Mr Ben Wallace contributions to the Crime (Overseas Production Orders) Act 2019


Wed 30th January 2019 Crime (Overseas Production Orders) Bill [Lords] (Commons Chamber)
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Report stage: House of Commons
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Tue 18th December 2018 Crime (Overseas Production Orders) Bill [ Lords ] (First sitting) (Public Bill Committees)
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Mon 3rd December 2018 Crime (Overseas Production Orders) Bill [Lords] (Commons Chamber)
2nd reading: House of Commons
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Crime (Overseas Production Orders) Bill [Lords]

(3rd reading: House of Commons)
(Report stage: House of Commons)
Mr Ben Wallace Excerpts
Wednesday 30th January 2019

(1 year, 7 months ago)

Commons Chamber
Read Full debate Read Hansard Text Bill Main Page
Home Office

Brought up, and read the First time.

Mr Ben Wallace Portrait The Minister for Security and Economic Crime (Mr Ben Wallace) - Parliament Live - Hansard

I beg to move, That the clause be read a Second time.

Mr Speaker Hansard

With this it will be convenient to discuss the following:

Amendment 1, in clause 1, page 1, line 19, at end insert—

‘(4A) The Secretary of State may not make regulations designating an international co-operation agreement providing for the use of—

(a) section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests), or

(b) any other enactment which provides for the collection of electronic data,

unless the condition in subsection 4B is met.

(4B) The condition is that the states party to or participating in the international cooperation agreement have given assurances that the death penalty will not be imposed in any case in which or in whose preparation the intercepted communication or electronic data obtained under this Act has been used.’

This amendment would prohibit the Government from entering into a treaty for the provision of intercepted communication or electronic data without securing assurances that the death penalty will not be imposed in cases where that data is used.

Amendment 12, page 1, line 19, at end insert—

‘(4A) The Secretary of State may not make regulations designating a treaty as an international co-operation arrangement under subsection (5)(b) where that treaty provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned.

(4B) Subsection (4A) does not apply if the country or territory has, within the international co-operation arrangement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.’

This amendment would require that assurances be secured from the foreign country or territory concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from the United Kingdom contributed in any way to securing.

Amendment 18, page 2, line 3, at end insert—

‘(5A) The Secretary of State may only make regulations designating an international agreement under subsection (5) where that agreement—

(a) provides for safeguards and special procedures in respect of applications by competent authorities of a country or territory other than the United Kingdom for orders in respect of journalistic data and confidential journalistic data that are equivalent to those in this Act, and

(b) provides for at least as much protection for freedom of expression and the protection of journalists’ rights sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.’

This would amendment would seek to ensure that the terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom.

Amendment 10, in clause 3, page 3, line 40, at end insert “, or

(c) confidential journalistic data (within meaning of section 12(4)).”

This amendment would bring confidential journalistic data within the definition of “excepted electronic data”.

Amendment 14, in clause 4, page 4, line 39, leave out “(6)” and insert “(6A)”

This amendment is consequential on Amendment 13.

Government amendment 2.

Amendment 13, page 5, line 26, at end insert—

‘(6A) Where an application for an order includes or consists of journalistic data, the judge must also be satisfied—

(a) that there are reasonable grounds to believe that the specified data is likely to be relevant evidence;

(b) that accessing the data is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the data is obtained; and

(ii) to the circumstances under which the person is possession of the data holds it,

(c) that other methods of obtaining the data have been tried without success or have not been tried because it appeared that they were bound to fail.’

This amendment would require a judge to be satisfied that journalistic data which is the subject of an application for an order constitutes relevant evidence.

Government amendment 3.

Amendment 15, page 6, line 9, after “section” insert—

‘“relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.’

This amendment is consequential on Amendment 13.

Government amendments 4 to 6 and 19.

Amendment 16, in clause 12, page 10, line 11, leave out

“that is confidential journalistic data”

This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data.

Amendment 17, page 10, line 12, at end insert—

‘(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless—

(a) the journalist has had at least two business days in which to make representations; or

(b) the court is satisfied that—

(i) the applicant cannot identify or contact the journalist,

(ii) it would prejudice the investigation if the journalist were present,

(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or

(iv) the journalist has waived the opportunity to attend.’

This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold.

Government amendment 20.

Amendment 9, page 10, line 20, leave out subsection (4) and insert—

‘(4) Confidential journalistic data” means data—

(a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and

(b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.’

This amendment would redefine confidential journalistic data for the purposes of the Bill.

Amendment 11, page 10, line 20, leave out subsection (4) and insert—

‘(4) Journalistic data is “confidential journalistic data” if—

(a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or

(b) it is communications data of a person acting in their capacity as a journalist, or

(c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).’

This amendment would amend the definition of confidential journalistic data.

Government amendments 21 to 23, 7 and 8.

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:07 p.m.

May I begin by making a slight apology to the House? As the amendments have been grouped together, my speech will be in a single block, so I ask Members to be patient.

Let me begin by addressing amendments 12, 1 and 24. I recognise that amendment 24 has not been selected, but I am happy to deal with it, because it was tabled.

Throughout the progress of this Bill, as with others that I have piloted through the House, I have been keen to reach a consensus. Labour Front Benchers, as well as members of the Scottish National party, will know that I have often been open to their ideas, and that in the case of a number of Bills—such as the Counter-Terrorism and Border Security Bill and indeed this Bill—I have taken their ideas on board and put them into law. I have done so not only because I truly care about keeping our citizens safe, but because I know that our laws work best when they do what they set out to do and are supported by the broadest consensus of the public.

The House of Commons cannot ignore the times in which we live. In the last decade, we have become more and more dependent on the internet and smartphones. In fact, 78% of people and 95% of 16 to 24-year-olds now possess a smartphone. Such technology can be a force for good, but it has also become an accelerant to those who wish us harm. Whether we are talking about county lines, terrorism or child abuse, smartphones have opened up a whole world of encrypted communications which I believe presents the biggest single challenge to our police and to law enforcement.

As Security Minister, I recall many occasions on which I was woken to deal with security issues. I remember being woken on the night of the Manchester Arena bombing, and I remember hearing the chilling news that a nerve agent had been used on the streets of Salisbury. But the day that I remember above all from the last two and a half years was the day of my visit to a regional and organised crime unit, where I had to listen, via an online chatroom, to a paedophile plot to kidnap, rape and kill a seven-year-old girl, about the same age as my daughter. If that was not sickening enough, I could sense the frustration of detectives who needed data from overseas to stop the abuse being committed, because in case after case timing is everything in these investigations.

So when the US Government, supported by Senators in the House of Congress, offered to help to solve this problem we grabbed at the chance. The House should recognise what they have offered: they have offered to remove legal barriers in the US to enable compliance with UK court orders. The Americans recognised, as we do, that the vast majority of data that we need for our investigations reside on the other side of the Atlantic—Google, Facebook, YouTube, WhatsApp, to name but a few. In fact, 99% of data that we need for child abuse investigations resides overseas and only 1% resides here.

These stark figures say two things to me. First, the reality is that we need the US data far more than they need ours. That was true before Donald Trump and it will be true after Donald Trump. Secondly, in this case, the US is doing us a favour. The Bill before us is the legislation required to give effect to a future US treaty and any other treaty we may make with another country in future, for example, Canada, so we can access that data much more quickly than we do now. These treaties will come before us separately, to this House and the peers House, at a different time, and Members will be able to scrutinise and challenge them at that point.

Let me deal directly with the Labour amendments. During the Bill’s passage in the Lords the Labour party attached to this Bill an amendment that would prevent the UK from making the necessary treaty with the US unless it got assurances that data sent across the Atlantic would not lead to the death penalty. This Bill allows enforcement agencies to access content directly from communications service providers based overseas using an overseas production order. These orders can only work when a relevant international agreement, such as a treaty, is in place between the UK and another country and as the majority of the CSPs, as I said, are based in America we expect the first such agreement to be with the United States. Both amendments 1 and 12 attempt to amend the Bill and reinsert the Lords amendments.

First, and bearing in mind how little data we hold here, having looked back over 20 years, we have not been able to find a single case whatsoever where only the data that the Bill deals with would have led to a death penalty overseas. Secondly, this is about data, not people. Extradition from the UK is dealt with by separate legislation and Her Majesty’s Government are already prevented from handing over someone without death penalty assurances. Thirdly, this Bill is about our data requests overseas in order to bring data back here for investigations and when I last looked we do not have the death penalty in this country. So to try to use the Bill as a vehicle to deal with a treaty as yet not concluded is simply wrong.

Throughout the passage of the Bill, I have been clear that the US has been generous in its offer. I have also admitted on the record that on this subject we do not have equality of arms with the US. This is not about a fantasy that we are bowing to the US. I noticed the allegations that the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) made in her column in the Daily Mirror recently saying that this was all about cosying up to Donald Trump, that the Labour party amendment

“simply blocks data sharing co-operation with all countries if the death penalty is a risk”,

and that the

“reason Ministers seem to be so keen to tear up our laws and ignore our human rights is because they are in a terrible mess in refusing to rule out a No Deal Brexit.”

Of course, nowhere does her op-ed address the central allegation that her blocking data will mean child abusers will be free to continue abuse of children for longer because we simply will not be able to get the data that we wish. And perhaps I could put her mind at rest: the US offer on this treaty was initiated not under President Donald Trump, but under President Obama. This is about the reality and the decisions we need to make to put our citizens’ safety first. Members should understand that the current drawn-out methods of getting data can take months and years.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds (Torfaen) (Lab) - Parliament Live - Hansard
30 Jan 2019, 2:14 p.m.

As the Security Minister well knows, we have been working constructively on this Bill and I will not be opposing it on Third Reading irrespective of the outcome of various votes, but it is correct to say that, in the case in the summer in respect of which the High Court has just issued its judgment, the American embassy told the Government, when they failed incidentally to seek assurances at all, that if they asked:

“At worst, they will wind the president up to complain to the P.M.”—

the Prime Minister—

“and, potentially, to hold a grudge.”

The Foreign Office’s strong advice was to seek a death penalty assurance, so why on earth did they not do so if it was not for fear of the American President’s reaction?

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 2:15 p.m.

The hon. Gentleman offers an incredibly selective quote from the ruling in the High Court by the Lord Chief Justice of England and Wales that found in favour of the Government on that case on all five counts. Every single count and every single challenge by Liberty and its glitterati up in the House of Lords failed at that test. The hon. Gentleman has also not answered the central charge, which is that to jeopardise this legislation and the treaty puts at risk children, because our law enforcement officers will not get the data in a timely fashion. Is he happy to accept that that delay should be maintained for the sake of a theoretical, never-happened occasion in the future?

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 2:16 p.m.

I am in favour of speeding up the data exchange. Under the mutual legal assistance treaty, since 1994 the seeking and securing of assurances has been commonplace. I take this from the High Court judgment. Ministers did not even bother to ask for assurances in the summer, so I am not confident that they have been as robust as they should be in their negotiations with the United States. There is no point in saying there is not equality of arms in this treaty. What if the Minister says that about a trade deal with the US—are we going to be allowing, then, US companies to come and take our NHS? The Minister should stand up for this principle.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 2:17 p.m.

I am going to stand up for the security of our citizens and a responsible Government have to balance abstract, theoretical, minute probabilities with keeping our constituents safe. Perhaps I should remind the hon. Gentleman of what we found in one of the cases. It is not related to this data, As I have clearly said, this Bill produces not a single example in the last 20 years, but under the MLAT process in the past no assurances have been sought and indeed the Government of the day indicated there was potentially a death penalty. It was a Labour Government who did not seek the assurances and did transfer the data. What does that mean? It means a responsible Government know the balance between keeping our citizens safe and making sure they comply with our international obligations. Members on the Opposition Benches have managed to do that in the past and I hope they do it again.

I have been absolutely clear. The hon. Gentleman may say he would do a better job in the negotiations if Labour was in power but, as I pointed out, we do not have equality of arms. Our negotiating position is this: there is 1% of data here versus about 90% of data there, which means our leverage is minuscule when it comes to demanding strings attached of the United States.

Ann Coffey (Stockport) (Lab) Hansard
30 Jan 2019, 2:18 p.m.

Does the Minister agree that this should not be a point of political division in this House? It is the overwhelming priority of Parliament to protect children who are being raped, abused and exploited, and data sharing is very important. One of the barriers to protecting children has been getting data to identify people who are doing this. We want to prevent the exploitation of children and to do that we need to identify those who would exploit them. Does the Minister agree that this should be the issue, not views about Donald Trump or otherwise?

Mr Ben Wallace Portrait Mr Wallace - Hansard

I totally agree. The hon. Lady will have heard the example I had to listen to. That was a sobering and scary experience. It is an experience that our law enforcement officers hear every single day and it is our duty to find a balance. I wish we had our own Google. I wish that all my constituents’ data were held in the United Kingdom so we would have more control over it. But the fact is we live in the world we do. That is the tragedy and it makes us have to make deals that might not always be, as we would wish, perfect. But in this case, I am concerned, like her, that what must come first is the children’s needs and dealing with terrorists, illicit finance and all the oligarchs we worry about—and Labour Front Benchers also worry about—and how we are going to get them. Until we can crack that data map, this is something that is important.

Mr Chris Leslie (Nottingham East) (Lab/Co-op) Hansard
30 Jan 2019, 2:19 p.m.

The Minister is making an important case for the provisions in the Bill, and I agree that we have to have this data sharing. We have to speed this up and get on with it. His new clause 1 looks like a pretty reasonable compromise to provide the necessary reassurances. It looks fairly complete to me, and I can see no reason why the House would not unanimously agree to it.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 2:19 p.m.

The hon. Gentleman is right. Further amendments that we have tabled provide for concessions to protect journalistic data. I have taken on board these points from Members on both sides of the House. Throughout the Bill, I have met many Opposition colleagues, including my shadow, the hon. Member for Torfaen (Nick Thomas-Symonds), on numerous occasions, and we have offered concessions that have never been offered before. One of them will put in primary legislation a mandate for the Secretary of State to seek assurances. In my view, we cannot go beyond that and force them to get those assurances, because a responsible Government might not have the upper hand at the time or have the leverage to do that, but the necessity for security is important.

This will be the first time that that has been put in primary legislation. It will put in place a policy that existed in loose form under the last Labour Government, when, in exceptional circumstances, Ministers were allowed not to seek assurances. The overseas security and justice assistance—OSJA—guidance was published in 2010 by the coalition Government, of which I think the right hon. Member for Kingston and Surbiton (Sir Edward Davey) was a member. That put in writing part 9. There are occasions on which we might be allowed not to seek a death penalty assurance, but I do not want that to become the dominant force. As I have said, we have not found a single example in the past 20 years that produced this challenge or quandary for a Minister. This is simply about comms content data; that is all it is about.

Sir Edward Davey Portrait Sir Edward Davey - Parliament Live - Hansard
30 Jan 2019, 2:21 p.m.

I hope the Minister recognises that all Members on both sides of the House want to find ways of sharing data so that we can go after these wicked people who abuse children. Will he therefore tell us what efforts have been made, in discussions with our American friends, to find a treaty that deals with those crimes and others but stops short of those crimes that could result in the death penalty? What efforts have been made to carve out those crimes so that they could be dealt with in a second treaty?

