Visas: Certificates of Sponsorship

Baroness Williams of Trafford Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the impact of changes to arrangements for Certificates of Sponsorship, in particular those affecting artists visiting the United Kingdom for music festivals.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, we welcome artists from across the world visiting the UK to perform in music festivals, recognising the needs of the creative arts and to promote the creative industries. Specific arrangements were introduced in 2008 under tier 5. While there have been no changes to these, we recognise concerns raised by the sector about the operation of tier 5 in specific areas and we are working with it to understand and address them accordingly.

[Lord Clement-Jones (LD)]

My Lords, the UKVI now seems to be telling its officers that all non-EU entertainers need an entry visa if they come through Ireland, whereas previously, certificates of sponsorship could be presented and activated when they came to Britain. This change was not announced publicly and no proper consultation with the music industry took place. It was taken unawares and the new requirement has had a major impact on major summer music festivals such as Glastonbury, Edinburgh, Glyndebourne, Reading and Leeds. Is this the hostile environment we can now expect for all artists—whether they are EU citizens or not—if Brexit takes place? Is the Home Office now dictating our cultural and creative exchanges?

[Baroness Williams of Trafford]

I hope the noble Lord could concede that it is not hostile; it is quite the opposite. There has been a change in how the tier 5 route is implemented when individuals enter the UK, particularly from Ireland. Because there are no routine immigration controls on these routes, the correct form of entry clearance cannot be given and the certificates of sponsorship therefore cannot be activated. It has nothing to do with exit from the EU. Work is well under way to identify a workaround for the tier 5 concession route when entering the UK from Ireland to avoid the requirement to obtain a visa before arrival. I hope that gives the noble Lord some comfort.

[Lord Watts (Lab)]

My Lords, the music industry is very concerned about the ability of many artists and bands to move around Europe—if we leave the EU—fairly freely, with little bureaucracy. What will the Government do to make sure those artists are still allowed to ply their trade as they are at present?

[Baroness Williams of Trafford]

My Lords, the UK, more than perhaps many countries, absolutely welcomes the creative industries. We want artists to come here and to be able to perform. It is the reason why, as I tell the noble Lord, we are looking at how to work around this issue. It is a result not of border control but of no immigration controls on these routes, and we are therefore trying to work around it. It is nothing to do with Brexit.

[Lord Foster of Bath (LD)]

My Lords, it is clear more generally that the rules around writers, artists and musicians coming to the United Kingdom are complex, opaque, very costly and damaging to our reputation as a cultural hub. Having abolished the UKVI’s arts and entertainment task force, which could have helped resolved these problems, will the Government now at least consider a system of direct contact with UKVI for artists and promoters, or an online update system so that they can check where quicker progress can be made and so that there are fewer errors?

--- Later in debate ---

[Baroness Williams of Trafford]

At the risk of repeating myself—I will take up the noble Lord’s point about the UK arts and entertainment committee—we are looking for a way around what is creating problems for these artists. We are in no way trying to restrict their entry; we absolutely welcome them.

[Lord Geddes (Con)]

My Lords, what instructions, if any, are given to our embassies and consulates abroad regarding the issuing of visas to these artists?

[Baroness Williams of Trafford]

What I can do for my noble friend is check up on the advice that is given, but I am sure we are looking around this issue. I am sure that the advice is clear: we do not want artists who enrich our lives and our society to be impeded in any way.

[Lord Cashman (Lab)]

Will the Minister agree to consult with the talent unions such as the Musicians’ Union and Equity, which are often consulted on and engaged in the international exchange of talent?

[Baroness Williams of Trafford]

I know that the Government have been engaging with the sector. I shall double-check with the talent unions and if they have not been engaged with I shall make that suggestion.

[Baroness Smith of Basildon (Lab)]

My Lords, the noble Baroness says that we are working hard to understand this. She is sure that advice is given to our embassies abroad and that we are looking for a way forward. Does she not understand that, while they are working hard to understand it and looking for a way forward, this is having a devastating effect on the cultural life of the country and an impact on the economics? The organisations that are expected to bring artists over, but at the last minute find they are unable to do so, have an economic deficit in their accounts as well. The noble Baroness sounds a bit complacent. I hope she can move with some urgency to resolve this as soon as possible.

[Baroness Williams of Trafford]

I am not complacent at all. I recognise completely the value that the entertainment industry gives to society and, of course, the economic value. We are working through a solution that will help those people entering through Ireland. It is predominantly an Irish issue.

[Lord Newby (LD)]

My Lords, I think the noble Baroness said in an answer to an earlier question that there had been no change in policy since 2008. If that is the case, can she explain why the experience of people organising festivals and of individuals trying to perform at them has changed so dramatically for the worse this year?

