson, the then independent reviewer of terrorism legislation, has spoken of the severe delays in the process and recommended that the Government should seek to address deficiencies in access to material from overseas service providers and
“take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”
Detectives investigating serious offences, including murder, have commented that it is taking an “inordinate amount of time” to access evidence from Facebook. Cressida Dick has said that UK police forces have faced a “very protracted procedure” in cases where they have had to access information from organisations such as Facebook. Just recently, she stated:
“I absolutely think that in certain instances...law enforcement in the UK ought to have vital evidence which might bring someone to justice.”
The delays that detectives currently face are unacceptable and it is clear that the system needs to be improved. Lord Anderson spoke in his summing up about the international frameworks, and I would like the Minister to explain further why, Brexit aside, he was not interested in participating in the European protection order.
I move on to the amendment made in the Lords to clause 1, with which we wholeheartedly agree. It provides that in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied. Article 2 of the European convention on human rights—together with protocol 139, to which the UK is a signatory—provides for the total abolition of the death penalty. It is therefore regrettable that the Government tried to resist this amendment in the other place. We—and, I am sure, Labour Members—will resist any Government attempt to draw back from this position in Committee.
While we broadly welcome the Bill, we are concerned about lack of safeguards for journalistic material. We believe that the provisions in the Bill are inadequate in protecting confidential journalistic material. This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press. We are not alone in this, as the BBC has also raised concerns.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less sensitive journalistic material, which is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work. Where on-notice applications are permitted in cases of confidential journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately. Additionally, it is unclear whether any advice or support would be provided to a journalist in those circumstances. Under clause 13, a journalist cannot inform anyone of the application or its contents, and no provision is made for this information to be disclosed to a legal adviser or representative.
The BBC has some further asks. It wants the Bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material; to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases; to ensure that confidential journalistic material is protected, as under the current law for domestic applications; and to ensure that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection. I suspect that we will be looking at this further in Committee.
The other area that we will be seeking clarity on during the Bill’s later stages is the potential use of bulk datasets. As I have said, the SNP has argued strongly against the retention of bulk data sets, the vast majority of which are harvested from mainly innocent citizens. We argued that it is incumbent on the Government to prove that there is an operational case and that the powers are necessary and to ensure that the safeguards are rigorous. It would therefore be rather remiss of us to allow legislation to pass without the requisite safeguards around the accessing of such data.
To conclude, the MLA treaty system is not working in the modern age. Vast amounts of electronic data goes through Facebook, Twitter and other organisations, and a quicker and more streamlined process for obtaining data is required to investigate serious offences efficiently in the modern world. The ability to apply for an overseas production order through the domestic courts would make the process for getting cross-border access to electronic data faster and more reliable than currently. The Minister was uncharacteristically generous—I mean the Government, not him personally—in working with the Opposition when the Counter-Terrorism and Border Security Bill was in Committee, and I hope that will be repeated with this Bill so that we can move on together.
Vicky Ford (Chelmsford) (Con)
For nearly a decade, I have been a champion of a charity called the Internet Watch Foundation. It is not a paid role, but it gives me huge pride. The IWF was set up by the previous Conservative Prime Minister, and it identifies online images of child exploitation and then removes them from the internet. Last year, the IWF took down or acted on 132,000 reports of child sexual exploitation, 55% of which involved children who appeared to be under the age of 10 and one third of which involved rape or sexual torture. Child sexual exploitation is hideous, and when the images can be taken down, sources can be traced and lives can be saved. I am proud that less than 1% of such images are now stored in the UK thanks to the work of the IWF.
However, speed is vital when tracking images and getting hold of them means that our law enforcement authorities can then build cases and hold these evil people to account. This Bill will allow our law enforcement agencies to apply via the UK courts for a court order in other countries to get access to that data, and it will be crucial in countries such as the US, where we are already negotiating such an agreement. I am concerned that the Labour party’s amendments will create extra delays in the process when children’s lives are at risk. We should be working as hard and as fast as possible to get rid of this global crime. Britain needs to stand up and take the lead and save our children from exploitation on the internet. I am proud to support the Bill tonight.
Sir Edward Davey (Kingston and Surbiton) (LD)
I pay tribute to the hon. Member for Chelmsford (Vicky Ford). I think the Internet Watch Foundation does a fantastic job, and it is already saving lives, so everyone involved in the organisation deserves our thanks and gratitude. It is in that spirit that I rise to support this Bill and to say that the Minister was absolutely right to make his argument in the way that he did. The legislation goes beyond defeating the people involved in child sexual exploitation, and others committing horrendous nasty, violent crimes will also be caught by these important measures. Beyond that, the Bill will act against terrorism and so on, so the Government are absolutely right to pursue it.
All that is part of the way that we in this House need to support international co-operation against crime. Although this Bill will help to speed up the work that needs to be done via the courts to enable the investigatory bodies to get these criminals and hopefully stop such activities, I gently point out that the European Union already has many successful tools and instruments, and it is a shame that it looks like we are reducing our ability to use them.
However, in totally supporting the thrust of the Bill, I associate the Liberal Democrats with the gentle criticisms of the Labour and SNP Front-Bench spokesmen, who made important points about death penalty assurances and journalistic freedom that must be considered and put right in Committee and on Report. On the death penalty assurances, joint efforts between Labour and Liberal Democrat Lords secured that amendment, and it will take some proof to convince us that it is defective. Indeed, the Liberal Democrats would like to go further. Although the amendment was welcome, the fact that it relates to section 52 of the Investigatory Powers Act 2016 means that there may well be other treaties involving the sharing of collected electronic data to which it may not apply. Given the significance of that, it is important that we go as far as we possibly can. The UK must oppose the death penalty in all circumstances, and we need an assurance from the Government that the law is extremely tight.
Mr Wallace
Will the right hon. Gentleman therefore clarify his party’s position if we were in a negotiation with another country and the other country said, “Look, we cannot give you the death penalty assurances.”? Some 99.9% of the data requests under this Bill will be concerned with crimes of paedophilia or the other crimes that I described earlier. Should the death penalty become a bar, is the right hon. Gentleman saying that the UK should not enter into an agreement because of the rare occasions on which an offence may involve the death penalty? Would he sacrifice the 99.9% for that?
Sir Edward Davey
The Minister is being slightly sneaky. It is quite possible to take the two issues separately and deal with them separately. It is quite easy to see how one would ensure that the welcome measures in this Bill apply to the cases to which we all want them to apply while ensuring that the death penalty assurance, which ought to unite the House, is also dealt with properly.
I am sure that the Minister understands that Opposition Members in the other place and in this place are using this point to try to ensure that the Government move on this point. He will be aware of the cases of Alexanda Kotey and El Shafee Elsheikh from earlier this year, in which the Home Secretary—I acknowledge that this was revealed in a leaked letter—assisted the US to prosecute them without seeking death penalty assurances. That shocked people on both sides of this House, and the Minister is absolutely aware of that concern, so it is incumbent on those on the Treasury Bench to explain to and reassure this House that that cannot reoccur and that we will find ways through such issues.
Mr Wallace
I fully understand the right hon. Gentleman’s point. He talks about “our wish”, but he cannot speak for the other country that may be involved in forming an international agreement. They may say, “That’s fine. We know what you want, but we are not prepared to do that.” In that case, the decision becomes whether we want to use this legislation for the urgent and speedy data requests that happen 99.9% of the time for offences that are egregious and horrible but do not warrant the death penalty. He cannot speak for another country, so would he sacrifice the whole Bill?
Sir Edward Davey
I am afraid that the Minister is still trying to split hairs. I am sure that no one in this House wants to get in the way of measures that will ensure that we can work with other countries to tackle criminals. Equally, however, it is incumbent on the Government to find a way to ensure that what we heard from the Home Secretary earlier this year does not happen again. The Minister is in the Government and has the officials to come forward with proposals to be able to manage both those issues.
It does not seem beyond the wit of man and the clever officials in the Home Office to produce such proposals. If he is saying that the amendment made in the other House is defective because it has the problem he is raising with me, let Home Office Ministers come to the House in Committee or on Report to show that and to produce an alternative that deals with the matter, about which I am sure he shares my concern.
Mr Wallace
My point is that the moment for the House to look at that is not when considering this Bill but when whatever treaty or international arrangement we make with whatever country we need to make it with comes before the House for scrutiny. Then we can have a debate about whether the international treaty we have sought to give effect to this order is right for the balance of risk, but the generic primary legislation that allows an order to be made is not the right vehicle.
Sir Edward Davey
What the Opposition parties are saying very clearly to the Minister is that he has to make that case in Committee, just as the hon. Member for Torfaen (Nick Thomas-Symonds), the Labour party’s Front-Bench spokesman, made clear when I intervened on this very point. The Minister should make the case, but he should also explain how the Government will deal with the problem, which has arisen because of the actions of the Home Secretary not because of the actions of the Opposition.
We are concerned about the potential for this Bill to undermine protections for the freedom of the press. To be generous to the Government, what I think has happened is that, in pursuing a laudable aim that we all support, they went to the statute book and said, “Which statutes can we copy and paste to enable us to meet our objectives?” Rather than looking carefully at how, in domestic law, the Police and Criminal Evidence Act 1984 has carefully nuanced the use of the Terrorism Act 2000, Home Office officials, possibly because of the culture in the Home Office, just cut and pasted mainly from the Terrorism Act. That may have been a mistake, and there may have been no deliberate intention for it to have the consequences that now appear before us, so I gently say that I hope the Minister will go away and think about this. I invite him to meet right hon. and hon. Opposition Members, as well as representatives of the media to hear in detail the genuine concerns not just of BBC lawyers but of lawyers representing other media organisations.
We have heard from other Members about the relevant evidence test, which is in our domestic law and has been carefully developed over a period of years, but that test will not be applied to protect journalists with respect to material that comes from their investigations abroad. That is quite worrying if one looks at the practical examples. Take the case of Mark Duggan, for example. He was shot by the police in Tottenham in 2011, and the BBC obtained mobile phone footage of the aftermath from a witness. The BBC was ordered to turn over the footage and, because it was relevant evidence, the footage was handed over. Then an application was made for information that would reveal the identity of the source of that footage. The person who had shot the footage was understandably concerned for their safety, and the BBC successfully opposed the application by pointing to the relevant evidence test in the Police and Criminal Evidence Act. That test is not in the Bill, so there is a clear example that, by not being as subtle in this legislation as we are in our domestic legislation, there is a danger that journalistic freedom, as exercised abroad, will be curtailed.
The point about the notices is relevant, and it should worry the Minister because the way that notices work under domestic legislation is very helpful not just to journalists but to the police. Sometimes when the police put a notice to a journalistic organisation, that organisation will go back to the police and say, “You are asking for a huge amount, and we don’t really think it is necessary for your investigation. Let us enter a dialogue with you to narrow down your search so you can get information that will really help you, and therefore you will not have to waste so much time.” The notice actually turns out to be helpful in speeding up investigations. Given that that is the whole purpose of this Bill, the Minister should go away and look at that.
Moreover, it is not just about thinking of the police’s point of view in speeding things up; it is also about making sure the police know whether the evidence exists. The way some notices work at the moment is that the police go on a fishing trip. There is the example from Durham police, they applied to the BBC without notice. Durham police were eventually told that they could not do that and that, if they had submitted a notice, they would have learned that the material no longer existed. Again, the BBC was trying to save police time.
Some of the carefully constructed domestic law needs to be put into this internationally applying legislation in order to help the police and security services, not just journalists. I am sure this is just an unintended consequence, and I am sure there is no malice, so I hope this is the sort of issue that can be settled by a few meetings and a few amendments that garner support from both sides of the House. That is how scrutiny should operate in this Parliament, and I hope the Minister, with his usual generosity, will be open-minded to that approach.
Nick Thomas-Symonds
With the leave of the House, I will briefly respond to the debate. The hon. Member for Sleaford and North Hykeham (Dr Johnson) put her finger on it when she said that any measure that prevents one more child from suffering must be a laudable one, and she is absolutely right. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I often find ourselves working together on such Bills, and I look forward to working with him once again in Committee. He is right to raise the issue of journalists who have material that is sensitive but not necessarily confidential, which is clearly an issue to consider in Committee.
I commend the hon. Member for Chelmsford (Vicky Ford) for the work she has done in taking down horrific images from the internet through her work with the Internet Watch Foundation. I say to the right hon. Member for Kingston and Surbiton (Sir Edward Davey) that there is no difference of principle in opposition to the death penalty. I appreciate that there is an argument about other treaties, but there will also be an argument about what is within the scope of the Bill. We should do our best, on a joint basis, to protect the gain that has been made in the Lords, and I look forward to working with his party on that at later stages.
All I say to the Minister is that I hope we can proceed by working together, as we have on previous Bills. As the Bill goes into Committee, we will now be looking carefully at the issue of data access being proportionate and necessary, the issue of confidentiality and journalists’ sources and the vital issue of death penalty assurances.
Mr Wallace
With the leave of the House, I will close the debate on Second Reading. I thank hon. Members for engaging with the Bill, for their support of what it will achieve and for their considered comments.
Overseas production orders will be vital in ensuring that criminals do not remain at large for longer than is necessary due to delays in accessing electronic content data held overseas. Overseas production orders also reflect the technological developments of recent years. The use of modern electronic communication technologies by serious criminals to perpetrate their crimes and to seek to evade justice is increasing exponentially. This means that the evidence needed to convict such criminals is increasingly in the form of emails, Facebook messages, images stored with providers like Dropbox or elsewhere in the cloud, and similar electronic content data. UK law enforcement agencies and prosecutors now need a faster, 21st-century process for obtaining such evidence, not least to protect victims of child sexual abuse living in our communities and in our constituencies.
The length of time it currently takes to obtain electronic evidence leaves child victims to be abused while our dedicated law enforcement agencies and prosecutors navigate unnecessary bureaucracy. Bureaucracy prevents us from getting to the heart of an investigation sooner and puts more children at risk. The longer it takes, the longer these vile criminals are free to carry on offending. We must prioritise the safeguarding of the most vulnerable people in our society as far as possible.
I will now briefly address the comments of hon. Members. The hon. Members for Torfaen (Nick Thomas-Symonds) and for Paisley and Renfrewshire North (Gavin Newlands) and the right hon. Member for Kingston and Surbiton (Sir Edward Davey) all spoke about journalistic data. I absolutely hear what they say, and will give substantial consideration to their ideas and suggestions. I can perhaps provide some clarity on this. I do not think that, as the right hon. Member for Kingston and Surbiton suggested, officials picked this off the top of their heads; it was in not only the Terrorism Act 2000, but the Proceeds of Crime Act 2002. As with a lot of different case law, there have been different developments on the definitions of “data” and “confidential data” as it relates to journalistic material. Of course, the substantial value and public interest test is already in place to ensure that data relevant to a particular investigation or proceedings can be the subject of an access production order, but I am happy to discuss this further in Committee.
The hon. Member for Paisley and Renfrewshire North talked about a number of things. First, he asked why we had not opted into the European protection order scheme, by which I assume he means the Europe e-evidence proposals. The Government chose not to opt into the e-evidence regulation as it is not clear that the new EU legislation will be a practical and effective way to address the global issue of providing lawful access to data held anywhere in the world. Clearly, however, I agree with the principles, which is why we are introducing this Bill.
The hon. Gentleman also raised the issue of bulk data. An application for an overseas production order must specify what data is being sought. The judge approving the order must be satisfied that the data requested is of substantial value to the proceedings or investigations and that it is in the public interest for the data to be obtained. I know the hon. Gentleman may not be satisfied by that, but the hon. and learned Member for Edinburgh South West (Joanna Cherry), being a barrister, will no doubt be absolutely supportive of judicial discretion. Interestingly, people in this House often hold strong views on this—I am a great believer in judicial discretion—yet when we ask them to make that decision about public interest or certain tests, the same people sometimes seek to restrict that judicial discretion. I trust our judiciary and believe that in this environment of a bulk data request and so on, if this is laid by our law enforcement agencies before the court, the judge can use his or her discretion to make that decision, if it is in the public interest, and the police and law enforcement satisfy the requests made.
My hon. Friends the Members for Chelmsford (Vicky Ford) and for Sleaford and North Hykeham (Dr Johnson) were absolutely right about the potential damage that the online environment is doing to our young people and the tools that the internet gives some persistent offenders to exploit and abuse people, both adults and children. I mentioned Dr Matthew Falder at the opening of this debate. To see that case in detail is disturbing, and it will stay with me for most of my life. We know that he affected people’s lives, not just at home in the UK, but across the world, including by encouraging people to commit suicide and so on. He set up chatrooms where the qualification for entry was for people to bring their own abuse images into the chatroom—people were tasked with abusing children and bringing those images in. These are the people this Bill is targeted at, and every day we cannot deal with them is a day they continue to abuse.
The right hon. Member for Kingston and Surbiton, and the hon. Members for Torfaen and for Paisley and Renfrewshire North asked about the issue of the death penalty. I understand the importance of it and the key principle that people hold on it. The right hon. Gentleman was a member of the first Government who published the overseas security and justice assistance guidance—OSJAG. This is human rights guidance on requests for evidence and it contains all the guidance for law enforcement and government on the extent to which we seek and uphold our principle on the death penalty. I am happy to debate this in Committee. It does, however, reflect the issues and challenges we face as to balancing our security with our belief on human rights. This affects any Government, including the last Labour Government, who did not have OSJAG but still believed there were exceptional circumstances when assurances need not be sought. That is why I will welcome the discussion in Committee, but I make the point to Members that this Bill is an enabling Bill. It is, in effect, a plug for international agreement that we will then go and negotiate around the world, depending on where risk comes from and need. Both Houses will get a further chance to scrutinise those individual agreements and we can then ascertain whether they uphold our principles. I look forward to debating with interested Members in Committee, and I commend this Bill on Second Reading.
Question put and agreed to.
Bill accordingly read a Second time.
CRIME (OVERSEAS PRODUCTION ORDERS) BILL [LORDS] (PROGRAMME)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Crime (Overseas Production Orders) Bill [Lords]:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 18 December 2018.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Amanda Milling.)
Question agreed to.
Crime (Overseas Production Orders) Bill [ Lords ] (First sitting)
Tuesday 18th December 2018
(6 years ago)
Public Bill CommitteesRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at Tuesday 18 December - (18 Dec 2018)
The Committee divided: - Ayes: 9 / Noes: 6 - Question accordingly agreed to.
The Chair
Before we begin, I have a few preliminary announcements. I remind Members that no refreshments other than water may be consumed in Committee sittings. Please ensure that mobile phones are turned off or switched to silent. Not everyone is familiar with the procedures of a Public Bill Committee so it might help if I briefly explain how we will proceed.
First, the Committee will be asked to consider the programme motion on the amendment paper, on which debate is limited to half an hour. We will then proceed to a motion to report any written evidence. Then we will begin line-by-line consideration of the Bill.
The selection list, which is available in the room, shows how the amendments selected for debate have been grouped together. The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak to the amendments in the group. A Member may speak more than once, depending on how the discussion is going. At the end of the debate on a group, I will call the Member who moved the lead amendment again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision.
If any Member wishes to press any other amendment in the group to a Division, they need to let me know. I am working on the assumption that the Government wish the Committee to reach a decision on all Government amendments. Please note that decisions on amendments take place not in the order they are debated but in the order in which they appear on the amendment paper.
I call the Minister to move the programme motion in the terms agreed by the Programming Sub-Committee. This debate is limited to half an hour.
Ordered,
That—
(1) the Committee shall meet at 2.00 pm on Tuesday 18 December (in addition to its first meeting at 9.25 am on that day);
(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on that day.— (Mr Wallace.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Wallace.)
Clause 1
Making of overseas production order on application
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move amendment 1, in clause 1, page 1, line 20, leave out subsections (5) and (6).
This amendment removes subsections (5) and (6) from Clause 1 of the Bill. These subsections concern the designation of international agreements under section 52 of the Investigatory Powers Act 2016.
It is a delight to serve under your chairmanship today, Mrs Moon. I thank hon. Members for having listened in a consensual manner on Second Reading. This should not be a controversial piece of legislation. As people know, the Bill is designed as a docking station to give power to our law enforcement agencies to go to our courts to seek orders for the production of data overseas. It is about removing bureaucratic barriers to our law enforcement and allowing investigations to be concluded in a timely manner—often very quickly, compared with the delays of up to two years that can sometimes be experienced abroad. Fundamentally, it is a piece of legislation about UK law enforcement’s request for inward-coming data, so that our law enforcement can seek from the courts data from overseas. I ask hon. Members to bear that in mind.
At the moment, the majority of communications service providers, such as Facebook and Google, hold their data in the United States. It is therefore obvious that one of the countries we will seek to sign a treaty with so that it recognises these court orders is the United States. No doubt there will be one with the European Union at a future date. More than 90% of the data resides in the United States, so when our law enforcement tracks paedophiles, terrorists or organised crime, it is very important that we have timely access to it. At the moment, we go from the United Kingdom to the US Department of Justice to a US court to a CSP, and then it goes back down the line. In some cases, that can take up to two years and, regretfully, some cases have been abandoned as a result of that delay, while all the time offenders are abusing.
I have tabled an amendment today to remove from clause 1 the additional sections added by the House of Lords on international agreements. Subsections (5) and (6) of clause 1, which were added in the Lords, will prevent the Government and all future Governments from designating international agreements under section 52 of the Investigatory Powers Act 2016 with a country that retains capital punishment, unless assurances have been received.
I understand the strength of feeling on this issue and am grateful to Members of both Houses for their contributions. I have listened carefully to their arguments, including those made in the House of Lords. I want us to work together to reach a position that we can all support ahead of Report. However, if the Lords amendments stand, they will put at risk the Bill itself and any future treaty with the United States or, potentially, any other country. Live international negotiations do not work where the host Government—this Government or any future Government—can have their hands tied in this manner. It would prevent our making a negotiation and could effectively disqualify us from getting where we are trying to get to with the United States.
The Bill is about producing the power for a court to make an order in the United Kingdom. Subsequent scrutiny of any international treaty that we seek to make will be done through the normal processes of Parliament. We would table any international treaty for ratification in both Houses, providing 21 working days for scrutiny. Anyone in the House can object to the treaty as formed. If they do not like the terms of the international treaty, that is how they can register their objections or stop it going ahead.
