Knife Crime

Lord Rosser Excerpts

Monday 5th November 2018 Lords Chamber

[Baroness Williams of Trafford]

I join the right reverend Prelate in his sympathy for the families—it must be devastating for every family that has lost someone to such a dreadful crime. The right reverend Prelate may remember that in October the Home Secretary announced further measures, including a commitment to consult on a new legal duty to underpin a public health approach to tackling serious violence, bringing all relevant partners together and making this a top priority. It will be supported by a youth endowment fund— £200 million over 10 years from 2020—to divert young people from crime and violence. He is absolutely right to suggest a multiagency approach.

[Lord Rosser (Lab)]

My Lords, we all deplore the level of knife crime and its impact on the many people who are affected. We all support the London mayor’s call for a long-term approach. Nevertheless, since 2010 the Government have maintained that the level of crime is not influenced by reductions in the number of police officers and in neighbourhood policing. The Met Police Commissioner said last week that forces were stretched. In the light of the increase in violent crime, the increase in reported crime, falling clear-up rates and the increase in the number of crimes that do not even get properly investigated, will the Government confirm that it is still their view that the number of police officers, which has fallen considerably since 2010, has no impact on the incidence and level of crime?

[Baroness Williams of Trafford]

My Lords, I think that the noble Lord would agree that my right honourable friend the Home Secretary and the policing Minister have acknowledged the increasing calls on police time and resources, particularly over the past two years, but our analysis points to a range of factors driving serious violence, most notably in the drugs market. The Government, therefore, understand that police demand is changing and becoming much more complex. Noble Lords will know—I have said it before—that the Minister for Policing and the Fire Service has visited police forces across England and Wales and that was why the funding settlement of more than £460 million in 2018-19 was arrived at. Early intervention is, however, crucial in this area, particularly for young people.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 8, after “belief” insert “, as part of a pattern of behaviour,”

[Lord Rosser (Lab)]

My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.

The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.

The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.

It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.

Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,

“as part of a pattern of behaviour”,

with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.

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I should add that this provision will fall within the statutory remit of the Independent Reviewer of Terrorism Legislation, as does the existing Section 12 offence. This robust and staunchly independent oversight will help us to ensure that the amended offence is used appropriately and will bring to Parliament’s attention any concerns that it is not. I therefore hope that the noble Lord, Lord Rosser, will be content to withdraw his Amendment 1 and that the Committee will support Clause 1 standing part of the Bill.

[Lord Rosser]

I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.

As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.

I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Rosser]

10: Clause 2, page 2, line 20, at end insert—
“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”

[Lord Rosser]

Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.

When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,

“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]

In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.

It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?

Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

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[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

[Lord Rosser]

I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?

I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.

[Baroness Williams of Trafford]

Generally, the seizure would be with a view to prosecution, yes.

[Lord Rosser]

I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

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Moved by

[Lord Rosser]

11: Clause 3, page 2, line 27, after “accesses,” insert “as part of a pattern of behaviour,”

[Lord Rosser]

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

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[Lord Rosser]

I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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[Lord Judge]

I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.

I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.

[Lord Rosser]

We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.

We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.

Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.

Immigration

Lord Rosser Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the House of Commons. I shall not launch into a tirade against the Home Office and its leadership for yet another display of its own all-too-often uniquely insensitive way of handling immigration issues, or its belief that simply by announcing that the “hostile environment” has now been rebranded the “compliant environment” all the problems will be solved, or the impact on the department’s culture of the infamous net migration target of below 100,000. I think that we have reached the stage of despair. I will confine myself to asking a number of questions. The Statement makes reference to,

“an urgent internal review into it, which I am publishing today”.

Is the full review being published, or have any parts of it been removed before publication?

The Statement says that the law is that the provision of DNA evidence should always be voluntary and never mandatory. If that is a muffled way of saying that the Home Office acted illegally, does it mean that the Home Office is now liable to legal action from those who were told that it was mandatory for them to provide DNA evidence and because of that did so?

What form and level of compensation and reimbursement do the Government intend to offer to those affected by what the Statement describes as the unacceptable demands for the provision of DNA evidence? If the Home Office has in its records DNA evidence obtained through unacceptable demands, has that evidence now been deleted and, if not, why not?

