Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

1: Clause 1, page 1, line 10, at end insert—
“( ) A judge may order that notice of an application for an overseas production order be served on a controller or a data subject.”

[Baroness Hamwee (LD)]

My Lords, I am speaking for these well-populated Benches. It would be right to start by saying that the number of amendments that we have tabled does not indicate outright opposition to the Bill—the Minister is grinning. There are serious issues to be considered, particularly the human rights aspects of the proposals in the Bill, and we welcome in particular the judicial element which it provides. I anticipate that the response to many of our amendments will be that we are saying rather inelegantly what the Government in fact propose, or something very like it, and that we do not need to worry. We feel it important to have on the record, at the very least, how the Government will operate the Bill. Some things are not clear; I am not suggesting that what is in the Government’s mind is in any way malign, but things should be on the record at least and—better—in clear terms in legislation, whether primary or secondary. I wanted to make those points before speaking to the first of the amendments, which is Amendment 1, grouped with Amendments 2 and 40.

This grouping is about transparency. There is somebody else in the Grand Committee who can speak to this matter with far more experience than me, but I think it unusual for a court to be asked to make an order without hearing both sides of a case. We want to hear the reason for this procedure. I do not believe it can just be speed, because we can have procedures for urgent situations as an exception, as we have in other legislation; I do not believe that the requirements will be urgent in every case—we cannot know that, but it is unlikely. Amendment 1 therefore provides for a notice of application to be given to those affected: the data controller or the data subject.

Amendment 40 would import definitions from the Data Protection Act. I want to get my defence in first: the Data Protection Act cross-references other parts of the Bill, so the amendment is technically flawed, but we are only probing and it was the summer and I bottled out of substantial drafting. A data controller or subject can apply to vary or revoke an order, but that would be after the event. It is important that they be able to defend their interests initially. There is a discretion in respect of Clause 3. We will come to confidential personal records later in the Committee, which might add to the arguments for providing for a notice in Clause 1. We think that significant protections are required. We will come later to the issue of balance and how the court will weigh the interests.

We also propose in Amendment 2 the appointment—or the possibility of an appointment; it is discretionary—of an independent adviser in connection with assessing whether the requirements for the order have been met. I use this opportunity to ask the Minister to explain how this not very usual procedure will operate. I beg to move.

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

I thank the noble Baroness for her introduction and I am very glad that the number of amendments does not reflect the level of controversy of the Bill. To address her first point, I say that the Bill does not preclude a judge from being able to require that notice be given to anyone affected by an order pursuant to court rules. Court rules will provide the judge with the ability to require that notice be served on anyone affected by the order, which is the case at the moment under court rules dealing with domestic production orders. This means that a data controller or a data subject may be given notice of an application, but while in principle any person affected by an order should be given notice, there will be cases where it is not appropriate because the giving of a notice to a particular person could prejudice the investigation to which the order pertains: for example, where a notice to a data subject might tip off a suspect where law enforcement agencies are seeking data for the prosecution or investigation of a serious crime.

I thank the noble Baroness for giving me the opportunity to set this out in greater detail. However, given that court rules provide a judge with the power to consider notice being given, I suggest that the amendment is unnecessary. She knew that I was going to say that.

With respect to Amendment 2, the court already has the applicant, who has a duty to assist the court, so it is an established principle that an applicant seeking an order without giving prior notice to the person on whom the order is to be served or to whom it relates is obliged to provide full and frank disclosure to the court. This includes disclosure of relevant legal principles and facts, even if they are not in the applicant’s favour. The principle therefore already ensures that the information put before the court must be balanced.

I stress that the Bill reflects the existing position in relation to production orders that can be served on a company based in the UK, and the court will be dealing with the same considerations where an existing production order is sought. Such domestic orders apply the same legal considerations without the need for an independent adviser, and I do not see why we should deviate from that existing practice simply because an order can be served on an entity based elsewhere.

The third amendment aims to define the terms “data controller” and “data subject” referenced in the amendments to Clause 1. Given that we do not believe that the Bill should be amended in the way suggested by the noble Baroness, it follows that there is no need to include definitions of data controller and data subject in Clause 17. I hope that in the light of those clarifications, the noble Baroness will feel free to withdraw her amendment.

[Baroness Hamwee]

I do not challenge the applicant’s duty to assist the court, but there is no opportunity for challenge at the initial stage, which is what I am concerned about. That feeds into my question: if a no-notice procedure will, as the Minister suggested, not be the norm and may be the exception, why does the Bill not provide that a judge may, in exceptional circumstances, make the order on a no-notice application? It seems to me that that would reflect what the Minister has said in explaining how this would operate. I do not imagine she will have a direct answer to that at this moment, but it might be helpful if we could discuss it further. The Minister has already invited us to discuss the Bill between today and the next day in Committee, so perhaps we can talk further about this issue. The Bill launches us straight into the no-notice procedure and, whatever the court rules may say, I suggest that people will look at the Act first. Having said that, I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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Moved by

[Baroness Hamwee]

5: Clause 1, page 1, line 22, after “arrangement” insert “in the form of a treaty (as defined by the Constitutional Reform and Governance Act 2010) and”

[Baroness Hamwee]

My Lords, our exchange on the previous group of amendments, when the Minister gave a lot of assurances, makes me even keener on Amendment 5, which would require writing into the Bill that a designated international co-operation agreement must be in the form of a treaty. I understand that that is what was intended, so I think it would be more than appropriate to say so. Taking only the discussion about the death penalty, it argues for the amendment, given that the procedures for dealing with the treaty under the Constitutional Reform and Governance Act 2010 include safeguards to be met before a treaty can be ratified which include transparency, debate in public, and so on.

The Minister gave a list of matters—I failed to write down all of them—to which the Government would have regard. I got down trust, mutual respect, judicial oversight and “must be compliant with HMG guidance”. The reference to guidance has my antennae twitching in this context. We do not want to rely on guidance; we want to rely on legislative certainty and the involvement of Parliament.

The Minister said either at Second Reading or in a meeting before Second Reading—we are always grateful for such discussion—that the Government would not enter into an agreement with North Korea. I could add to that nightmare not a treaty but a memorandum of understanding with North Korea, which would come nowhere near Parliament. Our laws have protection against a mad Executive and we should commit to using them.

We have had a long but inconclusive discussion about how human rights would be protected. A statement to Parliament under the 2010 Act procedure would deal with this. It might also set out standard clauses. I am unclear whether we should expect standard clauses in different co-operation agreements. They should be relatively straightforward in most cases.

