Crime (Overseas Production Orders) Bill [Lords]

Mark Pritchard Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 30th January 2019 Commons Chamber

[Nick Thomas-Symonds]

I do not accept that at all. The hon. Lady talks about theoretical possibilities, but these will be actual cases—actual cases, not theoretical cases.

[Mark Pritchard (The Wrekin) (Con)]

rose—

[Nick Thomas-Symonds]

I will give way once more.

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[Mark Pritchard]

I am grateful to the shadow Minister for giving way. Despite the fact that this is about not extradition, but data exchange and that it is heinous crimes that will incorporate this provision, does he accept that the threshold for the death penalty, both at state and federal level, is actually far higher—the bar is higher?

[Nick Thomas-Symonds]

Yes, it is significantly higher, and the cases will be extraordinarily rare. That is what everybody who has looked at this says.

[Mark Pritchard]

rose—

[Nick Thomas-Symonds]

This is genuinely the last time that I give way.

[Mark Pritchard]

I am very grateful. The hon. Gentleman is being more than generous. On the issue of assurances, does he also accept—I know that he thinks logically—that if those assurances were given and were not actually fulfilled, future assurances would obviously not carry the same weight as previous assurances that were carried through?

[Nick Thomas-Symonds]

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 on to 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.”

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[Nick Thomas-Symonds]

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.

[Mark Pritchard]

Will the hon. Gentleman give way?

[Nick Thomas-Symonds]

I will make some progress; I did give way to the hon. Gentleman about three times earlier.

What I am simply saying is that we should not move away from that norm and send any kind of signal because, in any event, this Bill goes far beyond America. I appreciate the Minister’s point about data and where it is held at present, but as the internet continues to evolve, other countries will hold more data as well. The Security Minister often said in Committee that he would only negotiate treaties with countries that shared our respect for the rule of law. I do not disbelieve him for a moment, but of course he is not going to be the Security Minister forever. Therefore, in those circumstances, we have to put the assurance in this framework now.

Opposition to the death penalty has been a bipartisan UK Government position for over half a century. Since 1965 when the work of many across this House—including the remarkable Sydney Silverman—came to fruition, this Parliament has stood as a beacon of common human values, promoting the abolition of the death penalty across the globe. For this country to continue to stand tall in the world and to use our considerable soft power, which we must, we always have to hold ourselves to the highest standards. Put very simply, for us to credibly argue for the abolition of the death penalty in other countries, we cannot be complicit in its application ourselves, and I ask that we send that strong moral signal to the world today.

It seems an odd move to now start talking about these technical issues of confidential journalistic data, important though they are. But that is of course where we are because this whole set of amendments have been grouped together. I therefore want to deal with the matter now, as well as some of the issues raised by the hon. Member for Bexhill and Battle.

In general terms, I am pleased with the Government’s direction of travel on these issues, but there are still some real causes of concern. I am pleased with the movement on Government amendments 19 and 20, which were mentioned earlier. The notification requirement now extends to all journalistic data. There was a concern that, if we were distinguishing between confidential data and non-confidential data, some would not be covered. This move is therefore to be welcomed, as is the genuine notification requirement that specifically includes the journalist, which I believe is included in Government amendment 20.

There are still some concerns that I hope the Security Minister will take on board and listen to, although I do broadly welcome the measures. In proposed clause 12(2)(b), there is an override of this requirement where it would prejudice investigations into indictable offences and terrorism investigations. Now, I accept that emergency overrides are necessary, and I would expect to see them in this Bill and other similar types of Bill. There is, however, quite a low threshold in this measure. I totally accept that prejudicing a terrorism investigation may well constitute an emergency, but prejudicing an investigation into an indictable offence is extremely broad, because indictable offences are a huge category. Indicating that they can only be tried on indictment draws the provision extremely widely.

