Crime (Overseas Production Orders) Bill [Lords]

Ed Davey Excerpts

2nd reading: House of Commons
Monday 3rd December 2018 Commons Chamber

[Nick Thomas-Symonds]

I doubt that even I could match the rates of the Attorney General.

As the Minister has explained, the purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as a court could if the information were located or controlled in the United Kingdom. That will be done via the overseas production order for which clause 1 provides. An order can be operative only if the UK signs a treaty enabling it to be exercised. UK law enforcement authorities will be able to apply for an order that requires the production of electronic evidence for the purpose of investigating or prosecuting crimes such as terrorism offences. At present, if UK law enforcement requires electronic data from another country, it must go via a mutual legal assistance treaty, but that process can be slow to complete.

I very much appreciate and accept that electronic information is crucially important for the investigation and prosecution of criminal offences, and indeed is gaining in importance. The Minister set out the case of Dr Matthew Falder and some of the horrific child sex abuse images found on various websites, and it is clear that having a smooth, fast, efficient process to obtain this information is important, which is why the Opposition support the aim of this Bill; we do need a faster system.

I should also point out that I recognise the particular importance of the United States, first because this is the country where so much of the data is held and so many communication services providers—CSPs—are based, and, secondly, because the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015.

The Minister knows that the Opposition are always happy to work with him in trying to reach consensus on matters, but there are aspects of this Bill about which I and my colleagues in the other place have concerns. First, I say to the Minister that we will be looking in Committee to pursue issues such as bulk data, confidential personal records and non-disclosure requirements.

There are also two other specific points of controversy that I will draw to the Minister’s attention now. The first of them relates to assurances on the use of the death penalty in cases where this country hands over data. The Bill is reciprocal, which allows countries with which a treaty is negotiated to seek a court order for electronic data stored in the UK to be transferred to another country. The current treaty is being negotiated with the US, and US law enforcement could apply via its courts for electronic data in the UK to be used as evidence in a particular case. There are currently 30 states in America that retain the death penalty.

I appreciate the Minister’s efforts to make this a more transparent process than has previously been the case, when Home Secretaries could, in private, make decisions in individual cases that are capital cases about handing over information. My right hon. Friend the shadow Home Secretary asked an urgent question on one issue in this House in July, which was due to a leaked letter from the Home Secretary to the then US Attorney General, Jeff Sessions. In the letter, the Home Secretary stated:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”

The Minister responding to my right hon. Friend stated at the Dispatch Box:

“I can reassure the House that our long-standing position on the use of the death penalty has not changed.”—[Official Report, House of Lords, 24 July 2018; Vol. 792, c. 1612.]

While I accept that the Government cannot control whether another Government provide assurances that are asked for, they can control, where assurances are not forthcoming, whether information will be handed over, and that includes information which could lead to evidence being gathered for use in a court, as well as evidence itself.

My noble Labour colleagues in the other place tabled a strong amendment in this regard which passed by 208 votes to 185 and was added to the Bill. The effect of it is to prevent such handing over of information unless there are assurances that the death penalty will not be imposed. This is important for those of us on these Benches who oppose the death penalty in all its forms and are passionate about human rights here and around the world. Furthermore, while we are, quite rightly, focused on the United States for the reasons I have set out, this Bill could be used, alongside a treaty, as the basis for reciprocal information exchange with other countries around the world where the rule of law is not respected by the regimes in power there, making the need for safeguards in this Bill even more pressing.

Secondly, there is a concern regarding the protection of journalists’ confidential information.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

I agree very much with what the hon. Gentleman has said on the death penalty reassurance point. He will note that the Minister said in his speech that the amendment was somehow defective. Does he agree that if that is so the Minister needs to make his case in detail and put forward another amendment so he can ensure that these death penalty assurances can be given?

[Nick Thomas-Symonds]

The right hon. Gentleman puts his finger on a crucial point. The amendment passed the other place with a comfortable majority, and if it is to be argued that there is, perhaps, a technicality that renders it defective, the Minister must identify it in Committee so the House can on Report at least take a firm view on it.

On the protection of journalists’ confidential information, while the Government have argued that provisions in the Bill match those of the Police and Criminal Evidence Act 1984, there are specific instances where it does not quite match PACE, and I will give a few examples, which no doubt can be explored in Committee.

Under PACE, notice is required in all applications for journalistic material, and there are two types: confidential or “excluded material” and non-confidential or “special procedure material”. However, under clause 12(1) of the Bill, provision is made to notify organisations only when the material is confidential journalistic material:

“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”

An application for non-confidential material—for example, where a journalist made a documentary and had some notes—often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally. The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.