For similar reasons, Amendment 38 would apply the affirmative procedure to regulations designating the co-operation arrangement. We all know about the problems with scrutinising secondary legislation.

Amendment 6 is to ask what is meant by participation in this context. Clause 1(5) refers to an arrangement,

“to which the United Kingdom is a party or in which the United Kingdom participates”.

What is participation in this context? I beg to move.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness has done her usual forensic job of going through the Bill and done a service to the Grand Committee. It is important that we are clear about what we are agreeing. I look forward to hearing the Minister’s response. It is right that Amendment 5 makes it clear that we are talking about the treaties which are subject to the Constitutional Reform and Governance Act 2010. It is a sensible move.

Amendment 6 is a probing amendment at this stage. What is meant by participation? If you are a party to something, then there is what you are participating in, so clearly the Government think that there are two different things. It will be good to hear the Minister’s view on the difference between those two things and why they both need to be in the Bill. I am sure that “form of a treaty” needs to be in the Bill.

Finally, Amendment 8 ensures that whatever regulation is agreed will be subject to the affirmative resolution procedure in the House. Again, I think that is important. Will the Minister confirm that the Government would do that anyway and, if so, say why it is not in the Bill?

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[Baroness Hamwee]

The noble Lord, Lord Kennedy, may be thinking, as I am, that that begs another question. Clearly, the Minister’s reply will require and deserve reading. As she started, I thought that I should thank her for giving me some material for an amendment on Report; that may still apply. She talked about circumstances which depend on the relationship with international partners. It is the interface between politics and the law that needs resolving here. I am not sure that I can suggest anything now, but we will certainly think about it.

On standard clauses, a question was asked by the chair of the Joint Committee on Human Rights, of which I am a member—although the term there was “model clauses”. During the recess, she wrote to the Home Secretary raising a number of questions about the Bill and the Minister for Security responded, but I cannot immediately find a direct answer to that. This is linked with our earlier discussions about human rights. If there are model clauses which deal particularly with human rights, the reassurance given would be considerable.

The amendment regarding the affirmative procedure for regulations was to my mind an alternative to dealing with the arrangements by way of a treaty.

[Baroness Williams of Trafford]

I do not usually intervene, but the noble Baroness’s words are worthy of reflection before Report. Let us have another discussion. It sounds like we can have Committee stage in the form of a meeting shortly.

[Baroness Hamwee]

Of course, I am grateful for that. I was going to say that we have the delegated powers memorandum, but we do not yet have the report of the Delegated Powers and Regulatory Reform Committee, which may or may not have something to say on this. We will have another discussion when we have had an opportunity to digest the Minister’s comments on these amendments. I beg leave to withdraw Amendment 5.

Amendment 5 withdrawn.

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[Baroness Hamwee]

My Lords, my noble friend and I put our names to the amendment from the noble Lord, Lord Rosser—strictly speaking, we put down the same amendment, but the noble Lord got there first. I shall add just this question to his comments: would it not be a different way of dealing with this to allow for specific application in the case of terrorism investigations? That might be more satisfactory from every angle.

Our Amendment 13 deals with Clause 3(7)(c), on the counselling or assistance, or a record of it, that is excepted. It is only when the counselling is given by the entities listed that it is excepted. Why does counselling given by someone who is not within paragraphs (i) to (iii) not come within the clause? To put it another way, who is the Home Office seeking to exclude? If the individual was “counselled” by a friend who was a person of interest to the security services, one could understand that just claiming that the record was of counselling would not be sufficient. However, Clause 3(8) defines a confidential personal record by reference to obligations of confidence and restrictions on disclosure, and I would have thought that adequate.

Amendment 20, to Clause 5, is about the contents of the order. Clause 5(2) provides that:

“The judge must not specify … data that the judge has reasonable grounds for believing … includes excepted electronic data”.


I wondered whether this meant that there would not be entirely objective approach to this issue—in other words, an objective approach to the order not specifying excepted data. How do you appeal against or apply to vary or revoke an order, given the wording of this clause? Would you not be appealing against the judge’s reasonableness when actually you should be addressing the character of the data? I do not know, but I am worried. Similar points would apply to Amendment 27 to Clause 7, which is about variation or revocation. There is a lot more to get our teeth into and, as my noble friend said, that half-hour meeting is not going to be adequate.

[Baroness Williams of Trafford]

It sounds as if the meeting could last more than a day. Amendment 12 would amend Clause 3(5) by excluding from scope any confidential personal records that may be in electronic form from terrorist investigations.

Police are currently able to apply for a domestic production order for confidential personal records for the purposes of a terrorist investigation under Schedule 5 to the Terrorism Act 2000. Paragraph 4 of the schedule provides that a production order can be made for material consisting of special procedure material or excluded material. These terms are defined in paragraph 3 of the schedule to have the same meaning as in the Police and Criminal Evidence Act 1984. Sections 11 and 12 of the 1984 Act define “excluded material” to include confidential personal records. The definition is essentially the same as that used in the Bill at Clause 3 (7) and (8).

The noble Lord asked about the value of confidential personal records for terrorist investigations. The value of such information is determined at operational level and obviously depends on the circumstances of each case. There may be clear operational value in having access to confidential records in the investigation, pursuit or prosecution of an offender accused of terrorist offences. However, in any event, the judge will grant such an order only if the conditions listed in Clause 4 are met. These include that the information is of substantial value to the proceedings or investigation and that it is in the public interest to seek this data.

The intention behind the provision was to ensure parity with production orders made at home and new production orders capable of being served overseas. The drafting is therefore intended to reflect the powers that currently exist for domestic production orders made under the Terrorism Act 2000. Our law enforcement in the UK should be able to access the same information from overseas as they would in the UK, and Clause 3(5) reflects this.

Parliament has long recognised that a power to require the production of confidential and personal records, subject to the important safeguard of judicial authorisation, is both necessary and proportionate in order to protect the public in the exceptional circumstances of terrorism investigations. The power in the 2000 Act replaced an equivalent one in the Prevention of Terrorism Act 1989. Given the high level of threat to public safety that can arise in a terrorism investigation and the need to be able to investigate quickly and to disrupt such threats, this is an important power in the police investigative toolkit and it is right that it should be available for international production orders. In the context of the current heightened terrorist threat, its omission would be irresponsible.

The Government resist Amendment 12 on the grounds that it causes disparity when gathering evidence here or abroad and would erode a well-established and operationally important power which is routinely used by the police in counter-terrorism investigations.