According to the Statement, the internal review,

“outlines a number of areas in which guidance was unclear or wrong”.

At what level in the Home Office would such guidance, which presumably includes guidance on what actions are within the law and which are not, have been cleared? Is it at ministerial level, Permanent Secretary level or legal officer level?

Immigration cases where the provision of DNA evidence had been made a requirement were brought to the attention of the Home Office at the end of June. Why has it apparently taken so long for any Statement to be made—some four months?

The Statement makes reference to Operation Fugal, in connection with which the majority of cases so far identified have been found. The other areas relate, almost unbelievably, to adult dependent relatives of Gurkhas and Afghan nationals formerly employed by the UK. The Statement says that, so far, it is known that three schemes have been affected. Are those the three areas to which I have just referred or are they three others and, if so, which schemes?

It is almost inevitable that, at times, something will go wrong in the performance and delivery of a department’s business—no organisation can be perfect the whole time—but there seem to be rather too many problems at the Home Office. No doubt the substantial reductions in personnel have contributed—they certainly have not helped—and the approach to pay increases in the Civil Service in recent years will not have exactly boosted morale. But what is disturbing is the time it takes for some of these problems to come to light. This is once again an issue in this case.

The internal review has apparently covered oversight arrangements relating to the use of DNA, which I presume were not as effective as they should have been, but where does responsibility for having effective governance arrangements within the Home Office lie? Which committee or board within the Home Office has responsibility for ensuring that effective governance arrangements exist which will at least prevent serious misuse of powers taking place for any length of time, if not stop them occurring in the first place? Who chairs that board or committee with that overall responsibility? Indeed, is there a board or committee with that responsibility? What is the role of the Home Office Audit Committee, if any, in this regard? What is the role of the Home Office board, if there is one, and the role of its non-executive directors in this area of effective governance arrangements? I hope that the Minister will be able to say or write something about where responsibilities lie higher up the food chain in the Home Office in that regard, if not today then at a later stage.

The apology in the Statement from the Home Secretary for what has happened is welcome. His Statement commits him to a review of the structures and processes that we have to ensure that they can deliver an immigration system which is fair, humane and fit for the new immigration system that the Government say they will bring in for when we leave the European Union. I do not doubt for one moment the Home Secretary’s sincerity, but words are easy. It is when it comes to implementation and delivery that it all too often seems to go wrong at the Home Office. That is the issue that he has to solve in any revised or new immigration system, as well as making sure that the existing system can cope with all the applications from EU nationals living in the UK seeking to settle their status post Brexit.

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement. In the interests of time, I have edited the questions that I wish to ask so as not to repeat those of the noble Lord, Lord Rosser, which were all very good and pertinent.

The Minister tells us that this is in effect an apology to those affected. Will the Home Secretary contact the individuals affected to give them a personal apology? That seems the proper thing to do, because the events that we have heard about must have been quite devastating for some of those affected. Instructions have been given that officials must not seek DNA evidence on a mandatory basis. Can we be assured that “mandatory” will be given quite a wide meaning? If I were told that I was unlikely to be believed if I did not provide DNA evidence, I would regard that as mandatory, or something very close to it. A new task force has been set up, and we have heard about the external oversight, but is the task force comprised of Home Office officials? Is it they who will give advice and support, and are those affected going to be told that that advice and support will be available to them?

On reimbursement, the words in the Statement are, “looking to reimburse”. I am not suggesting that an attempt has been made to find weasel words—it is a fairly common way of saying “we will reimburse”—but I would like to hear that this is a little more than a hope, and without requiring the release of the claim, which I think was the point touched on by the noble Lord, Lord Rosser.

During the Joint Committee on Human Rights inquiry into what happened in the case of the Windrush generation—I am a member of that committee—we were concerned to know what action was taken when errors were discovered, with regard to individuals. That is perhaps another way of asking what sort of internal audit is in place and what steps are taken when it is found that mistakes have been made by individual officials. In saying that, I am not seeking to blame officials: I believe that those who operate the system seek to apply what they understand to be Home Office policy, sometimes expressed, sometimes implied.

