Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

2nd reading (Hansard): House of Lords
Wednesday 11th July 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, this is perhaps a fairly unique Second Reading, in that the Minister will be making the same number of speeches as the rest of your Lordships’ House. I apologise in advance for the fact that I will probably speak for longer than either the Minister has so far, or the noble Lord, Lord Paddick.

The primary purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as such a court could if the information were located or controlled in the UK. This is achieved in the Bill by creating a new overseas production order that has extraterritorial scope. However, this jurisdiction can be exercised only if an international co-operation arrangement or bilateral agreement enabling this to happen, and to which we are a party or in which we participate, has been agreed. UK law enforcement officers would apply to a judge for an order requiring the production of electronic evidence for the purposes of investigating or prosecuting serious crime, including terrorism offences. The effect of the overseas production order, if granted, would be to require an overseas provider to disclose electronic information held by them, provided that this is supported by an international co-operation agreement with the country concerned.

The present position in respect of electronic data that is outside the reach of domestic UK court orders and is needed for evidential purposes is that mutual legal assistance is available where a mutual legal assistance treaty has been signed. In 2016, the UK had bilateral mutual legal assistance treaties with some 40 countries and was also party to multilateral MLATs through bodies such as the EU and the Council of Europe. This present form of judicial co-operation means that a requesting country can seek assistance from an executing authority or country, and that authority or country is then responsible for collating the evidence using its own judicial or other processes and orders.

However, as the Minister said, the MLA process can be slow, requiring as it usually does significant government-to-government liaison, and may not be speedy enough in some cases to enable the evidence being sought to be obtained in the timespan required to contribute meaningfully to an investigation or help to secure a successful prosecution. Indeed, MLAT requests submitted to the United States take an average of approximately 10 months to complete. Sir David Anderson, the then Independent Reviewer of Terrorism Legislation, said in a 2015 report,

“there is little dispute that the MLAT route is currently ineffective”.

With electronic information becoming increasingly important in the investigation and prosecution of criminal offences, this is regarded as an increasingly serious lacuna in the pursuit of those committing serious offences, since the companies providing services that generate or store electronic data or do both are often located outside this country. This means that the data they generate or store is currently outside the reach or range of the orders of our courts, which lack extraterritorial scope and cannot be used to require overseas providers to provide timely information.

The impact assessment for this Bill states:

“The issues with access to electronic data held by overseas providers and the use of MLA has been recognised for a while with discussions taking place between the UK and other countries to explore options to address the issues with the MLA process”.


We know from the impact assessment that one of those other countries is the United States, but which are the other countries with whom we have been discussing this issue?

Apparently our law enforcement and security agencies have indicated that US communication services are used by 90% of their suspects and that, in almost every terrorism investigation, those they investigate use services provided by US communications service providers. As far as the United States is concerned, the impact assessment tells us that a bilateral data access agreement is being finalised with the UK, but that,

“in anticipation and preparation for it, the US passed its Clarifying Lawful Overseas Use of Data (CLOUD) Act in March 2018, enabling the US legislative change required to give effect to this agreement”.

The CLOUD Act provides authorisation for a new form of international agreement to be concluded by the United States through which foreign Governments can seek data directly from US companies without such requests having to be reviewed individually by the US authorities. However, the CLOUD Act also requires that when the US concludes an agreement with another country, such as the UK, that country must allow the US reciprocal rights of data access.

Since bilateral agreements with another country or countries will need to be concluded for the provisions of this Bill to be implemented, presumably we shall be required to provide the same access arrangements to electronic data in this country as we are seeking from them—namely, that an order made in their courts will be capable, if necessary, of being enforced here with apparently little or no judicial oversight in this country. The Explanatory Notes say that the electronic data in question may include the “content of private communications” being made available to the state, and that:

“These intrusions into ECHR rights can be justified as necessary in a democratic society for the prevention of disorder and crime and in the interests of national security and public safety, and are proportionate in light of the requirements that must be met before a judge can make an overseas production order, and the other safeguards set out in the Bill. To the extent that the electronic data made available may include journalistic material, the requirement that an order is made by a judge provides prior judicial oversight for the exercise of the power, and accordingly an Article 10 compliant safeguard”.


Those words might not be accepted without question by everyone.

Clause 4 sets out the conditions and restrictions under which an overseas production order may be made. These include that the judge must be satisfied,

“that there are reasonable grounds for believing that an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated”.

Alternatively, the judge must be satisfied that,

“the order is sought for the purposes of a terrorist investigation”.

According to the Explanatory Notes:

“This reflects the criteria under which production orders may already be sought against those in the UK”,


under the Terrorism Act 2000. The judge must also be satisfied,

“that there are reasonable grounds for believing that all or part of the electronic data”,

applied for will be of “substantial value” to the investigation or proceedings, and that it is “in the public interest” that this data is made available to the investigation or proceedings.

In considering whether something is in the public interest, the judge must consider the benefit to the proceedings or investigation that this electronic data is likely to have and,

“the circumstances under which the person against whom the order is sought has possession or control of any of the data”.

Further additional requirements that must be met in order for an overseas production order to be made can be specified by the Secretary of State through regulation under the terms of the Bill. Some of the factors on which the judge has to be satisfied before granting an order are potentially subjective, including whether an order being sought is for the purpose of what could be regarded as a terrorist investigation, whether the data being applied for will be of substantial value to the investigation or proceedings, and that it is in the public interest that the data is made available.

The UK has to be a party to an international co-operation agreement for the terms of the Bill to apply. However, will that arrangement or agreement with another country—and there could be up to 40—have to incorporate the same standards and criteria, and interpretation of those criteria, that would apply in our courts before making an order when a court in that other country makes an overseas production order for a British national or company based here to produce stored electronic data or give access to it? If that is the case—and the Bill has a potential problem if it is not—how will we be able to satisfy ourselves that the other country making such an order will, for example, be interpreting the requirements relating to “substantial value”, “public interest”, “terrorist investigation” and “excepted electronic data” in the same way as we would anticipate our courts interpreting those words in determining whether or not the case has been made for granting an overseas production order?