Amendment 13 relates to Clause 3(7) which defines “personal record” when providing counselling or assistance to an individual for their personal welfare. I reiterate the Government’s position in respect of the Bill: it has been drafted to ensure parity with domestic production orders. The intention is to avoid disparity between gathering evidence in this country compared with gaining evidence abroad. The same powers for law enforcement should exist for overseas production orders as for those in the UK.

The noble Baroness, Lady Hamwee, asked why—I cannot read the writing. Shall I send it back?

[Baroness Hamwee]

Shall I ask the question again?

[Baroness Williams of Trafford]

She asked: why only professional counselling? The Government believe this to be an expansive definition drawing on professional counselling services rather than conversations between friends or family who can be deemed to be giving counselling advice or assistance. The definition leaves little doubt as to what is considered as counselling or support to a person’s welfare. Broadening the definition does not provide the certainty required when deciding whether or not to grant an order based on whether the material sought is excepted data.

[Baroness Hamwee]

My Lords, we have two definitions: “personal records” and “confidential personal records”. It is the latter that is important. Clause 3(8) makes it quite clear that there has to be some restriction or obligation of confidence, which you would certainly find in connection with professional “counselling”—and I am grateful for that way of describing it in one word. That criterion would be applied in the context of this clause overall. It may be unlikely that a non-professional counsellor would be able to meet the criteria in Clause 3(8), but it is not impossible. It seems to me that, as long as Clause 3(8) can be relied on, we should not attempt to narrow what is meant by “counselling” in Clause 3(7).

[Baroness Williams of Trafford]

The noble Baroness may now have confused me. Both Clauses 3(7) and (8) have been drafted to reflect existing protections in domestic production orders, which are intended to afford protection to legally enforceable relationships of trust and confidence, as well as to relationships between an individual and someone who holds a position of trust in a professional capacity—for example, a doctor—where such relationships may generate confidential information from an individual. This is different from a person who voluntarily shares information in confidence with a friend or family member who does not formally or professionally hold a position of trust and is not under a duty of confidentiality in respect of the person sharing the information.

[Baroness Hamwee]

My Lords, I think that was my argument. Might it be possible, between now and Report, for us to be given the references to the other legislation that this reflects?

[Baroness Williams of Trafford]

We can certainly do that—in fact, magically, we have it here. It reflects the definition in the PACE Act 1984, Section 12 of which defines “personal records”. As such, this material is excluded from the scope of a PACE production order.

The noble Baroness asked about safeguards. The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. Clause 5(2) includes one of these safeguards: that a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing that the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is used in other parts of the Bill—for example, in Clauses 1 and 7, where further safeguards place a similar restriction on the applicant applying for an overseas production order and where an applicant is applying to vary an order.

At the time of considering an application for an order, there will be cases where neither the judge nor the applicant can be certain whether the data sought does in fact include excepted data. This is simply because the contents of the data cannot be known by the judge or the applicant until they are produced. In my view, it is therefore appropriate for the term “reasonable grounds for believing” to remain in the Bill to make clear that the judge has the ability to consider whether excepted data might be obtained, taking into account the other factors that might help them reach such a conclusion. With that explanation, I hope that the noble Lord feels happy to withdraw the amendment.

[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?

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Moved by

[Baroness Hamwee]

14: Clause 4, page 4, line 34, after “requirements” insert “which must be consistent with the provisions of this section”

[Baroness Hamwee]

My Lords, I have been consulting my noble friend as to whether I should be moving an adjournment so that we can all get a cup of tea or possibly soup, but he thinks that that is a matter for the Government Whip. So I will instead move Amendment 14—I do not think it will be exciting enough to warm us up.

Clause 4(1) applies requirements for seeking an overseas production order set out in subsections (2) to (6), and such additional requirements as the Secretary of State adds through regulations. I acknowledge that the regulations will be subject to the affirmative procedure but, as I said earlier this afternoon, we all know the problems of scrutinising secondary legislation and the almost insurmountable problem of amending or stopping it. We also know about the importance of protecting against an overweening or out-of-control Executive.

My amendment refers to the characteristics of the additional requirements as being consistent with the provisions of what will be Section 4, because the very fact that no limiting factor is expressed raises the issue. I accept, before the Minister says it, that these are additional requirements, so, in any event, they should comply with subsections (2) to (6).

Amendment 15 would leave out “(so far as applicable)”, because I for one do not understand what,

“additional requirements … specified in regulations … (so far as applicable)”,

means. The words must mean something. If the additional requirements are not applicable, they will not apply, so what are we worried about? I beg to move.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

I tend to sympathise with the noble Baroness. I was warned to bring my coat in before I came.

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[Baroness Williams of Trafford]

In a sense, this is the same issue that the noble Lord referred to before. Because this is a framework Bill, as I said, a judge may be satisfied that the Bill itself provides enough but the additional requirements—as yet unknown—may be applicable in another agreement, as yet unspecified. It gives that scope where it might be required in future.

[Baroness Hamwee]

My Lords, I would like to think about the response to Amendment 15. I think I made clear that I anticipated the Minister’s response to Amendment 14 but she said it much more nicely and fully, and I am glad to have it on the record. I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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Moved by

[Baroness Hamwee]

16: Clause 4, page 5, line 8, leave out “substantial” and insert “significant”

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[Baroness Hamwee]

My Lords, this is another amendment in my name and that of my noble friend. Under Clause 4(5) the data must be of “substantial value”. I read that as meaning that it must not be trivial. I wonder whether it should be “significant value”, which I think would make a difference to the proceedings or the investigation. I may be told that this repeats language in other legislation, and if that is the case then again I would be grateful for the reference. However, I wonder whether there is a distinction between something that adds weight to what you already know and something that, if it is not a game-changer, you would not get from elsewhere.

We are told that this legislation is likely to be used to enable access to data held by American companies so, as well as wondering whether the terminology reflects other legislation in this country, it occurred to me that maybe it reflects something in American legislation in the cloud. This is of course a probing amendment. I beg to move.

[Baroness Williams of Trafford]

I am very happy to tell the noble Baroness that this is purely British. “Substantial” is a well-established test laid out in PACE 1984. Under Section 8 of that Act a justice of the peace must be satisfied that the material on the premises is likely to be of substantial value before authorising a production order application. “Substantial” is a familiar term to appropriate officers, who will be making applications. They will have many powers at their disposal, and creating a consistent regime is clearly beneficial to quickly understand what will be required to apply for an overseas production order. Given that the term “substantial” is well-established, it is obvious that there exists a body of case law that helps further define and interpret the term, both for appropriate officers and, of course, for the judiciary.