The Bill is agnostic about the countries that we might make a treaty with. That is for the treaty itself. While I understand what is at stake here and what the Lords amendments try to achieve, the principle would be absolutely the same with a Labour Government, as it has been in the past, or any other Government. We should resist attempts in primary legislation to bind our position in negotiations that have not yet concluded and have not come to the House. I believe that would be upheld by any sitting Government.
When it comes to death penalty assurances, it is a fact that under the last three Governments over the past two decades, there have been very rare occasions—two occasions—when a Government have felt that there have been exceptional circumstances and either a death penalty assurance has not been sought when exchanging evidence or one been sought but not been achieved, and the exchange of evidence has nevertheless progressed. That has happened incredibly rarely, but it did happen under the Labour Government in the early 2000s and under the coalition Government when Liberal Democrats Member were in the Department. A legal case is currently outstanding about an occasion when it happened under this Government.
It is not that this or any other Government have wantonly done it with enthusiasm, but there may be occasions when something so egregious has happened to a friend and ally that we make a decision that it is not for us to dictate such stringent terms to that ally in our decision to help keep us all secure or to balance the needs of security with the needs of human rights. I could give an example, but the terms of the confidentiality involved mean that we are unable to do so.
Suffice it to say that a fictional example could be that someone in this country has launched a biological weapon—or, at least, a horrendous weapon—that has caused death and destruction to thousands of people in the United States. That person manages to make it back here and the United States seeks evidence from us about that individual. If there is no evidence in this country to charge him or her with an offence, the Government would have to decide whether evidence about the individual should be shared with the United States authorities. There may be occasions when the US authorities say, “Look, we cannot guarantee that what you do with that evidence will not lead to a death sentence, either indirectly or directly. We cannot do that.” This Government or a future Government might realise that the individual poses a real threat—we do not want him residing here any more than anyone else would want him residing anywhere else—and in that position there would be very strong reasons why, if a death penalty assurance was not received, we should share the evidence.
That would be sharing evidence with a country such as the United States or the European Union that has due process, fair trials, independent defence and an independent judiciary, and therefore meets all our values and matches our view of the rule of law, so this is not about making an agreement with a country that does not have the rule of law. It is a very difficult choice, but ultimately the duty of Government is to keep us safe and that is why the Lords amendment puts at risk not only this Bill but the treaties that we could potentially sign and the ability to keep people safe in the United Kingdom.
Let me be very clear that if the Bill was not able to proceed, that would mean that in the 99.9% of cases that are not attached to a death penalty at all—indeed, I have said that there have only been three occasions in 20 years where Governments have been involved in cases where there is a potential death penalty, and interestingly enough in two cases there was not one—offenders such as the people I referred to on Second Reading, who had serially abused children for the most horrendous crimes, will be able to continue to abuse with a longer timetable for being caught. At the heart of my mission is to catch those people as soon as possible.
That is the choice that right hon. and hon. Members are making with this legislation. We can stand on a totally purist principle of absolute opposition, irrespective of strong reasons or exceptional reasons, or we can decide that we have to balance the security needs of our constituents and our national security with the Government’s duty towards human rights and to observe the European convention on human rights. It is not an easy balance and it is sometimes tested in the extremes, but I cannot look right hon. and hon. Members in the face and say, “This consideration is so necessary that I would be willing to put at risk the cases that I have seen, as Security Minister, of child abuse, where the data is stored in America.” I do not think any hon. Member in this House, of whatever party, would be able to say to their constituents that they would put that at risk.
I am happy to provide the Committee with example after example after example of seriously dangerous people’s behaviour towards our children and our friends, and also of terrorists plotting mass-casualty events, where this Bill will help incredibly our law enforcement agencies to get the evidence they need.
The example that I used on Second Reading was of a man—Matthew Falder—so egregious in his abuse that he abused hundreds of people across the world using highly specialised encryption. He was an academic. He persuaded people to commit suicide, or to abuse themselves. He set up chatrooms that people were only qualified to enter by bringing their own images of abuse of children to that chatroom, where they could then share those images among themselves.
When our law enforcement agencies come across these chatrooms or follow the leads, people do not use their real names. Sometimes, one sees things from outside the chatroom and all one sees is a jumble of numbers. We might hear them speaking. We might see, as I have done, some of the footage. Therefore, getting the data from the CSPs, 90% of which is in the United States, is vital for us to do our job and to bring those people to justice. In fact, the first efforts are to stop them abusing, and then to bring them to justice.
That is the difficult choice that we have to make in Government. It is the Government’s responsibility. The last Labour Government recognised that choice, because their internal advice on such events was that in exceptional circumstances they did not need to seek or require death penalty assurances. The coalition Government went further and, for the first time, published something called OSJA—overseas security and justice assistance—guidance. It is a publicly available document with a very clear guideline about what we need to do to uphold our human rights obligations. However, under paragraph 9(b), where there are strong reasons not to seek assurances, we can proceed without them.
That was a public document—never published by any previous Government—that was published under the coalition Government, via the Foreign Office. It was a landmark and it truly opened up the whole process of risk and balance that people go through. I was not the Security Minister at the time, but none of us received any objections. No political party in this House made an issue of it. I did not hear any objections from the Scottish National party, the Labour party or the Liberal Democrats, who were part of the Government at the time, and it stood as a serious piece of work, and still does.
All we seek in the Bill is to reflect that. I therefore hope that hon. Members will support our efforts to get the legislation through the House and to make a treaty with the United States, and other countries as required, in a way that allows us to uphold our values, but recognises that the Government have to balance that with their duty, which is often not easy but is necessary, to keep us safe. That is why we will remove the amendment made in the Lords and progress the Bill, which I do not believe is controversial. I also do not believe that the amendment tabled in the Lords has anything to do with the legislation, which is about empowering a court order. If the Lords want to object to the treaty that we make with the United States, they can do that through the ratification process that takes place in this House and in the House of Lords when, hopefully, it arrives at a later date.
I am afraid that there are high stakes. I wish that I could tell the United States what to do and bind its hands, but I simply cannot. The reality of international negotiations is that none of us holds all the cards. We all have to negotiate, just as I negotiate with Her Majesty’s official Opposition, and just as I negotiate with the Scottish National party. That is what we do. I cannot speak for the Scottish National party any more than the Scottish National party can speak for me. [Interruption.] The tartan Tories! Similarly, I cannot speak for international communities.
I therefore commend our amendment to remove the additions that were made in the House of Lords, so that we can get on with the important job of protecting our constituents, while having the highest regard for our obligations under the European convention on human rights.
Nick Thomas-Symonds (Torfaen) (Lab)
It is a pleasure to serve with you as Chair this morning, Mrs Moon. The Opposition oppose the attempt to remove the amendment that was inserted into the Bill in the other place. Indeed, I am grateful to my Labour colleagues in the other place, where the Bill started, for their persistence and success in securing the amendment. On Report in the other place, Lord Rosser outlined the Opposition’s concerns and, indeed, Labour’s position on the death penalty. However, I point out that the amendment in the House of Lords proceeded on a multi-party basis, with support from other political parties.
Huw Merriman (Bexhill and Battle) (Con)
I agree with many of the hon. Gentleman’s arguments, but change that he is seeking will drive a coach and horses through this Bill, which will protect the vulnerable. Is he not using the wrong vehicle for that?
Nick Thomas-Symonds
No, I am not using the wrong vehicle. This plug-in mechanism will have an impact on many other treaties. My answer to the hon. Gentleman is a rhetorical one: if we do not make a stand here, where will we make a stand? The idea that this huge amount of data and information relating to cases that do not carry the death penalty will be put at risk for a small number of cases—three in 20 years, as the Minister said—is, to my mind, not the most credible position.
Mr Wallace
The hon. Gentleman fails to recognise that there is no equality of arms here. Because of the creation and development of the internet, 90%-plus of the data we need is held in the United States. If it were 50:50 or 60:40, it would be different. The United States has been absolutely categorical with us that, should we adopt the principle of effectively telling it how to conduct its justice system, it will not proceed with the treaty. That is the choice in the real world that I, as the Minister with responsibility for this, have to make. Do I like it? No. Do I have to make the decision? Yes—that is a fact. There is no conjecture about whether the United States will or will not: it will not. In addition, it holds 90% of the data. If the hon. Gentleman would like to like to come here so we can change the law together on how we store data, I would be delighted to do that, but that is a fact. That is the reality that I have to live with. Therefore, if he knows that the United States will not do that, does he recognise that the implication of supporting the amendment made in the Lords is that the Bill will fall over?
Nick Thomas-Symonds
I do not for a minute question the Minister’s perspective, but let me just say this. We are talking about the United States which, as he rightly points out, at this moment in time holds the substantial majority of CSP data. That is the treaty that is being negotiated. This Bill could be used for treaty plug-ins for many other countries. What if in eight, nine or 10 years down the line, it is not the United States that still holds the majority of CSP data? What if it is another country that does not have a particularly attractive human rights record? Will the Minister say the same thing—that it does not matter?
Mr Wallace
We can debate that when we make the country-by-country treaty. That is the difference between this Bill and the treaty. The hon. Gentleman and his colleagues will have plenty of time to scrutinise the international treaties as they come before this House and the Lords under the process that has been well established. That is the time to scrutinise the decisions we have come to, and whether we agree or disagree to make the case at that time. It is perfectly possible to refuse to ratify the treaty.
Nick Thomas-Symonds
It seems to me that the Minister is saying that there are circumstances in which he would make a different judgment. His judgment to me is that now is not the time to make a stand. Respectfully, I have to disagree with him. I believe that now is the moment to make a stand. The Opposition oppose the removal of the amendment.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Mrs Moon. The hon. Gentleman has set out the opposition to the Government amendment with commendable detail and clarity. I do not seek to repeat too much of that, but I will make a brief statement setting out the Scottish National party position.
The Minister spoke of principles and of tying the hands of Governments. I have a different set of principles: the SNP has not been a member of a Government who have passed on information without seeking or receiving assurances about the death penalty. The Minister also spoke about a compromise potentially before Report. That is largely a matter for the Government and the Labour party, although we would be more than happy to engage in that process.
To be crystal clear, the SNP will only support a compromise where the default position of Parliament would be not to provide data where assurances on the death penalty have not been received or sought and where it would be for the Government to argue otherwise in exceptional circumstances. At the end of the day, article 2 and protocol 139 obligations should be met and our shared principles across the United Kingdom on capital punishment should be protected.
Mr Wallace
The hon. Gentleman says it is for the Government to argue about exceptional circumstances. Is he saying that a Government should always seek death penalty assurances and if they do not get them, there could be exceptional circumstances, or is he saying that there are no circumstances or no exceptional circumstances—no nothing—where they would be allowed to seek that?
Gavin Newlands
I am saying that it is our position, and it should be Parliament’s position, that we should not give information to any country seeking the death penalty or seeking information from the United Kingdom in pursuit of the death penalty.
We are trying to listen to the principle that the Minister has set out, and we are trying not to bind completely the hands of future Governments. If we are looking to achieve compromise and there is a small glimmer whereby the Government can argue in exceptional circumstances for that duty to be removed—we will be arguing against that at every turn, I am sure—it should be set out in the Bill, so that we are not handing over information, but Governments can argue for doing that in exceptional circumstances. What the Minister has been arguing should be flipped on its head. We will vote against the Government amendment.
Mr Wallace
I have listened to the SNP, and I am happy to look at further scrutiny of those decisions when we consider exceptional circumstances. The SNP, having been in government in Scotland for a long time, will know that Governments very occasionally encounter circumstances where they have to make difficult decisions. If the hon. Gentleman is looking for more scrutiny, we are absolutely happy to provide that. We are also happy to provide in the Bill a primary obligation to seek death penalty assurances in a way that has never been done before. We are happy to look at that.
What we cannot do is seek and acquire those assurances, because we are not in charge of the other country. We can certainly bind our hands to seek it in primary legislation and to explain why we have made an exceptional circumstance. I have no objection to trying to reach that position. My challenge is in the absolute. My challenge is in the bit where there is absolutely no position for a Government to make a choice or decision that is so exceptional that something has to be done. It was never any different with the previous Labour Government. In fact, a Secretary of State of that Government did exactly that when push came to shove, and the details around that are even more extreme.
Never did I hear an objection about the overseas security and justice assistance document, which is a public document that has been in circulation since 2014. It is not from the shadow Attorney General or the Liberal Democrat shadow Attorney General. It says absolutely clearly in part 9:
“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’”—
I think we recognise that and agree on it—
“and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”
That is the reality.
If this is about making a stand, what has been the Labour party’s stand been since 2014, or since 2000, when it was carrying out these things? I venture that it has not taken that stand because it knows that in government—it aspires to be a Government sooner rather than later—it might have to make those decisions. That is why members of the Committee are seeking not to agree that amendment. We can offer more assurances and scrutiny of that decision, but as the Minister of State for Security, I make the decision to try to help our law enforcement agencies catch these people time and again, and I cannot bind their hands 100%. The United States has made it clear that we will not be able to progress with the treaty if the amendment falls in the legislation in the way it does.
Nick Thomas-Symonds
I beg to move amendment 7, in clause 1, page 2, line 10, leave out “or prosecution”.
This amendment would refine the definition of international agreement which could serve as the basis for an order.
The Chair
With this it will be convenient to discuss the following:
Amendment 8, in clause 4, page 5, line 24, leave out “proceedings or”.
This amendment would mean that a judge would need to be satisfied that the data sought is likely to be of substantial value during the period of the investigation: an application could not be granted solely because the data might be of value during any proceedings in relation to the alleged offence.
Amendment 9, in clause 4, page 5, line 30, leave out “proceedings or”.
This amendment would mean that a judge would need to be satisfied that, before granting an order, there is likely to be a benefit in the public interest during the period of the investigation: an application could not be granted solely because the data might be of value during any proceedings in relation to the alleged offence.
Nick Thomas-Symonds
I will deal with these three amendments quite quickly because, in essence, they would all do the same thing: bring the provisions in line with the Police and Criminal Evidence Act 1984. Specifically, they would limit the use of the information to an investigation, rather than investigation and proceedings. That is the position set out in the 1984 Act.
To be clear, the Police and Criminal Evidence Act outlines that material may be used when it is likely to be of substantial value to an investigation. It does not use the term “prosecution”. Paragraphs 2 and 14 of schedule 1 to the Act detail that applications can be made of material if they benefit the investigation. For overseas production orders, however, the clause also details the term “prosecution”. Our simple position is that, in so far as is possible, the provisions should be in line with those of the Police and Criminal Evidence Act, rather than those of the Terrorism Act 2000 and the Proceeds of Crime Act 2002, given the nature of the cases that the Bill will deal with.
Mr Wallace
I understand that the Bill is not the most exciting piece of legislation, but after the first vote the Labour party lost three of its Committee members, who have gone off to do something else. The hon. Member for Wolverhampton South West, for example, has done a bunk—I shall go through the others as we proceed. [Interruption.] The Scottish National party is present in all its yellow glory. The Bill might not be exciting, but I do not think that Members should turn up for the controversial vote and then do a bunk. We should recognise that this legislation is incredibly important to our law enforcement community and our constituents.
I understand that the hon. Member for Torfaen is concerned about the additional proceedings in relation to serving an overseas production order while PACE refers only to the investigation. However, I believe that PACE has been misread in this regard. Nothing in law says that an investigation ceases once proceedings have been brought to court. Indeed, PACE does not state anywhere—I do not believe it infers this either—that orders may be used only up until someone is charged.
The operational partners we work closely with have made it clear that, in the context of applying for production orders under PACE, they do not consider an investigation to have come to an end until convictions have been secured. It is common for new evidence to come to light and to be obtained throughout the criminal process after charge. Evidence gathering is not limited to the investigation. I believe that it is highly unlikely that a court would construe PACE so narrowly that the police could lose access to investigative tools once the person has been charged.
Nick Thomas-Symonds
The Minister seems to be making the case that there is little practical difference between the two, but my point is that PACE does not include the word “prosecution.” Where has the wording for the Bill come from, because it does not mirror PACE?
Mr Wallace
I understand. I suspect that the wording just comes from the parliamentary draftsmen. Given no significant difference, as I am explaining, the wording was simply put in that way.
As I was saying, that interpretation would be perverse, and it would have an impact not only on the prosecution but on the defence, given the duty on the police to exhaust avenues of inquiry even if they point away from the defendant’s guilt. The COPO Bill therefore deliberately references “proceedings” to make it clear that orders are available for all stages of the investigation. That was influenced by language used in section 7 of the Crime (International Co-operation) Act 2003, which deals with a request for assistance when obtaining evidence from abroad.
I reiterate that, despite the difference in the language used, the Government do not intend any difference in effect between the Bill and PACE in that regard. We do not consider that the use of the word “proceedings” in the Bill increases the likelihood of “criminal proceedings” in PACE being interpreted unduly narrowly. PACE will continue to be available to law enforcement agencies once proceedings have begun for use up to charge and beyond.
The hon. Member for Torfaen has suggested that once a trial begins the investigation is often handed over from law enforcement agencies to the Crown Prosecution Service, but it is still possible that—this happens a lot—the law enforcement agencies that were investigating the crime will then come across new evidence, which of course they would share with the prosecuting authorities. I therefore ask him to withdraw the amendment.
Nick Thomas-Symonds
I do not disagree with anything the Minister has said in that interpretation. The point I was trying to probe was the difference in the wording. On the basis of the Minister’s assurances that the wording comes from somewhere else but that he does not expect there to be a substantial difference, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 15, in clause 1, page 2, line 11, at end insert—
“(7A) The Secretary of State may only make regulations designating an international agreement under subsection (7) where that agreement—
(a) provides for safeguards and special procedures in respect of applications by competent authorities of a country or territory other than the United Kingdom for orders in respect of journalistic data and confidential journalistic data that are equivalent to those in this Act, and
(b) provides for at least as much protection for freedom of expression and the protection of journalists’ sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.”
This amendment would seek to ensure that the terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom.
The Chair
With this it will be convenient to discuss amendment 18, in clause 1, page 2, line 11, at end insert—
“(7A) The Secretary of State may only make regulations designating a treaty for the purposes of this section if that treaty provides as least as much protection for freedom of expression and the protection of journalist’s sources as guaranteed by Article 10 of the European Convention on Human Rights and Section 10 of the Contempt of Court Act 1981.”
This amendment would mean that a treaty could be designated an international co-operation arrangement for the purposes of this Act only if it provided as much protection for freedom of expression and the protection of journalistic sources as that provided in the European Convention on Human Rights and the Contempt of Court Act 1981.
Nick Thomas-Symonds
The amendment deals with the concern over what has been described as a free pass for overseas authorities to access data in the UK. Again, the issue is a fairly discrete one, on which I hope the Minster will be able to comment and give some reassurance. In its current form, the Bill allows the Government to enter into agreements with foreign Governments to enable reciprocal access to data stored in the United Kingdom. The concern is that there are no appropriate safeguards to compel the position in other countries with regard to freedom of the press, mirroring those that we have in the United Kingdom. From comments that the Minister made in a different context in a previous discussion, it may be that that is something we take into account before a particular country is considered for negotiation for such a treaty, but I would appreciate it if that was set out.
The concern is that we create a back door for overseas Governments to bypass procedures and protections laid out in the United Kingdom. Put simply, we could have a situation whereby a country that does not have our standards of press freedom is able to access something that has been obtained by journalists in this country. What assurances can the Minister give on the considerations that would be taken into account on that issue before any treaty was entered into with another country?
Mr Wallace
The hon. Gentleman makes a valid point, and I recognise the slight difference between this amendment and amendments 13 and 14, in which he deals with confidentiality. First, as I pointed out earlier, hon. Members are talking about incoming requests for UK-held data, but the Bill relates only to the UK’s outgoing requests for electronic data held overseas. I completely accept the point that the Bill cannot work without a reciprocal international agreement in place, but amendments 15 and 18 are directly related to the international agreement, as opposed to what our Bill provides for.
The Bill is simply not the right place to mandate what is, I agree, a right and laudable protection for journalists and their data. We cannot impose these conditions in advance of negotiations on an international agreement. In my view, this goes back to the principle of allowing the Government of the day to have those negotiations without necessarily having their hands tied. Of course, the UK would never agree to share data with a country that had insufficient safeguards—not as long as I am the Minister and this is our Government. I do not think that it is necessary or helpful to mandate this in the Bill.
The amendments, which seek to control the Government’s negotiating position before they have begun considering future international agreements, would not prove desirable to any Government. However, I remind hon. Members that they will get ample opportunity to scrutinise any international agreement, both when the agreement is designated and again, ahead of ratification, under the Constitutional Reform and Governance Act 2010. The Government already amended the Bill in the other place to provide that extra level of scrutiny of all international agreements.
The first, most immediate and most important international agreement will be, I hope, with the United States. As hon. Members know, the US has an even higher regard for protecting freedom of speech and freedom of the press than the UK has, as set out in the first amendment to its constitution. In addition, the US-UK agreement has been drafted to be fully compliant with EU law. If hon. Members want to know how strong the US holds the first amendment to be, I tell them that when they lobby me about neo-Nazi websites hosted in the United States—as they often do—and we seek to have them taken down because of the vile extremism that they spout, our challenge is that under the first amendment it is extremely hard, even domestically, for the US to do that.
To some extent, we would not have the same problem—well, let us hope not—but the US definitely has that problem. That is an example of how these international agreements will be between like-minded countries with similar values and rights, the rule of law and so on. In this case, on the journalistic issue, the US has a stronger protection than we currently have in the European Union. That is why we have done this in the way we have.
Nick Thomas-Symonds
I do not disagree with much of what the Minister says, and I take his point about the scope of the Bill. The point I was driving at is that if we had a treaty with a country that did not have the same laws about freedom of the press, that would obviously create a concern. I think the Minister is saying, in effect, that that would be taken into account before a treaty was finalised in any event. Is that correct?
Mr Wallace
The hon. Gentleman is right on that. I cannot speak for the next Government, but the Bill is about our requests to our courts, and this Government would not enter into an agreement with a Government that went around oppressing the press and the media. Despite the fake news, this Government believe that journalism and the press are vital to exposing the truth, corruption and everything else, and we absolutely would do all we could to protect that, both in domestic proceedings and with any international treaties. That is why the Bill is drafted so it is both compliant with European law and has high regard to the first amendment.