If we believe that a country with which we have an international co-operation agreement or bilateral agreement has not been applying an appropriate interpretation of the criteria for determining whether to make an overseas production order, can we step in and stop it being enforced against the named person or company in this country? If so, who or what body or authority in the UK can nullify the production order in question? If that cannot be done, is that not a potential concern about the proposed bilateral arrangements set out in the Bill, particularly as they are geared to giving greater speed to the process than the MLA route? Is there any right of appeal in this country against an overseas production order applicable here but made in another country with which we have a bilateral co-operation agreement?

If the Government’s view is that, under the new overseas production orders, there will be no change, in either direction, in the interpretation of the criteria or basis for making or declining overseas production orders for electronic data compared with the current mutual legal assistance arrangements, surely that cannot definitely be the case in the future, because at present it is the court in the country in which the order for electronic data has to be executed that makes the order, whereas under the new arrangements in the Bill it will be the court in the country where the order is being sought that will make the order and determine whether or not the case for the overseas production order has been established. What would be the position if the overseas production order for the electronic data in question was being sought in respect of a case or investigation where the outcome for a defendant, if found guilty, could be the death penalty, as might apply in the United States? Would we allow the electronic data to be handed over or accessed in such circumstances, as we would apparently be required to under the terms of the Bill and any bilateral agreement?

Can the Minister say within what timescale it is expected that overseas production orders will produce the required electronic data or access to it, compared with the time taken through the present mutual legal assistance process? While I appreciate that many service providers and technology companies in other countries, including the US, are likely to provide the electronic data being sought once the overseas production order has been made by a UK court—and, no doubt, vice versa as well—can she confirm what will happen if they decline to do so, since neither the US CLOUD Act nor any international agreement made under it would create a legal obligation for US service providers to comply with a data request from a foreign Government, including that of the UK?

The Explanatory Notes suggest that non-compliance with an overseas production order made by a UK judge could give rise to contempt of court proceedings but, if I am correct, some further detail from the Government as to how this course of action would in practice work and be effective in this situation would be helpful. Likewise, can the Government explain what action could or would be taken if a person or company in this country named in a production order from a country with which we have a bilateral agreement declined to hand over or give access to the electronic data sought under that order?

The Bill, as we know, seeks to provide a speedier alternative to the mutual legal assistance route in respect of electronic data by enabling UK domestic courts to issue a production order rather than, as now, requesting a foreign court to do so following an MLA request. Under the required international agreement with the country concerned, this would almost certainly be a two-way process. Under the current MLA process, first, how many orders have we been seeking per year in respect of electronic data which have required the assistance of another country under MLA in making and executing those orders, and from which countries have we required such assistance? Secondly, how many orders per year sought by other countries have we been asked to make and execute under MLA arrangements in respect of electronic data, and by which other countries? What percentage of overseas orders in both directions under MLA are currently in respect of electronic data per year? What is the anticipated increase in each direction for orders for electronic data under the new arrangements for overseas production orders set out in the Bill, since the Explanatory Notes suggest that applications for overseas production orders for electronic data have been suppressed because of the time delay in executing such orders under the MLA process?

As the noble Lord, Lord Paddick, said, in April this year the European Commission published proposals for EU legislation to create a European production order as part of a package of measures on electronic evidence. The proposed European production order would allow a judicial authority in one EU member state to request electronic evidence directly from a service provider offering services in the EU and established or represented in another member state, regardless of the location of data. Where does the proposed European production order fit in relation to the new overseas production order process set out in the Bill? Do the Government intend to opt into the European production order measure or regulation? Finally, I say simply that while we support the objectives of the Bill, we want responses to the potential concerns we have raised about the possible application of its provisions.

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

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

Amendment 4 probes these issues of reciprocity, compliance with human rights principles and what happens in cases where UK law and the law of the other state are at odds, and is intended to ensure transparency. It uses the term “relevant UK law” and Amendment 7 therefore defines what is meant by relevant UK law. We believe that Amendment 8 seeks to achieve the same ends as our amendments but rather less elegantly—but we would say that, wouldn’t we? I beg to move Amendment 3.

[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.

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I end on the point about the death penalty, which of course is at the heart of these amendments and first and foremost in this discussion. I am looking forward to further discussions on Report and the meetings that we will have ahead of it. I invite the noble Lord to withdraw the amendment.

[Lord Rosser]

Before the noble Lord, Lord Paddick, gives his answer, as I understand it this matter has been under formal discussion with the United States since at least 2016; I think that was indicated previously in Parliament. We seem to be dancing around a bit on the issue of the death penalty. If this matter has been in discussion with the United States since 2016, why has it not been ironed out in that period of two years? I do not think a clear answer has necessarily been given on the question—or at least if it has, I have not understood it—of what our approach will be. Under an overseas production order, are we going to ensure that the information would not be used against a defendant in a case where, if they were found guilty, the death penalty could apply?

Maybe I misinterpreted or misunderstood the wording but, since the Minister talked about enforcement on this, at Second Reading she said on behalf of the Government:

“The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders”.—[Official Report, 11/7/18; col. 929.]


If that is the case—and perhaps the Minister could confirm that they will not be required to comply with overseas orders—presumably there is no issue over enforcement because they will just decide not to comply. Have I misunderstood the significance of what the Minister said at Second Reading in her response?

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[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.

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Moved by

[Lord Rosser]

12: Clause 3, page 3, line 39, leave out subsection (5)

[Lord Rosser]

This amendment is in my name, that of my noble friend Lord Kennedy, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It would delete Clause 3(5), which states:

“Where an application for an overseas production order is made for the purposes of a terrorist investigation other than a terrorist financing investigation, this Act applies as if references to excepted electronic data did not include electronic data that is a personal record which is a confidential personal record”.


Confidential personal records are generally included as excepted data in the Bill, but this subsection provides an exception so that in terrorism cases, confidential personal records can be requested in an order.