[Baroness Williams of Trafford]

As I said, because of the lack of immigration controls on certain routes from Ireland to the UK, there have been difficulties around the certificates of sponsorship, because there has been no immigration official to hand the certificate to. That is exactly what we are looking at.

Windrush

Baroness Williams of Trafford Excerpts

Wednesday 12th September 2018 Lords Chamber

[Baroness Finn]

To ask Her Majesty’s Government what steps they are taking to ensure that compensation is paid promptly to those affected by the Windrush scandal; and when they intend to publish the review by Sir Alex Allan into the conduct of the Home Office.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the public consultation on the Windrush compensation scheme runs until 11 October. We will announce details of the final scheme and how to apply as soon as possible after the public consultation has ended. The review carried out by Sir Alex Allan was an internal review commissioned by the Permanent Secretary. The Home Secretary is considering whether a redacted version of the report can be published.

[Baroness Finn (Con)]

I am grateful to my noble friend the Minister for her reply. Does she agree that justice for those damaged by the Windrush scandal, as well as the urgent need to restore public trust in the Home Office, require that Sir Alex Allan’s report be published without further delay? It is always cover-up that causes the most harm, and full disclosure is now required. My right honourable friend Amber Rudd resigned as a result of what took place. If there is any sense that the Civil Service is closing ranks to protect its own, there could be a serious loss of public confidence.

--- Later in debate ---

[Baroness Williams of Trafford]

My noble friend makes two very good points, the first being about justice being seen to be served for the Windrush generation, to which my right honourable friend the Home Secretary is utterly committed. To that end, he has asked Wendy Williams to conduct a review and report back by March. I agree with my noble friend, too, that clarity for both our elected officials and unelected officials gives the public confidence in Parliament. The Prime Minister said earlier today:

“I reassure my right hon. Friend that the Home Secretary has been looking at this issue, and the Cabinet Secretary is looking at this. We are committed to publication, but the form of that is currently being considered”.

[Lord Paddick (LD)]

My Lords, the action of the Home Office in relation to the Windrush generation may be welcome, but how many others who were legally in this country but without documentation from areas other than the Caribbean have been similarly wrongly deported or deprived of the means to live in this country? What assurance can the Minister give that the appalling treatment of the Windrush generation has not been repeated in relation to others?

[Baroness Williams of Trafford]

The noble Lord makes a point that he has made before, and it is a very good one. Certainly, the review being carried out by Wendy Williams will teach us some lessons for the future to ensure that this never happens again. In addition, as I think I mentioned the other day, this issue makes clear the importance now of identity assurance.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, if the Minister is so committed to getting this out in the open, why will the version of the report that is to be published be redacted?

[Baroness Williams of Trafford]

My Lords, I cannot second-guess the thinking behind some of the decision-making, but it might be to protect some people’s names. However, as I have just said, the Prime Minister has committed to publication, whether in a redacted form or not.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, on the compensation scheme that is out for consultation, has the Home Office considered emergency payments to those who have been treated wrongfully and unfairly? I am thinking particularly of those in hardship.

[Baroness Williams of Trafford]

The noble Lord brings this up again and it is an important point, because we have heard anecdotal evidence of hardship. The Home Secretary recognises that. His immediate priority has been to help some of those affected to establish their immigration status but also to support people in advance of the compensation scheme being put in place. Where there is an immediate need—he outlined such a case to me the other day—we are supporting people to access housing and benefits and deal with immediate problems while removing immigration obstacles to their finding work. In addition, the noble Lord might want to know that we have signed an agreement with Citizens Advice, which can provide some of the professional bespoke advice that people might need.

[Lord West of Spithead (Lab)]

My Lords, I declare an interest as the son of an Admiralty civil servant. I do not believe for a second that this disaster can be put at the door of civil servants. It lies elsewhere. Generally, civil servants perform in an admirable and loyal way and do as they are told by their political masters.

[Baroness Williams of Trafford]

My Lords, I hope that I have not conflated the two issues. The disaster of Windrush happened over decades under successive Governments. The Alex Allan review is entirely different, looking into what happened around the time of the former Home Secretary’s appearance before HASC.

Police Forces: Financial Stability

Baroness Williams of Trafford Excerpts

Wednesday 12th September 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given to an Urgent Question answered earlier by my right honourable friend the Minister for Policing. The Statement is as follows:

“The NAO does incredibly important work and the Government are grateful for their work on police financial sustainability. The Home Secretary made clear to the Police Superintendents’ Association conference that we understand and agree that the police are under pressure and we are determined to support them. I am hugely appreciative of the hard work our police officers put in daily to keep the public safe.