Gavin Newlands
I was going to speak to amendment 18, but the hon. Member for Torfaen made points broadly similar to those I was going to make. The Minister has addressed some of them, but I have one question. He said he would never countenance handing over information to a country with fewer journalistic safeguards than we have here. If that is the case, why can we not have that safeguard in the Bill, which all these international treaties and agreements will plug into? What is the danger of building that safeguard into the Bill?
Mr Wallace
First of all, the Bill is simply the docking station from here to there. It is not about international treaties—when we sign our treaties, we can dock them into the Bill. The principle of allowing a Government to negotiate without their hands narrowly tied about what they can discuss is important.
Secondly, remember that—this probably comes down to how we would draft such a provision—for the purposes of security and so on we sometimes share information with countries that do not have the same high standards as us. If we had a credible threat against aeroplanes with British tourists taking off from third countries, we would not say, “We’re not going to tell you,” and let British tourists get blown out of the sky. Of course we share information with countries, but this is about journalistic information as it applies to investigations, criminal proceedings and so on.
We can do more to provide assurances about journalistic material, notification and journalists in court here, and I can give the Committee the assurance that we would enter into international agreements only where we felt there was high regard for the protection of journalists, but I do not think that safeguard needs to be in the Bill. There would be a challenge about how exactly to draft it. It would also go against the principle of letting the Government of the day be free to hold a negotiation in a way that would achieve the same things, but could address all the different issues. Every country will have things that we have issues with, and I bet that not one country will tick all our boxes across the board. What is my highest priority? Protection of the ECHR, the right to life, journalistic protections—those things will be right up there at the very top, which I think is the best way to do it.
Nick Thomas-Symonds
On the basis of the Minister’s reassurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr Wallace
Clause 1 is the meaty part of the Bill, and the Government have removed the amendment made in the Lords. I do not need to reiterate the importance of the Bill progressing in the way that we have tried to take it through. I have offered concessions throughout, as I have done elsewhere, and concessions are still on offer to Opposition Members, and indeed to Conservative Back Benchers. However, I cannot say that I will put the Bill in jeopardy, because I believe that fundamentally that would make our constituents less safe. That is why we have removed the amendment, and why I believe clause 1 should stand part of the Bill.
Nick Thomas-Symonds
The Minister knows that I am always willing to speak to him about concessions, and that remains the case. However, I hope that he understands the real strength of feeling about death penalty assurances, which was reflected in my speech and the vote this morning. Of course we will consider the issue in further discussions, and we will revisit it on Report.
Question put and agreed to.
Clause 1, as amended, accordingly ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Clause 3
Meaning of “electronic data” and “excepted electronic data”
Nick Thomas-Symonds
I beg to move amendment 11, in clause 3, page 3, line 46, at end insert:
“but shall not include bulk data”.
This amendment would prevent applications for bulk data under the Bill.
The Chair
With this it will be convenient to discuss amendment 21, in clause 3, page 3, line 46, at end insert:
“but does not include bulk data”.
This amendment would exclude bulk data from the electronic material which can be made subject to an overseas production order.
Nick Thomas-Symonds
Amendment 11 is about safeguards on bulk data. Baroness Williams of Trafford spoke on this issue in Grand Committee on 5 September and explained why she felt that an amendment excluding bulk data was unnecessary:
“The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place,”.—[Official Report, House of Lords, 5 September 2018; Vol. 792, c. GC150.]
Put simply, there is a worry that under current safeguards it could be argued that bulk data was of substantial value to any criminal investigation and was in the public interest. This is a simple but discrete point regarding reassurances that bulk data will not be accessed by the powers in the Bill. The Government’s position, as set out in the other place, is that the safeguards there are sufficient to ensure that as the Bill stands, but I am hoping that the Minister will be able to set out and expand in greater detail on the reassurance given in the other place.
Gavin Newlands
The amendment tabled by the hon. Member for Torfaen is probably more grammatically correct than mine—my high school English teacher would not be surprised by that—but the principle is exactly the same. Rigorous safeguards are required to ensure that overseas production orders are not open to abuse in terms of requesting access to bulk data.
As someone who suffered—served—on the Investigatory Powers Bill Committee, I used to read the excerpts on the levels of oversight on the various elements of bulk data collection and interception to help to put me to sleep at night; if this is a dry Bill, then the Investigatory Powers Bill, although incredibly important, was even drier. The Scottish National party held out strong opposition to bulk data collection, and it is important to explain why we tabled this amendment: to remind the Minister that we believe that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion.
Although the Government produced an operational case for bulk powers in between the draft Bill and the Bill as scrutinised in Committee, it was inadequate because it was largely anecdotal. We still firmly believe that such powers do not pass the legal tests of necessity and proportionality, and the additional test that the same results could not be achieved using more proportionate and less intrusive means. Two American Committees that asked to look at these Bills concluded that the same information could be obtained using more proportionate and less intrusive means.
Amendment 21 in my name is straightforward; the hon. Gentleman has already outlined many of the arguments and quoted Baroness Williams, but we agree that applications for bulk data lack a careful consideration of specifically which data is to be targeted. However, the Bill does not contain any express provision requiring orders to be targeted in the manner the Government describe. It is perfectly possible for officers to argue to the Government’s satisfaction that bulk data will be of substantial value to criminal investigations and in the public interest, given that the Government already regularly make arguments about why bulk powers are required in a wide variety of circumstances.
That assumption on the Government’s part does not amount to an adequate safeguard against the potential for bulk data to be requested under an OPO. Any access to routine daily surveillance of communications en masse should be expressly prohibited, and that is what the SNP amendment and the hon. Gentleman’s amendment are both intended to do. I urge the Minister to accept our amendment.
Mr Wallace
I hope I can put colleagues’ concerns to rest. The Bill does not provide for the acquisition of bulk data. The only means of acquiring bulk data is provided for in the Investigatory Powers Act 2016.
The test in clause 4 of this Bill clearly sets out that the power to obtain an overseas production order is to make a targeted request for specific data. When applying for an overseas production order, an officer must specify or describe what electronic data is sought, and applications must therefore be precise and specific. Moreover, the Bill provisions have been drafted to require officers to consider carefully what data they are targeting, and to be able to demonstrate that the data would help with the investigation and prosecution of a serious crime.
There are safeguards, also in clause 4, that require the judge to thoroughly test the need for the data sought and to be confident that
“there are reasonable grounds for believing that the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application”,
and, in clause 4(5), that the data will be of “substantial value” to an investigation or proceedings and, in subsection (6), that producing the data is “in the public interest”. Those tests make clear that the quest for electronic data using overseas production orders will be targeted, specific and not about large volumes of data relating to a number of unknown persons.
I accept that hon. Members may be referring to bulk personal datasets, but those cannot be required using overseas production orders either. The Investigatory Powers Act fact sheet on bulk personal data, which the hon. Member for Paisley and Renfrewshire North must have remembered from his reading, defines them as
“sets of personal information about a large number of individuals, the majority of whom will not be of any interest to the security and intelligence agencies. The datasets are held on electronic systems for the purpose of analysis by the security and intelligence agencies. Examples of these datasets include the electoral roll, telephone directories and travel-related data.”
The request for a large volume of data on a specific individual, or even a group of individuals such as a criminal gang if every individual is of investigatory concern, does not constitute a bulk personal dataset, as the request is still targeted and specific. For requested data to constitute a bulk personal dataset, it has to include the full bulk dataset, which would include the personal information of large numbers of unknown individuals of no interest to the investigation. Again, under the Bill, officers cannot just request bulk personal data that would not be of substantial value to their investigation.
Gavin Newlands
To clarify, on the specific information request that the Minister speaks of, can that information be taken from data that is harvested in bulk?
Mr Wallace
Certainly not through this process. Any use or acquisition of bulk data is guided by the Investigatory Powers Act 2016, and those conditions are set out. Someone could not use the Bill to go along to court and say, “Google, can I have data on everyone in Scunthorpe who uses the internet?” That would be a bulk dataset. However, they could go along to the court and say, “I’m investigating somebody called Gavin Newlands, and I would like to see the comms data record and some of his content.” They would make the request to the judge, possibly for more than one set of data—browsing history and mobile phone text history, perhaps. That would be two sets, but they would be specifically targeted at an individual, and would therefore not be a bulk dataset. That is the difference.
Bulk datasets are required under the 2016 Act by our intelligence service and so on, and they are overseen by the Investigatory Powers Commissioner’s Office and the warrantry system, which now has the double lock in many cases. They can also be overseen by Ministers, and to some extent by the Intelligence and Security Committee when investigating operations and how that data was used. I do not know when it will be published—it might be about to be published, or have been published—but the latest annual report by the Investigatory Powers Commissioner is out. Lord Justice Fulford’s report is a detailed analysis, and highlights where mistakes have been made or the law has not been applied.
That is how bulk data is regulated and acquired. The Bill does not apply to that, and none of those requests could involve bulk data applications.
Nick Thomas-Symonds
I have some other issues to press later about journalistic material; however, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 13, in clause 3, page 4, line 3, at end insert
“, or
(c) confidential journalistic data (within the meaning of section 12(4)).”
This amendment would bring confidential journalistic data within the definition of “excepted electronic data”.
The Chair
With this it will be convenient to discuss amendment 14, in clause 12, page 10, line 27, leave out subsection (4) and insert—
“(4) ‘Confidential journalistic data’ means data—
(a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and
(b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”
This amendment would redefine confidential journalistic data for the purposes of the Bill.
Nick Thomas-Symonds
Again, the amendment relates to a theme of my amendments, regarding provisions of the overseas production orders being in line with the Police and Criminal Evidence Act 1984. I will refer to the excluded material under the Bill, because there is a set of conditions different from those that need to be met under the 1984 Act.
Under the 1984 Act, the definition of excluded material means that in most cases confidential journalistic material is simply out of the police’s reach. That protection helps to ensure the anonymity of those who approach journalists with information that is in the public interest. If journalists cannot ensure that their sources’ identities will be protected, people will not come forward with information exposing crime, corruption and other wrongdoings in society.
Clause 3 does outline that excepted electronic data cannot be targeted by applications by orders. That includes data subject to legal privilege, and any personal record that is confidential. However, there is a further concern with regard to protection for excluded material or journalistic material that is held subject to a duty of confidence. Under the 1984 Act, excluded material has a different set of conditions that need to be met. My question to the Minister is why that should be different in the Bill.
I appreciate that on Second Reading the Minister set out that the Bill had been worded in such a way that it is in line with the Terrorism Act 2000 and the Proceeds of Crime Act 2002. However, particularly in relation to POCA, one would usually have an application—a POCA application—at the conclusion of a trial. Obviously, in that situation the crime would already have been proven and the authorities would go after any ill-gotten gains as a consequence. It is not necessarily the best place to mirror provisions from in this context.
The concern is that, as the Bill stands and as excluded material is defined, we are running the risk of potentially sensitive material contained in confidential records being applied for and that there is not that explicit protection with regard to confidential journalistic sources. Journalists play a fundamental role in our society in holding those in power to account; I am sure that the Minister shares my concern that we do not want this legislation to suppress in any way investigative journalism and the exposure of matters in the public interest. I hope that he will be able to set out his position on that issue and provide reassurances to the members of the Committee.
Mr Wallace
The amendment would make confidential journalistic data an excepted category for material for an overseas production order, meaning it cannot be sought using the powers in the Bill. The amendment goes further than what is currently in place under PACE. While confidential journalistic material is excluded material in PACE, it is accessible if certain access conditions are met.
Under PACE, a constable may obtain access to excluded material for the purposes of a criminal investigation by making an application under schedule 1. Excluded material can be applied for only if there is a statute that would have authorised obtaining material in question under warrant before PACE was introduced.
Nick Thomas-Symonds
I accept that the conditions are different. The point is this: why is it not in the same place?
Mr Wallace
While the Bill was based on some of the provisions in PACE, its powers extend to further offences, such as terrorism investigations. In the Terrorism Act 2000—the legislation that law enforcement agencies currently use for terrorism investigations—confidential journalistic material is not excepted data. The Bill creates a new power to obtain an overseas production order, drawing on existing powers available to law enforcement domestically for the acquisition of content data overseas, to help to prevent unnecessary delays in tackling serious crime.
It is sensible to ensure that we do not have significantly different legal tests in the Bill. The existence of different court procedures for different sorts of court orders leads to unnecessary confusion, avoidable litigation and further delays in investigations.
Huw Merriman
My right hon. Friend touches on a point that has struck me, in relation not only to this clause but to measures further on in the Bill. The Bill applies a test that relates, on a domestic basis, to where our terrorism laws relate, but it could actually be a lot broader. I know that he has just touched on the fact that it would actually make things more complex, but would it not be possible to have a two-tier test, depending on whether the application is terrorist-related or non-terrorist-related?
Mr Wallace
I hear my hon. Friend’s point. The whole point of the Bill is to increase the speed of the process and smooth it. What we will come on to later is obviously that in this process there is notification for journalists; other people do not get notification. Journalists are brought into the process early on, so that they are able to make representations to a judge in a way that does not apply to the rest of the public. Indeed, it does not apply to Members of Parliament; if MPs are under investigation, they will not get a chance to make representations to the judge. But a journalist will get that chance.
Our view is that the terrorism law is domestic law, and that judgment has been in existence since the last Labour Government. What is important is that the judge uses his or her discretion, guided by the fact that any judgment needs to be proportionate, necessary, in the public interest, targeted at an individual and in line with the range of domestic laws. So, yes, there is POCA, PACE and the Terrorism Act 2000. However, all of those laws are established UK pieces of legislation.
If we add the notification to the judge’s discretion—the point of it has to be proportionate and necessary—and to the fact that the laws are already established, I believe that journalists will have the protection that they need. I am happy to look at the issue, which we will come to in later amendments, about effectively improving the definition of journalistic material to make sure that it is not broad and spread wide.
In this case, we must remember that the appropriate officer will need to provide evidence against each of the access conditions, and the judge will scrutinise them carefully. It is almost inevitable that in any situation where the police attempt to obtain journalistic material, there will be understandable resistance from the journalist or media organisation that holds it. Both are well versed in the process of making representations to court, and it is rare that access to confidential material is granted through PACE.
It is the Government’s intention that journalists’ interactions with their sources should be protected, but that does not mean that journalists should receive blanket protection from legitimate investigation, simply because of their chosen profession. The Bill takes a reasoned balanced approach, so I ask the hon. Gentleman to withdraw amendment 13.
Amendment 14 seeks to redefine “confidential journalistic data”. The definition in the Bill is taken from the Investigatory Powers Act 2016, which the Government feel is sufficient protection for source material.
Nick Thomas-Symonds
I have already referred to the Police and Criminal Evidence Act 1984. I am not saying that there is a blanket protection, but there is a stringent set of tests. Before the Minister concludes, will he say how satisfied he is about how stringent the tests are in the Bill?
Mr Wallace
I am satisfied, and the court rules will also expand on that. I am satisfied that judges, who regularly come down not on the Government’s side, will take the Bill and scrutinise the requests properly. We have to go to a judge, so our law enforcement agencies cannot examine the information without going via the judiciary; it goes via the judiciary in this case. I have every faith that they will be able to uphold those important principles.
On amendment 14, the term “confidential journalistic data” reflects the reality whereby journalistic material can be hosted on servers where the data would technically belong to the communications service provider, rather than the journalist. To ensure that source material has proportionate protections, the term “confidential journalistic data” has been borrowed from the 2016 Act. I am happy to discuss that further with hon. Members before Report. I therefore ask the hon. Gentleman to withdraw the amendment.
Nick Thomas-Symonds
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 ordered to stand part of the Bill.
Clause 4
Requirements for making of order
Nick Thomas-Symonds
I beg to move amendment 5, in clause 4, page 5, line 1, leave out “(6)” and insert “(6A)”.
This amendment is consequential on Amendment 4.
The Chair
With this it will be convenient to discuss the following:
Amendment 4, in clause 4, page 5, line 34, at end insert—
“(6A) Where an application for an order includes or consists of journalistic data, the judge must also be satisfied—
(a) that there are reasonable grounds to believe that the specified data is likely to be relevant evidence;
(b) that accessing the data is in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation if the data is obtained; and
(ii) to the circumstances under which the person is possession of the data holds it,
(c) that other methods of obtaining the data have been tried without success or have not been tried because it appeared that they were bound to fail.”
This amendment would require a judge to be satisfied that journalistic data which is the subject of an application for an order constitutes relevant evidence.
Amendment 6, in clause 4, page 6, line 16, after “section” insert—
““relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.”
This amendment is consequential on Amendment 4.
Nick Thomas-Symonds
This group of amendments consists of amendment 4 and two consequential amendments. Again, the amendments refer to the read-over to the Police and Criminal Evidence Act 1984. Under that Act, the warrant can be made for journalistic material only if the judge is satisfied that a series of conditions have been met, including that there are reasonable grounds to believe that an indictable offence has been committed, that the materials sought would be of substantial value to the investigation, that all other avenues of procuring the evidence have been exhausted or would be bound to fail, and that the evidence sought is relevant to the investigation. The amendments probe that relevance test.
Huw Merriman
It is a pleasure to serve under your chairmanship, Mrs Moon. I wish to speak to amendment 4. I declare an interest: I chair the all-party parliamentary BBC group, but my concerns relate to all organisations. As the hon. Member for Torfaen said, under schedule 1 to the Police and Criminal Evidence Act, there are three conditions that must be met. One is that there are reasonable grounds for believing that the material is likely to be of substantial value. That is replicated in this Bill. Another is that it is in the public interest to have regard to certain matters. That is also included. What is not included is the requirement that there are reasonable grounds for believing that the material is likely to be relevant evidence. I support the move to add that third limb to the Bill.
Let me use as an example a typical application that I have received for all material relating to a matter. It relates to all journalistic material including but not limited to audio, visual recordings and documentation related to and arising from interactions with X and Y in respect of allegations linked to certain addresses. That can be incredibly wide, so the relevant evidence test is very important.
Journalists and media organisations rely on individuals to come forward, and their investigations can be incredibly broad. There could be a large onus on them to supply a lot of information, which could include legal advice and editorial content back and forth. Without this amendment, I believe that there would be difficulties. The amendment would make the Bill entirely consistent with the Police and Criminal Evidence Act, which should be its benchmark.
The Bill states:
“The judge must be satisfied that there are reasonable grounds for believing that…the electronic data…is likely to be of substantial value”.
I recognise that there are additional bulwarks in the Bill to give us assurance, but I gently suggest to the Minister and his excellent Committee team that, if we extend the Bill to include the third limb, that would make me comfortable.
Mr Wallace
Amendments 4, 5 and 6 seek to include in the Bill an additional test of relevant evidence, which the judge must be satisfied has been met before granting an overseas production order for journalistic data, and the additional requirement that all other avenues for obtaining the data have been exhausted before applying for an overseas production order. On the relevant evidence test, under schedule 1 to PACE, there are certain conditions that must be satisfied before the judge can order the production of special procedure material. Under these conditions, first, there must be reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection with which the application is made. Secondly, there must be reasonable grounds for believing that the material is likely to be relevant evidence, which means, in relation to an offence, anything that is admissible in trial for that offence. Thirdly, it must be in the public interest, having regard to certain matters, for the material to be produced.
Only the public interest and substantial value conditions are included in the Bill. That was deliberate drafting to ensure that our law enforcement agencies have the powers they need to gain access to material that could help further investigation, even if that material is not necessarily admissible as evidence in court. Although the intent of the powers is to allow for data gathered to be used as evidence in court, we do not intend admissibility as evidence to be a barrier to obtaining material that has been identified as being of substantial value to an investigation. My officials have worked closely with operational partners to understand the need for this. Investigators from law enforcement agencies advise that there are often cases in which access to data is fundamental in discovering certain leads in an investigation, although they will not necessarily be used as evidence in court. For example, if someone is being investigated for storing inappropriate images of young children, an overseas production order could reveal further references to other platforms where inappropriate content was being stored. While the images themselves would be used as evidence in court, the lead to the platforms on which they were stored might not be.
Nick Thomas-Symonds
The Minister is talking about admissibility, not relevance. Why on earth would anyone want to investigate something that is irrelevant?
Mr Wallace
I do not think that is what I am saying. I am saying that some material would be used as evidence and some would be used as a lead through which to access or potentially find evidence. This is not about anyone going to the court and asking for irrelevant material. It is about asking for material that is substantial and meets the test of the judges.
Nick Thomas-Symonds
I do not see how a relevance test would prevent that from taking place.
Mr Wallace
I will give another reason. Unlike PACE, the Bill allows for the investigation of terrorist offences. It has been drafted to mirror the relevant parts of the Terrorism Act and POCA, neither of which has a requirement for relevant evidence tests to be met.
The concept of relevant evidence works only if an application is made in relation to a particular offence. That is why it does not exist in the Terrorism Act, under which an application does not have to be made in respect of one particular offence, but only for a terrorist investigation. Given that an overseas production order made under the Bill could be served in support of a terrorist investigation, we cannot simply import a relevant evidence test into the Bill, as in PACE. I do not believe that introducing a markedly different legal test depending on the investigation is helpful.
I reiterate that the Bill deliberately brings different police powers under one piece of legislation. The intention is to create a single set of test criteria, which the Government believe provides appropriate safeguards to accessing content data.
Huw Merriman
In a way, the Minister has answered my point, but I will still prod him in this direction. If we will not have the same three limbs as in PACE, is there no justification—notwithstanding what he just said, which makes it more complex—to have two separate related texts? One could have terrorism-related activity under the Bill, and one could not and could follow the three limbs of PACE.
Mr Wallace
We are in the process of trying to balance the safeguards. Let us remember that the Bill effectively covers a relationship between the law enforcement agencies, the courts and the CSPs—not the journalists or the person under investigation or anybody else. Journalists will be notified effectively to make a representation to a court about why, for example, half of their address book is irrelevant. They have an opportunity to make that point to the judge. Nobody else does. That provides a different type of safeguard from what my hon. Friend is looking for.
The point is well made about an investigation. Many of these investigations are about discovery and are very fast moving; starting with one mobile telephone number or one individual, it very quickly becomes a plot in a terrorist case. It is therefore about giving our law enforcement agencies the ability to pursue an investigation. However, when the investigation comes across journalistic material, the journalist will be given a notification that they are allowed to make a case for why it is irrelevant and effectively influence the parameters of that request. I venture that a judge would take that very seriously.