A confidential personal record is defined in Clause 3 as a personal record,

“created in circumstances giving rise to an obligation of confidence owed to,”

an individual, whether living or dead,

“and the obligation continues to be owed”,

or the personal record,

“is held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment (whenever passed or made)”.

I seek to find out why this subsection is in the Bill, why the Government seek to make this exception or distinction in respect of terrorism investigation and what substantial electronic data information the Government think could be secured in terrorist investigations through Clause 3(5) which would otherwise be impossible to secure.

I and indeed others have already raised the question in an earlier debate of how consistently the parties to a bilateral agreement will interpret the term “terrorist investigation”. If more electronic data can be obtained through determining that an investigation was a terrorism one, and that would be the case for other serious crimes, there could be a temptation to define an investigation as a terrorism one under an overseas production order, purely or largely for that objective. What safeguards will there be to prevent that happening? If the view is taken that the term “terrorist investigation” is being rather loosely interpreted by a party to an international agreement on overseas production orders, how can that decision be challenged? I beg to move.

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[Baroness Hamwee]

My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.

[Lord Rosser]

I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?

[Baroness Williams of Trafford]

I am not sure that I answered that point, other than to say that we would not want to narrow the scope so that omission would lead to a terrorism investigation being curtailed. Perhaps I could come back to the noble Lord on the other point.

[Lord Rosser]

Yes, I am sure that we can discuss that on another occasion or at the intended meeting. However, I hope that the Minister will take my point that some countries may have a rather looser definition of who or what is a terrorist than we would in this country. Although I appreciate that the Bill is about orders made in this country, nevertheless, before we have that arrangement there has been an agreement the other way, so it is relevant to talk about what other countries might demand or seek from us.

[Baroness Williams of Trafford]

I am sorry to intervene on the noble Lord, but at the heart of the Bill lies the principle that we would not be dealing with countries with hugely differing levels of legal thresholds or judicial considerations, and all the other things that we have talked about. But yes, perhaps we can talk about that further.

[Lord Rosser]

I understand the point that the noble Baroness has made more than once: that we are unlikely to be signing a deal with North Korea. I fully accept and understand that, but I think that there may be one or two other countries with whom we might sign a deal who may have a slightly different definition of who or what is a terrorist than we might choose to apply. That is important under this, because it gives you access to information that you would not otherwise have.

Again thanking the Minister for her response, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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[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.

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[Lord Paddick]

My Lords, in moving Amendment 19 in my name and that of my noble friend Lady Hamwee, I will speak to our Amendments 33 and 34 in this group.

Journalistic data of any kind is not excepted electronic data as set out in Clause 3, despite representations made by media organisations that it should be. Instead, under Clause 12 the application for an overseas production order, if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data, must be made on notice. Confidential journalistic data consists of data created or acquired for the purposes of journalism and in circumstances that give rise to an obligation of confidence that continues or is held subject to a restriction on disclosure or an obligation of secrecy.

This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations? To probe these issues, Amendment 19 inserts the requirement that:

“The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data”.


Clause 13 prohibits the overseas parties from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else, once they are given notice of the application. What sanction can be imposed for failing to comply? Can it be contempt of court, bearing in mind that at that stage the judge has made no order, only given notice that an application for an order has been made?

Amendment 33 provides that Clause 12(1) should specify that the notice should be served on the data controller and the data subject specifically, as well as anyone else the judge considers necessary. Amendment 34 amends Clause 12(4) to specify that notices should be served on a person R, referred to in Clause 12(3): that is, the person who receives electronic data from another person who intended it to be used for journalistic purposes. I beg to move Amendment 19.

[Lord Rosser]

I referred to the general issue that is the subject of the amendments spoken to by the noble Lord, Lord Paddick, when I spoke to Amendment 8. We share the concerns expressed by the noble Lord, subject to what the Minister may have to say in response, about the possible difficulties or issues that might arise.

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Paddick, for his points and the noble Lord, Lord Rosser, for his intervention. The effect of Amendment 19 would be to exclude confidential journalistic material from the scope of an application and order. I should first point out that Clause 4 reflects the position in the PACE Act 1984. Journalistic material can already be sought under Schedule 1 to PACE through special procedure, and under Schedule 5 to the Terrorism Act 2000, when it is held by a company or person based in the UK. The Bill extends this to circumstances where the data is held by an entity based outside the UK and where a relevant international arrangement is in place.

I do not think that we should introduce in the Bill a difference between material that can be obtained—subject of course to appropriate requirements and safeguards—when it is held in the UK, as opposed to being held by an entity based on the country with which we have entered into an agreement. I should also stress that similar standards are set out in the Bill as already exist in domestic legislation, and that the term “reasonable grounds for believing” is readily used by our court system. Reasonable belief requires more than just a guess or a hunch. It will require the judge, marshalling all the facts before them, to come to an assessment on whether the information sought does or does not contain this type of data. It is not the first time that that standard has been used in legislation, and of course it will not be the last. Where confidential journalistic material is sought, the Bill requires that such applications can only be made on notice. That means that anyone put on notice, which can and may include the journalist whose data might be sought, has the opportunity to make representations to the court as to whether it is appropriate for the data to be obtained.

The effect of Amendment 33 as drafted would be that an application for an overseas production order that included confidential journalistic material had to be made on notice to a data controller and the data subject. I understand the sentiment behind the amendment but I do not agree that it is required, for two reasons. First, the rules of court will set out the process by which a judge can ensure that anyone affected by the order is notified of any given case. Consideration of notice by the judge relating to such a request is left to his or her discretion to allow for the circumstances where notice to a data controller, data subject or anyone else is deemed appropriate by the judge when granting an overseas production order. I think giving the judge discretion to determine which is appropriate in any given case is the right approach.

Secondly—this is a point that I have made before and will make again—we are providing in the Bill the means to serve an order on a company based outside the UK in a country with which we have a relevant agreement, in the same way as is currently the case with a company based in the UK. In those cases the respondent and any other person affected by the order would ordinarily be given notice and therefore the opportunity to make representations, unless under rules of court the judge is satisfied that there are good reasons for not doing so—for example, because of the risk of prejudice to the investigation. We are proposing that the same should apply to overseas production orders.