The case law establishes that “substantial” is to be given its plain and ordinary meaning, which will please the noble Baroness, who likes the plain and ordinary in linguistic terms. For example, in the case of Malik v Manchester Crown Court, the High Court found that “substantial” was an ordinary English word and that “substantial value” was a value which is more than minimal: it must be significant. I hope that that provides great clarity to the noble Baroness and that she will feel happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I think I ought, after today, to consult my noble friend, who will know all about PACE, as I do not. Yes, of course, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Moved by

[Baroness Hamwee]

17: Clause 4, page 5, line 11, leave out from second “that” to “having” in line 14 and insert “the public interest in all or part of the electronic data specified or described in the application for the order being produced or, as the case may be, accessed outweighs the public interest in privacy,”

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[Baroness Hamwee]

My Lords, these amendments are about public interest and the balance between public interests. Clause 4(6) requires the judge to consider the public interest and whether it is in the public interest for the data to be produced or accessed, having regard to the matters set out in Clause 4(6). There is a public interest as well in access to data and privacy and it seems to me that the various interests here cannot be judged in isolation. I should like to insert a reference to the public interest in privacy, but in any event to understand at this stage how that balance is dealt with, since the judge is required to have regard to one public interest only. There is a public as well as an individual interest in privacy rights, and I beg to move.

[Baroness Williams of Trafford]

My Lords, Amendments 17 and 18 do not add any protections for privacy rights to those already contained in the Bill and under the Human Rights Act 1998. Without these amendments, the judge would still be required to take into account the impact on an individual’s right to privacy when determining whether the public interest requires production of the data sought.

We understand the need to balance a citizen’s rights and interests against the public interest in law enforcement officers’ ability to investigate crimes and use powers to obtain evidence. This is why the existing requirements in Clause 4 consider not only whether data sought would be in the public interest but whether it would be of substantial value to the investigation or proceedings. A judge is under an obligation to balance the rights of an individual against the state’s need to investigate a crime and to reach a decision which is compliant with the individual’s rights under the ECHR.

I hope that, with those reassurances, the noble Baroness feels happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful for those helpful remarks. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

21: Clause 5, page 6, line 21, at end insert—
“( ) the mechanism for enforcement.”

[Baroness Hamwee (LD)]

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

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

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

[Lord Rosser (Lab)]

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

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

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

meant that while,

“UK companies are not compelled by UK law”,

to comply with a production order,

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

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

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

Last Wednesday in Committee, the Government said that,

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

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

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

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

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[Baroness Williams of Trafford]

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

[Baroness Hamwee]

My Lords, perhaps when I read all this I will understand it a little better than I have while listening to it. It is not how I had approached the Bill. As it has been described, there is an element of optionality which I had not expected.

We will want to ask our colleagues who practise in this area to comment on how contempt of court is dealt with. I have just turned up the notes made by my noble friend Lord Thomas of Gresford, who had a look at the Bill before Second Reading. He wrote—I assume this is rhetorical—“Is contempt of court a realistic and effective sanction in respect of international bodies?” Of course we will discuss this, as the Minister said, before Report. This is certainly going to be a matter on which we will want to put down another amendment for Report in order to tidy up, as far as we can, in the Bill, or to get on the record in Hansard, the quite unusual situation which we are discussing.

[Baroness Williams of Trafford]

I do not usually intervene on noble Lords but, if I may, the noble Baroness is absolutely correct when she talks about optionality. There is now optionality. There is MLA, which by its very nature is a longer process—and this is the option for a much speedier access to data requirement.

[Baroness Hamwee]

Indeed it is optional, but one expects there to be an effective sanction. In this context, contempt of court really amounts to little more than a slap on the wrist, with probably nothing much to follow.

[Baroness Williams of Trafford]

But of course—I am sorry to interrupt the noble Baroness again—there is also reputational damage, as for example with Facebook.

[Baroness Hamwee]

Yes, I take that point. I had wondered whether I should have apologised at the beginning of this debate that I had so little to say, in comparison with the stacks of paper which officials behind the Minister have in front of them. However, perhaps we have given this more of an airing than I expected. I look forward to discussing it further and beg leave to withdraw the amendment.

Amendment 21 withdrawn.

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Moved by

[Baroness Hamwee]

23: Clause 6, page 7, line 6, leave out from second “data” to end of line 8

[Baroness Hamwee]

My Lords, Clause 6(4)(c) provides that the requirements in the Bill have effect,

“in spite of any restriction on the disclosure of information (however imposed)”.

This amendment seeks to understand what the impact is of that. I am not of course impugning what the Minister said about compliance with human rights and so on, but can we be sure, given that exception, about how that will fit in with legal and human rights protections? What if there is a clash with the local laws or the terms of the co-operation agreement? Given our previous discussion, I wonder whether, if there were to be such a restriction, this route would be not taken at all. Specifically, does this subsection allow for Clause 3, which is about excepted data, to be overridden? That would be concerning. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for her amendment, which gives me the opportunity to set out to the Committee the intention of Clause 6(4)(c). First, let me stress that the aim of an overseas production order is to provide law enforcement officers and prosecutors with the ability to apply to the court to acquire electronic data that can be used in proceedings or an investigation into serious crime. The effects of such an order are outlined in Clause 6.

The Government accept that a company may have obligations to the customers who use its services. The effect of subsection (4)(c) is to make it clear that, in spite of those obligations or any that a company may owe to its shareholders, for example, it is obliged to comply with the requirement to give effect to an overseas production order. Of course, there will be duties on those who are served an order to adhere to data protection obligations, but the Government are satisfied that the rights and duties that would be imposed by the provisions of the Bill are compliant with data protection legislation. On receipt of any evidence, for example, the appropriate officer would be required to handle such data in accordance with the Data Protection Act 2018—as they would any other data, including that sought under an existing production order issued under PACE for data held in the UK for the purpose of investigating or prosecuting serious crime.

Any international arrangement that is concluded will be premised on a requirement that the two contracting countries will make compliance possible. The purpose of this clause is therefore to ensure that the recipients of a disclosure can comply with it even where there is conflict in the law of the UK. For example, where the recipient owes a duty of confidence in respect of a third party, Clause 6(4)(c) will allow the recipient to produce the data without breeching that duty. This approach reflects the domestic framework used for making and granting production orders under Schedule 5 to the Terrorism Act 2000 and Section 348(4) of the Proceeds of Crime Act. A judge cannot issue an overseas production order unless it meets the criteria set out in the Bill. The provision in Clause 6(4) of the Bill is only about ensuring that a lawful order has absolute effect. It does not provide that the courts can sidestep other statutory provisions such as the Data Protection Act 2018 when making an overseas production order.