I should say to this House that I do not recognise the suggestion that Ministers do not understand the pressures on the police. Last year, I personally spoke to all 43 police forces in England and Wales, including front-line officers, and I commissioned analysis to improve our understanding of police demand and resilience. I did explain our findings before this House last year at the time of the provisional police funding settlement. We recognised the pressures on the police, including from complex crime and the threat of terrorism. We provided a funding settlement which is increasing total investment in the police system by over £460 million in 2018-19. This includes £50 million for counterterrorism, £130 million for national priorities and £280 million in force funding from increases in precept income.

We are not stopping there. I have already indicated that we will afford the police the same precept flexibility in 2019-20, subject to them meeting productivity and efficiency asks. We are working closely with the police to jointly build the evidence base on police demand, resilience and capability ahead of the spending review.

The report is valuable in highlighting pressure on the police, but we do not believe it gives weight to these issues: first, the strength of the local accountability structure through PCCs, which were introduced by this Government; secondly, our support to the independent inspectorate in developing force management statements—a key tool in getting better data to identify and manage future demand; thirdly, we monitor effectiveness publicly through HMICFRS, whose independent authority we have strengthened; fourthly, we have asked the police to reform themselves and, as such, it is appropriate that the police have their own strategy in their Policing Vision 2025.

We take the report extremely seriously and our Permanent Secretary has written to the NAO to accept these points. However, the House should be under no illusion: this Government remain extremely committed to ensuring that forces have the resources they need to do the important work that they do”.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, there is a bit of a conflict. On the one hand, the NAO report is recognised and accepted but, on the other, the Home Secretary immediately says that he does not recognise the picture that it paints. But the NAO says, on its good evidence, that the Home Office,

“lacks a long-term plan for policing”,

and,

“does not know if the police system is financially sustainable”,

and does not understand the pressures on our police forces. I accept what the NAO says more than what the Home Secretary does. Will the Minister confirm that police funding has fallen by 19% in real terms since 2010-11? Will she accept that forces are finding it harder and harder to deliver an effective service?

[Baroness Williams of Trafford]

To address the last question first, both the Policing Minister and the Home Secretary recognise the demands on the police. They have said it before and my right honourable friend the Policing Minister said it again today. Not only is the picture of crime changing, but the police have had to deal—so bravely—with the various terrorist attacks we have had over the past year. When it comes to understanding demand, I have said before that my right honourable friend the Policing Minister visited all 43 forces in England and Wales leading up to the comprehensive settlement for 2018-19, which provided that £460 million increase. Looking forward to the next spending review, he stated in December last year that he would revisit plans to change the funding formula at the time of the next spending review. I have outlined the 2018 settlement, but in 2019-20 he will seek to maintain the protection of the broadly flat police grant, alongside the same flexibility of the precept that happened this year.

[Lord Paddick (LD)]

My Lords, the NAO report finds that central government funding for the police service has fallen by 30% in real terms since 2010-11, resulting between March 2010 and March 2018 in a 15% reduction in police officers, a 40% reduction in PCSOs and a 21% reduction in other police staff. Despite what the Minister has just said, the NAO says the Government have,

“no national picture of what forces need”.

Do the Government agree with the Metropolitan Police Commissioner, who said yesterday:

“This is not a service that needs reform, this is a service that needs support and needs resources … the NAO report shows this”?


Will the Minister finally admit that the Government can no longer argue that the police service has sufficient resources to deliver an effective service? The NAO says that the Government do not have a clue whether or not the police service has sufficient resources.

--- Later in debate ---

[Baroness Williams of Trafford]

As I said to the noble Baroness, Lady Hayter, the Policing Minister visited every single police force in England and Wales to establish what the demands on the police were before he announced the increase in overall funding for this year. He has made some commitments towards the spending review. With regard to a national plan, Policing Vision 2025 is the plan for the police, and we are supporting them to achieve it. On funding, we arrived at the figure for this year because the police told us they wanted to put an extra 5,000 police in place. The settlement we arrived at allowed for an additional 11,000 police officers—if every police force maximised its precept.

[Lord Laming (CB)]

My Lords, the Minister, for whom we have a high regard, knows of my concerns and, I suspect, those of others, about the rather soft approach of the Home Office towards police services in creating, at the centre, this gap in the knowledge of what is actually happening on the ground. I have a number of concerns in the social care field about what is happening. In particular, the Minister knows that I am deeply concerned about the future of the specialist child protection teams, which are so vital in the protection of children.

