Crime (Overseas Production Orders) Bill [HL]

Baroness Williams of Trafford Excerpts

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

Moved by

[Baroness Williams of Trafford]

That the Bill be now read a second time.

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

My Lords, the aim of this Bill is to provide the framework to address the problem of obtaining electronic evidence when it is stored outside the UK. Too often, criminals—including terrorists—are using global communications services to facilitate their criminal activities, and in many cases the companies providing the services being used are located outside the UK. UK law enforcement officers consider this information as a vital source of evidence in the investigation and prosecution of serious crime and we need to make sure that they have timely access to it.

Our existing powers for obtaining stored electronic data are effective when the company or person holding the data is located in the UK. In those circumstances, a law enforcement officer or a prosecutor can apply to a court for a production order to obtain the data. If the judge agrees that the material is required to support the investigation or prosecution, he or she will issue the production order, and the UK-based target will be required to comply.

However, as Members of this House will know, advances in technology, and the increasing globalisation of communications services, mean that it is not always the case that it is a UK-based entity that holds this data, which can be vital evidence. Where evidence is held outside the UK, we must rely on our international partners to help. We must use mutual legal assistance channels—a form of judicial co-operation between states that allows law enforcement officers and prosecutors to obtain evidence from a foreign jurisdiction via the authorities in that jurisdiction. However, the mutual legal assistance process can be slow, and in some cases it may not be timely enough to support an investigation or a prosecution. It requires a formal request to be made to another country, which then assesses it to consider whether it can comply. That country may require a court order or warrant from its own courts to obtain the evidence. This is usually the case for stored electronic data. It would then serve that order or warrant on the service provider in its territory. This process takes time and in some cases might result in delayed or abandoned investigations or prosecutions. It can also delay people being eliminated from a criminal investigation.

The Bill will create an overseas production order. It will provide law enforcement officers and prosecutors with the power to apply here in the UK for an overseas production order, which would allow them to seek stored electronic data directly from service providers based outside the UK in certain circumstances. They would be able to apply for an overseas production order for the purposes of investigating and prosecuting serious crime, including terrorist offences. They would be able to apply for an overseas production order only where a relevant international co-operation agreement is in place between the UK and the territory in which the overseas data holder is based.

This will mean that UK law enforcement officers and prosecutors will need to deal only with domestic UK courts and will have much quicker access to this data to support investigations and prosecutions of serious crime. The Bill will put on an equal footing the way in which a UK law enforcement officer or prosecutor can apply to the court for access to electronic evidence when the data is held by an entity based in the UK with circumstances when they are based in another territory with which the UK has a relevant international co-operation agreement.

The process of applying for an overseas production order will be similar to the existing domestic process for applying for a production order. The Bill’s provisions reflect our existing high levels of privacy protection, respect for freedom of speech and international human rights law. An overseas production order can be sought only for serious criminal offences. The court will, as it does currently, apply robust scrutiny to any application, and stringent tests will need to be satisfied before an order can be granted. These include that the information is reasonably believed to be of substantial value to the investigation or proceedings and that it is in the public interest for the electronic data to be provided.

The Bill also makes it clear what data cannot be sought, such as that which is legally privileged, or the circumstances in which additional protections might apply, such as when confidential journalistic material is sought. Critically, the Bill makes it clear that an overseas production order can be approved by a court only where it is clear that a relevant international arrangement exists. UK law enforcement officers and prosecutors will be obliged to deal with any data they receive under an overseas production order in accordance with existing protections under the Data Protection Act 2018, as is the case with material received under an existing production order or through mutual legal assistance.

I am sure that noble Lords will agree that the increasingly global nature of crime means that we need a global solution to tackle this problem. This means working with international partners to find ways to maximise our efforts in evidence gathering for the safe and effective investigation and prosecution of serious crime. This Bill will provide another avenue—an expedient means for law enforcement officers to seek stored electronic data. Mutual legal assistance will still exist and will remain critical for other types of evidence that are not within the scope of the Bill, and for electronic evidence outside the scope of relevant international arrangements. This Bill seeks to give those agencies that we rely on to investigate and prosecute serious crimes an additional tool to allow them to get timely access to electronic evidence in tightly defined circumstances.

This is a short and straightforward Bill. The safeguards it contains and the tests that must be satisfied before an overseas production order can be granted will be familiar to many who have law enforcement experience. It will help provide more timely access to vital evidence for our operational partners. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, there have been so few speakers this afternoon that anyone would think there might be a football match on tonight. However, I thank both noble Lords for their very constructive comments and questions. I have been furiously writing everything down and I hope I also have the answers but if I have not, I will follow them up in writing.