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:22 p.m.

I have personally asked them to look at carve-outs in that area, and I know that officials are still working on the drafts. This is my point: the treaty will come before the House when it is still in its draft stage. I have not read the draft as it stands; it is too early. This is not going to appear next Tuesday as a treaty. We will try to maintain as much as we can in the treaty, but we must recognise the leverage that we have, the generosity of the Obama Administration’s original offer and the need of our law enforcement agencies to get on with these investigations as soon as possible.

Sir Edward Davey Portrait Sir Edward Davey - Parliament Live - Hansard

rose—

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:23 p.m.

I will press on, because I want to give the House an example. An operation commenced in August 2017 in which there were indications that a UK male suspect was using Facebook, Instagram, Gmail and Snapchat for the purpose of committing child sex offences. On the male suspect’s Facebook profile, he purports to be a teenage girl requesting friendship with teenage boys. He then engages them in sexual communication, asking them to send indecent images and/or videos of themselves committing sexual acts. The suspect sent indecent images of females sourced from the internet as bait to lure his victims into believing that they were communicating with and sharing indecent images with a teenage girl. The investigation has identified several individual Facebook accounts where indecent images of children have been sent to the user of the suspect Facebook account. Those individual accounts all belong to children.

The value of data evidence is apparent, because in that operation, the data has helped to identify in excess of 150 vulnerable child victims and enabled law enforcement to safeguard the children. However, the law enforcement agencies are still awaiting the authorisation from a judge in a US court to release the content that would enable us to prosecute and put away the individual who is doing this. Consequently, that individual is still at large. We have safeguarded the victims we know of, but our ability to charge and prosecute that person is being frustrated. We should not forget that a great deal of data is held for only 12 months, and some of the MLAT cases go on for two years or more. Not taking up the US’s offer would mean shutting the door on our police’s ability to stop abuse more quickly and to detect terror plots before they reach fruition.

Sir Edward Davey Portrait Sir Edward Davey - Parliament Live - Hansard
30 Jan 2019, 2:24 p.m.

I repeat that the case the Minister is making is supported on both sides of the House. I very much doubt that there will be a Division on Third Reading—certainly we on these Benches will be supporting the Bill at that time—so he does not need to make this case, because we all support him. The issue of this debate on new clause 1 and other alternatives is whether we can achieve the goals on which we all agree while also finding a way to implement existing Government policy on death penalty assurances. The Minister is recognised for working across the House—that is why he is held in such high regard—but it is our right to scrutinise legislation in this place, and in this debate we want to tease out whether we can find a way, through the treaties or through the Bill, to get those death penalty assurances that I am sure he also wants.

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard

I understand what the right hon. Gentleman is saying, and I do not question his heartfelt desire to ensure that we keep people safe, but actions have consequences. He does not have to believe me when I say this, but the United States has indicated to the Government that if we attach strings to the treaty in the way that the Lords amendment would, the treaty will not progress. He does not have to believe me; he does not have to believe the United States; he can decide whether he thinks the United States will change its position or not, but let me tell him my reading of it. I have met representatives from the US Department of Justice, along with my officials and representatives from our embassy, and looked at the political situation in the Senate—I live in the real world; that is not necessarily how I would vote—and I am living with the challenge of balancing those realities, as any hon. Member would do. If these amendments, including that of the right hon. Gentleman, go through, they will jeopardise the treaty. I have set out clearly what the consequence would be if the treaty were jeopardised, and no amount of “I wish it wasn’t” will change that simple fact.

Lord Walney Portrait John Woodcock (Barrow and Furness) (Ind) - Hansard
30 Jan 2019, 2:27 p.m.

Are we not in danger of believing that there is a false choice between upholding the UK’s international obligations and taking action to secure this treaty? Will the UK not be obliged to follow its treaty obligations, including those under protocol 12 of the European convention on human rights, without needing to follow one of the wrecking amendments tabled by the Opposition parties and making the treaty that we apparently all want impossible to achieve?

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:28 p.m.

Yes, and in answer to the amendment that was tabled but not selected, Ministers are obliged to act in accordance with our ECHR obligations. Throughout this process, we have a legal duty under the Human Rights Act 1998 to act compatibly with convention rights, including article 1 of the 13th protocol, which was incorporated in schedule 1 to the Human Rights Acts 1998 through the Human Rights Act (Amendment) Order 2004. Were Ministers to act unlawfully in making subordinate legislation under subsection 5(b) which was incompatible with the convention rights, it would be open to the courts to strike down that legislation by applying ordinary public law principles.

Mr Dominic Grieve (Beaconsfield) (Con) Hansard
30 Jan 2019, 2:28 p.m.

First, I want to confirm what my right hon. Friend has said. This treaty being negotiated with United States has taken a long time to achieve. I remember being connected with it when I was Attorney General, and raising the matter subsequently on visits to the United States when I was Chairman of the Intelligence and Security Committee. It is quite apparent that the treaty is essential to prevent crime in this country. It is equally clear that attaching the proposed strings to it would destroy it; I have no doubt about that at all. I also endorse the point that the European convention on human rights has to govern everything that we do. In my view, in regard to the sort of data we are seeking to access and share for the purpose of fighting crime, the issue of whether the death penalty might result from an eventual criminal proceeding, which would be speculative at that stage, is entirely irrelevant.

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard

My right hon. and learned Friend, whom I have known a long time, is the straightest politician in this House and always has the best motives. He is also the lawyer that one would want at one’s side in government, because he tells it how it is, not how one wants it to be. I thank him for his point. He knows how far back this effort goes. This Bill is not a political charge or an ideological step. In fact, without this amendment, it is probably one of the most boring Bills that we have taken through the House, but it is not a playground for ideological posturing on a theoretical issue.

There is a clear choice here: take up the offer from the United States, reject the amendment and help to keep our constituents safe, or agree with the right hon. Member for Hackney North and Stoke Newington who believes that this matter is a problem even though there are no examples from the past 20 years. She believes that we should say no to the US offer and put the whole thing at risk because our tiny amount of data could be combined with a criminal investigation overseas, when the crime is a capital offence and the offender is in a country or US state that has the death penalty, and our data alone could be the crucial piece of evidence that leads to a conviction. If ever there was an example of politics getting in the way for the most bizarre and abstract reason, it is here.

Sir Edward Davey Portrait Sir Edward Davey - Parliament Live - Hansard
30 Jan 2019, 2:31 p.m.

rose—

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:32 p.m.

I will come to the right hon. Gentleman. All the amendments are grouped, so we have plenty of time.

Having said that, I have to apologise to the right hon. Member for Hackney North and Stoke Newington and to the Leader of the Opposition. In her column, the right hon. Lady said that I attacked her personally by criticising what was going on. I apologise that I did so, but I did so because I meant it. That is not the Labour party that I know. I have family in the Labour party. I have a relation who was a Labour MP in the 1930s and, if I remember correctly, the first socialist Lord Advocate in Scotland. The Labour party that I know would not play this type of politics with our constituents. A Labour party led by pretty much any other Labour Member would never have indulged in this type of nonsense.

The Labour party that I know in Lancashire, in the north of England and in Scotland keeps people safe and recognises the responsibility that goes with governing and that there is a balance. It is a truly difficult balance, which people of the best motives make every single day, between upholding values and keeping people safe. That is why I apologise that I had to make that attack, but I made it all the same. It is incredibly important that a Government in waiting should be led by people who recognise that their duty in government will be to make difficult decisions and to reflect the reality of the 21st century, not some abstract theoretical nonsense that panders to a few.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Parliament Live - Hansard
30 Jan 2019, 2:33 p.m.

I regret the Minister’s tone in places, because it is clear that we have worked together on this Bill and that the Opposition are in favour of it. Let me be clear about the difference here. The Minister is essentially saying that he is happy to be mandated to secure death penalty assurances. Labour’s amendment simply sets out that in the event that assurances are sought but not obtained, the data should not be handed over. As he says, the change will affect a tiny amount of cases, but nobody is disputing the need to speed up the MLAT process to obtain the data. That is exactly what the difference is.

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard

No. The Labour Front-Bench team are saying that if we do not get what they want, we should block the treaty. The condition from the United States or any other country could be, “Look, I’m terribly sorry, but we have 90% of the data and you have 1%, so here’s our offer and this is the reality of it.” Labour is saying, “If they do not give us the assurances we want”—they go beyond the OSJA guidance and beyond the public policy of this Government and the previous Government—“the treaty will not be completed.” I am here to say that the treaty will not be concluded if those strings are attached in that way. That is the simple reality.

The consequences of that, as I have pointed out, will be felt in our constituencies up and down the country and will also be felt should the Labour Front-Bench team become the Government in a few years’ time. The people could be facing an existential threat to their security, and that Labour Government would have to make these same difficult decisions. We have worked incredibly well together on this Bill, but this issue cannot be removed into some abstract debate when this is about giving our law enforcement agencies the tools to do their job on a day-to-day basis.

Sir Edward Davey Portrait Sir Edward Davey - Hansard
30 Jan 2019, 2:35 p.m.

The Minister is being generous in giving way. I repeat that, as he knows, both sides of the House want exactly what he has just described. However, this House’s job is to scrutinise and ensure that legislation is being done in the right way so that other parts of Government policy are also upheld. He said in response to the right hon. and learned Member for Beaconsfield (Mr Grieve), a former Attorney General, that we should not worry about this because ECHR obligations, which he read out in some detail, would prevent Ministers from not complying with this policy. Will the Minister elaborate on that for the benefit the House? When the Home Secretary recently did not seek death penalty assurances, was that decision in line with our convention obligations?

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:36 p.m.

I refer the right hon. Gentleman to the rulings by the High Court and the Lord Chief Justice. On five of the grounds for challenge from the plaintiff—if that is the right word in a civil challenge—the rulings found in favour of the Government. I am happy to have a conversation with him about that further if he reads the whole judgment, but it was certainly the case that the OSJA guidance and other things were not found to be in conflict with our ECHR obligations or any other obligation. If my memory serves me right, it was also found that we were not breaking our own Government policy on the matter. I caution the House that we do not know whether that judgment will be appealed, but a hearing related to it is ongoing. The case does not relate to data; it is about broader evidence that would remain through the MLAT process. As I pointed out earlier, extradition is a separate process. This legislation is about the data predominantly held by Facebook and Google and everything else, and it is so much part of the 21st century that we cannot escape the impact that it has on us.

Turning to amendment 18, I recall the hon. Member for Torfaen tabling something similar in Committee, and I am afraid that I am going to make the same arguments in response. Amendment 18 seeks to ensure that terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom. Forgive me, because I know that I have made this point countless times, but this amendment relates to incoming requests for UK-held data when this Bill is only about the UK’s outgoing requests for electronic data held overseas.

I completely accept the point that this Bill cannot work without a reciprocal international agreement in place, but amendment 18 directly relates to international agreements, as opposed to what our Bill provides for. This Bill is simply not the right place to mandate what is a right and laudable protection for journalists and their data. We cannot impose such conditions in advance of the negotiations of an international agreement. It is not a constructive proposition to tie our hands. I say to Opposition Members that I hear the case for change and that the United States’ first amendment is probably one of the strongest journalistic protections, so that would no doubt be reflected in a treaty. Of course, the UK would never agree to share data with a country with insufficient safeguards, but to mandate that on the face of this Bill is neither helpful nor necessary. Amendment 18 seeks to control the UK Government’s negotiating position, which would not prove desirable to any Government of the day.

Another point that I make repeatedly is to remind hon. Members that they will get ample opportunity to scrutinise any international agreement when the agreement is brought before Parliament, before it can be ratified under the Constitutional Reform and Governance Act 2010 process, and then again when secondary legislation is laid before Parliament designating the agreement for the purposes of clause 1 and under section 52 of the Investigatory Powers Act 2016. The Government amended the Bill in the other place to make it clear that only agreements to which the CRAG process applies may be designated under the Bill, so that scrutiny process must be followed in every case. Members will get the opportunity to scrutinise all international agreements related to this Bill properly before they are ratified.

I have two other brief points. First, the initial international agreement will be with the United States, as the majority of overseas CSPs are currently based there. As hon. Members will know, the US places a high regard on protecting freedom of speech and freedom of the press. Indeed, it is enshrined in the first amendment to their constitution.

Secondly, any additional international agreement that the UK enters into in future will, of course, be based on trust, mutual respect and each country’s adherence to principles that include the rule of law, due process and judicial oversight for obtaining and handling electronic evidence with regards to serious crime. No rational Government of the day would do a deal with a country that lacked regard for the rule of law or that failed to maintain press freedom. If a CSP moved to a country with insufficient legal safeguards, I would not push the Government of the day in any way to negotiate such an agreement, and I highly doubt that Parliament would ratify such a treaty.

This Bill is not the right place for the proposals raised by amendment 18. The amendment is not necessary for the reasons I have outlined, and therefore the Government will not support it. I ask the hon. Member for Torfaen not to press it.

Amendment 10 seeks to make confidential journalistic data an excepted category of material for overseas production orders, meaning that it cannot be sought using the Bill’s powers. Amendments 9 and 11 seek to define confidential journalistic data for the purposes of the Bill. Members have previously raised concerns about confidential journalistic data under the Bill, and I do not want to pre-empt our debate on other protections for journalists, which will come later, but the Government’s concessions in this area are appropriate and proportionate. I do not think it is right that confidential journalistic data should be entirely outside the reach of law enforcement agencies.

As with the amendment tabled in Committee, amendment 10 goes further than what is currently provided for under the Police and Criminal Evidence Act 1984. Although confidential journalistic material is excluded under PACE, it is accessible if certain access conditions are met.

I repeat the point I made previously. The Bill has not been drafted to mirror PACE exactly. It also takes into account provisions of the Terrorism Act 2000 and the Proceeds of Crime Act 2002. The whole point of the Bill is to speed up the unnecessarily long, drawn out process that law enforcement agencies currently endure to get access to material to help keep our constituents safe. Of course, this in no way undermines the stringent tests that must be passed for an order to be granted in a court by a judge. The substantial value test and the public interest test will both have to be satisfied, and I will shortly come on to the further inclusion of a relevant evidence test.

Amendment 11 would carve out journalists’ communications data so that it cannot be accessed under the powers of the Bill. Such an amendment is not necessary, because clause 3(4) already precludes the possibility of obtaining communications data via an overseas production order. Where an overseas production order is sought against a telecommunications operator, the Bill will apply as if references to excepted electronic data included communications data.

The Bill has been deliberately drafted so as to avoid overlap with the existing regime for communications data under the Investigatory Powers Act 2016. Should law enforcement agencies wish to obtain any form of communications data, journalistic or otherwise, they will need to proceed using existing legislation to obtain it. To be clear, this Bill does not allow for the acquisition of communications data.

I agree entirely with the hon. Gentleman that journalists play a fundamental role in our society, but amendments 9 to 11 are not appropriate. This Bill will ensure that all journalists are part of the process of applying for an overseas production order when the material sought relates to them from the outset. Uniquely, they will be able to make representations to the court. I am confident that journalists will continue to be able to make a robust defence if they believe that is relevant.