[Baroness Williams of Trafford]

I always take what the noble Lord says seriously, particularly in relation to child social care. I have not got a particular answer about specialist child protection officers, but I will certainly take that back to the department. In terms of a gap in knowledge at the centre, this autonomy for the police was a deliberate move towards much more local accountability—something that had been called for for a long time. We expect PCCs to have that local knowledge and put forward their plans in light of it.

[Lord Elton (Con)]

My Lords, it is good to hear about the 5,000 extra police, but I wonder whether the Government have a particular dimension of policing in mind when they arrive at the figures they think are appropriate. When one asks Government whether what we have is appropriate, since the number is smaller than we used to have, the answer is that equipment and deployment will solve the problems. It does not solve the problem of public disorder, where we need boots on the ground—and we need them in quantity. Will the Minister ask her colleagues to ask the police forces of this country to cast their minds back over the last 20 years and consider whether they could contain the public disorder that occurred over those 20 years with the equipment they have now, bearing in mind that communications have changed and they are faced with disorder that is co-ordinated by means of WhatsApp, which cannot be penetrated by the police?

[Baroness Williams of Trafford]

My noble friend makes a very good point about the changing face of crime in the light of technology. Of course, we have the recent rise in knife crime. In terms of whether the police have the equipment they need, or whether we have enough boots on the ground to tackle crime, it is up to local police forces to decide the number of police they need in relation to the demands they face and the crime patterns in their area. For some police, gang violence is a particular problem; in other areas, it might be knife crime; and where I live in London, in Camden, moped crime is a particular problem. Resource need is something that needs to be locally determined.

[Lord Harris of Haringey (Lab)]

The Minister has referred at least twice, or perhaps three times, to the incredible efforts of her colleague the Policing Minister in going round all 43 forces. Can she tell the House how many of the police and crime commissioners, whom he no doubt met on those visits, expressed support for the current level of policing resources that was available to them and what proportion of the population they represent? Further to the question that has just been asked about public order, given that the police were barely able to cope with the disorder that happened in 2011, what level of policing numbers are there now, even with this extra 5,000, compared to the numbers then, and would the police be able to cope with a similar incident in the future?

[Baroness Williams of Trafford]

The noble Lord will probably know that I have not got an answer off the top of my head about what PCCs said to the Policing Minister about the financial settlement. In terms of whether the policing numbers that existed in 2011 would be able to cope with some of the demands now, it is not an entirely simple equation to say that numbers equal resilience to cope, though I am certainly not dismissing what the noble Lord says. All I can say is that, when the Policing Minister went round all the police forces, he did ask specifically about the numbers necessary to meet demand.

Brexit: Europol

Baroness Williams of Trafford Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Cormack]

To ask Her Majesty’s Government whether, following recent developments regarding the Salisbury incident, they will seek to ensure that the United Kingdom is able fully to contribute to Europol after 29 March 2019 and during any subsequent transition period.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the UK will continue to participate in Europol and other EU justice and home affairs agencies during the implementation period, and to make a full contribution to the operational work of the agency.

[Lord Cormack (Con)]

My Lords, I must apologise for the fact that the words “and thereafter” did not appear in my Question, which was entirely my fault. It is truly important that our arrangements with Europol last long beyond next March and any transition period. Does my noble friend not agree that the prime duty of any Government is the security of their people and that we need these arrangements with our European friends and neighbours as a very important ingredient in providing security for our people?

[Baroness Williams of Trafford]

I agree with my noble friend that the words “and beyond” are important. During the implementation period, we will be able to participate in existing EU JHA tools and measures. But, beyond that, we will separately seek to agree ongoing co-operation through future security partnerships. To that end, we have proposed a new coherent and legally binding agreement on internal security that protects mutually beneficial aspects of co-operation in this area and ensures that both the UK and the EU can continue to tackle fast-evolving security threats.

[Lord Soley (Lab)]

The Government acknowledged in the withdrawal document that the European arrest warrant would no longer be available to the United Kingdom after 29 March next year. That means that people wanted for serious crimes, up to and including terrorism, will no longer be accessible by the UK, and vice versa for some European countries. What action do the Government intend to take to ensure that we can get people wanted for serious offences back here to the UK and, for the reverse procedure, to the countries that need them?

[Baroness Williams of Trafford]

The noble Lord is absolutely right that this facility continues to operate. To that end, the Commission has been very clear that it wants to continue co-operation on internal security, including extradition and Europol. I also point out that, at the recent press conference on 31 August, Michel Barnier recognised the progress in our discussions on security. Our focus now should be on trying to define an ambitious partnership.