The noble Baroness asked about safeguards. The Bill contains robust safeguards governing the application and issuing of an overseas production order. The judge must be satisfied that there are reasonable grounds for believing that the data sought is likely to be of substantial value to the investigation, and that it would be in the public interest for this data to be produced before an order is granted. The judge is also required to exercise the power to consider and grant orders compatible with human rights obligations, including privacy.

These orders are intended to be used where law enforcement officers and prosecutors are investigating terrorism or have reasonable grounds to believe that an indictable offence has been committed, or proceedings in respect of an offence have been instituted. The Bill does not provide access to any data that is not already available through mutual legal assistance. It simply ensures that the data can be obtained more quickly.

The noble Baroness, Lady Hamwee, talked about clashes with local laws. The point of an agreement is that an international arrangement removes those barriers to compliance, as I have already said, so it will be a prerequisite for a country to ensure that compliance is possible. The noble Baroness also asked whether this paragraph allows for Clause 3 on “excepted data” to be set aside. Clause 6(4)(c) does provide that an overseas production order made by the court has effect in spite of any restrictions. A court will not make an order in respect of excepted data as the Bill provides that it cannot—so Clause 6(4)(c) does not allow for orders to be made in respect of excepted data.

The noble Baroness looks quite confused, but I hope that I have satisfied her and persuaded her that her amendment can be withdrawn.

[Baroness Hamwee]

My Lords, this is another occasion when I shall have to read the reply carefully. But, with regard to the relationship between Clause 6(4)(c) and Clause 3, can I be clear that the Minister said that it does not allow for Clause 3 provisions to be set aside? I see the Minister is nodding. I thank her for that and, as I said, I will read the response. I beg leave, for the moment, to withdraw the amendment.

Amendment 23 withdrawn.

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Moved by

[Baroness Hamwee]

24: Clause 7, page 7, line 12, after “revoke” insert “(in whole or in part)”

[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 ---

[Baroness Williams of Trafford]

I take the noble Lord’s point. I imagine that all of that would be laid out in the agreement, given that it would be set out, but I can certainly have a think about that. Perhaps we can talk about it when we meet.

[Baroness Hamwee]

My Lords, I am grateful for the long explanation. I had correctly anticipated what the Minister would say about non-disclosure and the impact it might have on an operation. Perhaps I may pursue what happens if a customer asks, “Is there a non-disclosure order in force?” When receiving that inquiry should the answer be, “No comment”, which implies yes? What should it be and how is this dealt with in the real world?

[Baroness Williams of Trafford]

My guess—I am sure that the Box will correct me if I am wrong—is that if a non-disclosure order is in train then nobody can comment on it, so whether one was in train or not it would be a “no comment” procedure anyway because there would otherwise be a breach.

[Baroness Hamwee]

I thank the Minister. I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

--- Later in debate ---

[Lord Rosser]

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

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

[Baroness Hamwee]

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

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

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

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

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

[Baroness Williams of Trafford]

I thank the noble Baroness and the noble Lord for their comments. The noble Lord, Lord Rosser, made a valid point about consistency. The aim of the Bill is to strike a balance between the operational need to have flexibility for serving such an order and the legal certainty of the obligations that are placed on those who are subject to an order. There is a similarity with PACE, which also provides a three-month time limit from the date an order is issued for an entry and search to be completed. The Government do resist the amendment—but, given what the noble Lord pointed out, I would be open to discussing this ahead of Report.

On Amendment 36, the notice provisions under Clause 14 have been drafted to allow for flexibility, and reflect the complexity surrounding the service of notices on those based overseas. A “person” is taken to mean an individual or a body corporate. In addition, the Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate identities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are fulfilled, a production order can be served. Adding terminology such as “resident” will confuse what is otherwise a straightforward matter of being able to serve on those persons, legal or otherwise, based outside the UK.

On Amendment 37, Clause 14(3)(a) seeks to reflect the model in the Investigatory Powers Act 2016 where the availability of a method of service is not based solely on the establishment of a business pursuant to any domestic or foreign law but instead should depend on where a person actually conducts their business activities. Amendment 37 would narrow the availability of the method of service described in Clause 14(3)(a) in cases where the person is outside the UK but has no principal office here. The Bill currently provides that that service could be effected by delivering the notice,

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

The amendment would restrict this to places where the person carries on business. I hope that that is not too complicated. I think that the restriction would be unhelpful. Perhaps it would help if I explained what is intended by “conducts activities”—which is the very question the noble Baroness asked.

The Government intend that “activities” in this sense would mean the corporate activities or business activities according to a common interpretation of the provision. The Government have been careful to construct the clauses in such a way as to avoid persons hiding behind corporate entities and structures, where they may be based or registered elsewhere in one place but operate out of another country. If a person is located outside the UK and the other conditions for granting a production order are made, a production order can be served. Limiting the service to places where business is conducted will introduce complexity where it is not required. However, if there is more we can do to make clear what is intended by “conducts activities”, I am happy to consider whether it is possible to clarify these terms further in the Explanatory Notes.

[Baroness Hamwee]

I am grateful for that. Reading the clause, it occurs to me that one could avoid being served by moving around from place to place, whether “carrying on business” or “conducting activities”, because at the point of service you might no longer be conducting activities in that place. The terminology is in the present tense. Has thought been given—I am sure it has, because officials are always way ahead of me—to whether that is an issue?

[Baroness Williams of Trafford]

As I said, if the noble Baroness is confused, that is an indication to me to look at what the Explanatory Notes say—because if she is confused by it, others will be, too.

[Baroness Hamwee]

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

[Lord Rosser]

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

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Moved by

[Baroness Hamwee]

30: Clause 10, page 9, line 16, leave out from “necessary” to end of line 18 and insert “for its use as evidence in proceedings in respect of the offence which is the subject (under section 4(3)) of the overseas production order in question.”

[Baroness Hamwee]

I do not suppose that that will trouble us in Grand Committee.

Clause 10 deals with the retention of data and its use as evidence. Clause 10(1) provides that data,

“may be retained for so long as is necessary in all the circumstances. This includes retaining it so that it may be used as evidence in proceedings in respect of an offence”.

