Crime (Overseas Production Orders) Bill [HL]

Lord Paddick Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

Moved by

[Lord Paddick]

3: Clause 1, page 1, line 19, at end insert—
“( ) The Secretary of State may not make regulations designating an international co-operation arrangement with a state which is a party to or participates in it which has not abolished the death penalty unless the agreement provides that it will apply only if the other party or participant has 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.”

[Lord Paddick (LD)]

My Lords, in moving Amendment 3 in my name and that of my noble friend Lady Hamwee, I will speak to Amendments 4 and 7 in our names. I will also mention very briefly Amendment 8 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

Before I launch into the meat of the amendment, I hope the noble Lord, Lord Anderson of Ipswich, does not mind me mentioning that, on the way into the Moses Room, he said that he enjoyed reading my amendments. I am extremely grateful for the extensive work carried out by my noble friend Lady Hamwee with regard to these amendments—if you know what I mean.

As we have heard, the purpose of the Bill is to allow UK law enforcement agencies to more easily obtain electronic evidence when it is sought outside the UK. Of course, evidence so secured would be subject to safeguards in the UK, but presumably the countries that enter into international co-operation agreements with the UK—a prerequisite for the operation of overseas production orders—will expect their own law enforcement agencies to be able to apply through their own domestic courts for equivalent orders that would allow them to seek stored electronic data directly from service providers based in the UK; the reciprocal agreement. Amendments 3 and 4 seek to probe how legal and human rights concerns over privacy and the security of personal data will be addressed and the issue of such evidence potentially resulting in the death penalty being passed on a subject. Amendment 3 requires that the Secretary of State may not make regulations entering into an international co-operation agreement in relation to states where the death penalty can be imposed unless the agreement restricts access to UK-held data to cases where an assurance has been given that the death penalty will not be imposed.

Article 2 of the European Convention on Human Rights—together with Protocol 13, of which the UK is a signatory—provides for the total abolition of the death penalty. My recollection of a meeting with the Minister on this very issue is that the UK would not hand over evidence in the knowledge that it would result in the possibility of the suspect being executed. However, since that meeting, noble Lords will recall the case of two former British citizens accused of being members of an ISIS cell. In a leaked letter, the Home Secretary apparently agreed to co-operate with the United States by sharing evidence but said that he would not seek a death penalty assurance. In an apparently totally inconsistent statement, he went on to say that,

“it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty”.

We now appear to be in a situation where government policy is to ensure that evidence does not lead to the suspect potentially facing the death penalty and to encourage the global abolition of the death penalty, except when the Home Secretary decides otherwise. How can the Government advocate the abolition of the death penalty globally on a case-by-case basis? Amendment 3 seeks to put into the Bill that an international co-operation agreement cannot be entered into with a state unless there is an agreement that the sharing of evidence would not lead to the imposition of the death penalty.

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[Baroness Williams of Trafford]

I understand the point that the noble Lord is making. I, not least, look forward to the discussion that we are going to have.

[Lord Paddick]

My Lords, I am very grateful for the comments of all noble Lords on this group of amendments. I do not want to prolong the agony; I accept that the Bill is about outgoing requests but in order for outgoing requests to be complied with, there would be an expectation by the foreign state that a similar application to the UK would be met. We are potentially talking about UK service providers providing evidence to a foreign state that would enable that state to carry out the death penalty on a suspect. Having agreements based on trust and mutual respect, rather than a legally binding agreement, where if there are differences of opinion about what particular terms mean there would be some form of dispute resolution—no more reassurance than that—while the IP Act 2016 could impose restrictions, but might not, all seems rather vague and general. When we are talking about someone’s life potentially being ended, we would seek more concrete reassurances that evidence provided by the UK is not going to lead to that.

I understand that the intention is to have an agreement with the United States of America as a whole. However, bearing in mind that the death penalty is an issue in some states but not others, and that other agreements would be on a case-by-case basis—presumably on the basis of the human rights record of the states that the agreement was entered into with—it seems odd that a blanket agreement could be entered into with the USA when there is that crucial difference between states as to whether the death penalty could be carried out. Obviously, we are in Committee, which is about understanding concerns and the Government’s position. We need to further develop that in meetings and on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Paddick]

9: Clause 2, page 2, line 25, after “person” insert “exercising law enforcement functions”

[Lord Paddick]

My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 10.

Clause 2 lists appropriate officers who can make an application for an overseas production order. The list clearly indicates what this legislation is about: securing evidence to present before a court. It is not, for example, a search for intelligence; intelligence officers are not listed. Clause 2 is a list of law enforcement officers and, as such, subsection (1)(a)(vii) and (b)(v), which allow the Secretary of State by regulation to specify others as appropriate officers, should be restricted to specified law enforcement officers and not simply be left open to any person of a description specified in regulations. Our amendments would place such a restriction on the regulating powers of the Secretary of State. I beg to move.

[Lord Kennedy of Southwark]

My Lords, the noble Lord raises an important point. In response, I am sure that the noble Baroness will explain to us why the Government deem it necessary to take this wider power and not restrict it, as the noble Lord, Lord Paddick, has sought to do, to officers from wherever who are actually enforcing law enforcement functions. On the face of it this seems a very sensible amendment, and I look forward to hearing why the Government think they need this wider power in this context.