[Lord Paddick (LD)]

My Lords, a European arrest warrant has been issued for the two Russians suspected of being responsible for the Wiltshire poisonings. But Norway and Iceland, both of which are in the EU single market and the Schengen area, have been waiting for 13 years to be part of the European arrest warrant—and they are still waiting because they are not members of the EU. What chance does the UK have of retaining the EAW if we are outside the EU, the single market and the Schengen area?

[Baroness Williams of Trafford]

The noble Lord points out the issue of the two Russians. Of course, as well as an EAW an Interpol red notice was issued for those two people. The UK has made a significant contribution to Europol. It is important to note that in 2017 the UK was the highest contributor of data relating to serious and organised crime to Europol’s analysis project. We are also in the top three member states that contribute intelligence each day to different databases in Europol, and the UK is driving or co-driving almost half of all EU law enforcement projects in the fight against serious and organised crime. That is a very good reason why we should continue.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I had the privilege some years ago of being the rapporteur in the European Parliament for joint investigation teams, which was supported very strongly by British staff who were key in Europol. Will my noble friend confirm that the importance of the 39 or 40 front-line staff of Europol will be taken into account in all our discussions, as will whether we will replicate our current operational agreements with third countries—17 in all—and whether we will continue to play a full part in the European Counter Terrorism Centre and European Cybercrime Centre organisations within Europol?

[Baroness Williams of Trafford]

The answer to that is yes—and, for Europol specifically, it means that the UK will keep its liaison bureau in The Hague and will have access to European systems and facilities on the same basis as it does now.

[Lord Rosser (Lab)]

Can the Government give an assurance that, in the interests of national security, they would not recommend any deal on EU withdrawal to Parliament which did not sustain and protect the current levels of security arrangements and co-operation that are now available to us through our membership of the European Union?

[Baroness Williams of Trafford]

I do not think anyone would disagree with the noble Lord. Our ongoing security partnership should protect those shared law-enforcement and criminal justice operational capabilities. He and I have debated on the Data Protection Act, on the specific law-enforcement provisions, and, of course, on national security. It is incredibly important that we continue to co-operate, to the benefit of both the EU and the UK.

[Lord Watts (Lab)]

My Lords, the German constitution bans the extradition of people outside the EU. How will the Government get over the problem that, after we have no deal, there will be no extraditions between ourselves and Germany?

[Baroness Williams of Trafford]

The noble Lord is absolutely right that there are specific provisions in Germany’s constitution, which we will have to take a practical and pragmatic approach towards as we move forward.

Immigration Policy: Children and Parents

Baroness Williams of Trafford Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what assessment they have made of the extent to which the implementation of immigration policy has led to the separation of children from their parents.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the family Immigration Rules and the policy on exceptional circumstances provide a clear basis for considering applications to remain in the UK. Individuals with no leave to remain are expected to leave voluntarily. We may enforce their removal if they do not. Our family separation guidance makes clear that staff must consider the best interests of any children, including their needs and caring arrangements, before taking enforcement action.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, how many children are presently separated from their parents or carers in the UK as a result of decisions taken by the immigration authorities to implement the policies of the Government?

[Baroness Williams of Trafford]

I am afraid that I cannot provide the noble Lord with that exact detail, as it is not available. However, we have done dip sampling in the cases of 84 foreign national offenders from July 2017 to July 2018, and two family separations were detected. It is not clear whether they were temporary or whether we were seeking to remove one parent from the UK.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness referred to the best interests of the child, no doubt reminding us of Section 55 of the Borders, Citizenship and Immigration Act and the Convention on the Rights of the Child. What records are kept of the factors considered in applying Section 55 and the convention when the child is separated from his or her parents? Are the records available to the parent and the representative of the child, despite the exception regarding immigration in the recent Data Protection Act?

--- Later in debate ---

[Baroness Williams of Trafford]

As I just said to the noble Lord, we do not keep official records of the numbers, but the Office of the Children’s Commissioner will look at every case where such decisions are considered—the complex cases—so that those interests are weighed before any decisions are taken.

[Lord Harris of Haringey (Lab)]

My Lords, can the Minister clarify that answer, because the noble Baroness, Lady Hamwee, asked whether records were kept of the considerations taken into account in reaching the decisions? Are they kept or not?

[Baroness Williams of Trafford]

I apologise to the noble Baroness and the noble Lord for not being clear. Clearly, safeguarding records and records of decisions taken are kept. I was trying, in the first instance, to refer back to the question of the noble Lord, Lord Kennedy; I cannot tell the noble Baroness and the noble Lord how many of those decisions were made.