The noble Lord, Lord Paddick, asked whether this could allow for an agreement with the EU. Obviously, we are going through negotiations with the EU on Brexit, but it is absolutely possible that we could eventually make an agreement either with specific countries or with multiple states in the EU. That is almost certainly a possibility. He also quite sensibly asked whether this will affect the adequacy judgment in the context of Brexit. It is about getting data from outside the UK into the UK, but UK providers responding to requests under any agreement would need to comply with data protection law, which is of course aligned with EU standards, as we saw when we were going through the Data Protection Bill recently.

The noble Lord also asked how the Bill affects the evidence proposal published by the Commission. EU member states and wider international partners are considering this very question of cross-border access to electronic data. The European Commission has published proposals on this issue which we are currently considering. The UK’s opt-in applies to the regulation and the Government are committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision-making process. We are currently scrutinising the regulation, and we will make a decision on whether to participate in due course. The proposed evidence directive could be implemented before the end of the envisaged implementation period.

The noble Lord also asked whether contempt of court is enough if the CSP has no assets in the UK, which slightly goes to the point the noble Lord, Lord Rosser, made about seizing assets. Both are a possibility, but we anticipate working closely with overseas providers to create a high compliance environment. Given the general support for this, we hope that is the case. It is possible that some providers may have no UK assets, but those firms are unlikely to be within reach of any enforcement mechanism. We can always resort to MLA in the case of non-compliance.

The noble Lord, Lord Paddick, asked about what happens if you get more evidence than you asked for. The data received will be subject to the usual data protection laws and existing laws on data handling and retention. Law enforcement will be provided with guidance on how to handle data when using an overseas production order. I think he also asked about what happens if you need multiple different requests.

[Lord Paddick]

The question was: if you identify further offences from the information that you have requested, would you then need to go back to a judge to enable that evidence to be used?

[Baroness Williams of Trafford]

My view would be that, yes, you would because it would be a new request, but I will confirm that in writing. I would not wish to give the noble Lord misinformation at the Dispatch Box.

The noble Lord, Lord Rosser, asked how the US or other countries will be able to get information from the UK. The proposed agreement will be reciprocal and we would expect any country with which we have an international co-operation arrangement also to benefit from this more streamlined process for data and evidence gathering. The condition for any international arrangement or future arrangement is that each country recognises the other’s rule of law—that is an important concept for the Bill—due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime. Each agreement will be specific in scope in respect of the circumstances in which it can be used. Section 52 of the IP Act 2016 will be used to designate international agreements, and that will be the basis for another country to request information from UK service providers. The Secretary of State has the power to impose additional conditions when designating an agreement under that section.

The noble Lord, Lord Rosser, asked what would happen if the other country had a lower threshold for what is regarded as reasonable belief. What do we do if this arrangement is all about the mutual recognition of legal systems? The UK would not agree to any arrangement where the threshold for obtaining data did not provide similarly protective standards to those in the UK. The agreements will recognise a shared acceptance of the laws in another country with which we are entering into an agreement. It will recognise the other’s rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime.

Under any proposed agreement the UK would require the other country to set out the powers it intended to use in pursuance of requests made under the agreement. The UK would also ask the other country to commit that it would not rely on another power unless agreed by both parties. In addition, it would specify the evidential standard required before requests were made and ensure that the UK was satisfied with those standards before designating an agreement for incoming requests.

The noble Lord asked which countries we are negotiating agreements with. We expect the first relevant international arrangement to be with the US, unlocking the potential for streamlined access by UK law enforcement, but any future international arrangements would, like the agreement with the US that we have been discussing, be based on the recognition that robust protections for privacy are present in each country. Of course, not every country would meet those high standards, and any agreement that we reached with another jurisdiction would be subject to parliamentary scrutiny in the usual way. As discussed, that usually involves laying the agreement in Parliament for 21 sitting days without either House having resolved that it should not be ratified.

The noble Lord asked what powers exist to nullify incoming requests. The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders and, if they do, must comply with data protection law. The agreement itself will be subject to the usual scrutiny by Parliament, as I have said.

The noble Lord also asked about the timescales for production orders versus MLA. Under an overseas production order, the standard time for compliance is seven days. However, the judge may shorten or extend this time depending on the circumstances of the case. Therefore we expect this to be a much quicker process compared with MLA, which can take up to 10 months unless there is a particular urgency. The noble Lord asked how many we were anticipating. We anticipate approximately 40 to 50 outgoing requests for electronic data. I will write on the other point regarding MLA numbers. I am guessing that there are more because it has a broader scope, but I will write to the noble Lord.

I have tried to cover every point; I am not sure that I have but I will of course follow up in writing any that I have not. In the meantime, I beg to move.

Bill read a second time and committed to a Grand Committee.