Indeed, when working with the BBC on this legislation, one lawyer told my officials that not once in 10 years could he recall a court having overruled such representations. It is important that legislation drafted in the 21st century reflects the context of the day. The nature of journalism is evolving, and law enforcement officers must be able to adapt to those changes. I therefore ask the hon. Gentleman not to press amendments 9 to 11.

In Committee, colleagues including the hon. Members for Torfaen and for Paisley and Renfrewshire North (Gavin Newlands) and my hon. Friend the Member for Bexhill and Battle (Huw Merriman) expressed concern that the tests in clause 4 do not fully replicate the tests under schedule 1 of PACE, under which there is a relevant evidence test as well as a substantial value test and a public interest test, whereas the Bill currently includes only the substantial value and public interest tests. The Bill does not contain the relevant evidence test. As I explained in Committee, the Bill replicates the production orders not only under PACE but under POCA and the Terrorism Act. Neither POCA nor the Terrorism Act requires the relevant evidence test when seeking evidence in relation to the proceeds of crime, as our law enforcement agencies will do with overseas production orders. Nevertheless, I promise to go away and consider the issues.

My officials have discussed the issues with operational partners, and their feedback is that a relevant evidence test would have neither a preventive effect nor a negative effect on their operation. I will therefore include a relevant evidence test in the Bill, and Government amendments 2 and 3 are sufficient in that respect and render amendments 13 to 15 unnecessary. I trust that introducing a relevant evidence test will satisfy the concerns of hon. Members.

Break in Debate

Huw Merriman Portrait Huw Merriman (Bexhill and Battle) (Con) - Parliament Live - Hansard

I thank the Minister for listening to those representations. As he says, I declare an interest as chairman of the all-party BBC group.

The representations from the BBC show that the amendments will make the Bill completely consistent with the provisions under PACE and will help the administration of justice, as they may mean that many applications do not need to be spoken against. I am incredibly grateful to the Minister for listening to us, for working very closely with all of us and for filtering in our ideas.

Mr Ben Wallace Portrait Mr Wallace - Parliament Live - Hansard
30 Jan 2019, 2:49 p.m.

I am incredibly grateful to my hon. Friend for that. I am not a journalist by background; I think he is—

Huw Merriman Portrait Huw Merriman - Hansard
30 Jan 2019, 2:49 p.m.

I’m a lawyer.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 2:49 p.m.

A lawyer—oh.

All Members have raised the importance of protecting journalistic freedom, and I think we have struck the right balance between not excluding their material entirely—because I do not believe that anyone should be above the law, no matter what their profession—and giving them notice that other people would not be given, to allow them to make representations. All the way through this process, even in considering the controversial part of the Bill, we should not forget that this is done before a judge. It is not done between officials in two Administrations: these orders will be applied for in front of a court and granted by a judge. It will be for the law enforcement agencies to satisfy the range of tests and for journalists to make their representations. That will safeguard the process while at the same ensuring that we get data if it is needed to keep us safe.

Huw Merriman Portrait Huw Merriman - Hansard
30 Jan 2019, 2:51 p.m.

I should point out that unlike the Opposition amendment—I think the shadow Front-Bench team largely supported the same change—the amendment that I tabled was realistic about the point that if the journalist could not be contacted, that would not mean that we would end the process. Ultimately, what is important is the protection of victims of appalling offences. My amendment will make sure that we strike that balance between the protection of journalists and the protection of victims, which is at the core of this excellent Bill.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 2:51 p.m.

Yes, my hon. Friend makes a true point. We have put in a carve-out for some very urgent situations, including if there is a threat to life or, indeed, if the journalist is impossible to track down and may in fact be a front for a foreign state, for example, in a fake news scenario or something else. All Members have had genuine views and made their points well. I am happy to accept my hon. Friend’s amendment, but there were many good parts of the amendments tabled by the Labour party, too. This is not a party political point. The exemptions get the right balance and we will be able to protect journalists, so I hope I will have the support of the whole House in asking that the relevant amendments not be pressed.

Before I finish, I should apologise for the length of my opening address. There were originally two groups of amendments, but that was changed to one group, so I needed to deal with everyone’s amendments in one go.

I think we have struck the right balance. The Bill reflects some of the day-to-day challenges that we face in keeping us safe. I urge Members not to support amendments 12 and 18, and some of the others tabled by the Opposition Front-Bench team. As I indicated at the start, throughout the passage of this Bill and other Bills, I have accepted a number of amendments from Government and Opposition Members. That is the spirit in which I have tried to conclude the passage of this Bill, and in which I hope to do so.

Madam Deputy Speaker (Dame Eleanor Laing) - Hansard
30 Jan 2019, 2:53 p.m.

Order. Before we continue with the debate, the House has the exciting prospect of the results of the deferred Divisions.

In respect of the question relating to consumer protection, the Ayes were 309 and the Noes were 268, so the Ayes have it.

In respect of the question relating to financial services and markets, the Ayes were 309 and the Noes were 261, so the Ayes have it.

In respect of the question relating to floods and water, the Ayes were 310 and the Noes were 267, so the Ayes have it.

In respect of the question relating to radioactive substances, the Ayes were 309 and the Noes were 265, so the Ayes have it.

[The Division lists are published at the end of today’s debates.]

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 3:02 p.m.

I honestly cannot imagine a situation where a country that gave those assurances did not stand by them. That would undermine the whole system if that were the case. I do need to make some progress now. I hope that the House will realise that I have been generous in giving way to Government Members.

We absolutely agree, as I have said, with speeding up the mechanism, but we believe that in this framework, which will be a framework which many reciprocal treaties will be plugged into in the years to come, we should make clear our opposition to the death penalty in all circumstances. The Security Minister has spoken about the United States. I appreciate that that is where much data is held. I also appreciate that that is the treaty that is being negotiated at the moment. First, let us look at what the practice is at the moment. It is obvious that the United States would expect us to require full death penalty assurances prior to sharing this information. It routinely complies with that requirement. It has long been the case, under the 1944 Treaty on Mutual Legal Assistance in Criminal Matters that now exists, that the seeking and securing of assurances is commonplace. What the Opposition are trying to put into law is what has been the norm for decades.

The Minister makes the point about his judgment as to whether or not the US would wish to conclude a treaty in those circumstances—in the circumstances that the House passed the amendment that the Opposition have proposed. I just want to examine this because the recent High Court judgment in El Gizouli, which has been published in recent days, is instructive in this regard. It is very rare that we see Government papers in the public domain so soon after a particular decision is taken. That is because in July last year the House became aware of correspondence between the Home Secretary and the then United States Attorney General that the Government had not sought death penalty assurances at all. Let me be clear that we on these Benches absolutely condemn the actions of the so-called foreign fighters, which is why I have worked with the Minister to put the designated areas offence onto the statute book—it is not quite on our statute book yet, but it will be in due course. I made various suggestions about that matter, as the Minister knows, that were eventually incorporated into the Bill. We supported that principle and it will be on the statute book. However, the fact is that that matter did lead to a court case, which is instructive about Minister’s decision making.

I go back to one of the earlier interventions. This is not about naked partisan politics. These are very serious issues on which Members from all parts of the House have very strongly held opinions, and I respect whatever those perspectives are. A number of things came forward from that case in the summer. The UK embassy in Washington was asked what was the likely response from the US Administration if the UK were to seek full or partial assurances on the death penalty. The response was that

“parts of the US machinery—notably career DOJ officials—would not be surprised if we asked for death penalty assurances. It is what they expect of us.”

That, I suggest, is what I said a moment or two ago. It then added:

“But that doesn’t go for the senior political levels of this administration...At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge.”

That is worrying to see, and it would not be a way to run any negotiation. It is no surprise really that the Foreign and Commonwealth Office gave strong advice to seek an assurance. This was cited as the Government’s consistent policy over many years, which has been maintained without exception—I appreciate the one point that was made in an intervention by the Minister that there may be an exception to that. I accept that, but this is what the advice says—and without difficulty in co-operating with allies such as the US. It agreed that a sole exception would undermine the UK’s consistent and total opposition. This is what the Foreign and Commonwealth Office said about this in the summer:

“Her Majesty’s Government seeks a comprehensive assurance that the suspects will not be subject to the death penalty. This is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance…Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future attempts to secure similar assurances from other countries with which we have a security relationship... particularly if it seems likely that there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.”

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 3:07 p.m.

rose—

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 3:07 p.m.

Let me finish this point and then I will give way.

The Foreign Office officials were correct, and I wish that the Ministers had listened in the summer. As the Security Minister knows, this was the subject of an urgent question some months ago to which, I think, he responded.

Mr Ben Wallace Portrait Mr Wallace - Hansard

I am grateful to the hon. Gentleman for giving way. I wonder whether he will quote at length my response in that court case, the response of the Home Secretary, and, indeed, the other parts of the correspondence. He makes the point about the embassy. The embassy in the United States is the other part of the Foreign Office. He may like to reflect on the fact that, first, we won on all five counts, so he has picked out a few parts of the case, but not the full case. He will also know that, under this and the previous policy, one cannot seek assurances under strong reasons. He talks about hypocrisy. One of the strong reasons—a bit like some of the challenges around data, but he is referring to an MLAT case—is that the alternatives for these individuals for their rights—[Interruption.] No, I get that. The alternatives for those individuals were very much less about their rights—potentially extrajudicial killing in the back of the head and potentially being shipped to Guantanamo, to which we fundamentally object and oppose and, as that case highlighted, something in which we would not assist. The alternative for their human rights was far, far worse than a lawful trial in the United States.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 11:30 a.m.

I am not disputing the outcome of the case; that is very clear. This goes back to the earlier point that I was making about new clause 1. It is clearly not currently set out in primary legislation that there is a duty to seek assurances. I am not questioning the genuine nature of what the Minister does or his decision making, but in that case and against that backdrop, no assurances were sought at all. The Minister has set out the reasons for that, but that is the brutal reality of what happened in that case, against the backdrop of the advice that I have read to the House.

More widely, Governments across the piece—this Government, the coalition Government and previous Labour Governments—have, on numerous occasions, sought to promote the UK’s opposition to the use of the death penalty around the world. There are multiple examples where Governments of all colours have sought to avoid any complicity with the use of capital punishment and have argued around the world for its abolition. In fact, the Prime Minister herself said in the House on 31 October last year:

“Our long-standing position on the death penalty is well known: we call for its abolition globally.”—[Official Report, 31 October 2018; Vol. 648, c. 911.]

And the Opposition say the same.

There are a number of examples where this country has agreed that it is highly undesirable that drugs used by some states in the United States for the purposes of execution could have been sourced here. We have decided not to fund counter-narcotics operations in Iran because of the risk that they could lead to the use of the death penalty. When the Prime Minister was Home Secretary, she triggered a review of all security engagement when Pakistan resumed executions after a long moratorium. Back in October 2016 the Government withdrew a bid to provide offender management services to Saudi Arabian prisons, again over the issue around the death penalty. And of course the UK will not export products for use in capital punishment. That is the well-established position, as is the seeking and securing of assurances.

Break in Debate

Gavin Newlands Portrait Gavin Newlands - Hansard
30 Jan 2019, 3:25 p.m.

That is not the point—it is about the principles. We have spoken at length about this and listed some of them. It is about the principles, and we are signatories to the ECHR as well. We should ensure that these principles and obligations are in this Bill; otherwise, in my view, we are not following those obligations.

Amendment 1, tabled by the Liberal Democrats, is an improvement on new clause 1, but my only small concern—the right hon. Member for Kingston and Surbiton (Sir Edward Davey) may address this in his speech—is that it might not cover instances where data could be requested by another state through a different route, similarly to the issues that I set out with regard to new clause 1.

Amendment 12 simply refers to

“where the treaty provides for requests”

and therefore provides the most comprehensive level of protection. I urge Members from across the House to back this amendment, as our international reputation may well be degraded even further—if that were possible given the Brexit situation at the moment—if we enable this barbaric practice anywhere else in the world.

On journalistic protections, I very much welcome the amendments tabled by the Government and by the hon. Member for Bexhill and Battle (Huw Merriman), but they still do not go far enough. They are fine in and of themselves, but other areas of journalistic protection still need to be looked at.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 3:26 p.m.

If the hon. Gentleman was sitting where I am and he had a choice before him where the United States Administration was saying, “Look, here’s the deal—we’ve got 99% of the data and you’ve got 1%. We haven’t got equality of arms. This is the deal—you either take it without strings attached or you do not,” and if there were no deals and no treaty, as the amendment would provide, what would he do?

Gavin Newlands Portrait Gavin Newlands - Hansard
30 Jan 2019, 3:27 p.m.

That is almost a false choice. The Minister is painting it as a black-and-white issue. At the end of the day, on an issue of such grave importance as the death penalty, I would bring it to the House and seek the House’s view. It would not be for me to try to override our principles as set in the ECHR. The USA might well hold all the data, but if we do not hold to our principles, then what is the point? That is our view.

Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less extremely sensitive journalistic material. As I said in Committee, that is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work.

We believe that the Bill does not provide adequate protection of confidential journalistic material. This could seriously threaten journalistic inquiry and prevent a free press from doing its job, and the implications for our democracy are worrying. We are not alone in having those concerns; the BBC and many others have raised deep concerns about this part of the Bill. Amendment 18 is essential because it ensures that any protections afforded to our journalists in this Bill are not simply domestic but that other states that the Government enter into an agreement with must mirror the UK’s press safeguards.

Amendments 19 to 23, tabled by the Home Secretary and the hon. Member for Bexhill and Battle, would introduce a requirement that notice must be given for all applications for journalistic material. It is vital that journalists can operate freely in the knowledge that Government cannot just seize their information on a whim. As I said, we very much welcome those amendments. However, I echo the concerns aired by the hon. Member for Torfaen about proposed new section (2B) and in particular the indictable offence override. I hope that the Minister can give us some comfort on that. Under the Bill, journalists would have a significantly reduced ability to engage in arguments about what is and is not suitable for disclosure, removing the opportunity for them to make submissions on the issues that give rise to that.

In conclusion, there have been clear improvements to the Bill, and we very much welcome those concessions. However, new clause 1 and the journalistic protections simply do not go far enough, and that is why we will back the amendments tabled by the hon. Member for Torfaen.

Sir Edward Davey Portrait Sir Edward Davey - Hansard
30 Jan 2019, 3:30 p.m.

This is a very good Bill overall. It is much needed, and it is not controversial, which is why we will not vote against its Third Reading. However, our debates have shown that there is a chance to improve the Bill. Back Benchers have been able to improve the Bill, as we have seen with the amendments tabled by the hon. Member for Bexhill and Battle (Huw Merriman). I strongly support his amendments, which are well judged, and I know that the BBC supports them, too. I also support Labour’s amendment 18. It is not unreasonable to expect Government to try to ensure that there are protections for journalism and free expression in these treaties, and the world would expect Britain to uphold that. We hope to get agreement across the House on those amendments.