[Lord Bassam of Brighton (Lab)]

Will the Minister comment on the estimate by BID—Bail for Immigration Detainees—that there are at least 170 cases where children have been separated from their parents as a result of them being detained? Will she also go back to her department to check those figures and perhaps produce a more accurate answer that Members of this House can take on board and inspect?

[Baroness Williams of Trafford]

I understood that the numbers were 155. I do not have the details of the cases but if any noble Lords were to give me details of such cases I would be very happy to take them up. It is, however, important to consider in the round that if children are separated from their parents it is not necessarily for immigration reasons: it may be because of safeguarding issues—a parent is violent and the child needs to be separated from them—or for temporary reasons, such as the illness of the parent.

Crime (Overseas Production Orders) Bill [HL]

Baroness Williams of Trafford Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[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

Amendment 20 not moved.

--- Later in debate ---

[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—

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 Williams of Trafford]

Yes, I am.

[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.

Visas: Forced Marriages

Baroness Williams of Trafford Excerpts

Wednesday 5th September 2018 Lords Chamber

[Lord McConnell of Glenscorrodale]

To ask Her Majesty's Government on how many occasions in 2017 visas were granted to men whose wives or family members had raised concerns about forced marriage.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, forced marriage is a terrible form of abuse and this Government are committed to tackling it. Where a suspected victim is made to sponsor a visa application, UKVI works with the joint Home Office and Foreign and Commonwealth Office Forced Marriage Unit to ensure that it is investigated further and, if appropriate, refused. The Home Secretary will reply to the Home Affairs Select Committee on the cases reported in the Times. I will ensure that the noble Lord receives a copy and that a copy is placed in the Library.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, far too many young women are tricked into leaving this country, forced into marriage in a number of countries in the Middle East and south Asia, repeatedly raped until they are pregnant, brought back to the United Kingdom to have the baby, and are then involved in the corrupt practice of applying for a visa for their forced husband. Last year, 88 of those women or their representatives made representations to stop the husband they had been forced to marry from entering this country and in 42 of those cases, the Home Office granted a visa. Surely it is time to either use the laws that we have at the moment to ensure that these men do not receive visas and these women are granted anonymity, or we change those laws to make sure that these women are properly protected.

[Baroness Williams of Trafford]

I cannot disagree with much of what the noble Lord has said other than to say that a large majority of the 42 visas issued were referred to the Forced Marriage Unit by UKVI, rather than being the result of a reluctant sponsor. I thought that I should just correct that information which appeared in the Times. On the noble Lord’s other point about what more can be done to protect these women—it is so harrowing to see these cases; and I was very surprised to learn that half the cases involved men who have had to enter into a forced marriage—the Home Secretary is acutely aware of the issue and is looking at ways of exploring what more can be done to protect these very vulnerable people.

[Baroness Warsi (Con)]

My Lords, I am pleased to hear that my right honourable friend the Home Secretary is looking into this matter. Could he specifically look at this issue of where the rules effectively do not relate to the real-life circumstances that we are faced with? We have reluctant sponsors in this country who are not prepared to openly say that they are reluctant and, because they are not prepared to do so, the rules are not responsive enough to stop the husband coming in. Secondly, same-sex relationships and same-sex marriage are criminalised in many countries around the world. How are the rules responding to applications from same-sex individuals in same-sex relationships who apply to come to join their partners in the United Kingdom? The Government need to ensure that the rules are responsive to the real-life situations that these individuals face.

[Baroness Williams of Trafford]

My noble friend makes a very good point on same-sex relationships, particularly when the applicants come from certain countries. On her first point about reluctant sponsors, I think that some applicants are reluctant because they have been put in such a vulnerable position. Therefore, other reasons for the visa refusal will be given if they are available and “reluctant sponsor” will be given as a last resort. She has raised a really pertinent question on same-sex partnerships and I will raise it with my right honourable friend the Home Secretary.

[Baroness Hussein-Ece (LD)]

My Lords, we have heard about evidence of the Home Office failing to protect victims who say they are at risk of forced marriage, for fear of being accused of racism, as in some of the examples we have been hearing about. But at the same time the Home Office was very happy to deport the Windrush generation, who were legally here, singling them out in a racist way. It has devastated people’s lives on either side of the argument. I ask the Minister: when is the Home Office going to get a grip and ensure that it implements the proper lawful procedures to protect individuals?