[Baroness Williams of Trafford]

My Lords, I hope that this amendment will not require any further meetings or probing on Report. The Bill provides that an appropriate officer is able to apply for an overseas production order where an indictable offence has been committed, where proceedings in relation to that indictable offence have been instituted or investigated, or where the order is sought for the purpose of terrorist investigations. Therefore, the clause is already limited to officers who are exercising law enforcement functions. In fact, the clause already makes clear that where a listed appropriate officer has functions other than for law enforcement purposes, it is only where the appropriate officer is exercising functions in relation to the investigation or prosecution of criminal conduct that they may apply for an overseas production order. For example, a person appointed by the FCA can conduct both civil and criminal investigations and the clause ensures that they can apply for an overseas production order only in connection with criminal investigations or prosecutions. I hope that that provides reassurance.

[Lord Paddick]

My Lords, I am very grateful for that explanation provided by the Minister. The meeting of 20 minutes we have scheduled before Report will not be further extended as a result of this amendment and I beg leave to withdraw it.

Amendment 9 withdrawn.

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Moved by

[Lord Paddick]

11: Clause 3, page 3, line 32, at end insert “but not bulk data”

[Lord Paddick]

My Lords, Amendment 11 is in my name and that of my noble friend Lady Hamwee. We debated long and hard in this House about when and how law enforcement agencies and the security services can secure authority to access bulk data. The Investigatory Powers Act 2016—not to be confused with the investigatory powers Act 2018, which exists only on BBC1 on Sunday evenings—contains some safeguards against state access to bulk data and it is essential that those safeguards are not circumvented by the Bill. The Government will no doubt say that accessing bulk data held overseas is not the purpose of the Bill, but what other reassurances can the Minister give that the powers under the Bill will not be used inappropriately by law enforcement agencies? Amendment 11 seeks to achieve this by amending Clause 3(2), changing the definition of “electronic data” to exclude bulk data. I beg to move.

[Baroness Williams of Trafford]

Again, I hope that I can provide clarity on the noble Lord’s amendment. When applying for an overseas production order an officer must specify or describe the electronic data sought under an order. In addition, the judge must be satisfied that a number of requirements are met before making an order under Clause 4. These include that the judge must be satisfied that the person against whom the order is sought has possession or control of all or part of the data specified in the application; that the data requested is likely to be of substantial value; and that it is in the public interest for all or part of the data to be produced. It is very difficult to see how a judge could be satisfied that these requirements are met if they were considering an application for an order seeking bulk data.

The reason is that bulk data requests are for sets of information, often about a large number of individuals who may or may not be known to law enforcement agencies. 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, because of the processes I have outlined, and I hope that the noble Lord will feel happy to withdraw the amendment.

[Lord Paddick]

My Lords, I am grateful for the Minister’s explanation. I am not sure that it entirely satisfies us about the potential for misuse of the legislation, but we will reflect on what she said and perhaps discuss it with her before Report.

[Lord Rosser]

If there is any doubt in this matter, as I understand it from the briefing that we had from the House of Lords Library, the UK’s Deputy National Security Adviser, giving testimony to the US House of Representatives’ Judiciary Committee in June 2017, said that the UK Government were “in full agreement” with the US Department of Justice that a UK-US bilateral data sharing agreement should limit access to targeted orders for data and not bulk access to data.

[Baroness Williams of Trafford]

I thank the noble Lord because that underlines my point.

[Lord Paddick]

If that is the case, there is no reason why it should not be stated in the Bill.

[Baroness Williams of Trafford]

I am sorry, but I think I need to intervene. All sorts of things could be stated in the Bill, but given its purpose, I do not think it is necessary. I think that the noble Lord, Lord Rosser, pointed that out.

[Lord Paddick]

With the greatest respect to the noble Lord, Lord Rosser, he is talking about a bilateral agreement with United States of America and not a global reassurance given by every country with which we might enter into an agreement. Therefore, my concerns remain but, at this stage, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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Moved by

[Lord Paddick]

19: Clause 4, page 5, line 19, at end insert—
“( ) The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data.”

[Lord Paddick]

My Lords, in moving Amendment 19 in my name and that of my noble friend Lady Hamwee, I will speak to our Amendments 33 and 34 in this group.

Journalistic data of any kind is not excepted electronic data as set out in Clause 3, despite representations made by media organisations that it should be. Instead, under Clause 12 the application for an overseas production order, 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, must be made on notice. Confidential journalistic data consists of data created or acquired for the purposes of journalism and in circumstances that give rise to an obligation of confidence that continues or is held subject to a restriction on disclosure or an obligation of secrecy.

This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations? To probe these issues, Amendment 19 inserts the requirement that:

“The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data”.


Clause 13 prohibits the overseas parties from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else, once they are given notice of the application. What sanction can be imposed for failing to comply? Can it be contempt of court, bearing in mind that at that stage the judge has made no order, only given notice that an application for an order has been made?