The intention of Clause 12 is to require an application for an overseas production order to be made on notice where there are reasonable grounds for believing that the electronic data sought consists of, or includes, confidential journalistic data. The effect of the clause as drafted is that notice should be served on the respondent—that is, the person who would be required to produce the data if the order is made. In most cases, this would be a service provider rather than the customer on whose behalf the data is stored. However, a requirement to give notice to the respondent under Clause 12(1) does not preclude the judge considering the application from exercising his or her own discretion under rules of court. Under rules of court they may require notice to be given to other persons who may be affected by an order requiring the production of confidential journalistic material, including a person who in his or her professional capacity has acquired that data. It will be a matter for the judge’s discretion, but he or she is likely to insist on notice being given unless the applicant can demonstrate that doing so would prejudice the investigation—for example, where the journalist himself or herself is the subject of the investigation or prosecution.

An example of where it might not be appropriate is where there is a hacking investigation and the journalist might actually be the subject of an inquiry. The judge may decide that putting someone on notice could potentially harm the investigation or risk the dissipation of the material. It is the Government’s intention, however, to ensure that where an application relates to confidential journalistic data, notice can and should be served on journalists and on whoever the judge deems appropriate given the circumstances of the application. The PACE Act 1984, for example, requires service to be made on the respondent only, otherwise notice requirements are set out in court rules.

The noble Lord, Lord Paddick, made an important point about sanctions to comply. It is difficult to construct a proportionate regime to ensure nondisclosure prior to an order being made and, in practice, law enforcement would not apply for an order where there was an unacceptable risk of damaging disclosure. I ask noble Lords not to press their amendments and I shall consider their comments before Report, if that is amenable to them.

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

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

[Baroness Hamwee (LD)]

My Lords, this amendment is grouped with Amendment 22 in the name of the noble Lord, Lord Rosser. We are both interested in how orders are to be enforced. I have to say that I think both amendments are slightly circular. That might mean that they are elliptical—I am not sure. However, we are probing at this stage; I hope that the Minister will take that point.

There are obvious difficulties with enforcement in respect of data held by an entity that is not in the UK and which does not have a base or assets in the UK. We are told in Clause 6(4)(a) that the provisions apply regardless of where the data is stored. I do not know whether “extraterritorially” in the sense of outside the earth, as distinct from in another country, applies here. I simply do not understand how the technology works.

It seems to me that the enforcement will have two aspects: a sanction for non-compliance and ensuring the actual production of the data. So my first question is: will the mechanism for enforcement be in the co-operation arrangement and, generally, how are we to expect the issues that I have raised to be dealt with? I beg to move.

[Lord Rosser (Lab)]

I shall speak to the amendment in my name, which, as the noble Baroness, Lady Hamwee, said, has in effect the same objective as the amendment which she has just spoken to and moved. The purpose of our amendment is likewise to find out to what extent and by what means overseas production orders can and will be enforced where there is a bilateral or wider international agreement for an overseas production order made by a court in this country and one made in another country and served on a provider in the UK.

In Committee last Wednesday the Government stated that the reference at Second Reading that,

“UK-based providers will not be compelled to comply with overseas orders”,—[Official Report, 11/7/18; col. 929.]

meant that while,

“UK companies are not compelled by UK law”,

to comply with a production order,

“they may be compelled by the other jurisdiction … depending on the country in question”.—[Official Report, 5/9/18; col. GC 143.]

Bearing in mind that considerable progress appears to have already been made towards concluding a bilateral agreement on overseas production orders with the United States in line with the Bill, will an overseas production order made by our courts in respect of an American-based service provider be enforceable—and, if so, how, by whom and with what sanctions available if there is non-compliance?

Likewise, in the light of the Minister’s comment last Wednesday that UK companies might be compelled by the other jurisdiction to comply with their production order, how will such an order made by an American court in respect of a British-based service provider be enforceable, by whom and with what sanctions available if there is non-compliance? In addition, what do the Government consider would be the basis of appropriate and acceptable enforcement arrangements in both directions for any other countries with whom we might conclude bilateral arrangements in respect of production orders under the Bill?

Last Wednesday in Committee, the Government said that,

“it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order”.—[Official Report, 5/9/18; col. GC 141.]

That statement was, of course, in line with what the Government had said in the Minister’s letter of 20 July following Second Reading. That letter referred to the Government expecting any bilateral agreement to include a mechanism for escalating any dispute over compliance.

But should the letter not have said that the Government “will” require a bilateral agreement to include such processes and procedures, rather than just that they expect that it will? Would the decision of such a dispute resolution mechanism be legally binding? If so, on whom? If not, what would happen if the dispute resolution mechanism failed to resolve the dispute? As I understand it, some service providers have welcomed the Bill because it will provide them with cover when making available electronic data, if done under the Bill’s provisions, from other potential legal proceedings. If that is the case, would that legal protection be provided by the Bill if it was not capable of being legally enforced in one or both directions?

What kind of issues in dispute could be addressed through the suggested dispute resolution procedure mechanism? Who would mediate or arbitrate if such a mechanism was in place? Would there be legal representation? How would the mechanism be activated and by whom? Who would pay the costs? Would the dispute procedure have to reach a conclusion or decision within a fixed maximum timescale? Would the dispute resolution mechanism for any bilateral agreement on production orders with the United States be the same in the United States and the UK, working to the same standard and principles and applying or not applying the same sanctions? If there is to be any enforcement by the courts, through which court would an overseas production order made in this country be enforceable, and through which court would an overseas production order made in the US or another country in respect of a British service provider be enforceable? After at least two years of discussion with the United States on the proposed agreement, the Government must have some specific answers to these questions.

[Baroness Williams of Trafford]

I thank both noble Lords for their points. As they said, overseas production orders will be used where an international co-operation arrangement exists and, as such, orders will be used in an environment where they are readily complied with or where there is confidence that such orders will be complied with.