It is a shame that there is disagreement on the death penalty assurances. The Minister has been trying to reach out, but he will know that new clause 1 is only about seeking assurance, not receiving assurances, which is the issue at the heart of this disagreement. I intervened on the Minister earlier to ask whether there had been discussions about a carve-out for the types of offence that we are worried out. I would have thought that that would be incredibly easy, because the number of death penalty executions and cases that will result in it is tiny. I therefore would have thought that the US—a very practical people—would accept a treaty with that carve-out. The amendments tabled by my party and the Labour party would enable such a carve-out to be pushed forward. That is not unreasonable.

The Minister talks about the inequality of arms, and I get that—America is rather bigger than we are—but this is not about the Americans doing us a favour. We have data to offer them, too. It may only be 1%, but they want it. They want to catch their criminals—they want to catch the bad guys, too. We have a great record of working with them, and we should continue that. It is not as one-sided as he portrayed.

Let us remember what we are trying to achieve. A huge number of people in Congress and across America are campaigning to get rid of the death penalty. Nineteen US states no longer have the death penalty, and six of those have changed their laws since 2007 because of successful campaigning. That is one reason why we should stand up for this principle. This debate is live in the US, and it is important for not only the people we are talking about but US citizens that we send this signal. In addition to the states that have got rid of the death penalty, 11 states have not executed anyone for 10 years—it is de facto not used—so that makes 30 states. The federal Government have not executed anyone since 2003. The facts do not bear out the idea that we are pushing at a closed door and that there is massive opposition in the US political system.

Mr Ben Wallace Portrait Mr Wallace - Hansard

The right hon. Gentleman makes a valid point. He also highlights how very rare this is, which goes to the point about balance. This is not just about death penalty assurances. This is about the United States Administration saying, “You can’t have your cake and eat it. You want all this help and all this data, and you want us to take back foreign fighters and try them, but no sooner do we say yes than you start telling us how to do it and giving us conditions.” That is part of the overall assessment that the Government made in some other cases. In this case, the data has never been an issue in the past 20 years. That is why our judgment and the clear message from the United States Administration is that that would jeopardise the treaty.

Sir Edward Davey Portrait Sir Edward Davey - Hansard
30 Jan 2019, 3:34 p.m.

I hear what the Minister says, and I know that he knows there is not a lot between us on this, because we are all trying to get to the same objectives. However, the points he makes could be argued against the US position, and because we are close allies, we could close that gap. It would not be terribly great for Senators to oppose this Bill—they have Senate ratification —as they would be held to account by their citizens for getting in the way of sharing information to catch paedophiles.

As British politicians here, from all sides and including the Minister, we should stand up for British principles. Yes, we want to catch these appalling criminals, but we must make sure that we advance justice and human rights. I do not think we should see these things as separate and deal with them separately—we can bring them together. It would be a good step for this House to stand up for this principle, which we all share and which is and has for a long time been Government policy, and say to our close friends in the US that we believe we can come to some agreement.

The Minister made it clear in his response that the treaty is still in development. The hon. Member for Torfaen (Nick Thomas-Symonds) talked about how a lot of people in the US, particularly in the State Department, are expecting us to do this, so it is not unreasonable that we do, and I hope that the Minister, who is highly respected across this House and whose Bill we utterly support, can understand why we are trying to make this extra push. We are doing this to help him in his negotiations.

Lord Walney Portrait John Woodcock - Hansard
30 Jan 2019, 3:34 p.m.

Listening to this debate, I found myself nodding along with the shadow Minister, as often I do. He made a well-honed speech about the bipartisan approach that has long been taken on the death penalty and the UK’s opposition to it on both sides. I tried to reconcile that with his party’s position, which is to oppose new clause 1. I was agreeing with what he was saying and I have some sympathy because the reasoned approach that he characteristically takes at the Front Bench is not matched by the diktat that comes down from the shadow Home Secretary and the leader of his party.

I have to say to the shadow Home Secretary: for the second time this week, she has ended up in a position where I and others are further to the left than her on a key issue. I sat behind her on Monday night, when she was explaining to the House why it was right to abstain on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Lords have rightly, and in a way that is welcome, forced a concession from the Government—to me, new clause 1 seems substantive in writing into the Bill the requirement for this and any future Government to seek assurances on the death penalty. As has been rightly said, that approach has long been practice but it was, in terms of extradition, in a way that was quite troubling, disregarded in the instance of Mohammed Emwazi and others.

New clause 1 has been tabled after pressure from the Lords. It is a step forward in legally codifying opposition to the death penalty. As I understand it, the Labour party is going to try to force its Members of Parliament to vote against it, in the hope that they will then get to an amendment which would be unworkable and would indeed wreck the chances of a treaty, as the Minister has convincingly set out. Assuming that new clause 1 goes through—I will certainly be voting for it and I am encouraging many Labour colleagues to vote for it or abstain—we are not, as I understand it, going to get to the Labour amendment, by which they appear to be setting store. I am afraid that that epitomises the deep oppositional politics that has always been a hallmark of the shadow Home Secretary and the Leader of the Opposition. It is an example, I am afraid, of why it would be so deeply troubling for the nation if they were given the chance to stand at the other Dispatch Box and have the authority to act as Home Secretary and Prime Minister.

This seems to have been another week when precedents are changing in this House. As I understand it, the Labour Whip is no longer binding on either Back-Bench or Front-Bench MPs, and it seems to be possible for Labour Front-Bench MPs to break their own Whip and remain on the Front Bench. I do not know if there is a requirement to go and sit in the Smoking Room to be exempt from what would otherwise be the strictures of the Front Bench.

This means that Labour MPs are being forced into making a false choice on human rights. We have to uphold human rights as a country. If we do not uphold them, the law will bring the Government into line, as it may yet do in the case of the so-called ISIS Beatles. The Labour leadership are forcing a choice on this incredibly important action to gain the treaty to speed up action against paedophiles, and on action to be able to convict British terrorists. They are forcing their MPs to choose one or the other. It is a false choice and one that I hope MPs will reject. I hope they will vote for new clause 1, so that we can go ahead with a strengthened Bill, which the country needs.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 3:41 p.m.

With the leave of the House, let me say that the amendments have been well heard and well argued. Following what the hon. Member for Barrow and Furness (John Woodcock) has said, it is true that this is a false choice. This is real: it is about giving power to our law enforcement agencies to get data—data only; not the wider MLAT evidential packages, which are already covered by the overseas security and justice assistance guidance. Nor is it about extradition. It is simply about recognising the 21st century we live in, where the data is stored and the vital need for us to get it.

It is just wrong to tie this up with Trumpian ideology or anything else. It is not true. The shadow Home Secretary may like to note that it started under President Obama. We are not kowtowing to President Trump at all. This suggestion from our allies will help us to cut the time—from years and months to months and days—to get the vital data we need to protect our children and to protect us from terrorism.

Mark Pritchard Portrait Mark Pritchard - Hansard
30 Jan 2019, 3:43 p.m.

May I reach out to the Opposition? As the joint chairman of the all-party group on the abolition of the death penalty, I, like the shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), did have some concerns. However, I have addressed them with the Minister, who has listened. I think the Government have listened and I appeal to the shadow Minister and the Opposition Front-Bench team to think again in the national interest and in the interests of victims.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 3:43 p.m.

I am grateful to my hon. Friend, who has campaigned against the death penalty for very many years and who, as co-chair of the all-party group, knows a thing or two about it. I do not think he would say that lightly if he did not feel it.

My shadow made some points about the judgment in the “Beatles” case, which is not of course related specifically to this data, but makes the point about exceptional circumstances. I urge him to read the judgment in full.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 3:44 p.m.

I have.

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 3:44 p.m.

Then the hon. Gentleman has quoted so selectively. If he has read it in full, he will know that all five points of allegation—

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 3:44 p.m.

I said that.

Mr Ben Wallace Portrait Mr Wallace - Hansard

Yes, but the hon. Gentleman did not expand on them. If he had, he would have said, for example, that the Lord Chief Justice of England and Wales made it very clear that

“the Government recognises and responds to the realities of political life in the state concerned, whether or not it likes those realities. It would be very odd indeed to ignore them. Ministers, diplomats and other officials are engaged in a constant process of evaluation, making judgements about the differences between what is said and what is meant; between what is threatened, explicitly or implicitly, and what is likely to happen; about the impact of action of the UK. That is what was done here. The Home Secretary had the advice of the British Ambassador…The suggestion that he was not entitled to take it into account and rely on that expert assessment when making his own judgement is misconceived.”

The Lord Chief Justice recognises the political realities within which we operate in the course of trying to keep people safe in this nation. It is a great shame that the shadow Home Secretary cannot manage to recognise those realities when the Lord Chief Justice can.

Question put, That the clause be read a Second time.

New clause 1 read a Second time, and added to the Bill.

Break in Debate

Dame Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton) - Hansard
30 Jan 2019, 4:20 p.m.

I thank the hon. Gentleman for his point of order and for giving me prior notice of it. I understand that he has also informed the Secretary of State for Scotland that he would be making it. I appreciate the hon. Gentleman’s annoyance at not being properly informed regarding the details of the visit, because that is what is expected. However, having raised the matter, I hope that he will get further clarification. I am sure that those on the Treasury Bench have noted what he said and will ensure that the proper information is sent to him.

Third Reading

Mr Ben Wallace Portrait Mr Wallace - Hansard
30 Jan 2019, 4:24 p.m.

I beg to move, That the Bill be now read the Third time.

Throughout the process, the Bill has been about giving our law enforcement agencies a step change in capability to access the vital data needed to investigate some of the worst crimes perpetrated against our constituents. The House has spoken. We examined the Opposition’s amendment 18 and the amendments that mirrored those attempted in the House of Lords. A majority of 53 in rejecting amendment 18 sends a clear notice that Members in this House have considered the delicate balance between obligations and security and have favoured that we should send the Bill back to the Lords with the amendment rejected. I hope that their lordships will reflect on that.

This Bill is about the security of our children and our constituents and about taking up an offer made by President Obama’s Administration to help us with vital investigations where time is of the essence, so that we do not have to go down the long bureaucratic route of the MLAT process, which can take months or years. Indeed, I meet police officers who tell me that they cannot actually progress investigations as a result. When that process of obtaining vital data is turned into days and weeks, this House should be proud not only of our special relationship with the United States that has enabled this to happen, but of the fact that our police will be able to get the necessary data.

Members from across the House often quite rightly complain that data from faraway CSPs, such as Facebook and Google—data that is corrupting the internet and radicalising our families and our children—is being used to prosecute cybercrime and that we need to do more about that. We need to take action to stop such things happening. This Bill contains a strong measure offered by the US Administration, and it means that we will be able to do much more to keep our citizens safe. It is the responsible thing to do.

I have listened to suggestions throughout the Bill’s progress and have taken them into the Bill where and as much as possible, including on the protection and notification of journalists. I hope that the other place recognises the consensual way in which we have made progress on 90% of the Bill. We will be the first nation to have such an arrangement, although there is more work to be done around the treaty.

I do not know whether the Lords will send the Bill back—I pray that they do not—so I will say a grateful thanks to my Parliamentary Private Secretary, my hon. Friend the Member for North Dorset (Simon Hoare), who has done great work; to the usual channels; and to the Labour and SNP Front-Bench spokespeople, the Democratic Unionist party and the Liberal Democrats, who have all either accommodated offers or had the time to listen to me in private to try to resolve matters. I thank my officials and the Bill manager. This is her first Bill, and she was allocated a Bill that looked so boring and innocuous that there would be no controversy. Little did she know how our friends in the upper House would behave—I can only apologise for that. I thank the team for doing a sterling job. I hope that the Bill does not return and that we can look forward to its coming into law.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
30 Jan 2019, 4:26 p.m.

I echo the Minister in saying that 90% of the Bill has been consensual, and a number of parties, including the SNP, the Liberal Democrats, Labour and others, have sought to contribute constructively throughout its passage.

The issue of death penalty assurances generated a great deal of controversy, but the Minister will have noticed that I indicated earlier that we would be supporting the Bill on Third Reading, irrespective of the outcome of previous votes. That remains our position, and I join him in his frustration with the slowness of the MLAT process. MLAT is a well-established process but, clearly, we need to look at speeding it up, and this Bill is a mechanism by which we can do that.

The Minister rightly focuses on America, partly because of the extent of the data it holds and partly because that treaty has been negotiated, and it will be a framework for other reciprocal treaties all around the world. Of course, he would expect me and the Opposition to scrutinise every single one of those treaties when they come before the House in due course. Parties on both sides of the House share the long-cherished principle of international human rights.

Crime (Overseas Production Orders) Bill [ Lords ] (First sitting) Debate

Full Debate: Read Full Debate
Department: Home Office
Legislation Page: Crime (Overseas Production Orders) Act 2019

Crime (Overseas Production Orders) Bill [ Lords ] (First sitting)

(Committee Debate: House of Commons)
Mr Ben Wallace Excerpts
Tuesday 18th December 2018

(1 year, 9 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Bill Main Page
Home Office

Before we begin, I have a few preliminary announcements. I remind Members that no refreshments other than water may be consumed in Committee sittings. Please ensure that mobile phones are turned off or switched to silent. Not everyone is familiar with the procedures of a Public Bill Committee so it might help if I briefly explain how we will proceed.

First, the Committee will be asked to consider the programme motion on the amendment paper, on which debate is limited to half an hour. We will then proceed to a motion to report any written evidence. Then we will begin line-by-line consideration of the Bill.

The selection list, which is available in the room, shows how the amendments selected for debate have been grouped together. The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak to the amendments in the group. A Member may speak more than once, depending on how the discussion is going. At the end of the debate on a group, I will call the Member who moved the lead amendment again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision.

If any Member wishes to press any other amendment in the group to a Division, they need to let me know. I am working on the assumption that the Government wish the Committee to reach a decision on all Government amendments. Please note that decisions on amendments take place not in the order they are debated but in the order in which they appear on the amendment paper.

I call the Minister to move the programme motion in the terms agreed by the Programming Sub-Committee. This debate is limited to half an hour.

Ordered,

That—

(1) the Committee shall meet at 2.00 pm on Tuesday 18 December (in addition to its first meeting at 9.25 am on that day);

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on that day.— (Mr Wallace.)

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Wallace.)

Clause 1

Making of overseas production order on application

Mr Ben Wallace Portrait The Minister for Security and Economic Crime (Mr Ben Wallace) - Hansard
18 Dec 2018, 9:28 a.m.

I beg to move amendment 1, in clause 1, page 1, line 20, leave out subsections (5) and (6).

This amendment removes subsections (5) and (6) from Clause 1 of the Bill. These subsections concern the designation of international agreements under section 52 of the Investigatory Powers Act 2016.

It is a delight to serve under your chairmanship today, Mrs Moon. I thank hon. Members for having listened in a consensual manner on Second Reading. This should not be a controversial piece of legislation. As people know, the Bill is designed as a docking station to give power to our law enforcement agencies to go to our courts to seek orders for the production of data overseas. It is about removing bureaucratic barriers to our law enforcement and allowing investigations to be concluded in a timely manner—often very quickly, compared with the delays of up to two years that can sometimes be experienced abroad. Fundamentally, it is a piece of legislation about UK law enforcement’s request for inward-coming data, so that our law enforcement can seek from the courts data from overseas. I ask hon. Members to bear that in mind.