Some 99.9% of journalists do not have anything to fear from this process. The ones who do have something to fear are those who call themselves journalists at the Dabiq or Inspire magazines from Al-Qaeda and IS and so on, who pump out propaganda and journalism, as they see it, around the world. They have something to fear because this Bill will help us catch those people much quicker. I do not call them journalists, however; I call them first-class terrorists. Ultimately, they are the ones who would love to see bureaucracy slow down the investigation. I do not think our journalists—mainstream journalists, law-abiding journalists, and not even mainstream journalists—have anything to fear from this.
Another point was made about exhausting all avenues of accessing journalists’ data before an overseas production order is granted. First, if the amendment were incorporated in the Bill, that could have the adverse effect of compelling a judge to ensure law enforcement agencies have tried the mutual legal assistance route, which is the route we are currently trying to fix because that can take up to two years before an overseas production order can be granted. That would defeat the point of our creating this new process to prevent up to two years of delays via MLA. The caveat the hon. Member for Torfaen has added to his amendment with the phrase,
“tried without success or have not been tried because it appeared that they were bound to fail”,
would not mitigate this risk either. We are not worried about MLA failing, but about the length of time it takes to gain access to vital evidence.
It is worth noting that, in practice, law enforcement agencies would have exhausted less coercive methods of obtaining data, if they exist. Agencies will only go through the process of applying to court for potential evidence as a last resort in the investigation, for example, should suspects refuse to release or unlock access to their phones and so on. I therefore urge the hon. Gentleman to withdraw his amendment.
Nick Thomas-Symonds
I am not minded to divide the Committee on this, and I am willing to withdraw the amendment. I just say to the Minister that I am not sure the relevance test has quite the impact he thinks it does. I urge him to look again, because its inclusion would provide greater safeguards and reassurance without doing the damage he thinks. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gavin Newlands
I beg to move amendment 16, in clause 4, page 5, line 16, at end insert—
“(3A) In any case which —
(a) falls within subsection (3)(a), and
(b) relates to data which comprises or includes excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984) or special procedure material (as defined by section 14 of the Police and Criminal Evidence Act 1984)
the judge may only make an order if satisfied that the relevant set of access conditions in Paragraphs 2 or 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 would be fulfilled if the application had been brought under that Schedule.”
This amendment would that, in the case of excluded or special procedure material, a judge could only make an order if the relevant provisions on access conditions in the Police and Criminal Evidence Act 1984 were complied with.
The Chair
With this it will be convenient to discuss amendment 17, in clause 4, page 5, line 17, leave out subsections (4) to (6) and insert—
“(1) In any other case, the judge must be satisfied that there are reasonable grounds for believing that —
(a) the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application for the order.
(b) all or part of the electronic data specified or described in the application for the order is likely to be of substantial value (whether or not by itself) to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation.
(c) is in the public interest for all or part of the electronic data specified or described in the application for the order to be produced or, as the case may be, accessed having regard to—
(i) the benefit likely to accrue, if the data is obtained, to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation, and
(ii) the circumstances under which the person against whom the order is sought has possession or control of any of the data.”
This follows on from Amendment 16 and brings the current subsections (4), (5) and (6) together in one subsection.
Gavin Newlands
Many of the arguments relating to these amendments have largely been made in the previous set of amendments about PACE. To clarify, from our point of view, journalists are currently given notice under PACE, which allows them to negotiate changes to their application in most cases. These amendments simply replicates what already exists and works well under PACE for the measures in the Bill. They would ensure that the evidential value test mirrors the current law on both terrorism and non-terrorism cases, in reference to the point made by the hon. Member for Bexhill and Battle. They would also ensure that confidential journalistic material is protected as under the current law for domestic applications. As has been said already, the Bill strips out the requirement that the information sought is likely to be relevant evidence and that other means of obtaining it have at least been considered. In a free, democratic society, seizing journalistic material should be a last resort.
Although there is a public interest test in clause 4, it sets a lower threshold than in PACE. Instead of the judge being required to determine whether granting access to information would be in the public interest, as in PACE, the judge must merely be satisfied that there are reasonable grounds to believe that it would be in the public interest. Separately, the police and security services have covert powers, primarily under the Investigatory Powers Act 2016. These powers are exercised through the issuing of a warrant by the Secretary of State and the Investigatory Powers Commissioner. Exceptionally, these powers have been used by the police to identify a source. Most infamously, the police used a journalist’s phone number to identify the police source who had leaked the “plebgate” story to The Sun. As a result of concern from the press about this, some safeguards have been added. However, neither the journalists nor the CSP is given notice of an application for an IPA warrant.
Nick Thomas-Symonds
I support what the hon. Gentleman is saying, and there is a later amendment for a notice. Is not the essential issue here that, as the Bill stands, the notice provision is not there for material that might not be confidential but is none the less extremely sensitive? It would be sensible to have the notice provision for that journalistic material as well.
Gavin Newlands
I could not agree more. The Investigatory Powers Act—I thought I left it behind a couple of years ago but I am on it again—provides for communications to be intercepted in the course of transmission; for communications data, but not content, to be produced to the police; and for the bulk surveillance of communications, with access to the content of specific communications that are highlighted in this process. Other than that, there is not a general right under the Act to apply for the content of stored communications, so there is no general ability under domestic law to obtain the content of journalistic communications other than through applying for a domestic production order.
Mr Wallace
I appreciate the intention behind the amendments, but I hope that I can explain why they are not in line with the policy intention behind the general tests set out in the clause. To summarise, amendment 16 would incorporate the tests under PACE for special procedure and excluded material. Amendment 17 would ensure that our existing tests in the Bill apply to all other data in scope, including any electronic data obtained from terrorist investigations. The amendments would introduce a separate set of access conditions for special procedure and excluded material, but the Bill has been carefully drafted with serious consideration. The rational policy intention reached was that it is not desirable to introduce a separate set of access conditions, as the Bill seeks to reduce bureaucracy and streamline process, not complicate it.
More crucially, the Bill was designed not to imitate PACE but to take relevant parts of PACE, the Terrorism Act and POCA and merge them into something appropriate for an entirely new tool: a streamlined version of mutual legal assistance called overseas production orders—a new tool that confers a new or revised set of conditions. I accept that the greatest number of production orders are issued under PACE, but the power under PACE is limited to just one type of production order, for special procedure material and excluded material. If material that is not special procedure or excluded material is not voluntarily given to the police, an ordinary search warrant would be used.
The purpose of the overseas production orders will be to request evidence held overseas where we could not use search warrants. In addition to PACE, production orders can be issued under the Terrorism Act and POCA for different types of evidence. Indeed, overseas production orders will seek electronic content data for a range of offences related to serious crime, which may include terrorism.
Therefore, the overarching policy intention is to provide a careful, considered and blended set of tests that reflect the current legislation in PACE, the Terrorism Act and POCA, which would work for all types of evidence sought through overseas production orders. We do not want to introduce two different legal tests; we want to keep this simple for police and judges, in order to offer a streamlined alternative to an existing bureaucratic process. That policy intention was the goal firmly in mind, but certainly not at the expense of any necessary safeguards.
None the less, the Bill incorporates the robust tests required to request electronic content data for all types of serious crime, including terrorism. The Bill and the general tests set out in clause 4 are what we deem reasonable for all the types of evidence that overseas production orders can access. It is important to reiterate that an issued overseas production order has been deemed proportionate by an independent judge, having concluded that the tests in clause 4 have been satisfied—tests that we believe are sufficient safeguards to prohibit officers from just requesting any data they wish.
On the point about the difference between the powers under the Bill and powers under the Investigatory Powers Act, miraculously—as if in a Christmas pantomime—the answer has appeared in my hand. The Investigatory Powers Act provides for lawful intercept of communications, but US companies have been prevented from complying with requests by domestic US legislation. The agreement will hopefully fix those problems and remove those barriers.
I hope that I have convinced the hon. Member for Paisley and Renfrewshire North that his amendments are not in line with the policy intention, and I hope that he will be content not to press them to a vote.
Gavin Newlands
The Minister will be surprised to hear that I am not content. He said that the Bill is not designed to replicate PACE. We and others argue that it should. I look behind me, however, and realise that attempting to divide the Committee would be a futile gesture this morning, so I shall not press the amendments. However, if the Government do not bring forward protections that we feel appropriate—
Mr Wallace
Given that the hon. Gentleman wants to put the provision in line with POCA, is he saying that he would want to amend the Terrorism Act to put many of the Terrorism Act orders and requests on exactly the same line as the Proceeds of Crime Act 2002? That is a consequence of his view.
Gavin Newlands
We are talking about PACE, not POCA—I think that the Minister meant that, so I will answer accordingly. What he outlined is not before us today. If he introduces another Bill to make such changes to legislation, then perhaps on considering it we would argue the same points. That is for another day, but I take his point.
If the Government do not table appropriate amendments to provide protections, I suspect that we shall revisit the matter on Report, but for now I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clauses 5 to 7 ordered to stand part of the Bill.
Clause 8
Inclusion of non-disclosure requirement in order
Nick Thomas-Symonds
I beg to move amendment 12, in clause 8, page 8, line 42, at end insert—
“(3A) A judge shall only include a non-disclosure requirement for a period which, in the judge’s opinion, is necessary and proportionate in all the circumstances.”
This amendment would require a judge to include a non-disclosure requirement to cover a period which was only as long as he or she deemed necessary and proportionate.
This is another quite discrete point. Clause 8 empowers a judge making an overseas production order to include a non-disclosure requirement. Subsection (3) provides:
“An overseas production order that includes a non-disclosure requirement must specify or describe when the requirement is to expire.”
However, the clause does not include a necessity and proportionality test. Of course, it is essential that a non-disclosure requirement should not run for longer than reasonably necessary. Whereas under subsection (3) an order with a non-disclosure requirement would certainly have to specify or describe when it would expire, the judge would not be asked to consider the necessity for and proportionality of the order and its duration.
The purpose of the amendment is simply to probe the Minister for an indication of why there is no necessity and proportionality test, and whether he thinks any reassurance can be provided that those factors would be borne in mind in any non-disclosure order, which he will appreciate is a powerful order to make. It has quite profound consequences in these circumstances.
Mr Wallace
As the hon. Gentleman outlined, the clause allows for a judge making an overseas production order to include a non-disclosure requirement. Such a requirement would be imposed on the person against whom the order is made. It would prevent that person disclosing the making of the order or its contents to any person, unless with the leave of the judge or the written permission of the appropriate officer who applied for the order.
In deciding whether to include a non-disclosure requirement, judges are under a general obligation to make a reasonable decision and to take into account all relevant factors when making that decision. Furthermore, as a public authority, the court is under an obligation to act compatibly with convention rights. I hope that hon. Members are reassured that a decision to include a non-disclosure requirement will not be taken arbitrarily.
There might be circumstances in which it is appropriate for non-disclosure requirements to remain in place once the order has been complied with, or on revocation of it, for example when it could prejudice an ongoing investigation. In such instances we would expect a judge to include such a requirement as he or she would consider reasonable in the circumstances.
If the person subject to the non-disclosure requirement wants to disclose either the contents or the making of the order, the Bill already contains provisions under which the non-disclosure requirements may be challenged, including that of duration. First, when the person against whom the order is made wishes to oppose that requirement, the duration of the non-disclosure can be amended on application. In an individual case, the person against whom the order is made could seek leave of the judge, under subsection (2)(a), or written permission of the appropriate officer, under subsection (2)(b),
“to disclose the making of the order or its contents to any person”.
A mechanism therefore exists by which a person against whom the order is made can seek permission to disclose information relating to the order.
Secondly, the non-disclosure requirement will form part of the overseas production order itself. Clause 7 confers a right to apply for the variation of an order. An application for a variation can be made by the appropriate officer, any person affected by the order, the Secretary of State, or the Lord Advocate in Scotland. That could include varying the order to remove the non-disclosure requirement entirely, or to alter its duration to a period that the applicant feels is reasonable.
As hon. Members know and respect, our judges and courts are under an obligation to act reasonably. There is therefore no need to amend the Bill as is proposed. When a person subject to a non-disclosure requirement believes that it is not reasonable to remain subject to the requirement, provision already exists in the Bill for an application to the court to amend the order accordingly. The amendment is therefore unnecessary and the Government cannot support it.
Nick Thomas-Symonds
I think that there is still a case for having the necessary and proportionate test in the Bill, and that would not necessarily undermine the Minister’s argument. In the circumstances, however, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clauses 9 to 11 ordered to stand part of the Bill.
Clause 12
Notice of application for order: confidential journalistic data
Nick Thomas-Symonds
I beg to move amendment 3, in clause 12, page 10, line 18, leave out “that is confidential journalistic data”.
This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data.
The Chair
With this it will be convenient to discuss the following:
Amendment 10, in clause 12, page 10, line 19, at end insert—
“(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless—
(a) the journalist has had at least two business days in which to make representations; or
(b) the court is satisfied that—
(i) the applicant cannot identify or contact the journalist,
(ii) it would prejudice the investigation if the journalist were present,
(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or
(iv) the journalist has waived the opportunity to attend.”
This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold.
Amendment 20, in clause 12, page 10, line 27, leave out subsection (4).
Nick Thomas-Symonds
Clause 12 states:
“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”
Amendment 3 is designed to broaden that notice requirement to include material that might not be counted as strictly confidential but is nevertheless sensitive. When there is an application for journalistic data, amendment 10 would mean that the court must not determine that application in the absence of the journalist affected, unless the journalist has had at least two business days to make representations, or the court is satisfied that that would not be appropriate on a number of other counts. These two matters are important, and I urge the Minister to consider them carefully.
The notice requirement often enables a negotiation to take place between the media organisation to which the journalist belongs, or the journalist themselves, regarding what data it is appropriate to provide. It would also enable the media organisation or journalist formally to oppose the application if necessary. We believe that those are important safeguards. The notice requirement is helpful for the overall protection of journalistic material that we have discussed during our deliberations on a number of different clauses, and it is a fundamental aspect of fairness in such situations. It is not that there is a blanket exception to material becoming available in appropriate circumstances, but the amendment would introduce an appropriate balance that allows the journalist or media organisation to put forward their concerns and try to ensure that we protect our free press and investigative journalism—something I am sure all members of the Committee wish to do.
Huw Merriman
I will be brief because the hon. Gentleman said much of what I wish to say, but I wish to endorse it. The amendment would make the clause consistent with the Police and Criminal Evidence Act 1984 and apply it to all journalistic information, rather than just confidential information. I would be pleased if the Minister considered such a provision.
The point has been made—perhaps I can extend it—that such a measure would also save a lot of time and administration. If journalists are given an opportunity to negotiate with more notice, we will not find that matters reach the stage where it is too late. I am led to believe that the procedure works very much on a negotiation basis. On that basis, I think this measure is fair and consistent with domestic matters, and that it will also make for more administrative justice through our court process. I therefore support the sentiments behind the amendment, and I hope that the Minister will consider it.
I say gently to Opposition Members that, to a certain extent, and judging by what the Minister said earlier, we could perhaps have flexibility in this area and make the Bill work better if they do not seek to drive a coach and horses through the Bill with an amendment that is completely outside its scope and could potentially take it to pieces. I make those gentle points to those on both Front Benches.
Gavin Newlands
The hon. Member for Torfaen made his points with force and alacrity, and I shall not seek to detain the Committee by repeating them. However, in supporting the hon. Gentleman, I urge the Minister to listen not only to those on the Opposition Benches, but to those on his own Back Benches, to concede the principles of the amendment, and to table Government amendments on Report. If he does not do so, we will.
Mr Wallace
The Minister shook himself. Amendments 3, 10 and 20 would provide that when journalistic data is sought as part of an overseas production order, the journalist is put on notice of application. Clause 12(1) of the Bill requires that when confidential journalistic data is sought as part of an overseas production order, the respondent is put on notice. The respondent in this context would be the communication service provider from which law enforcement agencies or prosecutors are seeking content data.
The Government intended to ensure that where an application for an overseas production order was made there was a presumption that any person affected by the order, which would include the journalist themselves, was also put on notice. That was to be included in the relevant court rules, as is the case with domestic production orders, including those made under PACE, the Terrorism Act and POCA.
I am pleased to see that the amendments tabled by the hon. Member for Torfaen recognise that, should all journalists be put on notice when an overseas production order is served in respect of an application that relates to their data, certain exemptions must be in place. It is important that the requirement to provide notice for an overseas production order is not absolute. The difference between the Bill and PACE is that PACE production orders are served directly on the respondent themselves—that is, the journalist. Where PACE requires notice to be given to the respondent, notice has been given to someone who will of course be made aware of the order when it is served, as they are the person who will be required to comply with it. In practice, that will be the person handing over the data to law enforcement agencies.
However, in the Bill the orders are served directly on the CSP that owns and controls the data. Giving notice to a third party—the journalist, who is not required to act on the order—should not stand in the way of issuing an overseas production order where there are good reasons for notice not to be given. I believe that the judge is well placed to determine whether the journalist should be notified, and the circumstances in which it will not be appropriate for that to be the case.
The exemptions set out in amendment 10 are that
“the applicant cannot identify or contact the journalist…it would prejudice the investigation if the journalist were present…it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or…the journalist has waived the opportunity to attend.”
Those exemptions mirror what is currently in place in court rules for domestic production orders through PACE, and they seem a sensible approach. For example, we do not want to oblige law enforcement agencies into notifying an ISIS blogger or journalist when clearly that could prejudice the investigation. Those exemptions are fundamental to retaining a robust and sensible approach to evidence.
I thank Members for their detailed arguments, and for the time that they have taken to consider the protection of journalists. I reiterate that both the notice requirements and the important exceptions that underpin them will be provided for, as they are currently, in court rules. However, I am happy to consider whether they can be provided for in the Bill. I am happy to discuss that with hon. Members as we proceed to Report, if they will withdraw the amendment.
Nick Thomas-Symonds
On the basis of that continuing discussion, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Wallace
I beg to move amendment 2, in clause 12, page 10, line 39, at end insert—
“(6) In determining for the purposes of subsection (5) whether or not a purpose is a criminal purpose, crime is to be taken to mean conduct which—
(a) constitutes one or more criminal offences under the law of a part of the United Kingdom, or
(b) is, or corresponds to, conduct which, if it all took place in a particular part of the United Kingdom, would constitute one or more criminal offences under the law of that part of the United Kingdom.”
This amendment clarifies what is meant in Clause 12(5)(a) of the Bill by the reference to creating or acquiring electronic data with the intention of furthering a criminal purpose. What is criminal is to be judged by reference to what is, or would be, a criminal offence under the law of a part of the United Kingdom.
Clause 12(5) provides that electronic data is not to be regarded as having been created or acquired for the purpose of journalism if it was created or acquired with the intention of furthering a criminal purpose, and that electronic data that a person intends to use to further such a purpose is not to be regarded as intended to be used for the purpose of journalism. As drafted, the Bill does not explicitly define what is meant by a criminal purpose in that context. Without a definition of criminal purpose or a crime in the Bill, there is a risk that the provision could be interpreted inconsistently within UK law. Our intention is that a criminal purpose is criminal only if the conduct constituting a related crime is an offence under UK law, regardless of whether it is a crime in the place where the relevant data was created or acquired, or where it was intended to be used.
For example, if a person located in another country was creating an extremist blog that encouraged others to join a terrorist organisation that is proscribed in the UK, such as ISIS, that person should not benefit from any protections afforded to journalistic data under the Bill. That could be the case even when that country does not criminalise the same conduct. That reflects the principle that the criminal purpose must be recognised as criminal under UK law.
To flip the example the other way, if a legitimate British journalist based abroad is writing an article about political corruption, which the country that they are in deems illegal, we should absolutely ensure that they are given the right protection under the Bill, given that their conduct is perfectly acceptable under British law. Without something that links criminal purpose to conduct that is criminal in the UK, or to conduct that would be criminal had it occurred here, there is a risk that the term will be interpreted by reference to the criminal law of the place where the person who created or acquired the data is located. I therefore propose amending the Bill to include a definition of what is meant by “criminal purpose”. I hope that hon. Members will support the need for this clarifying amendment.
The Chair
Colleagues, we usually have to finish at 11.25 am, but I have discretion to extend the sitting by 15 minutes, if I think we can finish our consideration of the Bill in that time.
Nick Thomas-Symonds
I support the sensible amendment. As subsection (5) is drafted, it is clearly the case that we should not regard electronic data
“as having been created or acquired for the purposes of journalism if it was created or acquired with the intention of furthering a criminal purpose”.
The difficulty comes when we have investigative journalistic work in another country that would not be regarded as a criminal act under UK law but could be illegal in that country, if it had particularly stringent or harsh laws. The sensible way to deal with that problem is the Government’s amendment, which defines criminal purpose in relation to UK law. That achieves the purpose of subsection (5) without endangering investigative journalistic activity abroad, which we all want to see.
Amendment 2 agreed to.
Clause 12, as amended, ordered to stand part of the Bill.
Clauses 13 to 20 ordered to stand part of the Bill.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Mr Wallace
Thank you, Mrs Moon, for your swift and efficient chairmanship. I am glad that something is functioning in Parliament and Government, and it is this small corner of the United Kingdom. I thank hon. Members for their contributions. I thank the hon. Member for Torfaen, who has contributed throughout, and the hon. Member for Paisley and Renfrewshire North, who has also contributed in as consensual a way as possible. It is regretful that we disagree on one important part.
The Bill will allow our citizens to be kept safer than they are now. As unexciting as its title is—I designed it that way—the Bill is an incredibly important piece of legislation. I hope that it progresses to Report soon and then returns to the House of Lords. I thank hon. Members for their attendance. The speed of our consideration does not reflect the seriousness of the Bill.
Nick Thomas-Symonds
Thank you, Mrs Moon, for the way you have chaired proceedings. I also thank all the officials, the hon. Member for Paisley and Renfrewshire North, the Minister and all hon. Members who have contributed. As the Minister said, the speed of our proceedings is due to the fact that the vast bulk of the Bill is uncontroversial; it does not detract from the serious nature of the matters we are considering. I look forward to hearing further from the Minister on Report about the concerns I have expressed.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Crime (Overseas Production Orders) Bill [Lords]
Wednesday 30th January 2019
(5 years, 10 months ago)
Commons ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 30 January 2019 - (30 Jan 2019)
15:45 - The House divided: - Ayes: 310 / Noes: 257 - Question accordingly agreed to.
16:03 - The House divided: - Ayes: 276 / Noes: 297 - Question accordingly negatived.