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

Throughout the passage of this Bill and other Bills where we have engaged with the Security Minister and the hon. Member for Torfaen (Nick Thomas-Symonds), there has been a collaborative approach. That is again the case on Report. As the Minister said, we have had a constructive relationship with him, which is why I was quite disappointed with the change in tone this afternoon—questioning the Opposition’s motives and accusing us of essentially protecting paedophiles. Every Member, as has been said, would like to see these despicable criminals convicted, but we have to ensure that legislation is passed with adequate protections for the human rights that we are obligated to protect under the ECHR. I hope that the Minister will perhaps reflect on that.

Amendment 12, as the hon. Member for Torfaen set out in granular detail—for the sake of the House, I will not seek to repeat that process—seeks to avoid the UK being complicit in allowing for the death penalty to be practised abroad using data provided by us. We have previously heard from the Government that this would amount to driving a horse and cart through the Bill, but this is a matter of principle that the SNP will simply never compromise on. We are obviously a signatory to the European convention on human rights, article 2 and protocol 139 of which provide for the complete abolition of the death penalty.

As I have said in the past, I deeply regret that the Government resisted this amendment from the Lords and took it out in Committee, but I am pleased that we have another opportunity to put this anti-death penalty provision back into the Bill today. In opposing the amendment, the Government are setting themselves not just against our responsibilities under the convention but against their own policy of opposing the death penalty in all circumstances as a matter of principle.

In response to a written question, Baroness Anelay said:

“There has been no change in the British Government’s policy of working towards global abolition of the death penalty.

This Government pursues human rights in their universality—a more ambitious and coherent approach than focusing on a small number of single issues. Our commitment to the Rules Based International Order underpins this work, including through bilateral and multilateral support to global efforts to abolish the death penalty.”

As a signatory to the convention, we really should do everything in our power to avoid compliance in uses of the death penalty abroad. The UK at least claims to be a modern liberal democracy and a champion of human rights the world over. Opposing this amendment is entirely contradictory to those claims.

The Government have frequently refused to provide countries with aid and assistance where it is judged that that assistance could result in the use of capital punishment by the recipient party—for example, the review of UK security engagement when Pakistan resumed use of the death penalty, and declining to assist with services in Saudi Arabian prisons where juveniles were sentenced to the death penalty. Alongside this, as we have heard, the UK will not export products for use in capital punishment—for instance, medicines for use in lethal injections in the US. It would be inconsistent, not to mention a grave disregard for human rights, for the Government to refuse to supply the drugs for US executions, while providing the very information that made that execution possible.

Furthermore, the US already expects the UK to require full death penalty assurances prior to the sharing of information, and it routinely complies with this requirement—for example, in the recent “ISIS Beatles” case, when the Foreign and Commonwealth Office’s strong advice was to seek a full death penalty assurance. This was cited at the time as the Government’s consistent policy, which has been maintained without exception and without difficulty in co-operating with allies such as the US. The FCO agreed that a sole exception would undermine the UK’s consistent and total opposition. No evidence has been presented on unwillingness from the US to engage in data-sharing arrangements where death penalty assurances are required. Without clear evidence to this effect, it is difficult to accept the Government’s proposition that the US would walk away from the negotiating table for that reason.

On new clause 1, while we welcome it as an improvement, it simply does not go far enough. It is restricted to a requirement for assurances in the context of section 52 of the Investigatory Powers Act 2016. However, data could be requested by another state through a different route that does not require active interception on the part of the UK. In those circumstances, our concern would be that these protections would not operate.

[Mark Pritchard]

The shadow Minister, rightly, gave a litany of examples where the Government have set out to abolish the death penalty worldwide. The SNP spokesman has referred to assurances on ISIS cases and other assurances. Given that we heard from the shadow Minister that assurances have been sought previously, I am a little puzzled about why that should change.

[Gavin Newlands]

Words are great but it is deeds that are important, and we think that this should be in this Bill. As the Bill is, to use the Minister’s term, the docking station for future agreements, we think that this should be in the Bill, which sets the tone of the regulations for future agreements.

[Mark Pritchard]

To help the House and to help me—I need all the help I can get—could the hon. Gentleman perhaps give an example of where assurances have not been sought in such cases?

[Gavin Newlands]

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.

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[Mr Wallace]

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]

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 Wallace]

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.