Conditions must be met for the court to grant a production order for special procedure material under PACE, including the following: there are reasonable grounds for believing the material is likely to be of substantial value to the investigation; disclosure is in the public interest; and there are reasonable grounds for believing that the material is likely to be relevant evidence. While clause 4(5) and (6) include both public interest and “substantial value” tests, they do not include a “relevant evidence” test. That is again a matter we will look to pursue in Committee.

Adopting a threshold of what data is “relevant” to an investigation is both necessary and proportionate; as well as helping to enable clarity and consistency in cases, it is in line with human rights principles. Judges considering these applications will be familiar with the application of these recognised legal standards, and it would be a simple and sensible safeguard to bring these provisions in line with those under PACE.

Under PACE, tests are only limited to “investigations”, while the Bill is worded in such a way that the tests could be applied to include investigations and proceedings. It is not clear why this should be required right up to trial.

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 PACE, “excluded material” has a different set of conditions that need to be met. Why should that be different in this Bill?

Journalists play a fundamental role in holding those in power to account, and we must ensure that this legislation does not in any way suppress investigative journalism or the exposure of public interest matters. Thus while the Opposition do not oppose the Bill’s purpose and welcome measures for the speedy exchange of electronic data, we will be looking to put safeguards into the Bill on handing over information, to protect the clear will of the other place with regard to the death penalty assurances and to protect the long-cherished principle of confidentiality of journalists’ sources.

--- Later in debate ---

[Sir Edward Davey (Kingston and Surbiton) (LD)]

I pay tribute to the hon. Member for Chelmsford (Vicky Ford). I think the Internet Watch Foundation does a fantastic job, and it is already saving lives, so everyone involved in the organisation deserves our thanks and gratitude. It is in that spirit that I rise to support this Bill and to say that the Minister was absolutely right to make his argument in the way that he did. The legislation goes beyond defeating the people involved in child sexual exploitation, and others committing horrendous nasty, violent crimes will also be caught by these important measures. Beyond that, the Bill will act against terrorism and so on, so the Government are absolutely right to pursue it.

All that is part of the way that we in this House need to support international co-operation against crime. Although this Bill will help to speed up the work that needs to be done via the courts to enable the investigatory bodies to get these criminals and hopefully stop such activities, I gently point out that the European Union already has many successful tools and instruments, and it is a shame that it looks like we are reducing our ability to use them.

However, in totally supporting the thrust of the Bill, I associate the Liberal Democrats with the gentle criticisms of the Labour and SNP Front-Bench spokesmen, who made important points about death penalty assurances and journalistic freedom that must be considered and put right in Committee and on Report. On the death penalty assurances, joint efforts between Labour and Liberal Democrat Lords secured that amendment, and it will take some proof to convince us that it is defective. Indeed, the Liberal Democrats would like to go further. Although the amendment was welcome, the fact that it relates to section 52 of the Investigatory Powers Act 2016 means that there may well be other treaties involving the sharing of collected electronic data to which it may not apply. Given the significance of that, it is important that we go as far as we possibly can. The UK must oppose the death penalty in all circumstances, and we need an assurance from the Government that the law is extremely tight.

[Mr Wallace]

Will the right hon. Gentleman therefore clarify his party’s position if we were in a negotiation with another country and the other country said, “Look, we cannot give you the death penalty assurances.”? Some 99.9% of the data requests under this Bill will be concerned with crimes of paedophilia or the other crimes that I described earlier. Should the death penalty become a bar, is the right hon. Gentleman saying that the UK should not enter into an agreement because of the rare occasions on which an offence may involve the death penalty? Would he sacrifice the 99.9% for that?

[Sir Edward Davey]

The Minister is being slightly sneaky. It is quite possible to take the two issues separately and deal with them separately. It is quite easy to see how one would ensure that the welcome measures in this Bill apply to the cases to which we all want them to apply while ensuring that the death penalty assurance, which ought to unite the House, is also dealt with properly.

I am sure that the Minister understands that Opposition Members in the other place and in this place are using this point to try to ensure that the Government move on this point. He will be aware of the cases of Alexanda Kotey and El Shafee Elsheikh from earlier this year, in which the Home Secretary—I acknowledge that this was revealed in a leaked letter—assisted the US to prosecute them without seeking death penalty assurances. That shocked people on both sides of this House, and the Minister is absolutely aware of that concern, so it is incumbent on those on the Treasury Bench to explain to and reassure this House that that cannot reoccur and that we will find ways through such issues.

[Mr Wallace]

I fully understand the right hon. Gentleman’s point. He talks about “our wish”, but he cannot speak for the other country that may be involved in forming an international agreement. They may say, “That’s fine. We know what you want, but we are not prepared to do that.” In that case, the decision becomes whether we want to use this legislation for the urgent and speedy data requests that happen 99.9% of the time for offences that are egregious and horrible but do not warrant the death penalty. He cannot speak for another country, so would he sacrifice the whole Bill?