The Statement refers to,

“how to address the root causes”,

of the problem. The “committed people”—I use the Home Secretary’s term—who operate the system will naturally seek to achieve what the politicians are aiming for: they take the detail and the tone from them. I think that happened in the case of the Windrush generation, and the hostile or compliant environment is not, to use the words of the Statement again,

“fit for the modern world”.

That is why the Liberal Democrats have recently agreed as our policy that processing immigration and asylum applications should be taken away from the Home Office, with a new dedicated unit set up. This scandal is an example of why it is important to ignore political pressure and work fairly and lawfully in processing applications.

Border Force: Heathrow Airport

Lord Rosser Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the figure that the Minister gave of 95%, I think, covers all terminals at Heathrow and the whole day. The biggest problem of delay is at terminals 4 and 5 during the peak summer months and at specific periods of the day. The figure then is nothing like 95%. Can the Government now give us relevant figures on the percentage of non-EEA passengers arriving at Heathrow terminals 4 and 5 in the peak summer months during the periods when those terminals are at their busiest who experience delays exceeding the service level agreement, which I think is the information that my noble friend Lord Blunkett would like?

[Baroness Williams of Trafford]

The reason I have not given the noble Lord those figures is because I cannot give them. We are certainly looking through the aviation strategy to provide improvements and looking at the service level agreements that we have made.

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.

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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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

Asylum Applications

Lord Rosser Excerpts

Monday 15th October 2018 Lords Chamber

[Baroness Williams of Trafford]

I think I outlined that process just now to my noble friend Lady Berridge. We are expecting to roll it out in 2019. With regard to quality assurance, the audits are going to be carried out by an operational security unit for both the quality of the decision and the application of the policy.

[Lord Rosser (Lab)]

My Lords, there have been media reports that a further problem is that staff considering asylum applications are rushed because there is a backlog to deal with, and that in addition staff have targets to meet in respect of the number of decisions they have to make each week on whether to grant or refuse asylum seekers. Is there still a backlog of people waiting for an asylum decision or for an appeal to be heard? If so, how big is that backlog? What targets in reality are staff making asylum decisions expected to meet each day, week or month?

[Baroness Williams of Trafford]

My Lords, it is important that the decisions made are the right ones. I could not comment on decisions being rushed, but I can go back to the department to ask that question. There are certainly a lot of decisions to be made, because people want to come to this country, and I can try to ascertain a figure for the backlog.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for her explanation of the content and purpose of the Bill, and of the thinking behind the Government’s proposals. We too would like to take this opportunity to express our thanks to our security agencies and the police for the work undertaken to protect us from acts of terrorism. We are aware of the significant number of major acts of terrorism—potential and intended—that have been prevented. We also express our thanks to the staff of the emergency services, including hospital staff, who are called into action when incidents—perhaps one should say atrocities—occur. Our thoughts remain with the victims of those atrocities and their families. We accept the need for the Government to update counterterrorism legislation to reflect changing situations and circumstances as well as technological changes and developments.

We expressed our broad support for the Bill in the House of Commons, did not divide on it at Second Reading and supported it at Third Reading. We did, however, table substantial amendments, some of which led to alterations in the Government’s position and government amendments to the Bill, to address concerns we had raised, including those in respect of human rights, which cannot simply be brushed aside.

One feature of the passage of the Bill to date has been the Government laying down amendments of some import just prior to Report stage and Third Reading in the House of Commons. That did not suggest that counterterrorism and security legislation is always being considered and evaluated by the Government in quite the calm and measured way they would like us to believe, but in some areas is being rushed to meet deadlines—even though the events that have weighed most heavily on the Government’s mind in formulating the Bill have not all occurred within the last few weeks or months.