The Minister for Security and Economic Crime (Mr Ben Wallace)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Amendment 1, in clause 1, page 1, line 19, at end insert—
‘(4A) The Secretary of State may not make regulations designating an international co-operation agreement providing for the use of—
(a) section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests), or
(b) any other enactment which provides for the collection of electronic data,
unless the condition in subsection 4B is met.
(4B) The condition is that the states party to or participating in the international cooperation agreement have given assurances that the death penalty will not be imposed in any case in which or in whose preparation the intercepted communication or electronic data obtained under this Act has been used.’
This amendment would prohibit the Government from entering into a treaty for the provision of intercepted communication or electronic data without securing assurances that the death penalty will not be imposed in cases where that data is used.
Amendment 12, page 1, line 19, at end insert—
‘(4A) The Secretary of State may not make regulations designating a treaty as an international co-operation arrangement under subsection (5)(b) where that treaty provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned.
(4B) Subsection (4A) does not apply if the country or territory has, within the international co-operation arrangement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.’
This amendment would require that assurances be secured from the foreign country or territory concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from the United Kingdom contributed in any way to securing.
Amendment 18, page 2, line 3, at end insert—
‘(5A) The Secretary of State may only make regulations designating an international agreement under subsection (5) where that agreement—
(a) provides for safeguards and special procedures in respect of applications by competent authorities of a country or territory other than the United Kingdom for orders in respect of journalistic data and confidential journalistic data that are equivalent to those in this Act, and
(b) provides for at least as much protection for freedom of expression and the protection of journalists’ rights sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.’
This would amendment would seek to ensure that the terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom.
Amendment 10, in clause 3, page 3, line 40, at end insert “, or
(c) confidential journalistic data (within meaning of section 12(4)).”
This amendment would bring confidential journalistic data within the definition of “excepted electronic data”.
Amendment 14, in clause 4, page 4, line 39, leave out “(6)” and insert “(6A)”
This amendment is consequential on Amendment 13.
Government amendment 2.
Amendment 13, page 5, line 26, at end insert—
‘(6A) Where an application for an order includes or consists of journalistic data, the judge must also be satisfied—
(a) that there are reasonable grounds to believe that the specified data is likely to be relevant evidence;
(b) that accessing the data is in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation if the data is obtained; and
(ii) to the circumstances under which the person is possession of the data holds it,
(c) that other methods of obtaining the data have been tried without success or have not been tried because it appeared that they were bound to fail.’
This amendment would require a judge to be satisfied that journalistic data which is the subject of an application for an order constitutes relevant evidence.
Government amendment 3.
Amendment 15, page 6, line 9, after “section” insert—
‘“relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.’
This amendment is consequential on Amendment 13.
Government amendments 4 to 6 and 19.
Amendment 16, in clause 12, page 10, line 11, leave out
“that is confidential journalistic data”
This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data.
Amendment 17, page 10, line 12, at end insert—
‘(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless—
(a) the journalist has had at least two business days in which to make representations; or
(b) the court is satisfied that—
(i) the applicant cannot identify or contact the journalist,
(ii) it would prejudice the investigation if the journalist were present,
(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or
(iv) the journalist has waived the opportunity to attend.’
This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold.
Government amendment 20.
Amendment 9, page 10, line 20, leave out subsection (4) and insert—
‘(4) Confidential journalistic data” means data—
(a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and
(b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.’
This amendment would redefine confidential journalistic data for the purposes of the Bill.
Amendment 11, page 10, line 20, leave out subsection (4) and insert—
‘(4) Journalistic data is “confidential journalistic data” if—
(a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or
(b) it is communications data of a person acting in their capacity as a journalist, or
(c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).’
This amendment would amend the definition of confidential journalistic data.
Government amendments 21 to 23, 7 and 8.
Mr Wallace
May I begin by making a slight apology to the House? As the amendments have been grouped together, my speech will be in a single block, so I ask Members to be patient.
Let me begin by addressing amendments 12, 1 and 24. I recognise that amendment 24 has not been selected, but I am happy to deal with it, because it was tabled.
Throughout the progress of this Bill, as with others that I have piloted through the House, I have been keen to reach a consensus. Labour Front Benchers, as well as members of the Scottish National party, will know that I have often been open to their ideas, and that in the case of a number of Bills—such as the Counter-Terrorism and Border Security Bill and indeed this Bill—I have taken their ideas on board and put them into law. I have done so not only because I truly care about keeping our citizens safe, but because I know that our laws work best when they do what they set out to do and are supported by the broadest consensus of the public.
The House of Commons cannot ignore the times in which we live. In the last decade, we have become more and more dependent on the internet and smartphones. In fact, 78% of people and 95% of 16 to 24-year-olds now possess a smartphone. Such technology can be a force for good, but it has also become an accelerant to those who wish us harm. Whether we are talking about county lines, terrorism or child abuse, smartphones have opened up a whole world of encrypted communications which I believe presents the biggest single challenge to our police and to law enforcement.
As Security Minister, I recall many occasions on which I was woken to deal with security issues. I remember being woken on the night of the Manchester Arena bombing, and I remember hearing the chilling news that a nerve agent had been used on the streets of Salisbury. But the day that I remember above all from the last two and a half years was the day of my visit to a regional and organised crime unit, where I had to listen, via an online chatroom, to a paedophile plot to kidnap, rape and kill a seven-year-old girl, about the same age as my daughter. If that was not sickening enough, I could sense the frustration of detectives who needed data from overseas to stop the abuse being committed, because in case after case timing is everything in these investigations.
So when the US Government, supported by Senators in the House of Congress, offered to help to solve this problem we grabbed at the chance. The House should recognise what they have offered: they have offered to remove legal barriers in the US to enable compliance with UK court orders. The Americans recognised, as we do, that the vast majority of data that we need for our investigations reside on the other side of the Atlantic—Google, Facebook, YouTube, WhatsApp, to name but a few. In fact, 99% of data that we need for child abuse investigations resides overseas and only 1% resides here.
These stark figures say two things to me. First, the reality is that we need the US data far more than they need ours. That was true before Donald Trump and it will be true after Donald Trump. Secondly, in this case, the US is doing us a favour. The Bill before us is the legislation required to give effect to a future US treaty and any other treaty we may make with another country in future, for example, Canada, so we can access that data much more quickly than we do now. These treaties will come before us separately, to this House and the peers House, at a different time, and Members will be able to scrutinise and challenge them at that point.
Let me deal directly with the Labour amendments. During the Bill’s passage in the Lords the Labour party attached to this Bill an amendment that would prevent the UK from making the necessary treaty with the US unless it got assurances that data sent across the Atlantic would not lead to the death penalty. This Bill allows enforcement agencies to access content directly from communications service providers based overseas using an overseas production order. These orders can only work when a relevant international agreement, such as a treaty, is in place between the UK and another country and as the majority of the CSPs, as I said, are based in America we expect the first such agreement to be with the United States. Both amendments 1 and 12 attempt to amend the Bill and reinsert the Lords amendments.
First, and bearing in mind how little data we hold here, having looked back over 20 years, we have not been able to find a single case whatsoever where only the data that the Bill deals with would have led to a death penalty overseas. Secondly, this is about data, not people. Extradition from the UK is dealt with by separate legislation and Her Majesty’s Government are already prevented from handing over someone without death penalty assurances. Thirdly, this Bill is about our data requests overseas in order to bring data back here for investigations and when I last looked we do not have the death penalty in this country. So to try to use the Bill as a vehicle to deal with a treaty as yet not concluded is simply wrong.
Throughout the passage of the Bill, I have been clear that the US has been generous in its offer. I have also admitted on the record that on this subject we do not have equality of arms with the US. This is not about a fantasy that we are bowing to the US. I noticed the allegations that the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) made in her column in the Daily Mirror recently saying that this was all about cosying up to Donald Trump, that the Labour party amendment
“simply blocks data sharing co-operation with all countries if the death penalty is a risk”,
and that the
“reason Ministers seem to be so keen to tear up our laws and ignore our human rights is because they are in a terrible mess in refusing to rule out a No Deal Brexit.”
Of course, nowhere does her op-ed address the central allegation that her blocking data will mean child abusers will be free to continue abuse of children for longer because we simply will not be able to get the data that we want. And perhaps I could put her mind at rest: the US offer on this treaty was initiated not under President Donald Trump, but under President Obama. This is about the reality and the decisions we need to make to put our citizens’ safety first. Members should understand that the current drawn-out methods of getting data can take months and years.
Nick Thomas-Symonds (Torfaen) (Lab)
As the Security Minister well knows, we have been working constructively on this Bill and I will not be opposing it on Third Reading irrespective of the outcome of various votes, but it is correct to say that, in the case in the summer in respect of which the High Court has just issued its judgment, the American embassy told the Government, when they failed incidentally to seek assurances at all, that if they asked:
“At worst, they will wind the president up to complain to the P.M.”—
the Prime Minister—
“and, potentially, to hold a grudge.”
The Foreign Office’s strong advice was to seek a death penalty assurance, so why on earth did they not do so if it was not for fear of the American President’s reaction?
Mr Wallace
The hon. Gentleman offers an incredibly selective quote from the ruling in the High Court by the Lord Chief Justice of England and Wales that found in favour of the Government on that case on all five counts. Every single count and every single challenge by Liberty and its glitterati up in the House of Lords failed at that test. The hon. Gentleman has also not answered the central charge, which is that to jeopardise this legislation and the treaty puts at risk children, because our law enforcement officers will not get the data in a timely fashion. Is he happy to accept that that delay should be maintained for the sake of a theoretical, never-happened occasion in the future?
Nick Thomas-Symonds
I am in favour of speeding up the data exchange. Under the mutual legal assistance treaty, since 1994 the seeking and securing of assurances has been commonplace. I take this from the High Court judgment. Ministers did not even bother to ask for assurances in the summer, so I am not confident that they have been as robust as they should be in their negotiations with the United States. There is no point in saying there is not equality of arms in this treaty. What if the Minister says that about a trade deal with the US—are we going to be allowing, then, US companies to come and take our NHS? The Minister should stand up for this principle.
Mr Wallace
I am going to stand up for the security of our citizens and a responsible Government have to balance abstract, theoretical, minute probabilities with keeping our constituents safe. Perhaps I should remind the hon. Gentleman of what we found in one of the cases. It is not related to this data, As I have clearly said, this Bill produces not a single example in the last 20 years, but under the MLAT process in the past no assurances have been sought and indeed the Government of the day indicated there was potentially a death penalty. It was a Labour Government who did not seek the assurances and did transfer the data. What does that mean? It means a responsible Government know the balance between keeping our citizens safe and making sure they comply with our international obligations. Members on the Opposition Benches have managed to do that in the past and I hope they do it again.
I have been absolutely clear. The hon. Gentleman may say he would do a better job in the negotiations if Labour was in power but, as I pointed out, we do not have equality of arms. Our negotiating position is this: there is 1% of data here versus about 90% of data there, which means our leverage is minuscule when it comes to demanding strings attached of the United States.
Ann Coffey (Stockport) (Lab)
Does the Minister agree that this should not be a point of political division in this House? It is the overwhelming priority of Parliament to protect children who are being raped, abused and exploited, and data sharing is very important. One of the barriers to protecting children has been getting data to identify people who are doing this. We want to prevent the exploitation of children and to do that we need to identify those who would exploit them. Does the Minister agree that this should be the issue, not views about Donald Trump or otherwise?
Mr Wallace
I totally agree. The hon. Lady will have heard the example I had to listen to. That was a sobering and scary experience. It is an experience that our law enforcement officers hear every single day and it is our duty to find a balance. I wish we had our own Google. I wish that all my constituents’ data were held in the United Kingdom so we would have more control over it. But the fact is we live in the world we do. That is the tragedy and it makes us have to make deals that might not always be, as we would wish, perfect. But in this case, I am concerned, like her, that what must come first is the children’s needs and dealing with terrorists, illicit finance and all the oligarchs we worry about—and Labour Front Benchers also worry about—and how we are going to get them. Until we can crack that data map, this is something that is important.
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
The Minister is making an important case for the provisions in the Bill, and I agree that we have to have this data sharing. We have to speed this up and get on with it. His new clause 1 looks like a pretty reasonable compromise to provide the necessary reassurances. It looks fairly complete to me, and I can see no reason why the House would not unanimously agree to it.
Mr Wallace
The hon. Gentleman is right. Further amendments that we have tabled provide for concessions to protect journalistic data. I have taken on board these points from Members on both sides of the House. Throughout the Bill, I have met many Opposition colleagues, including my shadow, the hon. Member for Torfaen (Nick Thomas-Symonds), on numerous occasions, and we have offered concessions that have never been offered before. One of them will put in primary legislation a mandate for the Secretary of State to seek assurances. In my view, we cannot go beyond that and force them to get those assurances, because a responsible Government might not have the upper hand at the time or have the leverage to do that, but the necessity for security is important.
This will be the first time that that has been put in primary legislation. It will put in place a policy that existed in loose form under the last Labour Government, when, in exceptional circumstances, Ministers were allowed not to seek assurances. The overseas security and justice assistance—OSJA—guidance was published in 2010 by the coalition Government, of which I think the right hon. Member for Kingston and Surbiton (Sir Edward Davey) was a member. That put in writing part 9. There are occasions on which we might be allowed not to seek a death penalty assurance, but I do not want that to become the dominant force. As I have said, we have not found a single example in the past 20 years that produced this challenge or quandary for a Minister. This is simply about comms content data; that is all it is about.
Sir Edward Davey (Kingston and Surbiton) (LD)
I hope the Minister recognises that all Members on both sides of the House want to find ways of sharing data so that we can go after these wicked people who abuse children. Will he therefore tell us what efforts have been made, in discussions with our American friends, to find a treaty that deals with those crimes and others but stops short of those crimes that could result in the death penalty? What efforts have been made to carve out those crimes so that they could be dealt with in a second treaty?
Mr Wallace
I have personally asked them to look at carve-outs in that area, and I know that officials are still working on the drafts. This is my point: the treaty will come before the House when it is still in its draft stage. I have not read the draft as it stands; it is too early. This is not going to appear next Tuesday as a treaty. We will try to maintain as much as we can in the treaty, but we must recognise the leverage that we have, the generosity of the Obama Administration’s original offer and the need of our law enforcement agencies to get on with these investigations as soon as possible.
Mr Wallace
I will press on, because I want to give the House an example. An operation commenced in August 2017 in which there were indications that a UK male suspect was using Facebook, Instagram, Gmail and Snapchat for the purpose of committing child sex offences. On the male suspect’s Facebook profile, he purports to be a teenage girl requesting friendship with teenage boys. He then engages them in sexual communication, asking them to send indecent images and/or videos of themselves committing sexual acts. The suspect sent indecent images of females sourced from the internet as bait to lure his victims into believing that they were communicating with and sharing indecent images with a teenage girl. The investigation has identified several individual Facebook accounts where indecent images of children have been sent to the user of the suspect Facebook account. Those individual accounts all belong to children.
The value of data evidence is apparent, because in that operation, the data has helped to identify in excess of 150 vulnerable child victims and enabled law enforcement to safeguard the children. However, the law enforcement agencies are still awaiting the authorisation from a judge in a US court to release the content that would enable us to prosecute and put away the individual who is doing this. Consequently, that individual is still at large. We have safeguarded the victims we know of, but our ability to charge and prosecute that person is being frustrated. We should not forget that a great deal of data is held for only 12 months, and some of the MLAT cases go on for two years or more. Not taking up the US’s offer would mean shutting the door on our police’s ability to stop abuse more quickly and to detect terror plots before they reach fruition.
Sir Edward Davey
I repeat that the case the Minister is making is supported on both sides of the House. I very much doubt that there will be a Division on Third Reading—certainly we on these Benches will be supporting the Bill at that time—so he does not need to make this case, because we all support him. The issue of this debate on new clause 1 and other alternatives is whether we can achieve the goals on which we all agree while also finding a way to implement existing Government policy on death penalty assurances. The Minister is recognised for working across the House—that is why he is held in such high regard—but it is our right to scrutinise legislation in this place, and in this debate we want to tease out whether we can find a way, through the treaties or through the Bill, to get those death penalty assurances that I am sure he also wants.
Mr Wallace
I understand what the right hon. Gentleman is saying, and I do not question his heartfelt desire to ensure that we keep people safe, but actions have consequences. He does not have to believe me when I say this, but the United States has indicated to the Government that if we attach strings to the treaty in the way that the Lords amendment would, the treaty will not progress. He does not have to believe me; he does not have to believe the United States; he can decide whether he thinks the United States will change its position or not, but let me tell him my reading of it. I have met representatives from the US Department of Justice, along with my officials and representatives from our embassy, and looked at the political situation in the Senate—I live in the real world; that is not necessarily how I would vote—and I am living with the challenge of balancing those realities, as any hon. Member would do. If these amendments, including that of the right hon. Gentleman, go through, they will jeopardise the treaty. I have set out clearly what the consequence would be if the treaty were jeopardised, and no amount of “I wish it wasn’t” will change that simple fact.
John Woodcock (Barrow and Furness) (Ind)
Are we not in danger of believing that there is a false choice between upholding the UK’s international obligations and taking action to secure this treaty? Will the UK not be obliged to follow its treaty obligations, including those under protocol 12 of the European convention on human rights, without needing to follow one of the wrecking amendments tabled by the Opposition parties and making the treaty that we apparently all want impossible to achieve?
Mr Wallace
Yes, and in answer to the amendment that was tabled but not selected, Ministers are obliged to act in accordance with our ECHR obligations. Throughout this process, we have a legal duty under the Human Rights Act 1998 to act compatibly with convention rights, including article 1 of the 13th protocol, which was incorporated in schedule 1 to the Human Rights Acts 1998 through the Human Rights Act (Amendment) Order 2004. Were Ministers to act unlawfully in making subordinate legislation under subsection 5(b) that was incompatible with the convention rights, it would be open to the courts to strike down that legislation by applying ordinary public law principles.
Mr Dominic Grieve (Beaconsfield) (Con)
First, I want to confirm what my right hon. Friend has said. This treaty being negotiated with United States has taken a long time to achieve. I remember being connected with it when I was Attorney General, and raising the matter subsequently on visits to the United States when I was Chairman of the Intelligence and Security Committee. It is quite apparent that the treaty is essential to prevent crime in this country. It is equally clear that attaching the proposed strings to it would destroy it; I have no doubt about that at all. I also endorse the point that the European convention on human rights has to govern everything that we do. In my view, in regard to the sort of data we are seeking to access and share for the purpose of fighting crime, the issue of whether the death penalty might result from an eventual criminal proceeding, which would be speculative at that stage, is entirely irrelevant.
Mr Wallace
My right hon. and learned Friend, whom I have known a long time, is the straightest politician in this House and always has the best motives. He is also the lawyer that one would want at one’s side in government, because he tells it how it is, not how one wants it to be. I thank him for his point. He knows how far back this effort goes. This Bill is not a political charge or an ideological step. In fact, without this amendment, it is probably one of the most boring Bills that we have taken through the House, but it is not a playground for ideological posturing on a theoretical issue.
There is a clear choice here: take up the offer from the United States, reject the amendment and help to keep our constituents safe, or agree with the right hon. Member for Hackney North and Stoke Newington who believes that this matter is a problem even though there are no examples from the past 20 years. She believes that we should say no to the US offer and put the whole thing at risk because our tiny amount of data could be combined with a criminal investigation overseas, when the crime is a capital offence and the offender is in a country or US state that has the death penalty, and our data alone could be the crucial piece of evidence that leads to a conviction. If ever there was an example of politics getting in the way for the most bizarre and abstract reason, it is here.
Mr Wallace
I will come to the right hon. Gentleman. All the amendments are grouped, so we have plenty of time.
Having said that, I have to apologise to the right hon. Member for Hackney North and Stoke Newington and to the Leader of the Opposition. In her column, the right hon. Lady said that I attacked her personally by criticising what was going on. I apologise that I did so, but I did so because I meant it. That is not the Labour party that I know. I have family in the Labour party. I have a relation who was a Labour MP in the 1930s and, if I remember correctly, the first socialist Lord Advocate in Scotland. The Labour party that I know would not play this type of politics with our constituents. A Labour party led by pretty much any other Labour Member would never have indulged in this type of nonsense.
The Labour party that I know in Lancashire, in the north of England and in Scotland keeps people safe and recognises the responsibility that goes with governing and that there is a balance. It is a truly difficult balance, which people of the best motives make every single day, between upholding values and keeping people safe. That is why I apologise that I had to make that attack, but I made it all the same. It is incredibly important that a Government in waiting should be led by people who recognise that their duty in government will be to make difficult decisions and to reflect the reality of the 21st century, not some abstract theoretical nonsense that panders to a few.
Nick Thomas-Symonds
I regret the Minister’s tone in places, because it is clear that we have worked together on this Bill and that the Opposition are in favour of it. Let me be clear about the difference here. The Minister is essentially saying that he is happy to be mandated to secure death penalty assurances. Labour’s amendment simply sets out that in the event that assurances are sought but not obtained, the data should not be handed over. As he says, the change will affect a tiny amount of cases, but nobody is disputing the need to speed up the MLAT process to obtain the data. That is exactly what the difference is.
Mr Wallace
No. The Labour Front-Bench team are saying that if we do not get what they want, we should block the treaty. The condition from the United States or any other country could be, “Look, I’m terribly sorry, but we have 90% of the data and you have 1%, so here’s our offer and this is the reality of it.” Labour is saying, “If they do not give us the assurances we want”—they go beyond the OSJA guidance and beyond the public policy of this Government and the previous Government—“the treaty will not be completed.” I am here to say that the treaty will not be concluded if those strings are attached in that way. That is the simple reality.
The consequences of that, as I have pointed out, will be felt in our constituencies up and down the country and will also be felt should the Labour Front-Bench team become the Government in a few years’ time. The people could be facing an existential threat to their security, and that Labour Government would have to make these same difficult decisions. We have worked incredibly well together on this Bill, but this issue cannot be removed into some abstract debate when this is about giving our law enforcement agencies the tools to do their job on a day-to-day basis.
Sir Edward Davey
The Minister is being generous in giving way. I repeat that, as he knows, both sides of the House want exactly what he has just described. However, this House’s job is to scrutinise and ensure that legislation is being done in the right way so that other parts of Government policy are also upheld. He said in response to the right hon. and learned Member for Beaconsfield (Mr Grieve), a former Attorney General, that we should not worry about this because ECHR obligations, which he read out in some detail, would prevent Ministers from not complying with this policy. Will the Minister elaborate on that for the benefit the House? When the Home Secretary recently did not seek death penalty assurances, was that decision in line with our convention obligations?
