There have been 27 exchanges between Nick Thomas-Symonds and Mr Ben Wallace
|1||Mon 15th July 2019||
Oral Answers to Questions
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|2||Tue 9th April 2019||
Rwandan Genocide: Alleged Perpetrators
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|3||Mon 1st April 2019||
Oral Answers to Questions
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|4||Mon 18th March 2019||
Far-right Violence and Online Extremism
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|5||Wed 30th January 2019||
Crime (Overseas Production Orders) Bill [Lords]
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|6||Tue 22nd January 2019||
Counter-Terrorism and Border Security Bill
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|7||Mon 21st January 2019||
Oral Answers to Questions
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|8||Tue 18th December 2018||
Crime (Overseas Production Orders) Bill [ Lords ] (First sitting)
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|9||Mon 3rd December 2018||
Crime (Overseas Production Orders) Bill [Lords]
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|10||Wed 12th September 2018||
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|11||Tue 11th September 2018||
Counter-Terrorism and Border Security Bill
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|12||Tue 10th July 2018||
Counter-Terrorism and Border Security Bill (Seventh sitting)
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|13||Thu 5th July 2018||
Counter-Terrorism and Border Security Bill (Sixth sitting)
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|14||Tue 3rd July 2018||
Counter-Terrorism and Border Security Bill (Fifth sitting)
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Counter-Terrorism and Border Security Bill (Fourth sitting)
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|16||Thu 28th June 2018||
Counter-Terrorism and Border Security Bill (Third sitting)
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|17||Tue 26th June 2018||
Counter-Terrorism and Border Security Bill (Second sitting)
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|18||Tue 26th June 2018||
Counter-Terrorism and Border Security Bill (First sitting)
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|19||Mon 11th June 2018||
Counter-Terrorism and Border Security Bill
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|20||Mon 4th June 2018||
Oral Answers to Questions
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|21||Mon 16th April 2018||
Oral Answers to Questions
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|22||Wed 28th March 2018||
Kerslake Arena Attack Review
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|23||Mon 26th February 2018||
Oral Answers to Questions
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|24||Thu 25th January 2018||
Proscription of Hezbollah
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|25||Tue 19th December 2017||
Prevention and Suppression of Terrorism
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|26||Mon 20th November 2017||
Oral Answers to Questions
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|27||Mon 16th October 2017||
Oral Answers to Questions
|3 interactions (251 words)|
Transparency is the best disinfectant in such cases, and the Government are working hard to improve the operation of Companies House to ensure that we get to the bottom of some of these spurious companies. We are also fully committed to the establishment of a public register of property ownership in the UK, and are working with overseas territories to ensure that similar registers are established to cover ownership there.
As the hon. Gentleman will know, I have been talking about that issue for a long time, and we have been working hard on it. “Failure to prevent” in relation to tax evasion is now being rolled out, and the National Security Council discussed the issue more than a year ago. The hon. Gentleman will, I hope, wait to see what happens, but we are determined to try to deal with it.
My right hon. Friend is a strong supporter of Rwanda and knows the country incredibly well. I respect many of his views on the country and on the need for action, but I have to say that I fundamentally disagree with his last point. The United Kingdom has not shielded these people. He will know that on 28 July 2017 the High Court ruled that they could not be extradited, for fear of not facing a fair trial. He will know and respect the difference between the Government, the police and the judiciary. He will know that we have to follow the rule of law and that ruling.
This Government, and previous Governments, have been committed to bringing people to trial, which is why he has raised this issue. We have spent £3 million trying to get the right outcome, but when the Court ruled that these individuals could not be extradited, the United Kingdom, under its genocide convention obligations and after requests from the Rwandan Government, took on the investigation itself. We went out to meet officials in Rwanda and to gather evidence there, and there is a live police investigation into a number of individuals in relation to potential war crimes. My right hon. Friend will also understand that, as this is a live police investigation, there is no more I can say on this matter, for fear of prejudicing a fair trial here or anywhere else, and that is where we have to leave it. Those are the facts we find before us.
The Government are not shielding any war criminals, and nor should we. We would not do that. We are doing our best. I have raised the issue with the counter-terrorism police, and they say that the timescale for these investigations is not 10 years but more like between three and five years. I can assure my right hon. Friend that if the police require more resource or if they come up against an obstacle relating to international relations, the Government are standing by to help, to expedite and to ensure that those suspected of war crimes face full justice, but there is absolutely no case that this Government or any previous Government have shielded them from any war crimes trials that they might face.