We have no objection to late amendments when the case for their wording and intent is clear. However, it is hardly satisfactory if such amendments are to a Bill that has been through the Commons without there having been time for proper consideration and debate in the other place about the necessity and—equally significantly—appropriateness of the wording of those late amendments. That is the situation we are in with the Bill. A new clause was laid by the Government, with a number of consequential amendments, just prior to Report. It provides for an offence under the Terrorism Act 2000 of entering or remaining in an area outside the United Kingdom that has been designated in regulations made by the Secretary of State. There was an exchange of views in the Commons about where the burden of proof lay in the light of the wording of that new clause, which states:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


The Minister for Security and Economic Crime stated in the debate, on behalf of the Government, that,

“we have provided for a reasonable excuse defence. Once such a defence has been raised, the burden of proof, to the criminal standard, will rest with the prosecution to disprove the defence”.—[Official Report, Commons, 11/9/18; col. 656.]

The Minister has, in effect, repeated that statement in her opening speech today. However, the wording of the Bill and the Minister’s statement appear to be in conflict. I say that not as a legal authority but as someone whose legal career began and ended with the apparently now steadily diminishing lay magistracy.

Will the Minister indicate why the Bill does not appear to say the same on burden of proof as was said by the Commons Minister when moving the new clause on Report in the Commons and again by the Minister here today? Will she also tell us, assuming that the Commons Minister’s statement is correct on burden of proof under the new clause, whether it will be sufficient for the prosecution to prove that the individual was not in reality engaged in a claimed valid activity for a reasonable excuse defence or whether the prosecution will also have to prove that the individual was also involved in a terrorist or terrorist-related activity, which I thought was something that the prosecution could already seek to prove under the existing law to secure a conviction?

I raise this point in the context of a further statement made on Report by the Minister for Security in the Commons that,

“breaching a travel ban and triggering the offence will provide the police and the Crown Prosecution Service with a further tool to investigate and prosecute those who return to the United Kingdom from designated areas, thereby protecting the public from wider harm”.—[Official Report, Commons, 11/9/18; col. 656.]

Can the police and the Crown Prosecution Service not already investigate an individual returning to the UK from a potential future designated area if they have reasonable doubts as to the true reasons for their being in those areas or countries, or will it, under this Bill, be sufficient for imposing up to 10 years’ imprisonment to show that the individual concerned was not there for a claimed reasonable excuse defence activity or purpose?

The Government appear to have some reservations of their own about this late new clause, which they expect will lead to only a “few people” being prosecuted. In the Commons on Report, the Minister for Security said that,

“I recognise that we have introduced this measure into the Bill late, and I apologise for that. However, we are in the Commons, and the Bill will no doubt go to the other place, and I am happy to discuss further how we can clarify it and safeguard it and make sure that it is not abused as a system, and that the reasonable excuse issue is further explored. I think that is appropriate”.—[Official Report, Commons, 11/9/18; col. 658.]

We will indeed need to look at the process, procedures and criteria against which the Government seek, by affirmative statutory instrument, to designate these areas, and consider the adequacy or otherwise of the safeguards for those with legitimate business in these designated areas, such as aid workers and journalists or those who went there without appreciating what they were getting involved in and came back disillusioned.

In the Commons, the Government were asked by John Woodcock MP if they had,

“an estimate of how many of those 800 Brits who we know went over to Raqqa during the recent conflict could have been prosecuted under this legislation, had it been on the statute book at the time”.—[Official Report, Commons, 11/9/18; col. 658.]

The Minister for Security said that he would write to the Member with a specific number—will the Minister tell us what that figure is? I assume that the figure will also, by definition, be for those who could not be prosecuted under existing legislation. Will the Government also indicate how many designated areas or countries they anticipate there will be under the new clause? It looks as though there will be quite a few, since the Commons Minister, during his opening speech on Report, referred to Turkey, Syria, Iraq, “parts of Africa”, “parts of the Philippines” and,

“areas of conflict where there is a risk of terrorism”.—[Official Report, Commons, 11/9/18; col. 656.]

A further government amendment on Report relates to the seizure of flags or other activities associated with a proscribed organisation, and would give the police the option of seizing such items on suspicion of an offence being committed under the Terrorism Act 2000 without having to make an arrest, subject to that course of action being needed to prevent the evidence for a potential subsequent prosecution being concealed, lost, altered or destroyed. Such a course of action could still have the effect of raising the temperature at a march or demonstration, even though that is what the provision is designed to avoid, and not least in Northern Ireland. We will need to consider how the proposed course of action might work out in practice.