Mr Wallace
I refer the right hon. Gentleman to the rulings by the High Court and the Lord Chief Justice. On five of the grounds for challenge from the plaintiff—if that is the right word in a civil challenge—the rulings found in favour of the Government. I am happy to have a conversation with him about that further if he reads the whole judgment, but it was certainly the case that the OSJA guidance and other things were not found to be in conflict with our ECHR obligations or any other obligation. If my memory serves me right, it was also found that we were not breaking our own Government policy on the matter. I caution the House that we do not know whether that judgment will be appealed, but a hearing related to it is ongoing. The case does not relate to data; it is about broader evidence that would remain through the MLAT process. As I pointed out earlier, extradition is a separate process. This legislation is about the data predominantly held by Facebook and Google and everything else, and it is so much part of the 21st century that we cannot escape the impact that it has on us.
Turning to amendment 18, I recall the hon. Member for Torfaen tabling something similar in Committee, and I am afraid that I am going to make the same arguments in response. Amendment 18 seeks to ensure that terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom. Forgive me, because I know that I have made this point countless times, but this amendment relates to incoming requests for UK-held data when this Bill is only about the UK’s outgoing requests for electronic data held overseas.
I completely accept the point that this Bill cannot work without a reciprocal international agreement in place, but amendment 18 directly relates to international agreements, as opposed to what our Bill provides for. This Bill is simply not the right place to mandate what is a right and laudable protection for journalists and their data. We cannot impose such conditions in advance of the negotiations of an international agreement. It is not a constructive proposition to tie our hands. I say to Opposition Members that I hear the case for change and that the United States’ first amendment is probably one of the strongest journalistic protections, so that would no doubt be reflected in a treaty. Of course, the UK would never agree to share data with a country with insufficient safeguards, but to mandate that on the face of this Bill is neither helpful nor necessary. Amendment 18 seeks to control the UK Government’s negotiating position, which would not prove desirable to any Government of the day.
Another point that I make repeatedly is to remind hon. Members that they will get ample opportunity to scrutinise any international agreement when the agreement is brought before Parliament, before it can be ratified under the Constitutional Reform and Governance Act 2010 process, and then again when secondary legislation is laid before Parliament designating the agreement for the purposes of clause 1 and under section 52 of the Investigatory Powers Act 2016. The Government amended the Bill in the other place to make it clear that only agreements to which the CRAG process applies may be designated under the Bill, so that scrutiny process must be followed in every case. Members will get the opportunity to scrutinise all international agreements related to this Bill properly before they are ratified.
I have two other brief points. First, the initial international agreement will be with the United States, as the majority of overseas CSPs are currently based there. As hon. Members will know, the US places a high regard on protecting freedom of speech and freedom of the press. Indeed, it is enshrined in the first amendment to their constitution.
Secondly, any additional international agreement that the UK enters into in future will, of course, be based on trust, mutual respect and each country’s adherence to principles that include the rule of law, due process and judicial oversight for obtaining and handling electronic evidence with regards to serious crime. No rational Government of the day would do a deal with a country that lacked regard for the rule of law or that failed to maintain press freedom. If a CSP moved to a country with insufficient legal safeguards, I would not push the Government of the day in any way to negotiate such an agreement, and I highly doubt that Parliament would ratify such a treaty.
This Bill is not the right place for the proposals raised by amendment 18. The amendment is not necessary for the reasons I have outlined, and therefore the Government will not support it. I ask the hon. Member for Torfaen not to press it.
Amendment 10 seeks to make confidential journalistic data an excepted category of material for overseas production orders, meaning that it cannot be sought using the Bill’s powers. Amendments 9 and 11 seek to define confidential journalistic data for the purposes of the Bill. Members have previously raised concerns about confidential journalistic data under the Bill, and I do not want to pre-empt our debate on other protections for journalists, which will come later, but the Government’s concessions in this area are appropriate and proportionate. I do not think it is right that confidential journalistic data should be entirely outside the reach of law enforcement agencies.
As with the amendment tabled in Committee, amendment 10 goes further than what is currently provided for under the Police and Criminal Evidence Act 1984. Although confidential journalistic material is excluded under PACE, it is accessible if certain access conditions are met.
I repeat the point I made previously. The Bill has not been drafted to mirror PACE exactly. It also takes into account provisions of the Terrorism Act 2000 and the Proceeds of Crime Act 2002. The whole point of the Bill is to speed up the unnecessarily long, drawn-out process that law enforcement agencies currently endure to get access to material to help keep our constituents safe. Of course, this in no way undermines the stringent tests that must be passed for an order to be granted in a court by a judge. The substantial value test and the public interest test will both have to be satisfied, and I will shortly come on to the further inclusion of a relevant evidence test.
Amendment 11 would carve out journalists’ communications data so that it cannot be accessed under the powers of the Bill. Such an amendment is not necessary, because clause 3(4) already precludes the possibility of obtaining communications data via an overseas production order. Where an overseas production order is sought against a telecommunications operator, the Bill will apply as if references to excepted electronic data included communications data.
The Bill has been deliberately drafted so as to avoid overlap with the existing regime for communications data under the Investigatory Powers Act 2016. Should law enforcement agencies wish to obtain any form of communications data, journalistic or otherwise, they will need to proceed using existing legislation to obtain it. To be clear, this Bill does not allow for the acquisition of communications data.
I agree entirely with the hon. Gentleman that journalists play a fundamental role in our society, but amendments 9 to 11 are not appropriate. This Bill will ensure that all journalists are part of the process of applying for an overseas production order when the material sought relates to them from the outset. Uniquely, they will be able to make representations to the court. I am confident that journalists will continue to be able to make a robust defence if they believe that is relevant.
Indeed, when working with the BBC on this legislation, one lawyer told my officials that not once in 10 years could he recall a court having overruled such representations. It is important that legislation drafted in the 21st century reflects the context of the day. The nature of journalism is evolving, and law enforcement officers must be able to adapt to those changes. I therefore ask the hon. Gentleman not to press amendments 9 to 11.
In Committee, colleagues including the hon. Members for Torfaen and for Paisley and Renfrewshire North (Gavin Newlands) and my hon. Friend the Member for Bexhill and Battle (Huw Merriman) expressed concern that the tests in clause 4 do not fully replicate the tests under schedule 1 to PACE, under which there is a relevant evidence test as well as a substantial value test and a public interest test, whereas the Bill currently includes only the substantial value and public interest tests. The Bill does not contain the relevant evidence test. As I explained in Committee, the Bill replicates the production orders not only under PACE but under POCA and the Terrorism Act. Neither POCA nor the Terrorism Act requires the relevant evidence test when seeking evidence in relation to the proceeds of crime, as our law enforcement agencies will do with overseas production orders. Nevertheless, I promise to go away and consider the issues.
Huw Merriman (Bexhill and Battle) (Con)
I thank the Minister for listening to those representations. As he says, I declare an interest as chairman of the all-party BBC group.
The representations from the BBC show that the amendments will make the Bill completely consistent with the provisions under PACE and will help the administration of justice, as they may mean that many applications do not need to be spoken against. I am incredibly grateful to the Minister for listening to us, for working very closely with all of us and for filtering in our ideas.
Mr Wallace
I am incredibly grateful to my hon. Friend for that. I am not a journalist by background; I think he is—
Mr Wallace
A lawyer—oh.
All Members have raised the importance of protecting journalistic freedom, and I think we have struck the right balance between not excluding their material entirely—because I do not believe that anyone should be above the law, no matter what their profession—and giving them notice that other people would not be given, to allow them to make representations. All the way through this process, even in considering the controversial part of the Bill, we should not forget that this is done before a judge. It is not done between officials in two Administrations: these orders will be applied for in front of a court and granted by a judge. It will be for the law enforcement agencies to satisfy the range of tests and for journalists to make their representations. That will safeguard the process while at the same ensuring that we get data if it is needed to keep us safe.
Huw Merriman
I should point out that unlike the Opposition amendment—I think the shadow Front-Bench team largely supported the same change—the amendment that I tabled was realistic about the point that if the journalist could not be contacted, that would not mean that we would end the process. Ultimately, what is important is the protection of victims of appalling offences. My amendment will make sure that we strike that balance between the protection of journalists and the protection of victims, which is at the core of this excellent Bill.
Mr Wallace
Yes, my hon. Friend makes a true point. We have put in a carve-out for some very urgent situations, including if there is a threat to life or, indeed, if the journalist is impossible to track down and may in fact be a front for a foreign state, for example, in a fake news scenario or something else. All Members have had genuine views and made their points well. I am happy to accept my hon. Friend’s amendment, but there were many good parts of the amendments tabled by the Labour party, too. This is not a party political point. The exemptions get the right balance and we will be able to protect journalists, so I hope I will have the support of the whole House in asking that the relevant amendments not be pressed.
Before I finish, I should apologise for the length of my opening address. There were originally two groups of amendments, but that was changed to one group, so I needed to deal with everyone’s amendments in one go.
I think we have struck the right balance. The Bill reflects some of the day-to-day challenges that we face in keeping us safe. I urge Members not to support amendments 12 and 18, and some of the others tabled by the Opposition Front-Bench team. As I indicated at the start, throughout the passage of this Bill and other Bills, I have accepted a number of amendments from Government and Opposition Members. That is the spirit in which I have tried to conclude the passage of this Bill, and in which I hope to do so.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Before we continue with the debate, the House has the exciting prospect of the results of the deferred Divisions.
In respect of the question relating to consumer protection, the Ayes were 309 and the Noes were 268, so the Ayes have it.
In respect of the question relating to financial services and markets, the Ayes were 309 and the Noes were 261, so the Ayes have it.
In respect of the question relating to floods and water, the Ayes were 310 and the Noes were 267, so the Ayes have it.
In respect of the question relating to radioactive substances, the Ayes were 309 and the Noes were 265, so the Ayes have it.
[The Division lists are published at the end of today’s debates.]
Nick Thomas-Symonds
The first thing I should point out is that everyone in the House wants to see a way in which the mutual legal assistance treaty system is speeded. I do not think there is any issue with that in any part of this House. The issues to which I shall come in a moment in essence fall into two categories: first, the issue of death penalty assurances; and secondly, protections for journalistic data.
In respect of the intervention from the hon. Member for Bexhill and Battle (Huw Merriman), he has tabled an amendment that is essentially the same as the one that I pursued in Committee. I do not accept in any sense the difference that he suggests there is between the two. I am pleased that his amendment has been accepted and adopted by the Government.
Huw Merriman
I apologise if I have got this wrong, but my understanding is that the hon. Gentleman’s amendment would not have included circumstances in which the journalist could not be traced, whereas the amendment I have tabled takes that into account, meaning that it would not be a blocker. It is in that limited aspect that our amendments differ.
Nick Thomas-Symonds
All I will say is that I had discussions about that amendment and others with the Minister, and they were things on which we were able to compromise. I am trying to assure the hon. Gentleman that the idea that I was trying to do something to scupper the treaty is completely wrong. I am sure he would accept that that was the case, whatever the differences between us on the detail.
Huw Merriman
I absolutely accept that. The hon. Gentleman will know that he and I worked closely throughout the Committee proceedings to make sure that the intent behind what we have now was in the Bill. I give credit to him for that assistance.
Nick Thomas-Symonds
I am grateful to the hon. Gentleman for acknowledging that.
Let me turn to the issue of death penalty assurances, which has clearly aroused a great deal of controversy, and explain our position. I should say to the Security Minister that I totally accept that new clause 1 is an improvement. The position the Opposition have ended up in today is a procedural one: unfortunately, because new clause 1 is the lead provision in the group and is therefore at the head of the list to be voted on, the only way that the Opposition can secure a vote on our own amendment is by voting against new clause 1. That is just the procedural position we have ended up in, but accept that it is a step forward and make that entirely clear from the Dispatch Box at the outset.
Mr Gavin Shuker (Luton South) (Lab/Co-op)
Just to be clear on the procedure, my hon. Friend’s direction to Labour MPs will be to vote against new clause 1, although he accepts it to be an improvement; were he successful in stripping out new clause 1 and unsuccessful in passing his own amendment, would that not put us back to a worse position?
Nick Thomas-Symonds
I accept that there is always a danger that when we vote on a number of new clauses and amendments in a row, the order matters and what happens on them matters, as we have seen in recent days. Let me reassure my hon. Friend: what I am trying to say is that although I do accept that new clause 1, with its duty to seek assurances, is certainly an improvement on the case we had in the summer, when no assurances were sought at all, it does not match the position of the Labour Front-Bench team, which is that if there are circumstances—they will be rare—in which assurances are sought but not given, the data should not be handed over. That is the difference between myself and the Minister. The Minister accepts that we should be getting assurances. That is the difference: new clause 1 is an improvement, but it does not match our position.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
As a children’s doctor, I have looked after a number of children who have been sexually abused, and they have sometimes horrific physical injuries and, as we know, physical and mental scars. The mental scars in particular can last a lifetime. The House is united in wanting to be able to prevent that. Am I misunderstanding the hon. Gentleman when he says that seeking assurances is not adequate, and that if faced with a real situation in which a child is in imminent danger and those assurances cannot be got, that child should remain in danger and in a situation in which he or she is being abused, to avoid the theoretical risk of something that has not happened in 20 years?
Nick Thomas-Symonds
I just do not accept that conception of how this works or, indeed, how the MLAT treaty would work. I am afraid it would not work in the way the hon. Lady suggests. The point I am making is about cases in which assurances were not secured. By the way, I totally agree with the Minister that the United States looms into view because of this treaty, but this is a framework for other treaties with countries all around the world, and the Opposition are simply saying that we should be embedding into it the idea that, in the event that those assurances are not forthcoming from whichever country it is—rare though those circumstances are—the data should not be handed over. It is as simple as that. By the way, that has been the position for decades.
Nick Thomas-Symonds
I will give once more, but then I need to make some progress.
Dr Johnson
Does the hon. Gentleman not accept that, in this situation, which is not perfect, what he is having to do is weigh up the risk of an actual child to whom abuse can clearly be seen to be happening or at risk of happening, with a theoretical possibility, which the Minister has said has not happened in 20 years, and that such evidence can potentially, theoretically, possibly, at some point in the future, be used to convict somebody in a way that may or may not ultimately end in the death penalty? Meanwhile that real child will end up being further abused while this data is waited for.
Nick Thomas-Symonds
I do not accept that at all. The hon. Lady talks about theoretical possibilities, but these will be actual cases—actual cases, not theoretical cases.
Mark Pritchard
I am grateful to the shadow Minister for giving way. Despite the fact that this is about not extradition, but data exchange and that it is heinous crimes that will incorporate this provision, does he accept that the threshold for the death penalty, both at state and federal level, is actually far higher—the bar is higher?
Nick Thomas-Symonds
Yes, it is significantly higher, and the cases will be extraordinarily rare. That is what everybody who has looked at this says.
Mark Pritchard
I am very grateful. The hon. Gentleman is being more than generous. On the issue of assurances, does he also accept—I know that he thinks logically—that if those assurances were given and were not actually fulfilled, future assurances would obviously not carry the same weight as previous assurances that were carried through?
Nick Thomas-Symonds
I honestly cannot imagine a situation where a country that gave those assurances did not stand by them. That would undermine the whole system if that were the case. I do need to make some progress now. I hope that the House will realise that I have been generous in giving way to Government Members.
We absolutely agree, as I have said, with speeding up the mechanism, but we believe that in this framework, which will be a framework which many reciprocal treaties will be plugged into in the years to come, we should make clear our opposition to the death penalty in all circumstances. The Security Minister has spoken about the United States. I appreciate that that is where much data is held. I also appreciate that that is the treaty that is being negotiated at the moment. First, let us look at what the practice is at the moment. It is obvious that the United States would expect us to require full death penalty assurances prior to sharing this information. It routinely complies with that requirement. It has long been the case, under the 1944 treaty on mutual legal assistance in criminal matters that now exists, that the seeking and securing of assurances is commonplace. What the Opposition are trying to put into law is what has been the norm for decades.
The Minister makes the point about his judgment as to whether or not the US would wish to conclude a treaty in those circumstances—in the circumstances that the House passed the amendment that the Opposition have proposed. I just want to examine this because the recent High Court judgment in El Gizouli, which has been published in recent days, is instructive in this regard. It is very rare that we see Government papers in the public domain so soon after a particular decision is taken. That is because in July last year the House became aware of correspondence between the Home Secretary and the then United States Attorney General that the Government had not sought death penalty assurances at all. Let me be clear that we on these Benches absolutely condemn the actions of the so-called foreign fighters, which is why I have worked with the Minister to put the designated areas offence on to the statute book—it is not quite on our statute book yet, but it will be in due course. I made various suggestions about that matter, as the Minister knows, that were eventually incorporated into the Bill. We supported that principle and it will be on the statute book. However, the fact is that that matter did lead to a court case, which is instructive about Minister’s decision making.
I go back to one of the earlier interventions. This is not about naked partisan politics. These are very serious issues on which Members from all parts of the House have very strongly held opinions, and I respect whatever those perspectives are. A number of things came forward from that case in the summer. The UK embassy in Washington was asked what was the likely response from the US Administration if the UK were to seek full or partial assurances on the death penalty. The response was that
“parts of the US machinery—notably career DOJ officials—would not be surprised if we asked for death penalty assurances. It is what they expect of us.”
That, I suggest, is what I said a moment or two ago. It then added:
“But that doesn’t go for the senior political levels of this administration...At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge.”
That is worrying to see, and it would not be a way to run any negotiation. It is no surprise really that the Foreign and Commonwealth Office gave strong advice to seek an assurance. This was cited as the Government’s consistent policy over many years, which has been maintained without exception—I appreciate the one point that was made in an intervention by the Minister that there may be an exception to that. I accept that, but this is what the advice says—and without difficulty in co-operating with allies such as the US. It agreed that a sole exception would undermine the UK’s consistent and total opposition. This is what the Foreign and Commonwealth Office said about this in the summer:
“Her Majesty’s Government seeks a comprehensive assurance that the suspects will not be subject to the death penalty. This is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance…Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future attempts to secure similar assurances from other countries with which we have a security relationship... particularly if it seems likely that there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.”
Nick Thomas-Symonds
Let me finish this point and then I will give way.
The Foreign Office officials were correct, and I wish that the Ministers had listened in the summer. As the Security Minister knows, this was the subject of an urgent question some months ago to which, I think, he responded.
Mr Wallace
I am grateful to the hon. Gentleman for giving way. I wonder whether he will quote at length my response in that court case, the response of the Home Secretary, and, indeed, the other parts of the correspondence. He makes the point about the embassy. The embassy in the United States is the other part of the Foreign Office. He may like to reflect on the fact that, first, we won on all five counts, so he has picked out a few parts of the case, but not the full case. He will also know that, under this and the previous policy, one cannot seek assurances under strong reasons. He talks about hypocrisy. One of the strong reasons—a bit like some of the challenges around data, but he is referring to an MLAT case—is that the alternatives for these individuals for their rights—[Interruption.] No, I get that. The alternatives for those individuals were very much less about their rights—potentially extrajudicial killing in the back of the head and potentially being shipped to Guantanamo, to which we fundamentally object and oppose and, as that case highlighted, something in which we would not assist. The alternative for their human rights was far, far worse than a lawful trial in the United States.
Nick Thomas-Symonds
I am not disputing the outcome of the case; that is very clear. This goes back to the earlier point that I was making about new clause 1. It is clearly not currently set out in primary legislation that there is a duty to seek assurances. I am not questioning the genuine nature of what the Minister does or his decision making, but in that case and against that backdrop, no assurances were sought at all. The Minister has set out the reasons for that, but that is the brutal reality of what happened in that case, against the backdrop of the advice that I have read to the House.
More widely, Governments across the piece—this Government, the coalition Government and previous Labour Governments—have, on numerous occasions, sought to promote the UK’s opposition to the use of the death penalty around the world. There are multiple examples where Governments of all colours have sought to avoid any complicity with the use of capital punishment and have argued around the world for its abolition. In fact, the Prime Minister herself said in the House on 31 October last year:
“Our long-standing position on the death penalty is well known: we call for its abolition globally.”—[Official Report, 31 October 2018; Vol. 648, c. 911.]
And the Opposition say the same.
There are a number of examples where this country has agreed that it is highly undesirable that drugs used by some states in the United States for the purposes of execution could have been sourced here. We have decided not to fund counter-narcotics operations in Iran because of the risk that they could lead to the use of the death penalty. When the Prime Minister was Home Secretary, she triggered a review of all security engagement when Pakistan resumed executions after a long moratorium. Back in October 2016 the Government withdrew a bid to provide offender management services to Saudi Arabian prisons, again over the issue around the death penalty. And of course the UK will not export products for use in capital punishment. That is the well-established position, as is the seeking and securing of assurances.
Nick Thomas-Symonds
I will make some progress; I did give way to the hon. Gentleman about three times earlier.
What I am simply saying is that we should not move away from that norm and send any kind of signal because, in any event, this Bill goes far beyond America. I appreciate the Minister’s point about data and where it is held at present, but as the internet continues to evolve, other countries will hold more data as well. The Security Minister often said in Committee that he would only negotiate treaties with countries that shared our respect for the rule of law. I do not disbelieve him for a moment, but of course he is not going to be the Security Minister forever. Therefore, in those circumstances, we have to put the assurance in this framework now.
Opposition to the death penalty has been a bipartisan UK Government position for over half a century. Since 1965 when the work of many across this House—including the remarkable Sydney Silverman—came to fruition, this Parliament has stood as a beacon of common human values, promoting the abolition of the death penalty across the globe. For this country to continue to stand tall in the world and to use our considerable soft power, which we must, we always have to hold ourselves to the highest standards. Put very simply, for us to credibly argue for the abolition of the death penalty in other countries, we cannot be complicit in its application ourselves, and I ask that we send that strong moral signal to the world today.
It seems an odd move to now start talking about these technical issues of confidential journalistic data, important though they are. But that is of course where we are because this whole set of amendments have been grouped together. I therefore want to deal with the matter now, as well as some of the issues raised by the hon. Member for Bexhill and Battle.