As I explained when the Bill was read for a second time, the Bill provides an alternative route to accessing evidence to the existing mutual legal assistance channels. However, those channels will still be available. As such, if there is any doubt about compliance, appropriate officers may well opt to seek the evidence required via that existing route to ensure that compliance can be effected through another country’s own domestic sanctions.

Amending this provision to include the means by which an order could be enforced would be a departure from legislation in relation to existing production orders. It goes without saying that non-compliance of an order is a breach of such an order. To answer one of the noble Lord’s questions, the very nature of this being a Crown Court order is that it attracts contempt of court proceedings if there is non-compliance—which will be dealt with by way of court rules.

Failure to comply with an overseas production order made by an English judge will carry the same consequences as failure to comply with a domestic production order—namely, the person will become liable to punishment for contempt of court in the same way as if an order of the Crown Court had been breached. Specifying on the face of the order the means by which contempt proceedings will be brought will not change the legal position.

On the point made by noble Lords about enforcement. I accept that the Bill does not provide an enforcement mechanism in respect of Clause 13(1), which prohibits a person from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else once they are given notice of the application. This is currently the case with domestic orders made under Schedule 1 to PACE. As I mentioned, these orders can be made only where the relevant international arrangement exists. Orders will be applied for and used in an environment where they are readily complied with and where there is confidence that such orders will be complied with.

In reality, enforcement mechanisms for such requirements are unlikely to be needed—again, this reflects the domestic position. I say this because, where there is a risk that a person on whom an order is served might tip off a subject of interest or destroy evidence, a search warrant is likely to be used or the evidence would not be sought at all. Therefore, where there is a risk of concealing, destroying, disposing of or altering the data, an overseas production order will not be an appropriate method of obtaining that information. As I said, MLA will still be available and, where there is doubt about compliance with an overseas production order, appropriate officers may well opt to seek the evidence required via the MLA route to ensure that the information can be obtained by other means.

The noble Lord, Lord Rosser, asked whether the enforcement mechanism would be in the co-operation agreement. We envisage that the co-operation arrangements will require obstacles to compliance to be removed, but the requirement to comply with an order will be a matter for the law of the jurisdiction in which it is made. We have provided for enforcement orders in the Bill via the contempt of court mechanism.

The noble Lord also asked about dispute resolution. Any mechanism for dispute resolution will be subject to negotiation with any country with which we wish to enter into an agreement. Therefore, it would not be appropriate to speculate on the terms of such dispute resolution mechanisms—although I can of course discuss this further with noble Lords ahead of Report. With those explanations, I hope that the noble Baroness will feel able to withdraw her amendment.

[Lord Rosser]

Perhaps I may ask for clarification. As I understand from what the noble Baroness said— I may well have misunderstood it—if an overseas production order made in this country had to be enforced, it would be on the basis of contempt of court. That would be enforced against a provider in America if we were talking about the agreement with the States. How would contempt of court proceedings against a court decision in this country work in practice in relation to a provider in the United States who did not comply?

--- Later in debate ---

[Lord Rosser]

In the other direction, would an order made in an American court against a British provider that is not complied with lead to contempt proceedings in a United States court, and how would that court enforce it against a British provider?

[Lord Paddick (LD)]

While we are waiting, am I right in thinking that in the recent Facebook case it was not that the service provider did not want to provide the information that would be of use to UK law enforcement but that domestic law in America did not allow it to provide that information, and that in the overwhelming majority of cases to which this legislation would apply we anticipate that the service provider would be more than keen to provide the data, provided it can be done lawfully, and that this mechanism provides the lawful means of doing that?

[Baroness Williams of Trafford]

I think the noble Lord is probably quite right. It goes back to what I was saying at the beginning of my response. If there were doubts about compliance, or that began to become apparent, MLA would be the process that we would revert to if this was not forthcoming. Ditto, the American side would probably institute the MLA process to ensure compliance.

[Lord Rosser]

On the point the noble Lord, Lord Paddick, made, does it stand up that the service provider—he spoke about the situation in America, I think—would be protected from any other legal action if it provided the data under a law that it did not have to comply with?

[Baroness Williams of Trafford]

The current Facebook case is a good case in point. There is no requirement for it to provide the information because of its terms, conditions and processes. I am sure that this would ensure that it had to comply with the process, because we are introducing this agreement with the US which places an obligation on CSPs to comply—whereas at this point in time they do not have to.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my Amendments 25, 26, 28 and 35 are also in this group. The noble Lord, Lord Rosser, has given notice that he intends to oppose Clause 7 standing part of the Bill. I assume that that is to probe the operation of the clause. I am sure he takes the view that I do—that one would not want to accept that these orders can be made without the possibility of variation, revocation or, in the most general sense, appeal.

On Amendment 24, I am ready to be told that it is not necessary to spell out that revocation or variation can be,

“in whole or in part”.

I realise that a part-revocation is probably a variation. We also find the non-disclosure requirements rather troublesome. Amendment 25 seeks to probe the procedure for opposing the non-disclosure requirements. Amendment 26 is part of the same question about how you appeal against them.

Clause 8 provides for non-disclosure of the existence of an order, as distinct from non-disclosure of its contents. There is something rather concerning about not being able to say that an order is in existence. If a data subject asks the internet service provider, it cannot even say, “We will have to refer to the judge”—or can it? I am not sure. The sanction here, presumably, would be contempt of court. I have already referred to whether that is an effective sanction in the case of an overseas or international body. I was reminded of super-injunctions when I read this. They do not have the greatest reputation. Presumably the Minister will remind us that disclosing the existence of an order to a subject could hamper the work of law enforcement or security. All my instincts are that somebody who is affected by an order should know about it. Perhaps the Minister could take this opportunity to explain the operation of it.

Amendment 35 is another probing amendment, about how one appeals, in this case against Clause 13. But my major concerns are around Clause 8. I beg to move.