[Sir Edward Davey]

I am afraid that the Minister is still trying to split hairs. I am sure that no one in this House wants to get in the way of measures that will ensure that we can work with other countries to tackle criminals. Equally, however, it is incumbent on the Government to find a way to ensure that what we heard from the Home Secretary earlier this year does not happen again. The Minister is in the Government and has the officials to come forward with proposals to be able to manage both those issues.

It does not seem beyond the wit of man and the clever officials in the Home Office to produce such proposals. If he is saying that the amendment made in the other House is defective because it has the problem he is raising with me, let Home Office Ministers come to the House in Committee or on Report to show that and to produce an alternative that deals with the matter, about which I am sure he shares my concern.

[Mr Wallace]

My point is that the moment for the House to look at that is not when considering this Bill but when whatever treaty or international arrangement we make with whatever country we need to make it with comes before the House for scrutiny. Then we can have a debate about whether the international treaty we have sought to give effect to this order is right for the balance of risk, but the generic primary legislation that allows an order to be made is not the right vehicle.

[Sir Edward Davey]

What the Opposition parties are saying very clearly to the Minister is that he has to make that case in Committee, just as the hon. Member for Torfaen (Nick Thomas-Symonds), the Labour party’s Front-Bench spokesman, made clear when I intervened on this very point. The Minister should make the case, but he should also explain how the Government will deal with the problem, which has arisen because of the actions of the Home Secretary not because of the actions of the Opposition.

We are concerned about the potential for this Bill to undermine protections for the freedom of the press. To be generous to the Government, what I think has happened is that, in pursuing a laudable aim that we all support, they went to the statute book and said, “Which statutes can we copy and paste to enable us to meet our objectives?” Rather than looking carefully at how, in domestic law, the Police and Criminal Evidence Act 1984 has carefully nuanced the use of the Terrorism Act 2000, Home Office officials, possibly because of the culture in the Home Office, just cut and pasted mainly from the Terrorism Act. That may have been a mistake, and there may have been no deliberate intention for it to have the consequences that now appear before us, so I gently say that I hope the Minister will go away and think about this. I invite him to meet right hon. and hon. Opposition Members, as well as representatives of the media to hear in detail the genuine concerns not just of BBC lawyers but of lawyers representing other media organisations.

We have heard from other Members about the relevant evidence test, which is in our domestic law and has been carefully developed over a period of years, but that test will not be applied to protect journalists with respect to material that comes from their investigations abroad. That is quite worrying if one looks at the practical examples. Take the case of Mark Duggan, for example. He was shot by the police in Tottenham in 2011, and the BBC obtained mobile phone footage of the aftermath from a witness. The BBC was ordered to turn over the footage and, because it was relevant evidence, the footage was handed over. Then an application was made for information that would reveal the identity of the source of that footage. The person who had shot the footage was understandably concerned for their safety, and the BBC successfully opposed the application by pointing to the relevant evidence test in the Police and Criminal Evidence Act. That test is not in the Bill, so there is a clear example that, by not being as subtle in this legislation as we are in our domestic legislation, there is a danger that journalistic freedom, as exercised abroad, will be curtailed.

The point about the notices is relevant, and it should worry the Minister because the way that notices work under domestic legislation is very helpful not just to journalists but to the police. Sometimes when the police put a notice to a journalistic organisation, that organisation will go back to the police and say, “You are asking for a huge amount, and we don’t really think it is necessary for your investigation. Let us enter a dialogue with you to narrow down your search so you can get information that will really help you, and therefore you will not have to waste so much time.” The notice actually turns out to be helpful in speeding up investigations. Given that that is the whole purpose of this Bill, the Minister should go away and look at that.

Moreover, it is not just about thinking of the police’s point of view in speeding things up; it is also about making sure the police know whether the evidence exists. The way some notices work at the moment is that the police go on a fishing trip. There is the example from Durham police, they applied to the BBC without notice. Durham police were eventually told that they could not do that and that, if they had submitted a notice, they would have learned that the material no longer existed. Again, the BBC was trying to save police time.

Some of the carefully constructed domestic law needs to be put into this internationally applying legislation in order to help the police and security services, not just journalists. I am sure this is just an unintended consequence, and I am sure there is no malice, so I hope this is the sort of issue that can be settled by a few meetings and a few amendments that garner support from both sides of the House. That is how scrutiny should operate in this Parliament, and I hope the Minister, with his usual generosity, will be open-minded to that approach.