At the moment, the majority of communications service providers, such as Facebook and Google, hold their data in the United States. It is therefore obvious that one of the countries we will seek to sign a treaty with so that it recognises these court orders is the United States. No doubt there will be one with the European Union at a future date. More than 90% of the data resides in the United States, so when our law enforcement tracks paedophiles, terrorists or organised crime, it is very important that we have timely access to it. At the moment, we go from the United Kingdom to the US Department of Justice to a US court to a CSP, and then it goes back down the line. In some cases, that can take up to two years and, regretfully, some cases have been abandoned as a result of that delay, while all the time offenders are abusing.

I have tabled an amendment today to remove from clause 1 the additional sections added by the House of Lords on international agreements. Subsections (5) and (6) of clause 1, which were added in the Lords, will prevent the Government and all future Governments from designating international agreements under section 52 of the Investigatory Powers Act 2016 with a country that retains capital punishment, unless assurances have been received.

I understand the strength of feeling on this issue and am grateful to Members of both Houses for their contributions. I have listened carefully to their arguments, including those made in the House of Lords. I want us to work together to reach a position that we can all support ahead of Report. However, if the Lords amendments stand, they will put at risk the Bill itself and any future treaty with the United States or, potentially, any other country. Live international negotiations do not work where the host Government—this Government or any future Government—can have their hands tied in this manner. It would prevent our making a negotiation and could effectively disqualify us from getting where we are trying to get to with the United States.

The Bill is about producing the power for a court to make an order in the United Kingdom. Subsequent scrutiny of any international treaty that we seek to make will be done through the normal processes of Parliament. We would table any international treaty for ratification in both Houses, providing 21 working days for scrutiny. Anyone in the House can object to the treaty as formed. If they do not like the terms of the international treaty, that is how they can register their objections or stop it going ahead.

The Bill is agnostic about the countries that we might make a treaty with. That is for the treaty itself. While I understand what is at stake here and what the Lords amendments try to achieve, the principle would be absolutely the same with a Labour Government, as it has been in the past, or any other Government. We should resist attempts in primary legislation to bind our position in negotiations that have not yet concluded and have not come to the House. I believe that would be upheld by any sitting Government.

When it comes to death penalty assurances, it is a fact that under the last three Governments over the past two decades, there have been very rare occasions—two occasions—when a Government have felt that there have been exceptional circumstances and either a death penalty assurance has not been sought when exchanging evidence or one been sought but not been achieved, and the exchange of evidence has nevertheless progressed. That has happened incredibly rarely, but it did happen under the Labour Government in the early 2000s and under the coalition Government when Liberal Democrats Member were in the Department. A legal case is currently outstanding about an occasion when it happened under this Government.

It is not that this or any other Government have wantonly done it with enthusiasm, but there may be occasions when something so egregious has happened to a friend and ally that we make a decision that it is not for us to dictate such stringent terms to that ally in our decision to help keep us all secure or to balance the needs of security with the needs of human rights. I could give an example, but the terms of the confidentiality involved mean that we are unable to do so.

Suffice it to say that a fictional example could be that someone in this country has launched a biological weapon—or, at least, a horrendous weapon—that has caused death and destruction to thousands of people in the United States. That person manages to make it back here and the United States seeks evidence from us about that individual. If there is no evidence in this country to charge him or her with an offence, the Government would have to decide whether evidence about the individual should be shared with the United States authorities. There may be occasions when the US authorities say, “Look, we cannot guarantee that what you do with that evidence will not lead to a death sentence, either indirectly or directly. We cannot do that.” This Government or a future Government might realise that the individual poses a real threat—we do not want him residing here any more than anyone else would want him residing anywhere else—and in that position there would be very strong reasons why, if a death penalty assurance was not received, we should share the evidence.

That would be sharing evidence with a country such as the United States or the European Union that has due process, fair trials, independent defence and an independent judiciary, and therefore meets all our values and matches our view of the rule of law, so this is not about making an agreement with a country that does not have the rule of law. It is a very difficult choice, but ultimately the duty of Government is to keep us safe and that is why the Lords amendment puts at risk not only this Bill but the treaties that we could potentially sign and the ability to keep people safe in the United Kingdom.

Let me be very clear that if the Bill was not able to proceed, that would mean that in the 99.9% of cases that are not attached to a death penalty at all—indeed, I have said that there have only been three occasions in 20 years where Governments have been involved in cases where there is a potential death penalty, and interestingly enough in two cases there was not one—offenders such as the people I referred to on Second Reading, who had serially abused children for the most horrendous crimes, will be able to continue to abuse with a longer timetable for being caught. At the heart of my mission is to catch those people as soon as possible.

That is the choice that right hon. and hon. Members are making with this legislation. We can stand on a totally purist principle of absolute opposition, irrespective of strong reasons or exceptional reasons, or we can decide that we have to balance the security needs of our constituents and our national security with the Government’s duty towards human rights and to observe the European convention on human rights. It is not an easy balance and it is sometimes tested in the extremes, but I cannot look right hon. and hon. Members in the face and say, “This consideration is so necessary that I would be willing to put at risk the cases that I have seen, as Security Minister, of child abuse, where the data is stored in America.” I do not think any hon. Member in this House, of whatever party, would be able to say to their constituents that they would put that at risk.

I am happy to provide the Committee with example after example after example of seriously dangerous people’s behaviour towards our children and our friends, and also of terrorists plotting mass-casualty events, where this Bill will help incredibly our law enforcement agencies to get the evidence they need.

The example that I used on Second Reading was of a man—Matthew Falder—so egregious in his abuse that he abused hundreds of people across the world using highly specialised encryption. He was an academic. He persuaded people to commit suicide, or to abuse themselves. He set up chatrooms that people were only qualified to enter by bringing their own images of abuse of children to that chatroom, where they could then share those images among themselves.

When our law enforcement agencies come across these chatrooms or follow the leads, people do not use their real names. Sometimes, one sees things from outside the chatroom and all one sees is a jumble of numbers. We might hear them speaking. We might see, as I have done, some of the footage. Therefore, getting the data from the CSPs, 90% of which is in the United States, is vital for us to do our job and to bring those people to justice. In fact, the first efforts are to stop them abusing, and then to bring them to justice.

That is the difficult choice that we have to make in Government. It is the Government’s responsibility. The last Labour Government recognised that choice, because their internal advice on such events was that in exceptional circumstances they did not need to seek or require death penalty assurances. The coalition Government went further and, for the first time, published something called OSJA—overseas security and justice assistance—guidance. It is a publicly available document with a very clear guideline about what we need to do to uphold our human rights obligations. However, under paragraph 9(b), where there are strong reasons not to seek assurances, we can proceed without them.

That was a public document—never published by any previous Government—that was published under the coalition Government, via the Foreign Office. It was a landmark and it truly opened up the whole process of risk and balance that people go through. I was not the Security Minister at the time, but none of us received any objections. No political party in this House made an issue of it. I did not hear any objections from the Scottish National party, the Labour party or the Liberal Democrats, who were part of the Government at the time, and it stood as a serious piece of work, and still does.

All we seek in the Bill is to reflect that. I therefore hope that hon. Members will support our efforts to get the legislation through the House and to make a treaty with the United States, and other countries as required, in a way that allows us to uphold our values, but recognises that the Government have to balance that with their duty, which is often not easy but is necessary, to keep us safe. That is why we will remove the amendment made in the Lords and progress the Bill, which I do not believe is controversial. I also do not believe that the amendment tabled in the Lords has anything to do with the legislation, which is about empowering a court order. If the Lords want to object to the treaty that we make with the United States, they can do that through the ratification process that takes place in this House and in the House of Lords when, hopefully, it arrives at a later date.

I am afraid that there are high stakes. I wish that I could tell the United States what to do and bind its hands, but I simply cannot. The reality of international negotiations is that none of us holds all the cards. We all have to negotiate, just as I negotiate with Her Majesty’s official Opposition, and just as I negotiate with the Scottish National party. That is what we do. I cannot speak for the Scottish National party any more than the Scottish National party can speak for me. [Interruption.] The tartan Tories! Similarly, I cannot speak for international communities.

I therefore commend our amendment to remove the additions that were made in the House of Lords, so that we can get on with the important job of protecting our constituents, while having the highest regard for our obligations under the European convention on human rights.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds (Torfaen) (Lab) - Hansard

It is a pleasure to serve with you as Chair this morning, Mrs Moon. The Opposition oppose the attempt to remove the amendment that was inserted into the Bill in the other place. Indeed, I am grateful to my Labour colleagues in the other place, where the Bill started, for their persistence and success in securing the amendment. On Report in the other place, Lord Rosser outlined the Opposition’s concerns and, indeed, Labour’s position on the death penalty. However, I point out that the amendment in the House of Lords proceeded on a multi-party basis, with support from other political parties.

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

No, I am not using the wrong vehicle. This plug-in mechanism will have an impact on many other treaties. My answer to the hon. Gentleman is a rhetorical one: if we do not make a stand here, where will we make a stand? The idea that this huge amount of data and information relating to cases that do not carry the death penalty will be put at risk for a small number of cases—three in 20 years, as the Minister said—is, to my mind, not the most credible position.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 9:52 a.m.

The hon. Gentleman fails to recognise that there is no equality of arms here. Because of the creation and development of the internet, 90%-plus of the data we need is held in the United States. If it were 50:50 or 60:40, it would be different. The United States has been absolutely categorical with us that, should we adopt the principle of effectively telling it how to conduct its justice system, it will not proceed with the treaty. That is the choice in the real world that I, as the Minister with responsibility for this, have to make. Do I like it? No. Do I have to make the decision? Yes—that is a fact. There is no conjecture about whether the United States will or will not: it will not. In addition, it holds 90% of the data. If the hon. Gentleman would like to like to come here so we can change the law together on how we store data, I would be delighted to do that, but that is a fact. That is the reality that I have to live with. Therefore, if he knows that the United States will not do that, does he recognise that the implication of supporting the amendment made in the Lords is that the Bill will fall over?

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

I do not for a minute question the Minister’s perspective, but let me just say this. We are talking about the United States which, as he rightly points out, at this moment in time holds the substantial majority of CSP data. That is the treaty that is being negotiated. This Bill could be used for treaty plug-ins for many other countries. What if in eight, nine or 10 years down the line, it is not the United States that still holds the majority of CSP data? What if it is another country that does not have a particularly attractive human rights record? Will the Minister say the same thing—that it does not matter?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 9:53 a.m.

We can debate that when we make the country-by-country treaty. That is the difference between this Bill and the treaty. The hon. Gentleman and his colleagues will have plenty of time to scrutinise the international treaties as they come before this House and the Lords under the process that has been well established. That is the time to scrutinise the decisions we have come to, and whether we agree or disagree to make the case at that time. It is perfectly possible to refuse to ratify the treaty.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 9:54 a.m.

It seems to me that the Minister is saying that there are circumstances in which he would make a different judgment. His judgment to me is that now is not the time to make a stand. Respectfully, I have to disagree with him. I believe that now is the moment to make a stand. The Opposition oppose the removal of the amendment.

Gavin Newlands Portrait Gavin Newlands (Paisley and Renfrewshire North) (SNP) - Hansard
18 Dec 2018, 9:54 a.m.

It is a pleasure to serve under your chairmanship, Mrs Moon. The hon. Gentleman has set out the opposition to the Government amendment with commendable detail and clarity. I do not seek to repeat too much of that, but I will make a brief statement setting out the Scottish National party position.

The Minister spoke of principles and of tying the hands of Governments. I have a different set of principles: the SNP has not been a member of a Government who have passed on information without seeking or receiving assurances about the death penalty. The Minister also spoke about a compromise potentially before Report. That is largely a matter for the Government and the Labour party, although we would be more than happy to engage in that process.

To be crystal clear, the SNP will only support a compromise where the default position of Parliament would be not to provide data where assurances on the death penalty have not been received or sought and where it would be for the Government to argue otherwise in exceptional circumstances. At the end of the day, article 2 and protocol 139 obligations should be met and our shared principles across the United Kingdom on capital punishment should be protected.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 9:55 a.m.

The hon. Gentleman says it is for the Government to argue about exceptional circumstances. Is he saying that a Government should always seek death penalty assurances and if they do not get them, there could be exceptional circumstances, or is he saying that there are no circumstances or no exceptional circumstances—no nothing—where they would be allowed to seek that?

Gavin Newlands Portrait Gavin Newlands - Hansard
18 Dec 2018, 9:56 a.m.

I am saying that it is our position, and it should be Parliament’s position, that we should not give information to any country seeking the death penalty or seeking information from the United Kingdom in pursuit of the death penalty.

We are trying to listen to the principle that the Minister has set out, and we are trying not to bind completely the hands of future Governments. If we are looking to achieve compromise and there is a small glimmer whereby the Government can argue in exceptional circumstances for that duty to be removed—we will be arguing against that at every turn, I am sure—it should be set out in the Bill, so that we are not handing over information, but Governments can argue for doing that in exceptional circumstances. What the Minister has been arguing should be flipped on its head. We will vote against the Government amendment.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 9:59 a.m.

I have listened to the SNP, and I am happy to look at further scrutiny of those decisions when we consider exceptional circumstances. The SNP, having been in government in Scotland for a long time, will know that Governments very occasionally encounter circumstances where they have to make difficult decisions. If the hon. Gentleman is looking for more scrutiny, we are absolutely happy to provide that. We are also happy to provide in the Bill a primary obligation to seek death penalty assurances in a way that has never been done before. We are happy to look at that.

What we cannot do is seek and acquire those assurances, because we are not in charge of the other country. We can certainly bind our hands to seek it in primary legislation and to explain why we have made an exceptional circumstance. I have no objection to trying to reach that position. My challenge is in the absolute. My challenge is in the bit where there is absolutely no position for a Government to make a choice or decision that is so exceptional that something has to be done. It was never any different with the previous Labour Government. In fact, a Secretary of State of that Government did exactly that when push came to shove, and the details around that are even more extreme.

Never did I hear an objection about the overseas security and justice assistance document, which is a public document that has been in circulation since 2014. It is not from the shadow Attorney General or the Liberal Democrat shadow Attorney General. It says absolutely clearly in part 9:

“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’”—

I think we recognise that and agree on it—

“and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”

That is the reality.

If this is about making a stand, what has been the Labour party’s stand been since 2014, or since 2000, when it was carrying out these things? I venture that it has not taken that stand because it knows that in government—it aspires to be a Government sooner rather than later—it might have to make those decisions. That is why members of the Committee are seeking not to agree that amendment. We can offer more assurances and scrutiny of that decision, but as the Minister of State for Security, I make the decision to try to help our law enforcement agencies catch these people time and again, and I cannot bind their hands 100%. The United States has made it clear that we will not be able to progress with the treaty if the amendment falls in the legislation in the way it does.