[Lord Rosser]

As the noble Baroness, Lady Hamwee, said, I have tabled a Clause 7 stand part debate, which is intended to provide an opportunity for the Government to explain in a bit more detail why this clause is deemed necessary and how and in what circumstances it is intended to operate. In what kinds of circumstances do the Government envisage it being necessary to vary or revoke an overseas production order, and how many times has that happened in respect of domestic production orders, compared to the number of such domestic orders issued? Does the varying or revoking referred to in Clause 7 apply to overseas production orders made in this country or to such orders made in the country with which we have a bilateral agreement and applying to British service providers—or, indeed, does it apply to both? In what circumstances would the Secretary of State, rather than the appropriate officer who applied for the order or any person affected by the order, be likely to seek to vary or revoke an overseas production order?

Will the application to vary or revoke be heard by the judge who made the original order, and what information, or indeed anything else, will be required from an applicant seeking to vary or revoke an overseas production order before court time is granted to hear their application? What will be the test, if any, in terms of the extent or otherwise of a proposed variation being sought before it can be considered or granted? Does the reference in Clause 7 to the requirements in Section 4(2) to (6) continuing to be fulfilled, or being fulfilled, apply to the variation that is being sought or to the original overseas production order as altered by the variation?

Once an overseas production order has been served, the recipient has, I believe, as a standard, seven days to act on it. Presumably that means that an application to vary or revoke by the recipient as a person affected by the order has to be made within those seven days. Is that in fact the case? If it is, is it not a very short period of time, particularly if it is also envisaged that a judge will have to deal with any application to vary or revoke within that seven-day period, or will a judge be able to extend the period already laid down for the electronic data specified in an overseas production order to be produced if an application to vary or revoke has been made?

Finally, what will be the maximum period of time within which applications to vary or revoke must be determined by a judge, and who will be given notice of an application to vary or revoke an overseas production order, and in what circumstances, and thus have the opportunity to support or contest the application?

--- Later in debate ---

The noble Lord asked about the seven days to action an order. The period to comply with the order is seven days, which is a standard timeframe. The respondent would therefore need to apply for a revocation in those seven days if they did not wish to be in breach of that order. We consider the timeframe to be proportionate given the purpose of these orders and the need for information to be produced quickly. With that quite lengthy explanation, I hope that noble Lords will be happy not to press their amendments.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

Moved by

[Lord Rosser]

29: Clause 9, page 9, line 3, leave out “3” and insert “2”

[Lord Rosser]

I will be very brief. Clause 9(1) states that an overseas production order that is not served within a period of three months is automatically quashed. My Amendment 29 would reduce the three months in the Bill to two months. The purpose of the amendment is to give the Government the opportunity to say why it is felt that as long a period as three months is needed before an order is quashed if it has not been served.

As the Minister said in the previous discussion, the purpose of the Bill is to provide a much faster means of obtaining electronic data than is currently available under the mutual legal assistance process, which can and does take months. Bearing in mind the need for greater speed in respect of serious crime and terrorism offences or investigations, why could it then take as long as three months to serve an overseas production order once it had been made, and for the specific requirements set out in Clause 4(2) to (6) to be met? Why would two months, as suggested in this amendment, be insufficient, and if it is deemed by the Government to be insufficient, in what kind of cases or circumstances would that be the position? I beg to move.

[Baroness Hamwee]

I have not got a lot to say on this—but I will say it nevertheless. On Amendment 29, I agree with the noble Lord, Lord Rosser, that if there is an order it should be served quickly—although my reaction was, “If it’s so objectionable that the period should be reduced, there shouldn’t be an order at all”. However, in light of his remarks, perhaps I misunderstood the direction in which he is going.

Amendments 36 and 37 are grouped with Amendment 29 and relate to Clause 14, which is about “means of service”. Clause 14(3) refers to service on a person outside the UK by delivering the order or notice, or whatever it is, to that person’s office or place of business. I wonder whether a person could be outside the UK but at the same time have an office in the UK—unless its base is outside. I am not quite sure what those words mean in context.

Amendment 37 relates to Clause 14(3)(a), which says that service can be made by delivery to a place,

“in the United Kingdom where the person carries on business or conducts activities”.

What does “conducts activities” mean if it does not amount to carrying on business? Is this just a bit of belt and braces? If it is, I would not take exception, but I wonder whether the phrase is normally used, because it seems to be part of carrying on business.

--- Later in debate ---

[Baroness Hamwee]

I am a bit confused, but that last point is not something to answer now. It is about whether we are talking about the present or whether, having been at an address in, say, Newcastle at one point, and you have moved to Liverpool, there can be service in Newcastle.

[Lord Rosser]

Bearing in mind that the Minister has said, without making any commitment, that she will reflect further on the amendment, I beg leave to withdraw it.

Amendment 29 withdrawn.

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 19, at end insert—
“(4A) The Secretary of State may not make regulations designating an international agreement under section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests) where that agreement provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned.(4B) Subsection 4A does not apply if the country or territory has, within the international agreement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.”

[Lord Rosser (Lab)]

The Bill is intended to assist in the fight against serious crime, not least terrorism, by making it possible to conclude agreements with other countries that would provide for electronic data in the possession of a service provider, in that other country to the agreement, to be passed to the UK authorities upon that service provider being served with an overseas production order made by a court in this country. Such arrangements would almost certainly have to be reciprocal, so that the authorities in that other country could make an overseas production order or equivalent in respect of the provision of electronic data by a service provider in this country. The necessity for having these provisions in the Bill is that the current procedure for obtaining such data, which is increasingly used in major crimes or in their planning as the technology rapidly develops, is what is known as mutual legal assistance. Under this process, the application for such data must be through the authorities and a court in the country of the service provider from which that data is being sought. If the application is agreed, there is still the process of actually obtaining the data from the service provider.