“Necessary in all the circumstances” is quite a wide term. It may be unkind of me but, when I reread it yesterday, it felt as though the writer had run out of steam. One example is given but I would have expected more information about protections and clarification; otherwise, how does one challenge this? Therefore, the amendment is intended to ask the Minister how the Home Office envisages that this clause will operate in practice.

Given the example included, I wonder whether the Home Office anticipates producing guidance regarding retention, and that is the subject of Amendment 31. Amendment 32 is intended to probe the term “an offence”. Does this mean any offence? In particular, if an offence other than the object of this exercise is disclosed, is a fresh application needed or can this be—I will use the extreme term—an unending fishing expedition? I beg to move.

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

My Lords, the noble Baroness, Lady Hamwee, raises three important amendments here and I look forward to the Minister’s response. She is right that, as written, the provision appears to be very wide in scope, and it would be better to have more clarification. The terms “in all the circumstances” and “an offence” are very wide, and it would be good to hear what they are. As the noble Baroness said, it would appear that there could be a never-ending fishing expedition, which in itself would not serve justice. I look forward to hearing the response to the very valid points raised.

--- Later in debate ---

[Lord Kennedy of Southwark]

I thank the Minister for saying she will look at those points. If we are mirroring PACE then we can mirror the guidance as well.

[Baroness Hamwee]

My Lords, I think I am going to have to spend some time between now and Report familiarising myself with PACE or hand this over to my noble friend Lord Paddick, whose bread and butter it was at one time. I take the point made by the noble Lord, Lord Kennedy, but I remain faintly uneasy about how open this is. Nevertheless I thank the Minister and I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

--- Later in debate ---

[Baroness Williams of Trafford]

Yes, I am.

[Baroness Hamwee]

My Lords, as the Minister is responding, it seems that this falls into a similar category to a point we raised last week about how one balances the different public interests involved. I think the Minister is saying that there is a public interest in the application of the Data Protection Act and the GDPR, which takes us back to the clause about assessing public interest. The Minister is nodding at that. Perhaps, before Report, we should go back and look at how that might apply in this context as well.

[Lord Paddick]

My Lords, I am grateful to the Minister, and to other noble Lords, for their contributions. In essence, my question is: if the EU has to assess whether we are safeguarding its data, yet we are entering into agreements to give away that data to another country, will the EU need to be satisfied that that other country also has standards of data protection equivalent to or better than the GDPR? If not, we might be putting the adequacy judgments at risk. That is the essence of the amendment. I would be grateful for an opportunity to discuss this further with the Minister in the meetings between now and Report but, at this stage, I beg leave to withdraw the amendment.

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

5: Clause 1, in subsection (5A), after “2010” insert “and it has been ratified in accordance with that Act”

[Baroness Hamwee (LD)]

My Lords, we welcome the Government’s significant movement towards the use of the treaty procedure, which we and, I believe, the Labour Benches argued for at the previous stage. I was concerned that the amendment was incomplete, and the Minister has explained why her amendment refers to “laying” the treaty, but not the other provisions of Section 20 and several subsequent sections of the Constitutional Reform and Governance Act.

As the Minister has told the House, it is quite a complicated and potentially long drawn-out procedure. I accept that, but it is long drawn-out because it is designed to give Parliament a proper opportunity to have input into the final product of the treaty, with various stages for its consideration, ending up in ratification. The Minister, in arguing on the first group of amendments, stressed the importance of the procedure. She has just said that the Government might want to make a designation before ratification. It seems to me that this nullifies the impact of the procedure process, and assumes that Parliament will ratify—in other words, will vote as the Government tell it to, which is precisely the arrangement we do not want in place.

The Minister has, however, just talked about the treaty not coming into force until ratification—she is nodding at that, for which I am grateful. I wonder whether she would be prepared to have a discussion—she has been prepared for lots of discussions on the Bill already, for which we are grateful—about an amendment we might table at Third Reading to tidy this up, encapsulating what she has just said to the House about delaying the process until the parliamentary process has been completed. I had better move this amendment, and then we can debate it.

[Baroness Williams of Trafford]

My Lords, I am sorry that I have not been very clear. I am very happy, should the noble Baroness wish to withdraw Amendment 5 and accept Amendment 4, to have a discussion before Third Reading—we have discussed our way through this Bill—but in the meantime I ask her to withdraw Amendment 5.

[Baroness Hamwee]

Of course I am happy to do that. I am sorry, I thought that was implied. I do not wish any more exercise on noble Lords than we need to have during the course of this afternoon. I look forward to that discussion and I beg leave to withdraw the amendment.

Amendment 5, as an amendment to Amendment 4, withdrawn.

--- Later in debate ---

[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 ---

Moved by

[Baroness Hamwee]

7: Clause 5, page 6, line 7, leave out “the judge has reasonable grounds for believing”

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 7 is an amendment to Clause 5, which deals with the contents of an order. If my amendment were agreed to, subsection (2) would read:

“The judge must not specify or describe in the order electronic data that … consists of or includes excepted electronic data”.


The clause would not include the phrase,

“the judge has reasonable grounds for believing”,

includes excepted data. That may sound as if I am dancing on the head of a pin but I think it is quite an important issue. In Committee I explained that I was seeking a formula that was objective. The Minister responded by referring to the phrase “reasonable grounds” being used elsewhere in the Bill. Indeed, the clauses that she mentioned, Clauses 1 and 7, include that phrase but they are not about an order; they are about the basis for making an application, which I suggest is a rather different matter.

I accept that, as she said, the contents of data may not be known until they are produced, but without our amendment, or some such amendment, the judge could make an order that it later turned out did include excepted data. I was looking for an objectively based exception because how otherwise do you appeal? Would you be appealing against the judge’s reasonableness? That would not be the same as appealing on the basis that the data was excepted. I would find it very uncomfortable to have to appeal against whether or not a judge was reasonable. What really should be at issue is the character of the data, and we are not satisfied that the Bill really addresses that. I beg to move.

[Baroness Williams of Trafford]

I thank the noble Baroness for moving her amendment and for raising this point again. Perhaps my response in Committee was not persuasive enough for her.

The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. “Excepted electronic data” means electronic data that is either an item subject to legal privilege or a confidential personal record. The Government do not want to see overseas production orders being used to obtain such information, nor do we expect our officers to target it.

First, Clause 1(3) sets out that an appropriate officer must not apply for an overseas production order in respect of electronic data where that officer has reasonable grounds for believing that it consists of excepted electronic data. Clause 5(2) includes another one of these safeguards: a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is important given that there is no guarantee, at the time of considering an application, that either the judge or the applicant can be certain if the data sought will, in fact, contain excepted data.