In general terms, I am pleased with the Government’s direction of travel on these issues, but there are still some real causes of concern. I am pleased with the movement on Government amendments 19 and 20, which were mentioned earlier. The notification requirement now extends to all journalistic data. There was a concern that, if we were distinguishing between confidential data and non-confidential data, some would not be covered. This move is therefore to be welcomed, as is the genuine notification requirement that specifically includes the journalist, which I believe is included in Government amendment 20.
There are still some concerns that I hope the Security Minister will take on board and listen to, although I do broadly welcome the measures. In proposed clause 12(2)(b), there is an override of this requirement where it would prejudice investigations into indictable offences and terrorism investigations. Now, I accept that emergency overrides are necessary, and I would expect to see them in this Bill and other similar types of Bill. There is, however, quite a low threshold in this measure. I totally accept that prejudicing a terrorism investigation may well constitute an emergency, but prejudicing an investigation into an indictable offence is extremely broad, because indictable offences are a huge category. Indicating that they can only be tried on indictment draws the provision extremely widely.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Throughout the passage of this Bill and other Bills where we have engaged with the Security Minister and the hon. Member for Torfaen (Nick Thomas-Symonds), there has been a collaborative approach. That is again the case on Report. As the Minister said, we have had a constructive relationship with him, which is why I was quite disappointed with the change in tone this afternoon—questioning the Opposition’s motives and accusing us of essentially protecting paedophiles. Every Member, as has been said, would like to see these despicable criminals convicted, but we have to ensure that legislation is passed with adequate protections for the human rights that we are obligated to protect under the ECHR. I hope that the Minister will perhaps reflect on that.
Amendment 12, as the hon. Member for Torfaen set out in granular detail—for the sake of the House, I will not seek to repeat that process—seeks to avoid the UK being complicit in allowing for the death penalty to be practised abroad using data provided by us. We have previously heard from the Government that this would amount to driving a horse and cart through the Bill, but this is a matter of principle that the SNP will simply never compromise on. We are obviously a signatory to the European convention on human rights, article 2 and protocol 139 of which provide for the complete abolition of the death penalty.
As I have said in the past, I deeply regret that the Government resisted this amendment from the Lords and took it out in Committee, but I am pleased that we have another opportunity to put this anti-death penalty provision back into the Bill today. In opposing the amendment, the Government are setting themselves not just against our responsibilities under the convention but against their own policy of opposing the death penalty in all circumstances as a matter of principle.
In response to a written question, Baroness Anelay said:
“There has been no change in the British Government’s policy of working towards global abolition of the death penalty.
This Government pursues human rights in their universality—a more ambitious and coherent approach than focusing on a small number of single issues. Our commitment to the Rules Based International Order underpins this work, including through bilateral and multilateral support to global efforts to abolish the death penalty.”
As a signatory to the convention, we really should do everything in our power to avoid compliance in uses of the death penalty abroad. The UK at least claims to be a modern liberal democracy and a champion of human rights the world over. Opposing this amendment is entirely contradictory to those claims.
The Government have frequently refused to provide countries with aid and assistance where it is judged that that assistance could result in the use of capital punishment by the recipient party—for example, the review of UK security engagement when Pakistan resumed use of the death penalty, and declining to assist with services in Saudi Arabian prisons where juveniles were sentenced to the death penalty. Alongside this, as we have heard, the UK will not export products for use in capital punishment—for instance, medicines for use in lethal injections in the US. It would be inconsistent, not to mention a grave disregard for human rights, for the Government to refuse to supply the drugs for US executions, while providing the very information that made that execution possible.
Furthermore, the US already expects the UK to require full death penalty assurances prior to the sharing of information, and it routinely complies with this requirement—for example, in the recent “ISIS Beatles” case, when the Foreign and Commonwealth Office’s strong advice was to seek a full death penalty assurance. This was cited at the time as the Government’s consistent policy, which has been maintained without exception and without difficulty in co-operating with allies such as the US. The FCO agreed that a sole exception would undermine the UK’s consistent and total opposition. No evidence has been presented on unwillingness from the US to engage in data-sharing arrangements where death penalty assurances are required. Without clear evidence to this effect, it is difficult to accept the Government’s proposition that the US would walk away from the negotiating table for that reason.
On new clause 1, while we welcome it as an improvement, it simply does not go far enough. It is restricted to a requirement for assurances in the context of section 52 of the Investigatory Powers Act 2016. However, data could be requested by another state through a different route that does not require active interception on the part of the UK. In those circumstances, our concern would be that these protections would not operate.
Mark Pritchard
The shadow Minister, rightly, gave a litany of examples where the Government have set out to abolish the death penalty worldwide. The SNP spokesman has referred to assurances on ISIS cases and other assurances. Given that we heard from the shadow Minister that assurances have been sought previously, I am a little puzzled about why that should change.
Gavin Newlands
Words are great but it is deeds that are important, and we think that this should be in this Bill. As the Bill is, to use the Minister’s term, the docking station for future agreements, we think that this should be in the Bill, which sets the tone of the regulations for future agreements.
Mark Pritchard
To help the House and to help me—I need all the help I can get—could the hon. Gentleman perhaps give an example of where assurances have not been sought in such cases?
Gavin Newlands
That is not the point—it is about the principles. We have spoken at length about this and listed some of them. It is about the principles, and we are signatories to the ECHR as well. We should ensure that these principles and obligations are in this Bill; otherwise, in my view, we are not following those obligations.
Amendment 1, tabled by the Liberal Democrats, is an improvement on new clause 1, but my only small concern—the right hon. Member for Kingston and Surbiton (Sir Edward Davey) may address this in his speech—is that it might not cover instances where data could be requested by another state through a different route, similarly to the issues that I set out with regard to new clause 1.
Amendment 12 simply refers to
“where the treaty provides for requests”
and therefore provides the most comprehensive level of protection. I urge Members from across the House to back this amendment, as our international reputation may well be degraded even further—if that were possible given the Brexit situation at the moment—if we enable this barbaric practice anywhere else in the world.
On journalistic protections, I very much welcome the amendments tabled by the Government and by the hon. Member for Bexhill and Battle (Huw Merriman), but they still do not go far enough. They are fine in and of themselves, but other areas of journalistic protection still need to be looked at.
Mr Wallace
If the hon. Gentleman was sitting where I am and he had a choice before him where the United States Administration was saying, “Look, here’s the deal—we’ve got 99% of the data and you’ve got 1%. We haven’t got equality of arms. This is the deal—you either take it without strings attached or you do not,” and if there were no deals and no treaty, as the amendment would provide, what would he do?
Gavin Newlands
That is almost a false choice. The Minister is painting it as a black-and-white issue. At the end of the day, on an issue of such grave importance as the death penalty, I would bring it to the House and seek the House’s view. It would not be for me to try to override our principles as set in the ECHR. The USA might well hold all the data, but if we do not hold to our principles, then what is the point? That is our view.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less extremely sensitive journalistic material. As I said in Committee, that is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work.
We believe that the Bill does not provide adequate protection of confidential journalistic material. This could seriously threaten journalistic inquiry and prevent a free press from doing its job, and the implications for our democracy are worrying. We are not alone in having those concerns; the BBC and many others have raised deep concerns about this part of the Bill. Amendment 18 is essential because it ensures that any protections afforded to our journalists in this Bill are not simply domestic but that other states that the Government enter into an agreement with must mirror the UK’s press safeguards.
Amendments 19 to 23, tabled by the Home Secretary and the hon. Member for Bexhill and Battle, would introduce a requirement that notice must be given for all applications for journalistic material. It is vital that journalists can operate freely in the knowledge that Government cannot just seize their information on a whim. As I said, we very much welcome those amendments. However, I echo the concerns aired by the hon. Member for Torfaen about proposed new subsection (2B) and in particular the indictable offence override. I hope that the Minister can give us some comfort on that. Under the Bill, journalists would have a significantly reduced ability to engage in arguments about what is and is not suitable for disclosure, removing the opportunity for them to make submissions on the issues that give rise to that.
In conclusion, there have been clear improvements to the Bill, and we very much welcome those concessions. However, new clause 1 and the journalistic protections simply do not go far enough, and that is why we will back the amendments tabled by the hon. Member for Torfaen.
Sir Edward Davey
This is a very good Bill overall. It is much needed, and it is not controversial, which is why we will not vote against its Third Reading. However, our debates have shown that there is a chance to improve the Bill. Back Benchers have been able to improve the Bill, as we have seen with the amendments tabled by the hon. Member for Bexhill and Battle (Huw Merriman). I strongly support his amendments, which are well judged, and I know that the BBC supports them, too. I also support Labour’s amendment 18. It is not unreasonable to expect Government to try to ensure that there are protections for journalism and free expression in these treaties, and the world would expect Britain to uphold that. We hope to get agreement across the House on those amendments.
It is a shame that there is disagreement on the death penalty assurances. The Minister has been trying to reach out, but he will know that new clause 1 is only about seeking assurance, not receiving assurances, which is the issue at the heart of this disagreement. I intervened on the Minister earlier to ask whether there had been discussions about a carve-out for the types of offence that we are worried out. I would have thought that that would be incredibly easy, because the number of death penalty executions and cases that will result in it is tiny. I therefore would have thought that the US—a very practical people—would accept a treaty with that carve-out. The amendments tabled by my party and the Labour party would enable such a carve-out to be pushed forward. That is not unreasonable.
The Minister talks about the inequality of arms, and I get that—America is rather bigger than we are—but this is not about the Americans doing us a favour. We have data to offer them, too. It may only be 1%, but they want it. They want to catch their criminals—they want to catch the bad guys, too. We have a great record of working with them, and we should continue that. It is not as one-sided as he portrayed.
Let us remember what we are trying to achieve. A huge number of people in Congress and across America are campaigning to get rid of the death penalty. Nineteen US states no longer have the death penalty, and six of those have changed their laws since 2007 because of successful campaigning. That is one reason why we should stand up for this principle. This debate is live in the US, and it is important for not only the people we are talking about but US citizens that we send this signal. In addition to the states that have got rid of the death penalty, 11 states have not executed anyone for 10 years—it is de facto not used—so that makes 30 states. The federal Government have not executed anyone since 2003. The facts do not bear out the idea that we are pushing at a closed door and that there is massive opposition in the US political system.
Mr Wallace
The right hon. Gentleman makes a valid point. He also highlights how very rare this is, which goes to the point about balance. This is not just about death penalty assurances. This is about the United States Administration saying, “You can’t have your cake and eat it. You want all this help and all this data, and you want us to take back foreign fighters and try them, but no sooner do we say yes than you start telling us how to do it and giving us conditions.” That is part of the overall assessment that the Government made in some other cases. In this case, the data has never been an issue in the past 20 years. That is why our judgment and the clear message from the United States Administration is that that would jeopardise the treaty.
Sir Edward Davey
I hear what the Minister says, and I know that he knows there is not a lot between us on this, because we are all trying to get to the same objectives. However, the points he makes could be argued against the US position, and because we are close allies, we could close that gap. It would not be terribly great for Senators to oppose this Bill—they have Senate ratification —as they would be held to account by their citizens for getting in the way of sharing information to catch paedophiles.
As British politicians here, from all sides and including the Minister, we should stand up for British principles. Yes, we want to catch these appalling criminals, but we must make sure that we advance justice and human rights. I do not think we should see these things as separate and deal with them separately—we can bring them together. It would be a good step for this House to stand up for this principle, which we all share and which is and has for a long time been Government policy, and say to our close friends in the US that we believe we can come to some agreement.
The Minister made it clear in his response that the treaty is still in development. The hon. Member for Torfaen (Nick Thomas-Symonds) talked about how a lot of people in the US, particularly in the State Department, are expecting us to do this, so it is not unreasonable that we do, and I hope that the Minister, who is highly respected across this House and whose Bill we utterly support, can understand why we are trying to make this extra push. We are doing this to help him in his negotiations.
John Woodcock
Listening to this debate, I found myself nodding along with the shadow Minister, as often I do. He made a well-honed speech about the bipartisan approach that has long been taken on the death penalty and the UK’s opposition to it on both sides. I tried to reconcile that with his party’s position, which is to oppose new clause 1. I was agreeing with what he was saying and I have some sympathy because the reasoned approach that he characteristically takes at the Front Bench is not matched by the diktat that comes down from the shadow Home Secretary and the leader of his party.
I have to say to the shadow Home Secretary: for the second time this week, she has ended up in a position where I and others are further to the left than her on a key issue. I sat behind her on Monday night, when she was explaining to the House why it was right to abstain on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Lords have rightly, and in a way that is welcome, forced a concession from the Government—to me, new clause 1 seems substantive in writing into the Bill the requirement for this and any future Government to seek assurances on the death penalty. As has been rightly said, that approach has long been practice but it was, in terms of extradition, in a way that was quite troubling, disregarded in the instance of Mohammed Emwazi and others.
New clause 1 has been tabled after pressure from the Lords. It is a step forward in legally codifying opposition to the death penalty. As I understand it, the Labour party is going to try to force its Members of Parliament to vote against it, in the hope that they will then get to an amendment which would be unworkable and would indeed wreck the chances of a treaty, as the Minister has convincingly set out. Assuming that new clause 1 goes through—I will certainly be voting for it and I am encouraging many Labour colleagues to vote for it or abstain—we are not, as I understand it, going to get to the Labour amendment, by which they appear to be setting store. I am afraid that that epitomises the deep oppositional politics that has always been a hallmark of the shadow Home Secretary and the Leader of the Opposition. It is an example, I am afraid, of why it would be so deeply troubling for the nation if they were given the chance to stand at the other Dispatch Box and have the authority to act as Home Secretary and Prime Minister.
This seems to have been another week when precedents are changing in this House. As I understand it, the Labour Whip is no longer binding on either Back-Bench or Front-Bench MPs, and it seems to be possible for Labour Front-Bench MPs to break their own Whip and remain on the Front Bench. I do not know if there is a requirement to go and sit in the Smoking Room to be exempt from what would otherwise be the strictures of the Front Bench.
This means that Labour MPs are being forced into making a false choice on human rights. We have to uphold human rights as a country. If we do not uphold them, the law will bring the Government into line, as it may yet do in the case of the so-called “ISIS Beatles”. The Labour leadership are forcing a choice on this incredibly important action to gain the treaty to speed up action against paedophiles, and on action to be able to convict British terrorists. They are forcing their MPs to choose one or the other. It is a false choice and one that I hope MPs will reject. I hope they will vote for new clause 1, so that we can go ahead with a strengthened Bill, which the country needs.
Mr Wallace
With the leave of the House, let me say that the amendments have been well heard and well argued. Following what the hon. Member for Barrow and Furness (John Woodcock) has said, it is true that this is a false choice. This is real: it is about giving power to our law enforcement agencies to get data—data only; not the wider MLAT evidential packages, which are already covered by the overseas security and justice assistance guidance. Nor is it about extradition. It is simply about recognising the 21st century we live in, where the data is stored and the vital need for us to get it.
It is just wrong to tie this up with Trumpian ideology or anything else. It is not true. The shadow Home Secretary may like to note that it started under President Obama. We are not kowtowing to President Trump at all. This suggestion from our allies will help us to cut the time—from years and months to months and days—to get the vital data we need to protect our children and to protect us from terrorism.
Mark Pritchard
May I reach out to the Opposition? As the joint chairman of the all-party group on the abolition of the death penalty, I, like the shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), did have some concerns. However, I have addressed them with the Minister, who has listened. I think the Government have listened and I appeal to the shadow Minister and the Opposition Front-Bench team to think again in the national interest and in the interests of victims.
Mr Wallace
I am grateful to my hon. Friend, who has campaigned against the death penalty for very many years and who, as co-chair of the all-party group, knows a thing or two about it. I do not think he would say that lightly if he did not feel it.
My shadow made some points about the judgment in the “Beatles” case, which is not of course related specifically to this data, but makes the point about exceptional circumstances. I urge him to read the judgment in full.
Mr Wallace
Then the hon. Gentleman has quoted so selectively. If he has read it in full, he will know that all five points of allegation—
Mr Wallace
Yes, but the hon. Gentleman did not expand on them. If he had, he would have said, for example, that the Lord Chief Justice of England and Wales made it very clear that
“the Government recognises and responds to the realities of political life in the state concerned, whether or not it likes those realities. It would be very odd indeed to ignore them. Ministers, diplomats and other officials are engaged in a constant process of evaluation, making judgements about the differences between what is said and what is meant; between what is threatened, explicitly or implicitly, and what is likely to happen; about the impact of action of the UK. That is what was done here. The Home Secretary had the advice of the British Ambassador…The suggestion that he was not entitled to take it into account and rely on that expert assessment when making his own judgement is misconceived.”
The Lord Chief Justice recognises the political realities within which we operate in the course of trying to keep people safe in this nation. It is a great shame that the shadow Home Secretary cannot manage to recognise those realities when the Lord Chief Justice can.
Question put, That the clause be read a Second time.
Alan Brown (Kilmarnock and Loudoun) (SNP)
On a point of order, Madam Deputy Speaker. It came to my attention earlier on that the Secretary of State for Scotland is visiting my constituency tomorrow. I first became aware of the visit via lines in the local press about an announcement of funding for the Ayrshire growth deal. I have since received a ministerial notification, but it contains no details whatsoever. The information even has the wrong name for the venue—imagine that. My office has since asked the Scotland Office for more information, and we are still being told that it is just a simple visit to a local college, but that is completely contrary to the details in the press.
Of course, I welcome the potential announcement of £100 million for the Ayrshire growth deal. It has cross-party support, and everybody has worked hard to get it over the finishing line. However, it would be more appropriate to maintain such cross-party co-operation and, at the very least, to show due respect to me as the constituency MP by sharing the information that the Scotland Office has shared with the press. I am looking to you for guidance on the matter, Madam Deputy Speaker.
Madam Deputy Speaker (Dame Rosie Winterton)
I thank the hon. Gentleman for his point of order and for giving me prior notice of it. I understand that he has also informed the Secretary of State for Scotland that he would be making it. I appreciate the hon. Gentleman’s annoyance at not being properly informed regarding the details of the visit, because that is what is expected. However, having raised the matter, I hope that he will get further clarification. I am sure that those on the Treasury Bench have noted what he said and will ensure that the proper information is sent to him.
Third Reading
Mr Wallace
I beg to move, That the Bill be now read the Third time.
Throughout the process, the Bill has been about giving our law enforcement agencies a step change in capability to access the vital data needed to investigate some of the worst crimes perpetrated against our constituents. The House has spoken. We examined the Opposition’s amendment 18 and the amendments that mirrored those attempted in the House of Lords. A majority of 53 in rejecting amendment 18 sends a clear notice that Members in this House have considered the delicate balance between obligations and security and have favoured that we should send the Bill back to the Lords with the amendment rejected. I hope that their lordships will reflect on that.
This Bill is about the security of our children and our constituents and about taking up an offer made by President Obama’s Administration to help us with vital investigations where time is of the essence, so that we do not have to go down the long bureaucratic route of the MLAT process, which can take months or years. Indeed, I meet police officers who tell me that they cannot actually progress investigations as a result. When that process of obtaining vital data is turned into days and weeks, this House should be proud not only of our special relationship with the United States that has enabled this to happen, but of the fact that our police will be able to get the necessary data.
Members from across the House often quite rightly complain that data from faraway CSPs, such as Facebook and Google—data that is corrupting the internet and radicalising our families and our children—is being used to prosecute cybercrime and that we need to do more about that. We need to take action to stop such things happening. This Bill contains a strong measure offered by the US Administration, and it means that we will be able to do much more to keep our citizens safe. It is the responsible thing to do.
I have listened to suggestions throughout the Bill’s progress and have taken them into the Bill where and as much as possible, including on the protection and notification of journalists. I hope that the other place recognises the consensual way in which we have made progress on 90% of the Bill. We will be the first nation to have such an arrangement, although there is more work to be done around the treaty.
I do not know whether the Lords will send the Bill back—I pray that they do not—so I will say a grateful thanks to my Parliamentary Private Secretary, my hon. Friend the Member for North Dorset (Simon Hoare), who has done great work; to the usual channels; and to the Labour and SNP Front-Bench spokespeople, the Democratic Unionist party and the Liberal Democrats, who have all either accommodated offers or had the time to listen to me in private to try to resolve matters. I thank my officials and the Bill manager. This is her first Bill, and she was allocated a Bill that looked so boring and innocuous that there would be no controversy. Little did she know how our friends in the upper House would behave—I can only apologise for that. I thank the team for doing a sterling job. I hope that the Bill does not return and that we can look forward to its coming into law.
Nick Thomas-Symonds
I echo the Minister in saying that 90% of the Bill has been consensual, and a number of parties, including the SNP, the Liberal Democrats, Labour and others, have sought to contribute constructively throughout its passage.
The issue of death penalty assurances generated a great deal of controversy, but the Minister will have noticed that I indicated earlier that we would be supporting the Bill on Third Reading, irrespective of the outcome of previous votes. That remains our position, and I join him in his frustration with the slowness of the MLAT process. MLAT is a well-established process but, clearly, we need to look at speeding it up, and this Bill is a mechanism by which we can do that.
The Minister rightly focuses on America, partly because of the extent of the data it holds and partly because that treaty has been negotiated, and it will be a framework for other reciprocal treaties all around the world. Of course, he would expect me and the Opposition to scrutinise every single one of those treaties when they come before the House in due course. Parties on both sides of the House share the long-cherished principle of international human rights.
Mr Jim Cunningham (Coventry South) (Lab)
I apologise for missing some of the debate on Report. Will my hon. Friend reassure us about the sources of intelligence information? There have been stories in the past about how our intelligence has been gained. Is he satisfied that there are enough safeguards to ensure those stories are not repeated?
Nick Thomas-Symonds
Clearly, I do think the safeguards in the Bill have been significantly improved, which is one reason why I am content to support it. Obviously that is not to say there might not be legal challenges to aspects of the Bill in due course—there may well be—but I am pleased and content with many of the improvements that have been made. Throughout my time in this role I have tried to work consensually with the Minister, as has been the case with this Bill and others, and that will continue in the years ahead.
I join the Minister in thanking the Bill team. I have spoken to different members of the team over the course of the Bill’s passage. People did not necessarily expect the Bill to end up in this place when it began as a non-consensual Bill in the House of Lords. I also thank their lordships, the Minister and all the members of the Committee who contributed to the Bill. The time has come to move forward and to try to put in place this mechanism to speed up the exchange of information, with appropriate safeguards for keeping our citizens safe.