In reality, obtaining electronic data under the existing mutual legal assistance arrangements can take many months—apparently up to 12—which is not exactly conducive to fighting effectively serious crime and terrorism, with the length of time taken to obtain that data acting either as a disincentive to seeking it at all or it being obtained so late as to seriously negate its relevance and effectiveness. As I understand it, discussions have already taken place between the United Kingdom and the United States of America about concluding reciprocal arrangements for securing electronic data under the Bill’s provisions on overseas production orders. Indeed, I think the United States has already passed its necessary legislation to enable such arrangements or agreements to be concluded with the UK. We are not in any way opposed to the introduction of these new arrangements in principle but we have two significant areas of concern, one of which is the implications for the UK’s stance on opposition to the death penalty. That is the subject of Amendment 1, which is also in the names of my noble friend Lord Kennedy of Southwark, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee.

An order from this country for an overseas production order applying to a service provider in the USA would, under the Bill, be made in a UK court. The service provider in the USA would, under the terms of the arrangements likely to be concluded, be expected to comply. In fact, as I understand it again, our Government have stated that they will not seek such an order unless they know that the provider would be willing to comply voluntarily.

As understand it again, service providers are likely to be willing to comply because the Bill will provide them with legal protection for releasing such electronic data. Likewise a service provider in this country would, in the normal course of events, be expected to comply with an overseas production order made by a court in another country—such as America, with which it looks as though we are close to concluding an agreement—under the terms of the Bill. I am not sure that there has been an indication from the American authorities that they would seek such an order only if they knew that the relevant service provider over here would comply, so some form of enforcement action could be the result if there was non-compliance.

Our concern in respect of the death penalty, to which this amendment relates, is that in a number of states in the USA it can be handed down as the sentence if a defendant is found guilty of certain serious crimes, including acts of terrorism. In the UK we are opposed to the death penalty—government Ministers have repeatedly stated that—and do not apply it as a sentence. However an overseas production order made by a court in the USA for electronic data from a service provider in this country could result in a situation whereby that electronic data might be significant in or key to enabling a court in America to convict a defendant who could be a citizen of any country, including Britain, of an offence carrying the death penalty as a possible sentence.

There is no issue with an individual being convicted of a serious offence they have committed, not least terrorism, as a result of electronic data obtained from a service provider in the UK and receiving an appropriate sentence, but we have an issue with the provision of such information from this country under the terms of the Bill without an assurance that the death penalty could not be imposed. We cannot as a nation say we are opposed to the death penalty and then sign an agreement with another country, whether the USA or another nation, knowing that a court in that other country could then make an order for a service provider here to provide electronic data which could make the difference between a defendant, perhaps a British citizen, being convicted or not convicted of an offence that led to the death penalty being applied.

This amendment provides that, in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from this country contributed in any way to securing that conviction.

I believe the Government have previously said that there will need to be some form of disputes procedure against an overseas production order made in another country with which we have concluded a reciprocal agreement. However the Government have not been able to say what form that dispute procedure will take, how it will operate or, crucially, on what grounds an overseas production order made in that other country could successfully be challenged. Since the Government have resisted any suggestion of the Bill specifically stating that no reciprocal agreement or arrangement can be made with a country that will not give a cast-iron assurance that any electronic data from this country would not be used to help convict a defendant of an offence for which the death penalty would be applied, it seems extremely unlikely that grounds for a successful objection to an overseas production order under any disputes procedure could be that the data being sought could be used to help secure a conviction that could lead to the death penalty being imposed.

I repeat that the amendment does not preclude a reciprocal agreement being reached with other countries on overseas production orders to secure electronic data in the battle against serious crime, not least terrorism, by improving the prospects of securing convictions and, with them, the prospects of lengthy sentences of imprisonment to reflect the severity of the crime. The amendment seeks to ensure that our policy as a nation of opposing the death penalty is not compromised by service providers here being required by a court in another country with which we have reached an agreement under the terms of the Bill being expected to hand over data when there is no guarantee that that information will not be used to assist in securing a conviction, which could be of a British citizen, for which the death penalty could be applied. We cannot claim that we did not know that that would be the outcome. It will have come about through passing the Bill at the behest of the Government and the Government concluding an international agreement with another country, such as the USA, where the death penalty can still be applied in some states, without securing an assurance as part of that international agreement that the death penalty will not be applied where data secured under the Bill has played a part in securing that conviction. I beg to move.

--- Later in debate ---

Amendment 3 not moved.

[Lord Rosser]

I thank the Minister for the Government’s response to my amendment—or rather the amendment I have moved; it is not purely my amendment. The Government’s argument appears to be based on two or three strands. The first is an inference that another country—realistically, we are talking about the USA—might not be willing to conclude an agreement with us under the Bill, including of course a reciprocal agreement, if this amendment is passed with its provisions for prior assurances on non-application of the death penalty. Why, though, should we not have the assurances that this amendment seeks, when we are talking about information from this country? Why should we have to compromise on our stance of opposition to the death penalty by having to hand over electronic data following an order in a court, or made in a court in another country, which could lead to the death penalty being applied if that information helped in securing a conviction in that other country?

I notice that the Government said that such information would not be used in evidence. However, information can be of value in securing a conviction without that evidence in itself being produced in evidence, since it may point people in directions which will lead to other evidence being produced which could assist in securing a conviction. It surely is not opposition to the death penalty—and government Ministers keep telling us that we are opposed to it—if you conclude an agreement that you know could allow the death penalty to be applied thanks to our assistance and co-operation over the provision of data. We need the safeguard that the death penalty will not be applied.

The other point is that orders will be made in that other country that the international agreement we conclude with it will expect to be adhered to and data supplied without any ability of a British court or the Government to say no on the ground that the death penalty could be applied. No assurances have been given that that will not be the case. In the absence of any detail about any disputes procedure and the circumstances in which it would operate, we will not be able to stop information being handed over on the ground that it could allow the death penalty to be applied.

In that regard, we do not know how many overseas production orders will be served on service providers in the UK by other countries with which we reach an agreement and where the death penalty could be applied. It could be a considerable number, and the Government cannot deny that. We could, in fact, be assisting in the application of the death penalty on a not infrequent basis.