I can give the hon. Gentleman that reassurance. At the beginning of this year, I got an update from the counter-terrorism police about the conduct of any investigations relating to people from Rwanda. In fact, I briefed my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) on that at about the same time to make sure he realised we are not forgetting this. We are not going to forget the genocide, and nor are we going to forget bringing those people to justice. I am very happy to keep the House posted, as we are allowed to. Nevertheless, with respect, we have to remember that this is a live police investigation and therefore all the safeguards apply.
I am afraid that is simply not the case. I speak regularly to all the leaders of the regional counter-terrorism response and the serious organised crime response. The part of policing that currently gets increased funding around that speciality is organised crime and counter-terrorism. I am happy to visit with the hon. Gentleman the counter-terrorist unit in his part of the country, which does a first-class job. The problem is not access to that speciality but making sure that we cut off the future demand and threats. I urge him to come with me to visit his local unit, and we can discuss the Prevent programme together.
The hon. Gentleman will know that when police forces come under pressure—such as when they respond to a terrorist incident, to an incident such as Salisbury or, indeed, as in my constituency, to a process such as fracking—there is an extra grant for those police forces. We have refunded extra money to police forces in Dorset, London and Manchester, and we will continue to do so. That is why we have this pot in the Home Office: to make sure that we can flex as something happens. Police respond, and they then get back the money that they need.
My hon. Friend, as a New Zealander and a Brit, makes a valid point about the strength of the New Zealand nation. He makes the correct observation that the gun laws in this country make it much harder for people to acquire weapons that could wreak mass murder very quickly, as we have seen following the use of semi-automatic assault rifles in places such as New Zealand and the United States. That does not mean that we should ever stop ensuring that when such threats present themselves we put all our resource and, if necessary, our legislation behind making the restrictions that are needed.
Although many people have considered such attacks, they have been unsuccessful in this country because they have simply not been able to get their hands on the type of weapon system that we saw being deployed in New Zealand. Our law enforcement agencies will continue to target both the legal acquisition of weapons by unsuitable people and illegal acquisitions through smuggling, so that we can ensure that our places are safer.
The hon. Gentleman makes many points with which I agree. Tolerance, respect and the underpinning of the British values of democracy and the rule of law are vital in our society, and the more we teach our children about that and the more we clamp down on those who do not believe in that, the better a place we will be.
As for the hon. Gentleman’s questions about the to-be-appointed Prevent reviewer, I cannot speak for that person—
I will get to that, but the hon. Gentleman did mention the Prevent review. I want the person reviewing Prevent to be as free as possible to examine people’s views, perceptions and evidence, and I would like those who criticise Prevent the most to produce evidence rather than anecdotes. The Government will, of course, listen to whatever the review produces.
I turn to the Independent Reviewer of Terrorism Legislation. Hopefully, the appointment will happen in a matter of days or weeks. We are at an advanced stage in the selection process. Like the hon. Gentleman, I would like an appointment as soon as possible, because no Government benefit without an Independent Reviewer of Terrorism Legislation.
On new regulations regarding online harm, I know that Opposition Members will be impatient, but they will have to wait for the publication of the online harms White Paper. The document will obviously examine regulation versus voluntary action, but I have said on the record several times that a voluntary system is not enough and that regulation or other methods of encouragement should be explored.
I have also been clear that many online companies are hugely profitable and global, so whatever regulation we explore will have to be deliverable. That is why I met representatives of the G7 in Toronto last year to discuss what the G7 can do collectively; why the Home Secretary attended the Global Internet Forum to Counter Terrorism, as did his predecessor, to ensure that countries around the world can get to grips with the problem; and why the European Union is taking forward plans to seek regulations in certain areas, especially the time in which content should be taken down.
If we are to deal with the problem, we must take a layered international approach to regulation—otherwise, companies will simply move their servers to escape their obligations. It is one thing to deal with the big companies that have a nexus here, but there are many tiny companies spreading hate around the world that may have servers in jurisdictions that we cannot reach. That is why we need an international consensus to deal with the challenge.
May I begin by making a slight apology to the House? As the amendments have been grouped together, my speech will be in a single block, so I ask Members to be patient.
Let me begin by addressing amendments 12, 1 and 24. I recognise that amendment 24 has not been selected, but I am happy to deal with it, because it was tabled.
Throughout the progress of this Bill, as with others that I have piloted through the House, I have been keen to reach a consensus. Labour Front Benchers, as well as members of the Scottish National party, will know that I have often been open to their ideas, and that in the case of a number of Bills—such as the Counter-Terrorism and Border Security Bill and indeed this Bill—I have taken their ideas on board and put them into law. I have done so not only because I truly care about keeping our citizens safe, but because I know that our laws work best when they do what they set out to do and are supported by the broadest consensus of the public.