[Baroness Williams of Trafford]

I hope that in my Answer to the noble Lord, Lord McConnell, I clarified the position on what appeared in the newspaper. In fact, it was the other way round: in the majority of cases it was proactive referral by UKVI to the Forced Marriage Unit, which looked at them as part of its safeguarding work, as opposed to visas being granted where there was a reluctant sponsor. To conflate the issue with Windrush is quite wrong because we are talking about two entirely different things. We discussed Windrush yesterday. Successive Governments have been to blame—if blame is the right word—for what went wrong with the Windrush generation. As the Home Secretary has repeatedly said, he wants to work with other parties to put right the wrongs that happened over decades.

[Baroness Butler-Sloss (CB)]

My Lords, is the Minister aware of the large number of girls involved who are under 18? Will the Government review the fact that parents can give consent when girls are aged 16 to 18 and therefore can be part of this situation? Will the Government look at this and see whether it ought to continue?

--- Later in debate ---

[Baroness Williams of Trafford]

I take what the noble and learned Baroness says. In cases where there has been an objection, I understand that both the applicant and the sponsor were over 18. The noble and learned Baroness may have seen in some of the articles just how the system is played to ensure that they are not acting contrary to the law when they try to ensure that a forced marriage takes place. But I will certainly bring that point back. The noble and learned Baroness is absolutely right to be concerned about it.

[Baroness Corston (Lab)]

Is the Minister aware that Jasvinder Sanghera, the founder of the forced marriage victim support charity, accused the Home Office of failing to act? She said:

“Even when officials know it’s a forced marriage, they see tradition, culture or religion and they’re reticent to deal with it. They are turning a blind eye”.

[Baroness Williams of Trafford]

My Lords, I take what the noble Baroness says but I dispute that the Home Office was actually turning a blind eye to something that the now Prime Minister, formerly the Home Secretary, has given such focus and effort to in her tenure in both posts—and, of course, legislation has come into place to back that up.

Crime (Overseas Production Orders) Bill [HL]

Baroness Williams of Trafford Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 Hamwee]

Shall I ask the question again?

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Windrush

Baroness Williams of Trafford Excerpts

Tuesday 4th September 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I will repeat in the form of a Statement the Answer given by my right honourable friend the Immigration Minister to an Urgent Question in another place. The Statement is as follows:

“The Home Secretary has been very clear both that the Government deeply regret what has happened over decades to some of the Windrush generation and that we are determined to put it right. The Home Secretary laid a Written Statement in the House on 24 May to establish the Windrush scheme, which ensures that members of the Windrush generation, their children born in the UK and those who arrived in UK as minors, and others who have been in the United Kingdom for a long period of time, will be able to obtain the documents to confirm their status and, in appropriate cases, be able to obtain British citizenship free of charge.

The last update on our historical review of removals and detentions was presented to the Home Affairs Select Committee on 21 August. The Home Secretary has written to apologise in the case of 18 people where we have identified that they are most likely to have suffered detriment as a result of government action. To the end of July, 2,272 people have been helped by the task force to get the documentation they need to prove their existing right to be in the UK under the initial arrangements put in place prior to the establishment of the Windrush scheme; 1,465 people have also been granted citizenship or documentation to prove their status under the formal Windrush scheme. The task force is also working to help eligible individuals to return to the UK and has already supported one individual to do so.

The Home Secretary has announced a compensation scheme for those who have been affected as a result of not being able to demonstrate their status. The public consultation for this scheme was launched on 19 July and will run to 11 October. The Home Office is using a range of channels to engage with those who have been affected and to encourage people to respond to the consultation. We will announce details of the final scheme and how to apply as soon as possible after the public consultation has ended. Finally, the Home Secretary has commissioned a “lessons learned” review to identify how members of the Windrush generation came to be entangled in measures designed for illegal immigrants, why that was not spotted sooner and whether the right corrective measures are now in place. The Home Secretary has been clear that the “lessons learned” review requires independent oversight and scrutiny, and has appointed Wendy Williams as independent adviser to the review. The independent adviser aims to publish her findings in a report by the end of March 2019.

I know across this House we are united in our determination to deal with the problems that have been faced by people of the Windrush generation. I therefore hope we can take a cross-party approach which recognises that the most important thing we can do is ensure the wrongs that some have faced are put right”.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness for repeating the Answer given in the other place by the Immigration Minister earlier today, outlining what the Government are doing to deal with this frankly appalling scandal. I have a number of questions for the noble Baroness. What action is the task force taking to help individuals who have been deported to return to the UK, and does that include paying their travel costs? Why have only 18 apologies been issued so far? Surely everybody wronged by this scandal should receive an apology. Finally, can she assure the House that the Home Office has taken the required action to ensure that no new victims of this scandal are being created today and as we go forward?