As I understand it, the Government have now indicated that they will put down an amendment when the Bill reaches the Commons. It appears that that amendment might provide—I am really not sure—for some kind of review of any agreement reached on overseas production orders with another country, the outcome of which would presumably be available to Parliament before Parliament decides whether or not to ratify the agreement. But Parliament will presumably have to say yes or no to the agreement and will not be able to amend it, and neither will there be any requirement on the Government to accept the findings of any prior review or investigation of an agreement with another country reached under the terms of this Bill and, in particular, on any recommendation that an assurance should be sought on the non-application of the death penalty if it applies in the country concerned.

I really do not think that the assurance given and the statement made about the nature of a possible amendment in the Commons meet the provisions of this amendment, which clearly state that, if we are going to conclude such agreements with other countries on overseas production orders, and if it is a country where the death penalty can apply, firm assurances must be sought that, where information is handed over by service providers in this country, it will not be used to secure a conviction that could lead to the death penalty being imposed. I wish to test the opinion of the House.

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Moved by

[Lord Rosser]

6: Clause 3, page 4, line 21, at end insert—
“(8A) “Journalistic data” means electronic data that—(a) was created or acquired for the purposes of journalism, and(b) is stored by or on behalf of a person who created or acquired it for the purposes of journalism.(8B) Where a person (“R”) receives electronic data from another person (“S”) and S intends R to use the data for the purposes of journalism, R is to be taken to have acquired the data for those purposes.(8C) Journalistic data is “confidential journalistic data” if—(a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or (b) it is communications data of a person acting in their capacity as a journalist, or(c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).”

[Lord Rosser]

The Bill extends the ability of law enforcement agencies through overseas production orders to obtain electronic data held by service providers overseas for the purposes of fighting serious crime, including terrorism. Since the assumption is that an agreement with another country will be reciprocal, the terms of the Bill when implemented will also, in reality, allow law enforcement agencies in that other country with which we have a reciprocal agreement to more easily obtain electronic data held by service providers in this country. But the Bill does not appear to provide adequate safeguards against confidential journalistic material being handed over in a way that results in sources losing their anonymity. We thus appear to have a Bill that potentially compromises the position and values of our free press. If sources of information do not feel that their anonymity will be protected, they are much less likely to provide information to journalists—information that might bring to light corruption, fraud, sexual offences, adverse environmental activity or failings by large organisations or government, for example, that those involved might wish to keep secret.

Clause 12 requires that where an overseas production order is made in respect of confidential journalistic data, it must be made on notice. The agency applying for the overseas production order would have to judge whether the material sought was ordinary or confidential journalistic material, but there is no guarantee under the Bill as it stands that the journalist, or indeed media organisation, will be able to make representations to the court. There is no requirement in the Bill for the journalist or media organisation that acquired the confidential material to be informed. The judge has a discretion to notify the journalist but not a duty. Without a requirement to notify the journalist or media organisation, take representations from them and have regard to what they say, there is no means by which journalists or media organisations can seek to protect their source.

This amendment seeks to address this concern by providing the right of journalists or media organisations to be given notice that an order in respect of confidential material is being sought, and to then be able to make representations to oppose the making of an order involving such journalistic material. It would also provide that the judge must be satisfied that there is a public interest that overwrites the confidentiality of the data sought before an order is made. If the Government have concerns that there might be journalists whom they would not wish to inform of an application for an order, then the advice could be given to the media organisation for whom that journalist worked.

The amendment seeks to ensure the continuation of an important safeguard. I beg to move.

[Baroness Hamwee]

My Lords, from these Benches we had an amendment in Committee requiring the court to be,

“satisfied that … data … is not confidential journalistic data”.

We were concerned that the Government had not consulted the NUJ or other organisations; I wonder whether they have had an opportunity for a discussion since then. The News Media Association certainly made its views clear with its concern about what it described as an artificial distinction between “journalistic material” and “confidential journalistic material” and what might flow from that distinction.

New subsection (8C)(b) proposed in Amendment 6 seems to make all data held by a person acting as a journalist “confidential journalistic data”. I see the attraction in that but I wonder whether this is the place to treat material differently from how it is treated elsewhere in UK law—in other words, I wonder about making that provision apply for the purposes of this piece of legislation only, which is a fairly small piece of the jigsaw of legislation that applies to journalism. Can the noble Lord, Lord Rosser, confirm when he winds up whether I have read this correctly: is he eliminating a distinction in this piece of legislation only, and only in the circumstances to which it will apply?

With regard to Amendment 11, we support a requirement to give notice of an application. We had an amendment to that effect in Committee, and we have amendments in the next grouping that are an attempt to respond to the Minister’s comments on the issue then.

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[Baroness Williams of Trafford]

That is what I am saying, yes.

[Lord Rosser]

The protection of sources in relation to confidential journalistic data is very important to the free press in our country. I pointed out—and, as far as I understand it, this is not being contested by the Government—that there is no requirement in the Bill for the journalist or media organisation which acquired the confidential material to be informed. That seems to be a significant hole in the legislation. Surely in that situation the journalist or media organisation concerned should be able to make representations and to oppose the granting of an order; in other words, their voice should be heard—perhaps, from their point of view, to seek to protect their confidential sources.

I note the Government’s argument that this is already provided for in other legislation. I say only that we are dealing with something here which can relate also—under reciprocal arrangements, presumably—to orders made by a court in another country and not only in relation to orders made by a court in this country. In that situation it is absolutely vital, even if the Government believe that the safeguards are already there, that the ability of a journalist or media organisation to be informed of an application for an order, and the chance to appear and make representations in connection with that order, should be repeated in the Bill. I wish to test the opinion of the House.

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, in moving this Motion I thank all noble Lords who have participated in debate on the Bill, in particular the noble Lords, Lord Rosser and Lord Kennedy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Of course we can never do anything without our fabulous Bill team, who have been on hand to explain some quite complex and technical matters. I always think that your Lordships’ House improves a Bill as it passes to the other place, and I hope that it will agree when it has time to consider it. Thank you.

[Lord Rosser (Lab)]

I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.

[Lord Paddick (LD)]

My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.