Further government amendments on Report changed the Bill’s original provisions on the viewing of terrorist material online so that the provision applies to information that is accessed online rather than covering only information that is downloaded first. We will need to consider that issue further since the Bill now provides, instead of the much-criticised three clicks test, for a reasonable excuse defence if the person does not know and has no reason to believe that the information they are accessing is likely to be useful in connection with terrorism or terrorist-related activities. We will need to probe the position of those who might look at such material for legitimate and non-terrorist or terrorist-related intent, such as journalists or academics, or those who look at it inadvertently. The issue of proportionality has to be considered.

A further government amendment on Report increased from five to 10 years, as the Minister said, the maximum penalty for failing to disclose information about acts of terrorism. It would be helpful if the Minister could expand on the reasons that led the Government to believe that the original maximum penalty of five years should be increased to 10 years, apart from it being also the view of Max Hill QC.

Apart from legislation, a further aspect of the Government’s approach to addressing the threat of terrorism is the Prevent programme. It has been in operation for some time now and has been the subject of both positive and negative comments. On the latter point, there is some doubt about whether all sections of the community have confidence in the programme and whether its aims and objectives, which include diverting people from involvement in terrorism and terrorist activity and strengthening community cohesion are always being achieved. Some appear to regard Prevent as primarily an intelligence-gathering exercise.

There is also an issue about the impact on the Prevent programme and its ability to deliver its stated aims and objectives of the cuts in local government services, including those for younger people. As part of the counterterrorism strategy, there should be provision in the Bill for an independent statutory review of the Prevent programme to look at and evaluate the extent to which it is or is not achieving its objectives and the support that it has or does not have across the community, with a view to making changes and improvements to the programme where deemed necessary to enhance our ability to counter the threat and reality of terrorism. Counterterrorism, after all, is not just about creating new offences and fixing maximum penalties.

We will wish to pursue other matters during the passage of the Bill. The European arrest warrant is an important weapon in countering terrorism. Following the attacks in Salisbury and the identification of the two suspects, we have recently obtained a European arrest warrant and either already have or are about to issue an Interpol red notice. Yet the Government opposed an amendment on Report in the Commons that simply required them to adopt the continued participation of the UK in the European arrest warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.

On Report in the Commons, the Government, in response to the shadow Minister’s concerns in relation to border stops where there is no reasonable suspicion in relation to an individual said that they would look at the situation in Northern Ireland and accountability for the number of stops. That border represents 3% of the passenger numbers for the whole of the UK, but 18% of the stops. There has to be transparency in how the stop power is used—a power to stop, question and detain without reasonable suspicion exercised by officials. We do not want to create a situation that looks like something akin to a hard border on this aspect between the north and south. When do the Government intend to come back with the results of their further consideration on this point? Perhaps the Minister will say.

A further issue raised on Report by the shadow Minister concerned legal professional privacy and the provision in the Bill for an officer not only to watch someone receiving legal advice, which is not new, but to hear that legal advice being given. The shadow Minister suggested that to overcome the government concerns that have led to this provision, there should be a panel of lawyers regulated by the Solicitors Regulation Authority and the Law Society. The Minister for Security said that he would look at the proposal before the Bill’s introduction into this House. It would be helpful if the Minister could say what the Government’s position now is on this issue.

While we supported the Bill at Third Reading in the Commons, there are a number of outstanding issues that we flagged up on Report, many of which I have referred to, including the need to look in more detail in this House at the significant late amendments tabled by the Government just prior to Report, which could not receive the consideration they should have done in the Commons. We will wish to pursue these points during the passage of the Bill through this House; nevertheless, it would be helpful if the Minister could respond to the specific points and questions I have raised. Surely we all have an interest in ensuring that the Bill is balanced and proportionate, that its provisions are all necessary, and that it strengthens our hand in countering terrorism and terrorist activity while safeguarding human rights.

Brexit: Europol

Lord Rosser Excerpts

Tuesday 11th September 2018 Lords Chamber

[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.

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.

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[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.

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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.

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[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

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.

--- Later in debate ---

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?

--- Later in debate ---

[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.