Let me put it in this context: say the email records of criminal X were requested from June in a certain year because law enforcement agencies believed they had been communicating for criminal purposes with someone else. It would be impossible for either the law enforcement agency or the judge to know for certain that within those emails, there also happened to be correspondence between criminal X and their doctor.

I understand that the noble Baroness’s concerns in Committee were about the objectivity of the judge in allowing an order including potentially excepted data. The Government believe that the term “reasonable grounds for believing” gets us as close to objectivity as practicable. If a judge has “reasonable grounds for believing” that excepted data is included in the data sought in an application, they will not specify that excepted data when making the order. But if they do not have “reasonable grounds for believing”, as long as the other criteria are satisfied, the judge can make the order.

Indeed, should the respondent in receipt of an order know that it includes excepted data, Clause 6(4)(b) ensures that, despite the terms of the order, they are not required to produce that data. The noble Baroness asked in Committee how, if electronic data was within an order, it could be varied or revoked. The fact that the respondent is under no obligation to produce the excepted data removes any need for the respondent to apply to vary or revoke the order. To the extent that the order includes excepted data, it has no effect.

If we return briefly to criminal X, if a judge has allowed an order to be served on a communication service provider where the judge did not know that the emails requested included medical records, but the CSP did, that CSP would not be required to produce those emails. If the CSP provided the emails, knowingly or by accident, the data would then be sifted out by the appropriate body during the sifting exercise. It is therefore reasonable and proportionate for the Bill to retain the term “reasonable grounds for believing”, and it is a sensible reflection of what would happen in practice with overseas production orders.

I hope that, with that explanation, the noble Baroness will feel happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful to the Minister. Much of what we said was what we rehearsed in Committee. I have been looking to see whether Clause 6, which deals with the effect of the order, would meet my point. It takes us straight to the provision about the order having effect despite any restriction on the disclosure of information, which we found a difficult provision when we discussed it in Committee.

I will not tax the House by continuing with this at this stage, but I hope that the Minister will understand that I was not simply playing with words; there is real concern that the way that the Bill has been framed raises questions which people may have to grapple with in practice. I hope that they do not have too hard a time. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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Moved by

[Baroness Hamwee]

9: Clause 11, page 9, line 36, leave out “may” and insert “shall”

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[Baroness Hamwee]

My Lords, Amendment 9 is grouped with Amendment 10. I thought that the point about court rules might get a bit lost in the debate on journalistic data, which is why I separated them when we were asked to approve the groupings.

In the context of journalistic data, in Committee the Minister relied heavily on how rules of court would operate. Clause 11 provides that the rules “may” make provision. I appreciate that rules will be made, because that is the way things are, but drafting styles change. I find this quite difficult; I get left behind with what is the up-to-date style. In ordinary speak—and I understand that attempts are being made to make parliamentary drafting as close to that as it can be—“may” is not the same as “must” or “shall”. I appreciate that there are differences between “may” and “must” elsewhere in the Bill, for instance in Clauses 8(1) and 8(3).

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[Baroness Williams of Trafford]

My Lords, the noble Baroness has suggested amendments stipulating that court rules must make specific provision for certain things. Amendment 10 prescribes that court rules must be made relating to service of notice on a data controller, a data subject or where the application relates to journalistic data. I hope that I have already set out how we intend rules to include notice provisions in respect of the respondent and anyone else affected by an order. The rules already made by the Criminal Procedure Rule Committee in England and Wales for applications for production orders under Schedule 1 to the Police and Criminal Evidence Act 1984, and under other legislation, already include provision for the service of notice of applications, and additional special requirements where what is sought is the product of journalism. I refer the House to Part 47 of the Criminal Procedure Rules. The Criminal Procedure Rule Committee has already settled draft rules that, if this Bill passes, would be in terms corresponding with those existing rules.

We expect the court rules to include the same provisions as are currently in place for domestic orders. They would provide that a court must not determine any application for an overseas production order in the absence of the respondent, or other person affected, except in the following circumstances. First, the person has at least two days in which to make representations. Secondly, the court is satisfied that the applicant cannot identify or contact the person. Thirdly, the court is satisfied that it would prejudice the investigation if that person were to be present. Fourthly, the court is satisfied that it would prejudice the investigation to adjourn or postpone the application so as to allow the person to attend. Fifthly, the person has waived the opportunity to attend. In the case of an application which would require the production of confidential journalistic material, the court must not determine the application in the absence of the respondent until they have waived the opportunity to attend. I hope that that satisfies the noble Baroness on Amendments 9 and 10.

[Baroness Hamwee]

My Lords, we have learned about the draft of the new rules and I am grateful for that. It is obviously difficult to take them in simply by listening and not reading them, although I noted the wording that one of the exceptions was that the court was satisfied that the person concerned—I am not sure what the technical term would be—“cannot” contact somebody. That is not the same as “will not” contact: anybody “can” contact someone, so I suspect that there might be a little more reflection on that.

Throughout the Bill’s progress, we have been told that the Government “intend” something or “expect” something. There comes a point when one hears that rather too often not to want to see something on the face of the Bill when it is material to the Bill. However, I am glad to have heard that progress has been made with regard to the rules and I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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[Baroness Hamwee]

My Lords, I think it must be lucky 13 for the Minister. However, I have a question. It may be that I did not properly follow the latter part of her explanation but I come back to “normal speak”. The amendment says that the references,

“include proceedings for the making, variation or revocation of an order”.

Is “include” here a synonym for “mean”? Do we read it as “references mean”? I am sorry to throw that at her at this point. Perhaps I should talk inconsequentially for a moment or two until she receives information via semaphore. The term does suggest that something else might be within the references. I think the Minister is about to get a response to that question.

[Baroness Williams of Trafford]

The answer is yes.

[Baroness Hamwee]

With the leave of the House, I suggest that the Government return to this tiny thing before the next stage.

Amendment 13 agreed.

Crime (Overseas Production Orders) Bill [HL]

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

1: Clause 1, page 2, line 16, at end insert “and it has been ratified in accordance with that section”

[Baroness Hamwee (LD)]

My Lords, I want to raise two areas of questioning of which, I hope, the Minister has had notice. We have had correspondence and I am grateful to her and her officials, but I am keen to get the explanation in Hansard. Clause 1 provides for the making of overseas production orders, and Clause 1(8) provides for a treaty to be laid before Parliament under the Constitutional Reform and Governance Act 2010. I tabled an amendment covering this question on Report and I regret that I am still not entirely clear about the answer. Can we not provide for a reference to ratification on the face of the Bill? It would deal with Parliament’s involvement in the process and I think it is important that legislation is as clear as possible to the reader.