Amendment 33 provides that Clause 12(1) should specify that the notice should be served on the data controller and the data subject specifically, as well as anyone else the judge considers necessary. Amendment 34 amends Clause 12(4) to specify that notices should be served on a person R, referred to in Clause 12(3): that is, the person who receives electronic data from another person who intended it to be used for journalistic purposes. I beg to move Amendment 19.

[Lord Rosser]

I referred to the general issue that is the subject of the amendments spoken to by the noble Lord, Lord Paddick, when I spoke to Amendment 8. We share the concerns expressed by the noble Lord, subject to what the Minister may have to say in response, about the possible difficulties or issues that might arise.

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Paddick, for his points and the noble Lord, Lord Rosser, for his intervention. The effect of Amendment 19 would be to exclude confidential journalistic material from the scope of an application and order. I should first point out that Clause 4 reflects the position in the PACE Act 1984. Journalistic material can already be sought under Schedule 1 to PACE through special procedure, and under Schedule 5 to the Terrorism Act 2000, when it is held by a company or person based in the UK. The Bill extends this to circumstances where the data is held by an entity based outside the UK and where a relevant international arrangement is in place.

I do not think that we should introduce in the Bill a difference between material that can be obtained—subject of course to appropriate requirements and safeguards—when it is held in the UK, as opposed to being held by an entity based on the country with which we have entered into an agreement. I should also stress that similar standards are set out in the Bill as already exist in domestic legislation, and that the term “reasonable grounds for believing” is readily used by our court system. Reasonable belief requires more than just a guess or a hunch. It will require the judge, marshalling all the facts before them, to come to an assessment on whether the information sought does or does not contain this type of data. It is not the first time that that standard has been used in legislation, and of course it will not be the last. Where confidential journalistic material is sought, the Bill requires that such applications can only be made on notice. That means that anyone put on notice, which can and may include the journalist whose data might be sought, has the opportunity to make representations to the court as to whether it is appropriate for the data to be obtained.

The effect of Amendment 33 as drafted would be that an application for an overseas production order that included confidential journalistic material had to be made on notice to a data controller and the data subject. I understand the sentiment behind the amendment but I do not agree that it is required, for two reasons. First, the rules of court will set out the process by which a judge can ensure that anyone affected by the order is notified of any given case. Consideration of notice by the judge relating to such a request is left to his or her discretion to allow for the circumstances where notice to a data controller, data subject or anyone else is deemed appropriate by the judge when granting an overseas production order. I think giving the judge discretion to determine which is appropriate in any given case is the right approach.

Secondly—this is a point that I have made before and will make again—we are providing in the Bill the means to serve an order on a company based outside the UK in a country with which we have a relevant agreement, in the same way as is currently the case with a company based in the UK. In those cases the respondent and any other person affected by the order would ordinarily be given notice and therefore the opportunity to make representations, unless under rules of court the judge is satisfied that there are good reasons for not doing so—for example, because of the risk of prejudice to the investigation. We are proposing that the same should apply to overseas production orders.

The intention of Clause 12 is to require an application for an overseas production order to be made on notice where there are reasonable grounds for believing that the electronic data sought consists of, or includes, confidential journalistic data. The effect of the clause as drafted is that notice should be served on the respondent—that is, the person who would be required to produce the data if the order is made. In most cases, this would be a service provider rather than the customer on whose behalf the data is stored. However, a requirement to give notice to the respondent under Clause 12(1) does not preclude the judge considering the application from exercising his or her own discretion under rules of court. Under rules of court they may require notice to be given to other persons who may be affected by an order requiring the production of confidential journalistic material, including a person who in his or her professional capacity has acquired that data. It will be a matter for the judge’s discretion, but he or she is likely to insist on notice being given unless the applicant can demonstrate that doing so would prejudice the investigation—for example, where the journalist himself or herself is the subject of the investigation or prosecution.

An example of where it might not be appropriate is where there is a hacking investigation and the journalist might actually be the subject of an inquiry. The judge may decide that putting someone on notice could potentially harm the investigation or risk the dissipation of the material. It is the Government’s intention, however, to ensure that where an application relates to confidential journalistic data, notice can and should be served on journalists and on whoever the judge deems appropriate given the circumstances of the application. The PACE Act 1984, for example, requires service to be made on the respondent only, otherwise notice requirements are set out in court rules.

The noble Lord, Lord Paddick, made an important point about sanctions to comply. It is difficult to construct a proportionate regime to ensure nondisclosure prior to an order being made and, in practice, law enforcement would not apply for an order where there was an unacceptable risk of damaging disclosure. I ask noble Lords not to press their amendments and I shall consider their comments before Report, if that is amenable to them.

[Lord Paddick]

I am very grateful to the Minister for her explanation and her offer to consider further the issues that the noble Lord, Lord Rosser, and I have raised in connection with these issues. Obviously, Amendment 19 is a probing amendment, a mechanism by which to debate these issues, but with the promise of further discussions to come before Report—perhaps the Minister could also establish whether the Government have consulted the National Union of Journalists on these issues—I beg leave to withdraw the amendment.

Amendment 19 withdrawn.