Crime (Overseas Production Orders) Bill [Lords]

Gavin Newlands Excerpts

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

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

The Scottish National party welcomes the aims of the Bill, with some caveats, and the Scottish Government believe that investigations and proceedings relating to serious offences in Scotland could benefit from the use of overseas production orders as a quicker and more streamlined process for obtaining electronic data. Notwithstanding the Minister’s point, which I am sure we will discuss further in Committee, we also welcome their lordships’ amendment that provides safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.

However, we are concerned about the lack of proper safeguards for journalistic material, and I hope that we will be able to strengthen the measures in that important area in Committee. Although I welcome the fact that an order must be for specific, targeted information, the fact that it will in all likelihood be able to access bulk datasets to retrieve that information is disappointing and goes against the strong points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) during the passage of the Investigatory Powers Act 2016. I shall return to those issues a little later.

The ability to apply for an overseas production order through the domestic courts will make the process for gaining cross-border access to electronic data faster and more reliable than the current processes, which rely on mutual legal assistance treaties. MLAs have been criticised for being too bureaucratic and time-consuming. The UK’s deputy national security adviser on intelligence, security and resilience to 2018, Paddy McGuinness—not the one we are all familiar with—explained in an interview how the current process causes difficulties for UK investigators and prosecutors. He stated:

“It does not make sense that criminals plotting a major drug deal, a murder, a kidnap, trafficking people or sexually abusing a child in the UK can have their communications intercepted if they communicate via text message, but if they use a US company’s services their data should be out of reach of UK law enforcement.”

Those of us who sat through the Committee stage of the Investigatory Powers Bill will never forget the fact that electronic information is becoming increasingly important to the investigation and prosecution of criminal offences, including terrorism. The companies that provide services that generate or store this data, such as Facebook, Twitter and Google, are often located outside our jurisdiction. This puts the data beyond the reach of existing domestic court orders, which either cannot be made when the data is not in or accessible from the UK, or cannot be served extra-territorially. According to Access Now, a digital rights campaign group, there has recently been a “huge growth” in MLA requests to access online records such as subscriber details, email content, metadata and social media from companies such as Google, Facebook, Yahoo and Twitter, which treat the vast majority of their data as being located in California and therefore subject to Californian jurisdiction.

According to the Home Office’s own figures, as of 2016—the figures are now out of date—the UK was party to 40 bilateral MLA agreements. As we have heard, the MLA process can be slow, requiring significant Government-to-Government liaison. This can cause lengthy delays, which can cause problems for investigations and prosecutions. Lord David Anderson, the then independent reviewer of terrorism legislation, has spoken of the severe delays in the process and recommended that the Government should seek to address deficiencies in access to material from overseas service providers and

“take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”

Detectives investigating serious offences, including murder, have commented that it is taking an “inordinate amount of time” to access evidence from Facebook. Cressida Dick has said that UK police forces have faced a “very protracted procedure” in cases where they have had to access information from organisations such as Facebook. Just recently, she stated:

“I absolutely think that in certain instances...law enforcement in the UK ought to have vital evidence which might bring someone to justice.”

The delays that detectives currently face are unacceptable and it is clear that the system needs to be improved. Lord Anderson spoke in his summing up about the international frameworks, and I would like the Minister to explain further why, Brexit aside, he was not interested in participating in the European protection order.

I move on to the amendment made in the Lords to clause 1, with which we wholeheartedly agree. It provides that in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied. Article 2 of the European convention on human rights—together with protocol 139, to which the UK is a signatory—provides for the total abolition of the death penalty. It is therefore regrettable that the Government tried to resist this amendment in the other place. We—and, I am sure, Labour Members—will resist any Government attempt to draw back from this position in Committee.

While we broadly welcome the Bill, we are concerned about lack of safeguards for journalistic material. We believe that the provisions in the Bill are inadequate in protecting confidential journalistic material. This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press. We are not alone in this, as the BBC has also raised concerns.

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 sensitive journalistic material, which 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. Where on-notice applications are permitted in cases of confidential journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately. Additionally, it is unclear whether any advice or support would be provided to a journalist in those circumstances. Under clause 13, a journalist cannot inform anyone of the application or its contents, and no provision is made for this information to be disclosed to a legal adviser or representative.

The BBC has some further asks. It wants the Bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material; to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases; to ensure that confidential journalistic material is protected, as under the current law for domestic applications; and to ensure that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection. I suspect that we will be looking at this further in Committee.

The other area that we will be seeking clarity on during the Bill’s later stages is the potential use of bulk datasets. As I have said, the SNP has argued strongly against the retention of bulk data sets, the vast majority of which are harvested from mainly innocent citizens. We argued that it is incumbent on the Government to prove that there is an operational case and that the powers are necessary and to ensure that the safeguards are rigorous. It would therefore be rather remiss of us to allow legislation to pass without the requisite safeguards around the accessing of such data.

To conclude, the MLA treaty system is not working in the modern age. Vast amounts of electronic data goes through Facebook, Twitter and other organisations, and a quicker and more streamlined process for obtaining data is required to investigate serious offences efficiently in the modern world. The ability to apply for an overseas production order through the domestic courts would make the process for getting cross-border access to electronic data faster and more reliable than currently. The Minister was uncharacteristically generous—I mean the Government, not him personally—in working with the Opposition when the Counter-Terrorism and Border Security Bill was in Committee, and I hope that will be repeated with this Bill so that we can move on together.