Gavin Newlands
Every hon. Member would accept that the current wait times in the MLAT process are unsustainable. Notwithstanding the arguments made on Report and at earlier stages, we welcome the Bill and believe that investigations and proceedings relating to serious offences in Scotland will benefit from the use of overseas production orders as a quicker, more streamlined process for obtaining that data.
I am, of course, disappointed that we were unsuccessful in securing full death penalty and journalistic protections. The death penalty protection, at least, may come back to us. Despite the Minister’s tone at the start of the debate, I thank him for his approach to this Bill and to the other Bills on which the hon. Member for Torfaen (Nick Thomas-Symonds) and I have worked.
I thank the hon. Members for Torfaen and for Scunthorpe (Nic Dakin). It has been a somewhat easier and more enjoyable—if that can be the word—experience for having worked together so well. I also thank the Clerks in the Public Bill Office and the various organisations that have provided briefings for Members.
The Minister was right—and he reiterated it—when he said that this was an important but essentially boring Bill. The Minister, the shadow Minister and I find ourselves in a lot of Committees considering Bills that could easily be described as boring, and I am sure that after last night’s vote that may well be the case again very soon. So I shall see them soon, I imagine.
Question put and agreed to.
Bill accordingly read the Third time and passed, with amendments.
Crime (Overseas Production Orders) Bill [HL]
Monday 11th February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 157-I Amendment for consideration of Commons amendments (PDF) - (8 Feb 2019)
15:45 - Division on Amendment 13A (to Amendment 13) - Ayes: 188 / Noes: 207 - Amendment 13A (to Amendment 13) disagreed.
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 1.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as noble Lords will know, the purpose of the Bill is to sidestep the bureaucratic barriers that we currently face in investigating and prosecuting serious crime. The Bill allows law enforcement agencies to access content data directly from communication providers based overseas using an overseas production order.
Briefly, before turning to the amendments to the Bill made in the Commons, I know from conversations with the noble Lords, Lord Rosser and Lord Kennedy, that there were some concerns surrounding extradition. I put on the record and reassure noble Lords that this Bill has nothing to do with extradition. Overseas production orders are about seeking stored communications content data from overseas providers for the investigation and prosecution of UK criminal matters; it does not provide any new avenues for extradition, which is entirely out of scope of this Bill.
I turn to the amendments made in the other place. Orders under the Bill can work only when a relevant international agreement is in place between the UK and another country. As the majority of the CSPs are based in North America, we expect the first such agreement to be with the United States. Amendments 1, 13 and 15 relate to death penalty assurances in any such international agreement.
Amendment 13A, proposed by the noble Lord, Lord Paddick, would amend the Bill to oblige the Secretary of State to seek and secure a death penalty assurance in any future international treaty. I make it absolutely clear: if noble Lords vote in favour of this amendment, they will be tying this and all future Governments’ hands in negotiations that are never entirely under our control, whether they be with the US or any other country with which we wish to enter into an agreement. Live international negotiations do not work in this way. If we are unable to secure a relevant international treaty, this Bill and its powers will be rendered entirely pointless.
As I have stated throughout the passage of the Bill, it is our duty to give our law enforcement agencies the tools that they need to fight and prevent serious crime, and our prosecution authorities the tools that they need to bring offenders to justice. Current delays in accessing content data held and stored by companies based outside the UK make their job much harder. Delays prevent criminals being brought to justice. If we do not successfully conclude this Bill and the US agreement, child abusers will be able to continue their heinous crimes while the police wait for up to two years for the relevant evidence to be transferred from abroad, or worse still, drop investigations because they simply cannot afford to sit through long delays.
The reality is that the majority of communication service providers are in the US. It is a fact that we need access to data held in the US a lot more than the US needs access to data held in the UK. The UK holds only 1% of the data that we need to prevent and catch sexual abusers of children, meaning that 99% of it is stored abroad. The level of child sexual abuse reported by US service providers has increased, and continues to increase, in horrific quantities—by 700% since 2012. There is a clear inequality of arms from the outset, and to restrict Ministers’ discretion in negotiations could jeopardise the US agreement and result in serious criminals being able to continue their abuse.
Of course the US treaty will have some form of death penalty assurance associated with it, but the exact details and practicalities of this assurance have not yet been negotiated. That is why Parliament will, rightly, have its say on any treaty put before the Houses during designation and prior to ratification. Members can then decide whether the contents of the treaty and its death penalty assurances are acceptable to the House.
In recognition of the concerns raised by noble Lords, the Government have amended the Bill so as to mandate the Secretary of State to seek death penalty assurances in connection with all relevant international agreements. For the first time, this puts into primary legislation policy that reflects the overseas security and justice assistance brought in under the coalition Government in 2010. The outcome of such negotiations will be implicit in the international treaty necessary to give effect to this Bill. The Government will commit to make a Statement, in both Houses, when the relevant treaty is put before Parliament in the usual way. Indeed, this Government and previous Governments are familiar with the need to obtain death penalty assurances when providing evidence to other countries. We do this in line with OSJA, a fundamental piece of long-standing policy that recognises that negotiating with another country is complex and does not attempt to dictate the outcome of any particular negotiation. Governments of all colours have agreed with and used the approach set out in OSJA.
The Government’s amendment, in line with OSJA, is therefore a sensible compromise that does not jeopardise law enforcement agencies’ capabilities. I ask noble Lords to support Amendments 1, 13 and 15, to let the Government continue our negotiations with our international partners as we have done for so many years, and to exercise powers of scrutiny—both prior to ratification of the agreement under CRaG and when secondary legislation comes to be laid—to assess whether the terms of any death penalty assurances are acceptable.
Lord Paddick (LD)
My Lords, Amendment 13A in this group is in my name. I make it clear from the outset that we support this Bill, which is why at Third Reading in the other place we did not vote against it. What we did—and what Labour did in the other place—was to vote against the Government’s Amendment 13 proposing a new clause after Clause 15, because it does not go far enough. It does not ensure that death penalty assurances are secured from foreign states to make sure that data provided by the UK, whether by law enforcement agencies or private companies, does not lead to someone being executed. The Government claim to have come a long way in their amendment, but it requires only that a Secretary of State seek death penalty assurances, not that any agreement is dependent on death penalty assurances being received.
The UK is a signatory to the European Convention on Human Rights, which is incorporated into UK law by the Human Rights Act 1988. It is also a signatory to Protocol 13 to the convention. Article 2 of the convention states:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law”.
Article 15 states:
“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.
Article 57 states:
“Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision”.
However, the UK is also a signatory to Protocol 13 to the convention, Article 1 of which states:
“The death penalty shall be abolished. No one shall be condemned to such penalty or executed”.
Article 2 of the protocol states:
“No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention”.
Article 3 states:
“No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol”.
In other words, there should be no death penalty in any circumstances whatever. That is our international legal obligation.
The UK has been clear—until this Conservative Government took office—that it will campaign to remove the death penalty wherever it exists in the world and will never facilitate the execution of anyone in any foreign state. The difficulty with the type of agreement covered by this Bill is that data provided by the UK to an American law enforcement agency, for example, could result in someone in the US being sentenced to death, contrary until recently to both the UK’s international obligations and its declared intention to do all it can to eradicate the death penalty wherever it exists in the world.
I say “until recently” because, in a High Court case in October last year, it was revealed in correspondence from the Home Secretary to the then Foreign Secretary that, in the case of two ISIS terrorists, evidence was going to be supplied to the US without a death penalty assurance. His letter said that,
“significant attempts having been made to seek full assurance, it is now right to accede to the MLA”—
mutual legal assistance—
“request without an assurance”.
The then Foreign Secretary replied that in this,
“unique and unprecedented case … it is in the UK national security interests to accede to an MLA request for a criminal prosecution without death penalty assurances”—
a unique and unprecedented case to provide evidence to the US that may lead to executions. The Bill as drafted allows the Government to enter into a data exchange agreement where potentially there would be no death penalty assurance in any case. The Government’s new clause requires the Secretary of State only to seek such assurances; it does not bar the Secretary of State from entering into the agreement without death penalty assurances.
The Government will say that not entering into an agreement with the US could potentially allow terrorists and paedophiles to be a threat for longer. We say that we will not stand in the way of such an agreement provided that it does not result in UK data resulting in people being sent to the electric chair. The first thing to say about what the Minister said in her opening remarks is that these agreements are about securing legal authority to enable data to be provided that can be used in evidence in criminal proceedings. It is about giving legal cover for the handing over of data. It should not prevent the arrest and detention of dangerous suspects while that formal legal authority is obtained, and it can still be obtained through existing MLA arrangements, as in the case of the ISIS suspects. It may delay the trial, but it should not prevent the arrest and detention. Even if there were circumstances that I cannot personally envisage where the arrest and detention of a dangerous criminal were delayed, if the US says it will not sign an agreement containing death penalty assurances then it is the US that is prepared to allow the threats from terrorists and paedophiles to go on for longer by having to rely on the current MLA system.
I shall summarise our position using someone else’s words:
“Our amendment would prevent authorities in this country sharing data with overseas agencies where there is a risk of the imposition of the death penalty. More than 50 years ago parliament as a whole passed a law which ‘opposes the death penalty in all circumstances’. That is the law of the land. It means we do not co-operate with any government if the consequence could be capital punishment. Parliament has for a long time believed that the death penalty is so abhorrent, and the risks of a miscarriage of justice so awful, that we outlaw it. Our ban applies to all countries where the death penalty is still on the statute books. But government Ministers are desperate to cosy up to Donald Trump’s administration in the US, where the death penalty is still imposed. Our amendment simply blocks data sharing co-operation with all countries if the death penalty is a risk”.
I have just quoted, word for word, the shadow Home Secretary Diane Abbott from her column in the Daily Mirror on 28 January this year about the Labour amendment that was replaced in the Commons by Amendment 13. However, Amendment 13A is designed to have the same effect as the Labour amendment passed by this House.
The opposition parties have worked together on this issue from the beginning, but this should not be a party-political issue; it is a question of fundamental human rights. Again, the Minister will correct me if I am wrong, but essentially this Government are willing to sacrifice people to the electric chair in America if that is what it takes to secure the kind of agreement that the Bill covers. Asking us not to tie the hands of those negotiating the deal really means, “Do not ask them to insist on death penalty assurances”.
The question is: do we stand by Article 2 and Protocol 13 of the European Convention on Human Rights, and do we oppose the death penalty in other countries, or do we not? If we are prepared to see people being executed on the back of evidence provided by the UK, then noble Lords should support the government amendment rather than Amendment 13A. This is a question of principle, a question of conscience and a question of human rights, and we should support it on all sides of this House.
Lord Hope of Craighead (CB)
My Lords, I have been struggling to understand what the Government’s position might be. I think I picked up the Minister saying that the amendment concerns prosecutions in the United Kingdom only. With great respect, if that is right, I do not understand how that fits in with the language of the statute and the amendment itself. I will explain where I am coming from.
Section 52 of the Investigatory Powers Act 2016—the section being amended—is headed “Interception in accordance with overseas requests”. We are contemplating a situation where a request comes from another country, presumably for prosecution in that country, on the basis of information that we have obtained via intercepts. The whole point of Section 52, without the amendments, is to authorise the making of interceptions in accordance with that request.
My understanding is that subsections (6) and (7) of Clause 1 deal with a precaution against the kind of point that the noble Lord, Lord Paddick, was talking about—our international obligations. I agree almost precisely with the background which the noble Lord traced for us, set against Article 1 of Protocol 13 of the European Convention of Human Rights, which provides that sentencing to death is a violation of the right to life under Article 2 of the convention. If one applies Article 1 of Protocol 13, it would seem to be a breach of our convention obligations to provide information to a foreign country that would lead to somebody being sentenced to death. I do not know whether that has ever been tested in a court, because I do not think the issue has been brought before a court—I am not aware of that happening. However, there seems to be a strong prima facie case that if the Secretary of State was proposing to do that, he could be stopped on the grounds that it would be in breach of this country’s international obligations.
I am puzzled about whether the Minister is right that the purpose of this section is to enable us to prosecute in our own country, where we have no death penalty. The idea of an international agreement is, I think, that it should be reciprocal; it would be a bilateral agreement with a particular country—let us assume it is the United States—and there would be obligations on both sides. We would seek the benefit of the agreement to obtain information for us to prosecute cases of child abuse, which the Minister referred to; one would very much want to secure an agreement which would enable that information to come to us. However, in the context of Section 52, the thrust seems to be the authorisation of intercept information by us to provide for prosecution abroad. I am having difficulty seeing how that fits in with what the Minister said earlier.
Let us assume that the noble Lord, Lord Paddick, is right that this is really dealing with provision of information to go abroad. Then one comes right up against Article 1 of Protocol 13. What mechanism does one install to prevent a breach of the article? I think I am right that the mechanism of an assurance is well established in international law. In fact, in 2006 the United Nations produced a very helpful note, Diplomatic Assurances and International Refugee Protection, which traced the mechanisms that had been established to protect people who were being sent abroad by a country in answer to a request. The message in the United Nations paper is that one can protect oneself or one’s country against a breach of the international obligation by obtaining an assurance. However, the emphasis is on obtaining the assurance, because an assurance is given by the requesting country to the country from which the information to go abroad is being requested.
There was sometimes some doubt about whether that mechanism was reliable in a case where the threat abroad was of torture, because some countries are really not capable of preventing torture being perpetrated by all manner of officials, so an undertaking in that sort of situation is not really reliable. The paper goes on to say that if one is dealing with the kind of problem that we are contemplating—the risk of a death penalty being imposed—that is easily verifiable and an assurance could be relied upon as a secure protection against a breach of the international obligation.
Lord Pannick (CB)
My Lords, I am far less clear than the noble and learned Lord, Lord Hope, that it would be a breach of our obligations under the European Convention for us to supply information abroad in circumstances where it may be used in a prosecution that may lead to a death penalty. As he well knows, all the cases concern extradition. They concern circumstances in which this country is removing a person to face possible trial abroad where that person may be executed. The European Court of Human Rights has repeatedly made it clear that that is a breach of our obligations. I am far less clear on whether the same would apply where all we do is provide information, which is under the control of the authorities in this jurisdiction, to assist a prosecution abroad.
A particular reason why I am far less clear is that the noble Lord, Lord Paddick, mentioned the one example where there was a challenge to the decision of the Secretary of State to do precisely this: to provide information abroad to the United States in circumstances where it was said, accurately, “These people may face prosecution which may lead to the death penalty”. My recollection, which I would be grateful if the noble Lord or the Minister could confirm, is that the Home Secretary’s decision was the subject of a legal challenge and—again, please confirm whether I am right or wrong—the High Court rejected that challenge. It held that it was lawful for the Home Secretary to act in that way.
Lord Pannick
I am very grateful. I do not have immediate access to that judgment, but perhaps the Minister can provide the House with some assistance in relation to it. Can the Minister also confirm what I understood her to say: no information will be provided abroad under the Bill, unless and until there is an agreement with the relevant state—here the United States? My understanding—again, I think the noble Baroness said this, but I should like her to confirm—is that before any such agreement has practical effect, it must be put before this House and the other place for approval. Ratification cannot take place unless and until, under CRaG 2010, Parliament has had that opportunity. It seems that is the time at which both Houses of Parliament can consider whether they wish to approve such an agreement, if it does not contain the sort of assurance that the noble Lord, Lord Paddick, is seeking.
Lord Hope of Craighead
I can respond to two of the noble Lord’s points. First, I am happy to agree with him about the stages in which we are moving, which was my earlier point: we are at the preliminary stage of negotiation, rather than the CRaG stage. As for whether the provision of information over which we have control is a breach, that is still open to question. That is why I said that I realised it had not been tested. I was certainly thinking about the very point that the noble Lord makes. It is quite different if you have an individual—that is absolutely plain—but if you are gathering information nevertheless, it runs up to the big question of whether that is a breach. It is an uncertain point, so we have to be very careful.
Lord Pannick
I am entirely in agreement with the noble and learned Lord. All I was saying was that I would not wish to assert to the House that it would be a breach of our international obligations under the European Convention on Human Rights to provide information to another state in circumstances where we are not extraditing a person to that state. The courts and the European court may take a different view. I have no doubt that in the legal proceedings arising from the case referred to by the noble Lord, Lord Paddick, one of the grounds of challenge would have been that this is a breach of the human rights of the individual concerned, who, as a consequence of our providing the information, may face a death penalty. That is why I should like the Minister to give any further assistance to the House on what the court said.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I make clear at the start that we support the Bill, as noble Lords throughout the House have. My party and I oppose the death penalty. I fully accept that the Government and the noble Baroness have moved forward, and in that sense the new clause before us today is welcome. The noble Lord, Lord Paddick, has set out the treaties, conventions and obligations that we have signed, which underpin the intention and support of the British Government to oppose the death penalty.
This House has many important functions, and asking the Government to think again is one of them. It is right to do so again here: we need to look at this issue once more. I have expressed concern many times from this Dispatch Box about this risk; particularly around Brexit, whatever else we do, we must never allow a situation where we are helping criminals or terrorists. I ask the House to think again. It is not about helping criminals or terrorists; it is about ensuring that we support the things that we, as a country, believe are right. It was the Labour MP Sydney Silverman whose Private Member’s Bill in 1965 abolished the death penalty for murder. For treason and other offences, it was not until 1998 that it was finally abolished completely.
The noble and learned Lord, Lord Hope of Craighead, set out some serious legal matters about where we are going with this. In the context of those, and the points made by the noble Lord, Lord Pannick, it is right for this House to ask the Government to think again. I entirely accept that when the Bill is passed nothing will happen until the treaty is signed, but it is not wrong, at this stage, to ask the Commons to look at it once more. I also understand that the amendment is about information going to other countries.
In conclusion, this is an important amendment. If the noble Lord divides the House, we will support him.
Baroness Williams of Trafford
My Lords, the central point here is whether or not we are in breach of the European Convention on Human Rights. My view is that we are not. Article 1 of the 13th protocol does not prevent member states providing assistance to a third country, where that assistance contributes to the use of the death penalty by that country. Even if the amendment related to the use of the designation power, under Section 52 of the 2016 Act—which would be the gateway for the flow of information from the UK—it would still not prevent designation in the absence of assurances about the use of our material. That is not to say that we will be sharing information for the pursuit of the death penalty. Noble Lords have heard, on many occasions, that I am not going to pre-empt our negotiations with the US, but this shows that not only is the amendment unnecessary but it may not do what its sponsors hope.
The case of the foreign fighter, which the noble Lord, Lord Paddick, talked about, shows that we are compatible with the ECHR, for the reasons outlined by the noble Lord, Lord Pannick. The noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, said that any agreement would have to be put before Parliament. That is absolutely the case. The noble and learned Lord, Lord Hope, talked about this being the negotiation stage. I would put it further back than that: it is the pre-negotiation stage. It is a framework Bill, on the basis of which treaties would be negotiated and made.
Lord Paddick
My Lords, will the Minister confirm that, when a treaty is put to Parliament, if the House of Commons approves it, then it does not matter what the opinion of this House is; the treaty is ratified even if this House votes against it? I obviously agree with the noble and learned Lord, Lord Hope of Craighead, that whether this is a breach of the European Convention on Human Rights has yet to be tested in court—certainly not at the European level. Will the Minister explain why the then Foreign Secretary had to say that seeking death-penalty assurances in the ISIS case was unique and exceptional, if the Government were not concerned about people executed on the back of evidence provided by the United Kingdom?
Baroness Williams of Trafford
My Lords, the noble Lord is absolutely right. The treaty would be put to the Commons; the Lords could certainly have a view but that might not be taken into account by the Commons. That is nothing unusual. The Commons quite often exerts its supremacy.
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendments 2 to 12.
“(5A) The judge must be satisfied that there are reasonable grounds for believing that all or part of the electronic data specified or described in the application for the order is likely to be relevant evidence in respect of the offence mentioned in subsection (3)(a).
This requirement does not apply where the order is sought for the purposes of a terrorist investigation.”
“(9A) For the purpose of subsection (5A), “relevant evidence”, in relation to an offence, means anything that would be admissible in evidence in proceedings in respect of the offence.”
“(ba) does not require the person to do anything that (taking into account the existence of the overseas production order) would result in the person contravening the data protection legislation, and”
“(1A) Subsection (1) does not authorise the doing of anything that contravenes the data protection legislation.”
“(1) This section applies to an application for an overseas production order if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data.”
“(2A) Where this section applies, notice of the application must be served on— (a) the person against whom the overseas production order is sought, and
(b) if different, the person by whom, or on whose behalf, the journalistic data is stored.
(2B) But a judge may direct that notice of an application need not be served on a person falling within subsection (2A)(b) if the judge is satisfied that—
(a) serving notice on the person would prejudice the investigation of an indictable offence or a terrorist investigation, or
(b) it is not reasonably practicable to establish the person’s identity or to make contact with the person so as to enable service to be effected.”
“(6) In determining for the purposes of subsection (5) whether or not a purpose is a criminal purpose, crime is to be taken to mean conduct which—
(a) constitutes one or more criminal offences under the law of a part of the United Kingdom, or
(b) is, or corresponds to, conduct which, if it all took place in a particular part of the United Kingdom, would constitute one or more criminal offences under the law of that part of the United Kingdom.”
“(7) Subsections (8) and (9) of section 4 apply for the purposes of subsection (2B) of this section as they apply for the purposes of subsection (3)(a) of that section.
(8) In this section, “terrorist investigation” has the same meaning as in the Terrorism Act 2000 (see section 32 of that Act).”
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 13.
“Designation of international agreements for purposes of section 52 of Investigatory Powers Act 2016
(1) Section 52 of the Investigatory Powers Act 2016 (interception of communications in accordance with overseas requests) is amended as follows.
(2) In subsection (3), at the end insert “(see further subsections (6) and (7))”. (3) After subsection (5) insert—
“(6) Subsection (7) applies where an international agreement provides for requests for the interception of a communication to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned. Such an offence is referred to in subsection (7) as a “death penalty offence”.
(7) Where this subsection applies, the Secretary of State may not designate the agreement as a relevant international agreement unless the Secretary of State has sought, in respect of each country or territory referred to in subsection (6), a written assurance, or written assurances, relating to the non-use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory.””
Lord Paddick
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendments 14 and 15.
““the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);”
Royal Assent
Tuesday 12th February 2019
(5 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)