[Baroness Williams of Trafford]

The noble Lord asked about the actions of the task force to help people to return to the UK. The task force will help where it can and in whatever way is appropriate in a particular case. I cannot give the detail as every case will be different. The noble Lord also asked why only 18 people had been apologised to. Of all the people whom the task force is considering, those are the 18 most likely to have suffered detriment. Eleven of those people left voluntarily; clearly, they are being helped to return to this country if they wish to do so, in whatever way might be appropriate.

[Baroness Hamwee (LD)]

My Lords, the Minister referred to the “lessons learned” review. I am not asking a question on this first point, but it must have been a shock—and a lesson—to a number of individuals to have learned that three deportees had died. On the review, can she confirm that the work will apply much more generally than to the Windrush generation? The objectives refer to “operational decisions”. I have heard, from someone who used to work at the Home Office, that the way in which it took decisions in the case of Windrush showed “casual cruelty”. The Joint Committee on Human Rights, of which I am a member, did not use quite such strong language, but in its recent report it referred to the fact that there was no power to detain being “blithely ignored”, and used the word “shocking” of the Home Office’s approach to Windrush cases; the whole committee agreed to that. It would be surprising if those attitudes were confined to decisions regarding simply the Windrush generation, so can the Minister give the House assurances about the broad application of the lessons to be learned?

[Baroness Williams of Trafford]

We were all shocked at the death of those three people. Without talking about the individual cases, I know that two were removed post 2010 and one previously. None was detained and all left the country voluntarily, but that does not diminish in any way the sadness at the fact that they have died. The whole House will share the noble Baroness’s shock. She gave some descriptions of the approach of the Home Office to the Windrush generation and other immigration cases. As I have said to her and to the House before, it is worth bearing in mind that the new Home Secretary made it very clear when he arrived in post that the new approach would be to treat people as people, not as cases—a more humane approach. I hope that, since he became Home Secretary, he has demonstrated his commitment both to the Windrush generation and to that more humane environment, including by dropping the term “hostile environment”.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, she did not answer the last part of my question. I will not pursue it here, but can she confirm that she will write to me on that?

[Baroness Williams of Trafford]

Was it about why the Home Secretary apologised only to those 18 people? Will the noble Lord remind me?

[Lord Kennedy of Southwark]

I asked whether we are absolutely clear that we are not creating new cases for the future, because that would be the worst thing that could happen.

[Baroness Williams of Trafford]

I apologise to the noble Lord; I did not write that bit down. It is the first day back—I am just getting into the flow of it. On whether it will ever happen again, the “lessons learned” review will teach us a lot, and the independent assurance review of the whole process will be very helpful. All these things have taught all political parties why this whole process, which took place over successive generations, should never happen again. It also teaches us something about identity assurance and the importance of getting that right, certainly as we leave the EU and in the future, so that people are not caught out by these unintended consequences of what was originally a welcoming approach to our Windrush community, whose work over the years we value.

[Lord Green of Deddington (CB)]

My Lords, does the noble Baroness agree that the new Home Secretary is to be congratulated on getting a grip on this issue so quickly and effectively? Does she also agree that this episode has very little to do with current immigration policy and that it should not be used to undermine measures that are necessary to protect our borders?

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Lord makes a clear distinction. There is what we have a moral obligation to do, to put right the wrongs which go back decades, but also, we absolutely need to keep control of our borders, and the two issues are entirely separate.

[Lord Desai (Lab)]

My Lords, euphemisms are used about the Windrush generation; basically, we are talking about Afro-Caribbean black people. We are saying that some black people who may have lived here for generations were questioned as to whether they could prove that they belonged here. We have no identity cards in this country. How is one to prove, if one is not a white person, that you belong to this country? I am sorry to say this, but I remember that in the early 1980s, when we had to change the passport, there was the question of people born abroad—expatriate sons and daughters. They were accommodated through a grandfather clause: if their grandfather was all right, they were all right, and they did not have to leave. Obviously, a great injustice has been done, and the apology is just not good enough.

[Baroness Williams of Trafford]

I cannot disagree with the noble Lord, and that brings me back to the point I made to the noble Lord, Lord Kennedy: that perhaps we did not think about identity assurance as clearly as we should have back in 1973, and it is becoming all the more important. It is up to us as a Government to ensure that people are provided with that and that they are able to prove their right to be here, to live, to work and to rent, and so on. The noble Lord is absolutely right, but that identity assurance will become more and more important.

Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Baroness Williams of Trafford Excerpts

Tuesday 24th July 2018 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 13 June be approved.

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 18 July.

Motion agreed.