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

Gavin Newlands Excerpts

Committee Debate: House of Commons
Tuesday 18th December 2018 Public Bill Committees

[Nick Thomas-Symonds]

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 (Paisley and Renfrewshire North) (SNP)]

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 Wallace]

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]

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 Wallace]

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.

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[Mr Wallace]

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]

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 Wallace]

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.

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[Nick Thomas-Symonds]

Amendment 11 is about safeguards on bulk data. Baroness Williams of Trafford spoke on this issue in Grand Committee on 5 September and explained why she felt that an amendment excluding bulk data was unnecessary:

“The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place,”.—[Official Report, House of Lords, 5 September 2018; Vol. 792, c. GC150.]

Put simply, there is a worry that under current safeguards it could be argued that bulk data was of substantial value to any criminal investigation and was in the public interest. This is a simple but discrete point regarding reassurances that bulk data will not be accessed by the powers in the Bill. The Government’s position, as set out in the other place, is that the safeguards there are sufficient to ensure that as the Bill stands, but I am hoping that the Minister will be able to set out and expand in greater detail on the reassurance given in the other place.

[Gavin Newlands]

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 Wallace]

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]

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 Wallace]

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.

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[Gavin Newlands]

I beg to move amendment 16, in clause 4, page 5, line 16, at end insert—

“(3A) In any case which —

(a) falls within subsection (3)(a), and

(b) relates to data which comprises or includes excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984) or special procedure material (as defined by section 14 of the Police and Criminal Evidence Act 1984)

the judge may only make an order if satisfied that the relevant set of access conditions in Paragraphs 2 or 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 would be fulfilled if the application had been brought under that Schedule.”

This amendment would that, in the case of excluded or special procedure material, a judge could only make an order if the relevant provisions on access conditions in the Police and Criminal Evidence Act 1984 were complied with.

[The Chair]

With this it will be convenient to discuss amendment 17, in clause 4, page 5, line 17, leave out subsections (4) to (6) and insert—

“(1) In any other case, the judge must be satisfied that there are reasonable grounds for believing that —

(a) 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 for the order.

(b) all or part of the electronic data specified or described in the application for the order is likely to be of substantial value (whether or not by itself) to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation.

(c) is in the public interest for all or part of the electronic data specified or described in the application for the order to be produced or, as the case may be, accessed having regard to—

(i) the benefit likely to accrue, if the data is obtained, to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation, and

(ii) the circumstances under which the person against whom the order is sought has possession or control of any of the data.”

This follows on from Amendment 16 and brings the current subsections (4), (5) and (6) together in one subsection.

[Gavin Newlands]

Many of the arguments relating to these amendments have largely been made in the previous set of amendments about PACE. To clarify, from our point of view, journalists are currently given notice under PACE, which allows them to negotiate changes to their application in most cases. These amendments simply replicates what already exists and works well under PACE for the measures in the Bill. They would ensure that the evidential value test mirrors the current law on both terrorism and non-terrorism cases, in reference to the point made by the hon. Member for Bexhill and Battle. They would also ensure that confidential journalistic material is protected as under the current law for domestic applications. As has been said already, the Bill strips out the requirement that the information sought is likely to be relevant evidence and that other means of obtaining it have at least been considered. In a free, democratic society, seizing journalistic material should be a last resort.

Although there is a public interest test in clause 4, it sets a lower threshold than in PACE. Instead of the judge being required to determine whether granting access to information would be in the public interest, as in PACE, the judge must merely be satisfied that there are reasonable grounds to believe that it would be in the public interest. Separately, the police and security services have covert powers, primarily under the Investigatory Powers Act 2016. These powers are exercised through the issuing of a warrant by the Secretary of State and the Investigatory Powers Commissioner. Exceptionally, these powers have been used by the police to identify a source. Most infamously, the police used a journalist’s phone number to identify the police source who had leaked the “plebgate” story to The Sun. As a result of concern from the press about this, some safeguards have been added. However, neither the journalists nor the CSP is given notice of an application for an IPA warrant.

[Nick Thomas-Symonds]

I support what the hon. Gentleman is saying, and there is a later amendment for a notice. Is not the essential issue here that, as the Bill stands, the notice provision is not there for material that might not be confidential but is none the less extremely sensitive? It would be sensible to have the notice provision for that journalistic material as well.

[Gavin Newlands]

I could not agree more. The Investigatory Powers Act—I thought I left it behind a couple of years ago but I am on it again—provides for communications to be intercepted in the course of transmission; for communications data, but not content, to be produced to the police; and for the bulk surveillance of communications, with access to the content of specific communications that are highlighted in this process. Other than that, there is not a general right under the Act to apply for the content of stored communications, so there is no general ability under domestic law to obtain the content of journalistic communications other than through applying for a domestic production order.

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[Gavin Newlands]

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 Wallace]

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]

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]

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.

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[Huw Merriman]

I will be brief because the hon. Gentleman said much of what I wish to say, but I wish to endorse it. The amendment would make the clause consistent with the Police and Criminal Evidence Act 1984 and apply it to all journalistic information, rather than just confidential information. I would be pleased if the Minister considered such a provision.

The point has been made—perhaps I can extend it—that such a measure would also save a lot of time and administration. If journalists are given an opportunity to negotiate with more notice, we will not find that matters reach the stage where it is too late. I am led to believe that the procedure works very much on a negotiation basis. On that basis, I think this measure is fair and consistent with domestic matters, and that it will also make for more administrative justice through our court process. I therefore support the sentiments behind the amendment, and I hope that the Minister will consider it.

I say gently to Opposition Members that, to a certain extent, and judging by what the Minister said earlier, we could perhaps have flexibility in this area and make the Bill work better if they do not seek to drive a coach and horses through the Bill with an amendment that is completely outside its scope and could potentially take it to pieces. I make those gentle points to those on both Front Benches.

[Gavin Newlands]

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 Wallace]

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.