On top of that, the Lords amendment is deficient for technical reasons that I will not bore the Committee with—I cannot remember off the top of my head, but there are some technical drafting deficiencies. Nevertheless, the amendment is absolutely important and reflects the reality of where we find ourselves in today’s world of the internet. When there was no internet or encrypted chat rooms, it was different. We have those things today; people use our servers here, but the vast majority reside in the United States—that is the point about the equality of arms. There may come a day when it is not that way. I hope we have a British Google and away we go!

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

I will deal with these three amendments quite quickly because, in essence, they would all do the same thing: bring the provisions in line with the Police and Criminal Evidence Act 1984. Specifically, they would limit the use of the information to an investigation, rather than investigation and proceedings. That is the position set out in the 1984 Act.

To be clear, the Police and Criminal Evidence Act outlines that material may be used when it is likely to be of substantial value to an investigation. It does not use the term “prosecution”. Paragraphs 2 and 14 of schedule 1 to the Act detail that applications can be made of material if they benefit the investigation. For overseas production orders, however, the clause also details the term “prosecution”. Our simple position is that, in so far as is possible, the provisions should be in line with those of the Police and Criminal Evidence Act, rather than those of the Terrorism Act 2000 and the Proceeds of Crime Act 2002, given the nature of the cases that the Bill will deal with.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:06 a.m.

I understand that the Bill is not the most exciting piece of legislation, but after the first vote the Labour party lost three of its Committee members, who have gone off to do something else. The hon. Member for Wolverhampton South West, for example, has done a bunk—I shall go through the others as we proceed. [Interruption.] The Scottish National party is present in all its yellow glory. The Bill might not be exciting, but I do not think that Members should turn up for the controversial vote and then do a bunk. We should recognise that this legislation is incredibly important to our law enforcement community and our constituents.

I understand that the hon. Member for Torfaen is concerned about the additional proceedings in relation to serving an overseas production order while PACE refers only to the investigation. However, I believe that PACE has been misread in this regard. Nothing in law says that an investigation ceases once proceedings have been brought to court. Indeed, PACE does not state anywhere—I do not believe it infers this either—that orders may be used only up until someone is charged.

The operational partners we work closely with have made it clear that, in the context of applying for production orders under PACE, they do not consider an investigation to have come to an end until convictions have been secured. It is common for new evidence to come to light and to be obtained throughout the criminal process after charge. Evidence gathering is not limited to the investigation. I believe that it is highly unlikely that a court would construe PACE so narrowly that the police could lose access to investigative tools once the person has been charged.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:08 a.m.

The Minister seems to be making the case that there is little practical difference between the two, but my point is that PACE does not include the word “prosecution.” Where has the wording for the Bill come from, because it does not mirror PACE?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:08 a.m.

I understand. I suspect that the wording just comes from the parliamentary draftsmen. Given no significant difference, as I am explaining, the wording was simply put in that way.

As I was saying, that interpretation would be perverse, and it would have an impact not only on the prosecution but on the defence, given the duty on the police to exhaust avenues of inquiry even if they point away from the defendant’s guilt. The COPO Bill therefore deliberately references “proceedings” to make it clear that orders are available for all stages of the investigation. That was influenced by language used in section 7 of the Crime (International Co-operation) Act 2003, which deals with a request for assistance when obtaining evidence from abroad.

I reiterate that, despite the difference in the language used, the Government do not intend any difference in effect between the Bill and PACE in that regard. We do not consider that the use of the word “proceedings” in the Bill increases the likelihood of “criminal proceedings” in PACE being interpreted unduly narrowly. PACE will continue to be available to law enforcement agencies once proceedings have begun for use up to charge and beyond.

The hon. Member for Torfaen has suggested that once a trial begins the investigation is often handed over from law enforcement agencies to the Crown Prosecution Service, but it is still possible that—this happens a lot—the law enforcement agencies that were investigating the crime will then come across new evidence, which of course they would share with the prosecuting authorities. I therefore ask him to withdraw the amendment.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

I do not disagree with anything the Minister has said in that interpretation. The point I was trying to probe was the difference in the wording. On the basis of the Minister’s assurances that the wording comes from somewhere else but that he does not expect there to be a substantial difference, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:11 a.m.

The amendment deals with the concern over what has been described as a free pass for overseas authorities to access data in the UK. Again, the issue is a fairly discrete one, on which I hope the Minster will be able to comment and give some reassurance. In its current form, the Bill allows the Government to enter into agreements with foreign Governments to enable reciprocal access to data stored in the United Kingdom. The concern is that there are no appropriate safeguards to compel the position in other countries with regard to freedom of the press, mirroring those that we have in the United Kingdom. From comments that the Minister made in a different context in a previous discussion, it may be that that is something we take into account before a particular country is considered for negotiation for such a treaty, but I would appreciate it if that was set out.

The concern is that we create a back door for overseas Governments to bypass procedures and protections laid out in the United Kingdom. Put simply, we could have a situation whereby a country that does not have our standards of press freedom is able to access something that has been obtained by journalists in this country. What assurances can the Minister give on the considerations that would be taken into account on that issue before any treaty was entered into with another country?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:13 a.m.

The hon. Gentleman makes a valid point, and I recognise the slight difference between this amendment and amendments 13 and 14, in which he deals with confidentiality. First, as I pointed out earlier, hon. Members are talking about incoming requests for UK-held data, but the Bill relates only to the UK’s outgoing requests for electronic data held overseas. I completely accept the point that the Bill cannot work without a reciprocal international agreement in place, but amendments 15 and 18 are directly related to the international agreement, as opposed to what our Bill provides for.

The Bill is simply not the right place to mandate what is, I agree, a right and laudable protection for journalists and their data. We cannot impose these conditions in advance of negotiations on an international agreement. In my view, this goes back to the principle of allowing the Government of the day to have those negotiations without necessarily having their hands tied. Of course, the UK would never agree to share data with a country that had insufficient safeguards—not as long as I am the Minister and this is our Government. I do not think that it is necessary or helpful to mandate this in the Bill.

The amendments, which seek to control the Government’s negotiating position before they have begun considering future international agreements, would not prove desirable to any Government. However, I remind hon. Members that they will get ample opportunity to scrutinise any international agreement, both when the agreement is designated and again, ahead of ratification, under the Constitutional Reform and Governance Act 2010. The Government already amended the Bill in the other place to provide that extra level of scrutiny of all international agreements.

The first, most immediate and most important international agreement will be, I hope, with the United States. As hon. Members know, the US has an even higher regard for protecting freedom of speech and freedom of the press than the UK has, as set out in the first amendment to its constitution. In addition, the US-UK agreement has been drafted to be fully compliant with EU law. If hon. Members want to know how strong the US holds the first amendment to be, I tell them that when they lobby me about neo-Nazi websites hosted in the United States—as they often do—and we seek to have them taken down because of the vile extremism that they spout, our challenge is that under the first amendment it is extremely hard, even domestically, for the US to do that.

To some extent, we would not have the same problem—well, let us hope not—but the US definitely has that problem. That is an example of how these international agreements will be between like-minded countries with similar values and rights, the rule of law and so on. In this case, on the journalistic issue, the US has a stronger protection than we currently have in the European Union. That is why we have done this in the way we have.

I understand what the hon. Gentleman is rightly trying to get at. Of course, I have been open throughout to anything that protects and better qualifies journalistic data. However, we should remember that under the Bill, which is about our requests out, law enforcement agencies will have to make their case not to me but to a judge, who will have to decide whether the application is proportionate, necessary and in the national interest. It cannot be a fishing exercise. Only if the judge is satisfied that it is obviously relevant to the investigation and protects the rights of the journalist will the application be granted. The journalist will be notified, so it is not as if they will be unaware. We will be able to protect their material where that is appropriate, but if there is material that is important to an investigation—and remember that no journalist, no Member of Parliament and no one else is above the law.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:16 a.m.

I do not disagree with much of what the Minister says, and I take his point about the scope of the Bill. The point I was driving at is that if we had a treaty with a country that did not have the same laws about freedom of the press, that would obviously create a concern. I think the Minister is saying, in effect, that that would be taken into account before a treaty was finalised in any event. Is that correct?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:17 a.m.

The hon. Gentleman is right on that. I cannot speak for the next Government, but the Bill is about our requests to our courts, and this Government would not enter into an agreement with a Government that went around oppressing the press and the media. Despite the fake news, this Government believe that journalism and the press are vital to exposing the truth, corruption and everything else, and we absolutely would do all we could to protect that, both in domestic proceedings and with any international treaties. That is why the Bill is drafted so it is both compliant with European law and has high regard to the first amendment.

Gavin Newlands Portrait Gavin Newlands - Hansard
18 Dec 2018, 10:17 a.m.

I was going to speak to amendment 18, but the hon. Member for Torfaen made points broadly similar to those I was going to make. The Minister has addressed some of them, but I have one question. He said he would never countenance handing over information to a country with fewer journalistic safeguards than we have here. If that is the case, why can we not have that safeguard in the Bill, which all these international treaties and agreements will plug into? What is the danger of building that safeguard into the Bill?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:20 a.m.

First of all, the Bill is simply the docking station from here to there. It is not about international treaties—when we sign our treaties, we can dock them into the Bill. The principle of allowing a Government to negotiate without their hands narrowly tied about what they can discuss is important.

Secondly, remember that—this probably comes down to how we would draft such a provision—for the purposes of security and so on we sometimes share information with countries that do not have the same high standards as us. If we had a credible threat against aeroplanes with British tourists taking off from third countries, we would not say, “We’re not going to tell you,” and let British tourists get blown out of the sky. Of course we share information with countries, but this is about journalistic information as it applies to investigations, criminal proceedings and so on.

We can do more to provide assurances about journalistic material, notification and journalists in court here, and I can give the Committee the assurance that we would enter into international agreements only where we felt there was high regard for the protection of journalists, but I do not think that safeguard needs to be in the Bill. There would be a challenge about how exactly to draft it. It would also go against the principle of letting the Government of the day be free to hold a negotiation in a way that would achieve the same things, but could address all the different issues. Every country will have things that we have issues with, and I bet that not one country will tick all our boxes across the board. What is my highest priority? Protection of the ECHR, the right to life, journalistic protections—those things will be right up there at the very top, which I think is the best way to do it.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:20 a.m.

On the basis of the Minister’s reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:21 a.m.

Clause 1 is the meaty part of the Bill, and the Government have removed the amendment made in the Lords. I do not need to reiterate the importance of the Bill progressing in the way that we have tried to take it through. I have offered concessions throughout, as I have done elsewhere, and concessions are still on offer to Opposition Members, and indeed to Conservative Back Benchers. However, I cannot say that I will put the Bill in jeopardy, because I believe that fundamentally that would make our constituents less safe. That is why we have removed the amendment, and why I believe clause 1 should stand part of the Bill.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

The Minister knows that I am always willing to speak to him about concessions, and that remains the case. However, I hope that he understands the real strength of feeling about death penalty assurances, which was reflected in my speech and the vote this morning. Of course we will consider the issue in further discussions, and we will revisit it on Report.

Question put and agreed to.

Clause 1, as amended, accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Clause 3

Meaning of “electronic data” and “excepted electronic data”

Break in Debate

Gavin Newlands Portrait Gavin Newlands - Hansard
18 Dec 2018, 10:25 a.m.

The amendment tabled by the hon. Member for Torfaen is probably more grammatically correct than mine—my high school English teacher would not be surprised by that—but the principle is exactly the same. Rigorous safeguards are required to ensure that overseas production orders are not open to abuse in terms of requesting access to bulk data.

As someone who suffered—served—on the Investigatory Powers Bill Committee, I used to read the excerpts on the levels of oversight on the various elements of bulk data collection and interception to help to put me to sleep at night; if this is a dry Bill, then the Investigatory Powers Bill, although incredibly important, was even drier. The Scottish National party held out strong opposition to bulk data collection, and it is important to explain why we tabled this amendment: to remind the Minister that we believe that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion.

Although the Government produced an operational case for bulk powers in between the draft Bill and the Bill as scrutinised in Committee, it was inadequate because it was largely anecdotal. We still firmly believe that such powers do not pass the legal tests of necessity and proportionality, and the additional test that the same results could not be achieved using more proportionate and less intrusive means. Two American Committees that asked to look at these Bills concluded that the same information could be obtained using more proportionate and less intrusive means.

Amendment 21 in my name is straightforward; the hon. Gentleman has already outlined many of the arguments and quoted Baroness Williams, but we agree that applications for bulk data lack a careful consideration of specifically which data is to be targeted. However, the Bill does not contain any express provision requiring orders to be targeted in the manner the Government describe. It is perfectly possible for officers to argue to the Government’s satisfaction that bulk data will be of substantial value to criminal investigations and in the public interest, given that the Government already regularly make arguments about why bulk powers are required in a wide variety of circumstances.

That assumption on the Government’s part does not amount to an adequate safeguard against the potential for bulk data to be requested under an OPO. Any access to routine daily surveillance of communications en masse should be expressly prohibited, and that is what the SNP amendment and the hon. Gentleman’s amendment are both intended to do. I urge the Minister to accept our amendment.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:40 a.m.

I hope I can put colleagues’ concerns to rest. The Bill does not provide for the acquisition of bulk data. The only means of acquiring bulk data is provided for in the Investigatory Powers Act 2016.

The test in clause 4 of this Bill clearly sets out that the power to obtain an overseas production order is to make a targeted request for specific data. When applying for an overseas production order, an officer must specify or describe what electronic data is sought, and applications must therefore be precise and specific. Moreover, the Bill provisions have been drafted to require officers to consider carefully what data they are targeting, and to be able to demonstrate that the data would help with the investigation and prosecution of a serious crime.

There are safeguards, also in clause 4, that require the judge to thoroughly test the need for the data sought and to be confident that

“there are reasonable grounds for believing that the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application”,

and, in clause 4(5), that the data will be of “substantial value” to an investigation or proceedings and, in subsection (6), that producing the data is “in the public interest”. Those tests make clear that the quest for electronic data using overseas production orders will be targeted, specific and not about large volumes of data relating to a number of unknown persons.

I accept that hon. Members may be referring to bulk personal datasets, but those cannot be required using overseas production orders either. The Investigatory Powers Act fact sheet on bulk personal data, which the hon. Member for Paisley and Renfrewshire North must have remembered from his reading, defines them as

“sets of personal information about a large number of individuals, the majority of whom will not be of any interest to the security and intelligence agencies. The datasets are held on electronic systems for the purpose of analysis by the security and intelligence agencies. Examples of these datasets include the electoral roll, telephone directories and travel-related data.”

The request for a large volume of data on a specific individual, or even a group of individuals such as a criminal gang if every individual is of investigatory concern, does not constitute a bulk personal dataset, as the request is still targeted and specific. For requested data to constitute a bulk personal dataset, it has to include the full bulk dataset, which would include the personal information of large numbers of unknown individuals of no interest to the investigation. Again, under the Bill, officers cannot just request bulk personal data that would not be of substantial value to their investigation.

Gavin Newlands Portrait Gavin Newlands - Hansard

To clarify, on the specific information request that the Minister speaks of, can that information be taken from data that is harvested in bulk?