The Act provides for a two-stage process. One is the laying of a treaty; the other is Parliament’s role in ratifying it—or perhaps not ratifying it. I have asked the Home Office what the problem would be. I understand from the Minister that there may be operational timing reasons why one would want to designate an agreement after it had been laid before Parliament but before it has been ratified, and the Minister has also told me in correspondence that an agreement that came into force on ratification would impose that obligation immediately, which would be a problem. I am a little puzzled as to why one cannot provide, in the parliamentary process, either that a designated agreement comes into force at a future date linked to the designation, or that the designation is linked to ratification. I would be grateful if she could help me and the House as to the need not to include a reference to the second stage of the process.

The importance of this is that Clause 1 deals with designation of an agreement under Section 52 of the Investigatory Powers Act. That section relates to the interception of a communication in the course of transmission, as I understand it, not to other data. My noble friend Lord Paddick raised this in the debate and we would be grateful if the Minister would explain how all data is covered, not just data intercepted in the course of transmission. That phrase implies data intercepted before or at the same time as it reaches the recipient, so would it not include itemised phone bills, geolocation data and internet connection records?

Communication, the word used in the relevant section, is defined in the Investigatory Powers Act and the term “communications data” is also defined: they are different. The great importance of this is that at the previous stage your Lordships inserted a requirement for death penalty assurances—or to put it the other way around and more accurately, that an agreement should not be designated without death penalty assurances in the case of an agreement where it is possible that a person may receive a death penalty as a result of, or in connection with, the provision of data under that agreement. I hope that those two separate but closely linked areas of questioning are clear and I beg to move.

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

My Lords, I thank the noble Baroness for her explanation of her amendment. The powers in the Crime (Overseas Production Orders) Bill will work only if a relevant international agreement is in place. The effect of the amendment would be that an international treaty could not be designated under the Bill until it had been fully ratified. Ratification is the process by which relevant parties signal their consent to be bound by a treaty, contract or agreement. I hope I will be able to reassure the noble Baroness as to why it is not needed, and that she might be persuaded to withdraw it.

There may be operational reasons why a Government would want to designate an agreement under the Bill before the process to ratify a relevant treaty is finalised. If we had to wait until the agreement had been ratified before making the regulations that designate the agreement under the Bill, and the agreement came into force on ratification, there would be a delay, as the noble Baroness said, in respect of our use of the agreement. We may want the regulations to be in place when the agreement comes into force so that officers in the UK can immediately start applying for overseas production orders. I am concerned that we should not unnecessarily delay their access to vital evidence. I make it clear that designating the agreement under the Bill prior to ratification will not permit applications to be made until such time as the agreement has been ratified and is in force.

I will give a practical example of this. An example of an operational reason to designate an agreement under the Investigatory Powers Act prior to ratification arises in the context of the development of an agreement with the US. One of the core obligations of the agreement with the US will be the removal of any legal barriers that would prevent a UK company complying with a request from the US. The IP Act itself contains one of those barriers, in that it criminalises the interception of communications, save for where a person has lawful authority.

However, Section 52 of that Act provides lawful authority to carry out interception where it is at the request of,

“the competent authorities of a country or territory outside the United Kingdom”,

and the request has been made pursuant to an agreement which has been designated by regulations under that section. In effect, the designation of the agreement under Section 52 will be the removal of the legal barrier, thereby fulfilling our obligation. As the US agreement will come into force immediately upon ratification, regulations under Section 52 must have been made and laid before that point so that we can fulfil our obligations from the moment the agreement enters into force.

I stress that making regulations designating an agreement prior to it being ratified would not permit UK communications service providers to intercept communications in response to requests by foreign law enforcement authorities. Such activity would be permitted only once those regulations and the agreement came into force, which would happen on or immediately after ratification. This in no way changes or undermines the process of ratification or the scrutiny that Parliament is afforded of a treaty. Indeed, if Parliament resolved that the treaty should not be ratified, what is provided for in any agreement and the powers in the Bill could not be used. I hope that the noble Baroness is reassured on that point.

The noble Baroness’s second point was about how Section 52 of the IP Act covers all data, not just data intercepted in the course of transmission. As I said on Report, Section 52 can authorise obtaining stored as well as intercepted communications. Section 52 should be read alongside Section 4 of the IP Act, which outlines the definition of “interception” and related terms. According to that section, “interception” refers to the interception of a communication,

“in the course of its transmission by means of a public telecommunication system or a public postal service”.

A person intercepts a communication in the course of its transmission if the effect is to access any content of the communication “at a relevant time”. It is the meaning of “relevant time” that is significant. It can mean a time when the communication is transmitted but it can also mean, as Section 4(4) of the IP Act says,

“any time when the communication is stored in or by the system (whether before or after its transmission)”.

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I hope that this explains it adequately to the noble Baroness but I would also direct her to the Explanatory Notes for Section 4 of the Investigatory Powers Act. To briefly sum up, I hope that I have made it clear that Section 52 of the IPA not only covers material intercepted in the course of transmission but can authorise obtaining stored communications as well.

[Baroness Hamwee]

My Lords, obviously I am not going to challenge the Minister on that but I will comment, if I may, on her latter point. The distinction between the definitions of communication, which is the subject of Section 52, and communications with data, which is defined as data held or obtained, including what relates to the provision of the service or is,

“logically associated with a communication”,

as it relates to the use of a telecommunication service, still defeats me, I am afraid. Why is it worded in that way? I see in the definitions the distinctions between communication and communications data, and the Minister referred to “the relevant time”. On the parliamentary process, there are two parts to it: laying regulations, which is the Executive’s job, and ratification, which is Parliament’s task. I was seeking to be quite clear that those are both covered.

It also baffles me that there cannot be conditional arrangements, with the laying of regulations which are conditional on designation or designation which is conditional upon the whole process under the Constitutional Reform and Governance Act. It may be that American practice would not allow it, although I am sure that I have dealt with American arrangements which are conditional. But because of the importance of the death penalty issue, I felt it was important to air these to the best of my ability, which may not be as extensive as it might have been. At least it will all be there in Hansard for others who may be exercised to satisfy themselves. I beg leave to withdraw the amendment.

Amendment withdrawn.