The House of Commons cannot ignore the times in which we live. In the last decade, we have become more and more dependent on the internet and smartphones. In fact, 78% of people and 95% of 16 to 24-year-olds now possess a smartphone. Such technology can be a force for good, but it has also become an accelerant to those who wish us harm. Whether we are talking about county lines, terrorism or child abuse, smartphones have opened up a whole world of encrypted communications which I believe presents the biggest single challenge to our police and to law enforcement.
As Security Minister, I recall many occasions on which I was woken to deal with security issues. I remember being woken on the night of the Manchester Arena bombing, and I remember hearing the chilling news that a nerve agent had been used on the streets of Salisbury. But the day that I remember above all from the last two and a half years was the day of my visit to a regional and organised crime unit, where I had to listen, via an online chatroom, to a paedophile plot to kidnap, rape and kill a seven-year-old girl, about the same age as my daughter. If that was not sickening enough, I could sense the frustration of detectives who needed data from overseas to stop the abuse being committed, because in case after case timing is everything in these investigations.
So when the US Government, supported by Senators in the House of Congress, offered to help to solve this problem we grabbed at the chance. The House should recognise what they have offered: they have offered to remove legal barriers in the US to enable compliance with UK court orders. The Americans recognised, as we do, that the vast majority of data that we need for our investigations reside on the other side of the Atlantic—Google, Facebook, YouTube, WhatsApp, to name but a few. In fact, 99% of data that we need for child abuse investigations resides overseas and only 1% resides here.
These stark figures say two things to me. First, the reality is that we need the US data far more than they need ours. That was true before Donald Trump and it will be true after Donald Trump. Secondly, in this case, the US is doing us a favour. The Bill before us is the legislation required to give effect to a future US treaty and any other treaty we may make with another country in future, for example, Canada, so we can access that data much more quickly than we do now. These treaties will come before us separately, to this House and the peers House, at a different time, and Members will be able to scrutinise and challenge them at that point.
Let me deal directly with the Labour amendments. During the Bill’s passage in the Lords the Labour party attached to this Bill an amendment that would prevent the UK from making the necessary treaty with the US unless it got assurances that data sent across the Atlantic would not lead to the death penalty. This Bill allows enforcement agencies to access content directly from communications service providers based overseas using an overseas production order. These orders can only work when a relevant international agreement, such as a treaty, is in place between the UK and another country and as the majority of the CSPs, as I said, are based in America we expect the first such agreement to be with the United States. Both amendments 1 and 12 attempt to amend the Bill and reinsert the Lords amendments.
First, and bearing in mind how little data we hold here, having looked back over 20 years, we have not been able to find a single case whatsoever where only the data that the Bill deals with would have led to a death penalty overseas. Secondly, this is about data, not people. Extradition from the UK is dealt with by separate legislation and Her Majesty’s Government are already prevented from handing over someone without death penalty assurances. Thirdly, this Bill is about our data requests overseas in order to bring data back here for investigations and when I last looked we do not have the death penalty in this country. So to try to use the Bill as a vehicle to deal with a treaty as yet not concluded is simply wrong.
Throughout the passage of the Bill, I have been clear that the US has been generous in its offer. I have also admitted on the record that on this subject we do not have equality of arms with the US. This is not about a fantasy that we are bowing to the US. I noticed the allegations that the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) made in her column in the Daily Mirror recently saying that this was all about cosying up to Donald Trump, that the Labour party amendment
“simply blocks data sharing co-operation with all countries if the death penalty is a risk”,
and that the
“reason Ministers seem to be so keen to tear up our laws and ignore our human rights is because they are in a terrible mess in refusing to rule out a No Deal Brexit.”
Of course, nowhere does her op-ed address the central allegation that her blocking data will mean child abusers will be free to continue abuse of children for longer because we simply will not be able to get the data that we wish. And perhaps I could put her mind at rest: the US offer on this treaty was initiated not under President Donald Trump, but under President Obama. This is about the reality and the decisions we need to make to put our citizens’ safety first. Members should understand that the current drawn-out methods of getting data can take months and years.
The hon. Gentleman offers an incredibly selective quote from the ruling in the High Court by the Lord Chief Justice of England and Wales that found in favour of the Government on that case on all five counts. Every single count and every single challenge by Liberty and its glitterati up in the House of Lords failed at that test. The hon. Gentleman has also not answered the central charge, which is that to jeopardise this legislation and the treaty puts at risk children, because our law enforcement officers will not get the data in a timely fashion. Is he happy to accept that that delay should be maintained for the sake of a theoretical, never-happened occasion in the future?