Mr Ben Wallace Portrait Mr Wallace - Hansard

Certainly not through this process. Any use or acquisition of bulk data is guided by the Investigatory Powers Act 2016, and those conditions are set out. Someone could not use the Bill to go along to court and say, “Google, can I have data on everyone in Scunthorpe who uses the internet?” That would be a bulk dataset. However, they could go along to the court and say, “I’m investigating somebody called Gavin Newlands, and I would like to see the comms data record and some of his content.” They would make the request to the judge, possibly for more than one set of data—browsing history and mobile phone text history, perhaps. That would be two sets, but they would be specifically targeted at an individual, and would therefore not be a bulk dataset. That is the difference.

Bulk datasets are required under the 2016 Act by our intelligence service and so on, and they are overseen by the Investigatory Powers Commissioner’s Office and the warrantry system, which now has the double lock in many cases. They can also be overseen by Ministers, and to some extent by the Intelligence and Security Committee when investigating operations and how that data was used. I do not know when it will be published—it might be about to be published, or have been published—but the latest annual report by the Investigatory Powers Commissioner is out. Lord Justice Fulford’s report is a detailed analysis, and highlights where mistakes have been made or the law has not been applied.

That is how bulk data is regulated and acquired. The Bill does not apply to that, and none of those requests could involve bulk data applications.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

I have some other issues to press later about journalistic material; however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:35 a.m.

Again, the amendment relates to a theme of my amendments, regarding provisions of the overseas production orders being in line with the Police and Criminal Evidence Act 1984. I will refer to the excluded material under the Bill, because there is a set of conditions different from those that need to be met under the 1984 Act.

Under the 1984 Act, the definition of excluded material means that in most cases confidential journalistic material is simply out of the police’s reach. That protection helps to ensure the anonymity of those who approach journalists with information that is in the public interest. If journalists cannot ensure that their sources’ identities will be protected, people will not come forward with information exposing crime, corruption and other wrongdoings in society.

Clause 3 does outline that excepted electronic data cannot be targeted by applications by orders. That includes data subject to legal privilege, and any personal record that is confidential. However, there is a further concern with regard to protection for excluded material or journalistic material that is held subject to a duty of confidence. Under the 1984 Act, excluded material has a different set of conditions that need to be met. My question to the Minister is why that should be different in the Bill.

I appreciate that on Second Reading the Minister set out that the Bill had been worded in such a way that it is in line with the Terrorism Act 2000 and the Proceeds of Crime Act 2002. However, particularly in relation to POCA, one would usually have an application—a POCA application—at the conclusion of a trial. Obviously, in that situation the crime would already have been proven and the authorities would go after any ill-gotten gains as a consequence. It is not necessarily the best place to mirror provisions from in this context.

The concern is that, as the Bill stands and as excluded material is defined, we are running the risk of potentially sensitive material contained in confidential records being applied for and that there is not that explicit protection with regard to confidential journalistic sources. Journalists play a fundamental role in our society in holding those in power to account; I am sure that the Minister shares my concern that we do not want this legislation to suppress in any way investigative journalism and the exposure of matters in the public interest. I hope that he will be able to set out his position on that issue and provide reassurances to the members of the Committee.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:36 a.m.

The amendment would make confidential journalistic data an excepted category for material for an overseas production order, meaning it cannot be sought using the powers in the Bill. The amendment goes further than what is currently in place under PACE. While confidential journalistic material is excluded material in PACE, it is accessible if certain access conditions are met.

Under PACE, a constable may obtain access to excluded material for the purposes of a criminal investigation by making an application under schedule 1. Excluded material can be applied for only if there is a statute that would have authorised obtaining material in question under warrant before PACE was introduced.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

I accept that the conditions are different. The point is this: why is it not in the same place?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:37 a.m.

While the Bill was based on some of the provisions in PACE, its powers extend to further offences, such as terrorism investigations. In the Terrorism Act 2000—the legislation that law enforcement agencies currently use for terrorism investigations—confidential journalistic material is not excepted data. The Bill creates a new power to obtain an overseas production order, drawing on existing powers available to law enforcement domestically for the acquisition of content data overseas, to help to prevent unnecessary delays in tackling serious crime.

It is sensible to ensure that we do not have significantly different legal tests in the Bill. The existence of different court procedures for different sorts of court orders leads to unnecessary confusion, avoidable litigation and further delays in investigations.

Huw Merriman Portrait Huw Merriman - Hansard
18 Dec 2018, 10:37 a.m.

My right hon. Friend touches on a point that has struck me, in relation not only to this clause but to measures further on in the Bill. The Bill applies a test that relates, on a domestic basis, to where our terrorism laws relate, but it could actually be a lot broader. I know that he has just touched on the fact that it would actually make things more complex, but would it not be possible to have a two-tier test, depending on whether the application is terrorist-related or non-terrorist-related?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:39 a.m.

I hear my hon. Friend’s point. The whole point of the Bill is to increase the speed of the process and smooth it. What we will come on to later is obviously that in this process there is notification for journalists; other people do not get notification. Journalists are brought into the process early on, so that they are able to make representations to a judge in a way that does not apply to the rest of the public. Indeed, it does not apply to Members of Parliament; if MPs are under investigation, they will not get a chance to make representations to the judge. But a journalist will get that chance.

Our view is that the terrorism law is domestic law, and that judgment has been in existence since the last Labour Government. What is important is that the judge uses his or her discretion, guided by the fact that any judgment needs to be proportionate, necessary, in the public interest, targeted at an individual and in line with the range of domestic laws. So, yes, there is POCA, PACE and the Terrorism Act 2000. However, all of those laws are established UK pieces of legislation.

If we add the notification to the judge’s discretion—the point of it has to be proportionate and necessary—and to the fact that the laws are already established, I believe that journalists will have the protection that they need. I am happy to look at the issue, which we will come to in later amendments, about effectively improving the definition of journalistic material to make sure that it is not broad and spread wide.

In this case, we must remember that the appropriate officer will need to provide evidence against each of the access conditions, and the judge will scrutinise them carefully. It is almost inevitable that in any situation where the police attempt to obtain journalistic material, there will be understandable resistance from the journalist or media organisation that holds it. Both are well versed in the process of making representations to court, and it is rare that access to confidential material is granted through PACE.

It is the Government’s intention that journalists’ interactions with their sources should be protected, but that does not mean that journalists should receive blanket protection from legitimate investigation, simply because of their chosen profession. The Bill takes a reasoned balanced approach, so I ask the hon. Gentleman to withdraw amendment 13.

Amendment 14 seeks to redefine “confidential journalistic data”. The definition in the Bill is taken from the Investigatory Powers Act 2016, which the Government feel is sufficient protection for source material.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:41 a.m.

I have already referred to the Police and Criminal Evidence Act 1984. I am not saying that there is a blanket protection, but there is a stringent set of tests. Before the Minister concludes, will he say how satisfied he is about how stringent the tests are in the Bill?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:42 a.m.

I am satisfied, and the court rules will also expand on that. I am satisfied that judges, who regularly come down not on the Government’s side, will take the Bill and scrutinise the requests properly. We have to go to a judge, so our law enforcement agencies cannot examine the information without going via the judiciary; it goes via the judiciary in this case. I have every faith that they will be able to uphold those important principles.

On amendment 14, the term “confidential journalistic data” reflects the reality whereby journalistic material can be hosted on servers where the data would technically belong to the communications service provider, rather than the journalist. To ensure that source material has proportionate protections, the term “confidential journalistic data” has been borrowed from the 2016 Act. I am happy to discuss that further with hon. Members before Report. I therefore ask the hon. Gentleman to withdraw the amendment.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Requirements for making of order

Break in Debate

Huw Merriman Portrait Huw Merriman - Hansard
18 Dec 2018, 10:46 a.m.

It is a pleasure to serve under your chairmanship, Mrs Moon. I wish to speak to amendment 4. I declare an interest: I chair the all-party parliamentary BBC group, but my concerns relate to all organisations. As the hon. Member for Torfaen said, under schedule 1 to the Police and Criminal Evidence Act, there are three conditions that must be met. One is that there are reasonable grounds for believing that the material is likely to be of substantial value. That is replicated in this Bill. Another is that it is in the public interest to have regard to certain matters. That is also included. What is not included is the requirement that there are reasonable grounds for believing that the material is likely to be relevant evidence. I support the move to add that third limb to the Bill.

Let me use as an example a typical application that I have received for all material relating to a matter. It relates to all journalistic material including but not limited to audio, visual recordings and documentation related to and arising from interactions with X and Y in respect of allegations linked to certain addresses. That can be incredibly wide, so the relevant evidence test is very important.

Journalists and media organisations rely on individuals to come forward, and their investigations can be incredibly broad. There could be a large onus on them to supply a lot of information, which could include legal advice and editorial content back and forth. Without this amendment, I believe that there would be difficulties. The amendment would make the Bill entirely consistent with the Police and Criminal Evidence Act, which should be its benchmark.

The Bill states:

“The judge must be satisfied that there are reasonable grounds for believing that…the electronic data…is likely to be of substantial value”.

I recognise that there are additional bulwarks in the Bill to give us assurance, but I gently suggest to the Minister and his excellent Committee team that, if we extend the Bill to include the third limb, that would make me comfortable.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:50 a.m.

Amendments 4, 5 and 6 seek to include in the Bill an additional test of relevant evidence, which the judge must be satisfied has been met before granting an overseas production order for journalistic data, and the additional requirement that all other avenues for obtaining the data have been exhausted before applying for an overseas production order. On the relevant evidence test, under schedule 1 to PACE, there are certain conditions that must be satisfied before the judge can order the production of special procedure material. Under these conditions, first, there must be reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection with which the application is made. Secondly, there must be reasonable grounds for believing that the material is likely to be relevant evidence, which means, in relation to an offence, anything that is admissible in trial for that offence. Thirdly, it must be in the public interest, having regard to certain matters, for the material to be produced.

Only the public interest and substantial value conditions are included in the Bill. That was deliberate drafting to ensure that our law enforcement agencies have the powers they need to gain access to material that could help further investigation, even if that material is not necessarily admissible as evidence in court. Although the intent of the powers is to allow for data gathered to be used as evidence in court, we do not intend admissibility as evidence to be a barrier to obtaining material that has been identified as being of substantial value to an investigation. My officials have worked closely with operational partners to understand the need for this. Investigators from law enforcement agencies advise that there are often cases in which access to data is fundamental in discovering certain leads in an investigation, although they will not necessarily be used as evidence in court. For example, if someone is being investigated for storing inappropriate images of young children, an overseas production order could reveal further references to other platforms where inappropriate content was being stored. While the images themselves would be used as evidence in court, the lead to the platforms on which they were stored might not be.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:50 a.m.

The Minister is talking about admissibility, not relevance. Why on earth would anyone want to investigate something that is irrelevant?

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:51 a.m.

I do not think that is what I am saying. I am saying that some material would be used as evidence and some would be used as a lead through which to access or potentially find evidence. This is not about anyone going to the court and asking for irrelevant material. It is about asking for material that is substantial and meets the test of the judges.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:51 a.m.

I do not see how a relevance test would prevent that from taking place.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:52 a.m.

I will give another reason. Unlike PACE, the Bill allows for the investigation of terrorist offences. It has been drafted to mirror the relevant parts of the Terrorism Act and POCA, neither of which has a requirement for relevant evidence tests to be met.

The concept of relevant evidence works only if an application is made in relation to a particular offence. That is why it does not exist in the Terrorism Act, under which an application does not have to be made in respect of one particular offence, but only for a terrorist investigation. Given that an overseas production order made under the Bill could be served in support of a terrorist investigation, we cannot simply import a relevant evidence test into the Bill, as in PACE. I do not believe that introducing a markedly different legal test depending on the investigation is helpful.

I reiterate that the Bill deliberately brings different police powers under one piece of legislation. The intention is to create a single set of test criteria, which the Government believe provides appropriate safeguards to accessing content data.

Huw Merriman Portrait Huw Merriman - Hansard
18 Dec 2018, 10:53 a.m.

In a way, the Minister has answered my point, but I will still prod him in this direction. If we will not have the same three limbs as in PACE, is there no justification—notwithstanding what he just said, which makes it more complex—to have two separate related texts? One could have terrorism-related activity under the Bill, and one could not and could follow the three limbs of PACE.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 10:53 a.m.

We are in the process of trying to balance the safeguards. Let us remember that the Bill effectively covers a relationship between the law enforcement agencies, the courts and the CSPs—not the journalists or the person under investigation or anybody else. Journalists will be notified effectively to make a representation to a court about why, for example, half of their address book is irrelevant. They have an opportunity to make that point to the judge. Nobody else does. That provides a different type of safeguard from what my hon. Friend is looking for.

The point is well made about an investigation. Many of these investigations are about discovery and are very fast moving; starting with one mobile telephone number or one individual, it very quickly becomes a plot in a terrorist case. It is therefore about giving our law enforcement agencies the ability to pursue an investigation. However, when the investigation comes across journalistic material, the journalist will be given a notification that they are allowed to make a case for why it is irrelevant and effectively influence the parameters of that request. I venture that a judge would take that very seriously.

Some 99.9% of journalists do not have anything to fear from this process. The ones who do have something to fear are those who call themselves journalists at the Dabiq or Inspire magazines from Al-Qaeda and IS and so on, who pump out propaganda and journalism, as they see it, around the world. They have something to fear because this Bill will help us catch those people much quicker. I do not call them journalists, however; I call them first-class terrorists. Ultimately, they are the ones who would love to see bureaucracy slow down the investigation. I do not think our journalists—mainstream journalists, law-abiding journalists, and not even mainstream journalists—have anything to fear from this.

Another point was made about exhausting all avenues of accessing journalists’ data before an overseas production order is granted. First, if the amendment were incorporated in the Bill, that could have the adverse effect of compelling a judge to ensure law enforcement agencies have tried the mutual legal assistance route, which is the route we are currently trying to fix because that can take up to two years before an overseas production order can be granted. That would defeat the point of our creating this new process to prevent up to two years of delays via MLA. The caveat the hon. Member for Torfaen has added to his amendment with the phrase,

“tried without success or have not been tried because it appeared that they were bound to fail”,

would not mitigate this risk either. We are not worried about MLA failing, but about the length of time it takes to gain access to vital evidence.

It is worth noting that, in practice, law enforcement agencies would have exhausted less coercive methods of obtaining data, if they exist. Agencies will only go through the process of applying to court for potential evidence as a last resort in the investigation, for example, should suspects refuse to release or unlock access to their phones and so on. I therefore urge the hon. Gentleman to withdraw his amendment.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 10:56 a.m.

I am not minded to divide the Committee on this, and I am willing to withdraw the amendment. I just say to the Minister that I am not sure the relevance test has quite the impact he thinks it does. I urge him to look again, because its inclusion would provide greater safeguards and reassurance without doing the damage he thinks. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Break in Debate

Could the Minister explain the key differences between the powers he seeks in the Bill and the provisions in the Investigatory Powers Act for relevant international agreements designated by the Secretary of State to serve warrants overseas? It could be argued that, for the use of such covert surveillance and interception powers, the Investigatory Powers Act already has the international capacity that the Bill strives to provide. The hon. Member for Bexhill and Battle said that the protections outlined in PACE should be copied over to the Bill. I urge the Minister to accept the amendment.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 11:01 a.m.

I appreciate the intention behind the amendments, but I hope that I can explain why they are not in line with the policy intention behind the general tests set out in the clause. To summarise, amendment 16 would incorporate the tests under PACE for special procedure and excluded material. Amendment 17 would ensure that our existing tests in the Bill apply to all other data in scope, including any electronic data obtained from terrorist investigations. The amendments would introduce a separate set of access conditions for special procedure and excluded material, but the Bill has been carefully drafted with serious consideration. The rational policy intention reached was that it is not desirable to introduce a separate set of access conditions, as the Bill seeks to reduce bureaucracy and streamline process, not complicate it.

More crucially, the Bill was designed not to imitate PACE but to take relevant parts of PACE, the Terrorism Act and POCA and merge them into something appropriate for an entirely new tool: a streamlined version of mutual legal assistance called overseas production orders—a new tool that confers a new or revised set of conditions. I accept that the greatest number of production orders are issued under PACE, but the power under PACE is limited to just one type of production order, for special procedure material and excluded material. If material that is not special procedure or excluded material is not voluntarily given to the police, an ordinary search warrant would be used.

The purpose of the overseas production orders will be to request evidence held overseas where we could not use search warrants. In addition to PACE, production orders can be issued under the Terrorism Act and POCA for different types of evidence. Indeed, overseas production orders will seek electronic content data for a range of offences related to serious crime, which may include terrorism.

Therefore, the overarching policy intention is to provide a careful, considered and blended set of tests that reflect the current legislation in PACE, the Terrorism Act and POCA, which would work for all types of evidence sought through overseas production orders. We do not want to introduce two different legal tests; we want to keep this simple for police and judges, in order to offer a streamlined alternative to an existing bureaucratic process. That policy intention was the goal firmly in mind, but certainly not at the expense of any necessary safeguards.

None the less, the Bill incorporates the robust tests required to request electronic content data for all types of serious crime, including terrorism. The Bill and the general tests set out in clause 4 are what we deem reasonable for all the types of evidence that overseas production orders can access. It is important to reiterate that an issued overseas production order has been deemed proportionate by an independent judge, having concluded that the tests in clause 4 have been satisfied—tests that we believe are sufficient safeguards to prohibit officers from just requesting any data they wish.

On the point about the difference between the powers under the Bill and powers under the Investigatory Powers Act, miraculously—as if in a Christmas pantomime—the answer has appeared in my hand. The Investigatory Powers Act provides for lawful intercept of communications, but US companies have been prevented from complying with requests by domestic US legislation. The agreement will hopefully fix those problems and remove those barriers.

I hope that I have convinced the hon. Member for Paisley and Renfrewshire North that his amendments are not in line with the policy intention, and I hope that he will be content not to press them to a vote.

Gavin Newlands Portrait Gavin Newlands - Hansard
18 Dec 2018, 11:05 a.m.

The Minister will be surprised to hear that I am not content. He said that the Bill is not designed to replicate PACE. We and others argue that it should. I look behind me, however, and realise that attempting to divide the Committee would be a futile gesture this morning, so I shall not press the amendments. However, if the Government do not bring forward protections that we feel appropriate—

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 11:05 a.m.

Given that the hon. Gentleman wants to put the provision in line with POCA, is he saying that he would want to amend the Terrorism Act to put many of the Terrorism Act orders and requests on exactly the same line as the Proceeds of Crime Act 2002? That is a consequence of his view.

Gavin Newlands Portrait Gavin Newlands - Hansard

We are talking about PACE, not POCA—I think that the Minister meant that, so I will answer accordingly. What he outlined is not before us today. If he introduces another Bill to make such changes to legislation, then perhaps on considering it we would argue the same points. That is for another day, but I take his point.

If the Government do not table appropriate amendments to provide protections, I suspect that we shall revisit the matter on Report, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clauses 5 to 7 ordered to stand part of the Bill.

Clause 8

Inclusion of non-disclosure requirement in order

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 11:08 a.m.

I beg to move amendment 12, in clause 8, page 8, line 42, at end insert—

“(3A) A judge shall only include a non-disclosure requirement for a period which, in the judge’s opinion, is necessary and proportionate in all the circumstances.”

This amendment would require a judge to include a non-disclosure requirement to cover a period which was only as long as he or she deemed necessary and proportionate.

This is another quite discrete point. Clause 8 empowers a judge making an overseas production order to include a non-disclosure requirement. Subsection (3) provides:

“An overseas production order that includes a non-disclosure requirement must specify or describe when the requirement is to expire.”

However, the clause does not include a necessity and proportionality test. Of course, it is essential that a non-disclosure requirement should not run for longer than reasonably necessary. Whereas under subsection (3) an order with a non-disclosure requirement would certainly have to specify or describe when it would expire, the judge would not be asked to consider the necessity for and proportionality of the order and its duration.

The purpose of the amendment is simply to probe the Minister for an indication of why there is no necessity and proportionality test, and whether he thinks any reassurance can be provided that those factors would be borne in mind in any non-disclosure order, which he will appreciate is a powerful order to make. It has quite profound consequences in these circumstances.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 11:10 a.m.

As the hon. Gentleman outlined, the clause allows for a judge making an overseas production order to include a non-disclosure requirement. Such a requirement would be imposed on the person against whom the order is made. It would prevent that person disclosing the making of the order or its contents to any person, unless with the leave of the judge or the written permission of the appropriate officer who applied for the order.

In deciding whether to include a non-disclosure requirement, judges are under a general obligation to make a reasonable decision and to take into account all relevant factors when making that decision. Furthermore, as a public authority, the court is under an obligation to act compatibly with convention rights. I hope that hon. Members are reassured that a decision to include a non-disclosure requirement will not be taken arbitrarily.

There might be circumstances in which it is appropriate for non-disclosure requirements to remain in place once the order has been complied with, or on revocation of it, for example when it could prejudice an ongoing investigation. In such instances we would expect a judge to include such a requirement as he or she would consider reasonable in the circumstances.

If the person subject to the non-disclosure requirement wants to disclose either the contents or the making of the order, the Bill already contains provisions under which the non-disclosure requirements may be challenged, including that of duration. First, when the person against whom the order is made wishes to oppose that requirement, the duration of the non-disclosure can be amended on application. In an individual case, the person against whom the order is made could seek leave of the judge, under subsection (2)(a), or written permission of the appropriate officer, under subsection (2)(b),

“to disclose the making of the order or its contents to any person”.

A mechanism therefore exists by which a person against whom the order is made can seek permission to disclose information relating to the order.

Secondly, the non-disclosure requirement will form part of the overseas production order itself. Clause 7 confers a right to apply for the variation of an order. An application for a variation can be made by the appropriate officer, any person affected by the order, the Secretary of State, or the Lord Advocate in Scotland. That could include varying the order to remove the non-disclosure requirement entirely, or to alter its duration to a period that the applicant feels is reasonable.

As hon. Members know and respect, our judges and courts are under an obligation to act reasonably. There is therefore no need to amend the Bill as is proposed. When a person subject to a non-disclosure requirement believes that it is not reasonable to remain subject to the requirement, provision already exists in the Bill for an application to the court to amend the order accordingly. The amendment is therefore unnecessary and the Government cannot support it.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 11:13 a.m.

I think that there is still a case for having the necessary and proportionate test in the Bill, and that would not necessarily undermine the Minister’s argument. In the circumstances, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clauses 9 to 11 ordered to stand part of the Bill.

Clause 12

Notice of application for order: confidential journalistic data

Break in Debate

Gavin Newlands Portrait Gavin Newlands - Hansard
18 Dec 2018, 11:19 a.m.

The hon. Member for Torfaen made his points with force and alacrity, and I shall not seek to detain the Committee by repeating them. However, in supporting the hon. Gentleman, I urge the Minister to listen not only to those on the Opposition Benches, but to those on his own Back Benches, to concede the principles of the amendment, and to table Government amendments on Report. If he does not do so, we will.

Mr Ben Wallace Portrait Mr Wallace - Hansard

The Minister shook himself. Amendments 3, 10 and 20 would provide that when journalistic data is sought as part of an overseas production order, the journalist is put on notice of application. Clause 12(1) of the Bill requires that when confidential journalistic data is sought as part of an overseas production order, the respondent is put on notice. The respondent in this context would be the communication service provider from which law enforcement agencies or prosecutors are seeking content data.

The Government intended to ensure that where an application for an overseas production order was made there was a presumption that any person affected by the order, which would include the journalist themselves, was also put on notice. That was to be included in the relevant court rules, as is the case with domestic production orders, including those made under PACE, the Terrorism Act and POCA.

I am pleased to see that the amendments tabled by the hon. Member for Torfaen recognise that, should all journalists be put on notice when an overseas production order is served in respect of an application that relates to their data, certain exemptions must be in place. It is important that the requirement to provide notice for an overseas production order is not absolute. The difference between the Bill and PACE is that PACE production orders are served directly on the respondent themselves—that is, the journalist. Where PACE requires notice to be given to the respondent, notice has been given to someone who will of course be made aware of the order when it is served, as they are the person who will be required to comply with it. In practice, that will be the person handing over the data to law enforcement agencies.

However, in the Bill the orders are served directly on the CSP that owns and controls the data. Giving notice to a third party—the journalist, who is not required to act on the order—should not stand in the way of issuing an overseas production order where there are good reasons for notice not to be given. I believe that the judge is well placed to determine whether the journalist should be notified, and the circumstances in which it will not be appropriate for that to be the case.

The exemptions set out in amendment 10 are that

“the applicant cannot identify or contact the journalist…it would prejudice the investigation if the journalist were present…it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or…the journalist has waived the opportunity to attend.”

Those exemptions mirror what is currently in place in court rules for domestic production orders through PACE, and they seem a sensible approach. For example, we do not want to oblige law enforcement agencies into notifying an ISIS blogger or journalist when clearly that could prejudice the investigation. Those exemptions are fundamental to retaining a robust and sensible approach to evidence.

I thank Members for their detailed arguments, and for the time that they have taken to consider the protection of journalists. I reiterate that both the notice requirements and the important exceptions that underpin them will be provided for, as they are currently, in court rules. However, I am happy to consider whether they can be provided for in the Bill. I am happy to discuss that with hon. Members as we proceed to Report, if they will withdraw the amendment.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard

On the basis of that continuing discussion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 11:24 a.m.

I beg to move amendment 2, in clause 12, page 10, line 39, at end insert—

“(6) In determining for the purposes of subsection (5) whether or not a purpose is a criminal purpose, crime is to be taken to mean conduct which—

(a) constitutes one or more criminal offences under the law of a part of the United Kingdom, or

(b) is, or corresponds to, conduct which, if it all took place in a particular part of the United Kingdom, would constitute one or more criminal offences under the law of that part of the United Kingdom.”

This amendment clarifies what is meant in Clause 12(5)(a) of the Bill by the reference to creating or acquiring electronic data with the intention of furthering a criminal purpose. What is criminal is to be judged by reference to what is, or would be, a criminal offence under the law of a part of the United Kingdom.

Clause 12(5) provides that electronic data is not to be regarded as having been created or acquired for the purpose of journalism if it was created or acquired with the intention of furthering a criminal purpose, and that electronic data that a person intends to use to further such a purpose is not to be regarded as intended to be used for the purpose of journalism. As drafted, the Bill does not explicitly define what is meant by a criminal purpose in that context. Without a definition of criminal purpose or a crime in the Bill, there is a risk that the provision could be interpreted inconsistently within UK law. Our intention is that a criminal purpose is criminal only if the conduct constituting a related crime is an offence under UK law, regardless of whether it is a crime in the place where the relevant data was created or acquired, or where it was intended to be used.

For example, if a person located in another country was creating an extremist blog that encouraged others to join a terrorist organisation that is proscribed in the UK, such as ISIS, that person should not benefit from any protections afforded to journalistic data under the Bill. That could be the case even when that country does not criminalise the same conduct. That reflects the principle that the criminal purpose must be recognised as criminal under UK law.

To flip the example the other way, if a legitimate British journalist based abroad is writing an article about political corruption, which the country that they are in deems illegal, we should absolutely ensure that they are given the right protection under the Bill, given that their conduct is perfectly acceptable under British law. Without something that links criminal purpose to conduct that is criminal in the UK, or to conduct that would be criminal had it occurred here, there is a risk that the term will be interpreted by reference to the criminal law of the place where the person who created or acquired the data is located. I therefore propose amending the Bill to include a definition of what is meant by “criminal purpose”. I hope that hon. Members will support the need for this clarifying amendment.

Colleagues, we usually have to finish at 11.25 am, but I have discretion to extend the sitting by 15 minutes, if I think we can finish our consideration of the Bill in that time.

Break in Debate

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 11:27 a.m.

I support the sensible amendment. As subsection (5) is drafted, it is clearly the case that we should not regard electronic data

“as having been created or acquired for the purposes of journalism if it was created or acquired with the intention of furthering a criminal purpose”.

The difficulty comes when we have investigative journalistic work in another country that would not be regarded as a criminal act under UK law but could be illegal in that country, if it had particularly stringent or harsh laws. The sensible way to deal with that problem is the Government’s amendment, which defines criminal purpose in relation to UK law. That achieves the purpose of subsection (5) without endangering investigative journalistic activity abroad, which we all want to see.

Amendment 2 agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 20 ordered to stand part of the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

Mr Ben Wallace Portrait Mr Wallace - Hansard
18 Dec 2018, 11:29 a.m.

Thank you, Mrs Moon, for your swift and efficient chairmanship. I am glad that something is functioning in Parliament and Government, and it is this small corner of the United Kingdom. I thank hon. Members for their contributions. I thank the hon. Member for Torfaen, who has contributed throughout, and the hon. Member for Paisley and Renfrewshire North, who has also contributed in as consensual a way as possible. It is regretful that we disagree on one important part.

The Bill will allow our citizens to be kept safer than they are now. As unexciting as its title is—I designed it that way—the Bill is an incredibly important piece of legislation. I hope that it progresses to Report soon and then returns to the House of Lords. I thank hon. Members for their attendance. The speed of our consideration does not reflect the seriousness of the Bill.

Nick Thomas-Symonds Portrait Nick Thomas-Symonds - Hansard
18 Dec 2018, 11:30 a.m.

Thank you, Mrs Moon, for the way you have chaired proceedings. I also thank all the officials, the hon. Member for Paisley and Renfrewshire North, the Minister and all hon. Members who have contributed. As the Minister said, the speed of our proceedings is due to the fact that the vast bulk of the Bill is uncontroversial; it does not detract from the serious nature of the matters we are considering. I look forward to hearing further from the Minister on Report about the concerns I have expressed.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Crime (Overseas Production Orders) Bill [Lords]

(2nd reading: House of Commons)
Mr Ben Wallace Excerpts
Monday 3rd December 2018

(1 year, 9 months ago)

Commons Chamber
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Second Reading

Mr Ben Wallace Portrait The Minister for Security and Economic Crime (Mr Ben Wallace) -