I am going to stand up for the security of our citizens and a responsible Government have to balance abstract, theoretical, minute probabilities with keeping our constituents safe. Perhaps I should remind the hon. Gentleman of what we found in one of the cases. It is not related to this data, As I have clearly said, this Bill produces not a single example in the last 20 years, but under the MLAT process in the past no assurances have been sought and indeed the Government of the day indicated there was potentially a death penalty. It was a Labour Government who did not seek the assurances and did transfer the data. What does that mean? It means a responsible Government know the balance between keeping our citizens safe and making sure they comply with our international obligations. Members on the Opposition Benches have managed to do that in the past and I hope they do it again.
I have been absolutely clear. The hon. Gentleman may say he would do a better job in the negotiations if Labour was in power but, as I pointed out, we do not have equality of arms. Our negotiating position is this: there is 1% of data here versus about 90% of data there, which means our leverage is minuscule when it comes to demanding strings attached of the United States.
Break in Debate
I will come to the right hon. Gentleman. All the amendments are grouped, so we have plenty of time.
Having said that, I have to apologise to the right hon. Member for Hackney North and Stoke Newington and to the Leader of the Opposition. In her column, the right hon. Lady said that I attacked her personally by criticising what was going on. I apologise that I did so, but I did so because I meant it. That is not the Labour party that I know. I have family in the Labour party. I have a relation who was a Labour MP in the 1930s and, if I remember correctly, the first socialist Lord Advocate in Scotland. The Labour party that I know would not play this type of politics with our constituents. A Labour party led by pretty much any other Labour Member would never have indulged in this type of nonsense.
The Labour party that I know in Lancashire, in the north of England and in Scotland keeps people safe and recognises the responsibility that goes with governing and that there is a balance. It is a truly difficult balance, which people of the best motives make every single day, between upholding values and keeping people safe. That is why I apologise that I had to make that attack, but I made it all the same. It is incredibly important that a Government in waiting should be led by people who recognise that their duty in government will be to make difficult decisions and to reflect the reality of the 21st century, not some abstract theoretical nonsense that panders to a few.
No. The Labour Front-Bench team are saying that if we do not get what they want, we should block the treaty. The condition from the United States or any other country could be, “Look, I’m terribly sorry, but we have 90% of the data and you have 1%, so here’s our offer and this is the reality of it.” Labour is saying, “If they do not give us the assurances we want”—they go beyond the OSJA guidance and beyond the public policy of this Government and the previous Government—“the treaty will not be completed.” I am here to say that the treaty will not be concluded if those strings are attached in that way. That is the simple reality.
The consequences of that, as I have pointed out, will be felt in our constituencies up and down the country and will also be felt should the Labour Front-Bench team become the Government in a few years’ time. The people could be facing an existential threat to their security, and that Labour Government would have to make these same difficult decisions. We have worked incredibly well together on this Bill, but this issue cannot be removed into some abstract debate when this is about giving our law enforcement agencies the tools to do their job on a day-to-day basis.
Break in Debate
I am grateful to the hon. Gentleman for giving way. I wonder whether he will quote at length my response in that court case, the response of the Home Secretary, and, indeed, the other parts of the correspondence. He makes the point about the embassy. The embassy in the United States is the other part of the Foreign Office. He may like to reflect on the fact that, first, we won on all five counts, so he has picked out a few parts of the case, but not the full case. He will also know that, under this and the previous policy, one cannot seek assurances under strong reasons. He talks about hypocrisy. One of the strong reasons—a bit like some of the challenges around data, but he is referring to an MLAT case—is that the alternatives for these individuals for their rights—[Interruption.] No, I get that. The alternatives for those individuals were very much less about their rights—potentially extrajudicial killing in the back of the head and potentially being shipped to Guantanamo, to which we fundamentally object and oppose and, as that case highlighted, something in which we would not assist. The alternative for their human rights was far, far worse than a lawful trial in the United States.
Break in Debate
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.
Then the hon. Gentleman has quoted so selectively. If he has read it in full, he will know that all five points of allegation—
Yes, but the hon. Gentleman did not expand on them. If he had, he would have said, for example, that the Lord Chief Justice of England and Wales made it very clear that
“the Government recognises and responds to the realities of political life in the state concerned, whether or not it likes those realities. It would be very odd indeed to ignore them. Ministers, diplomats and other officials are engaged in a constant process of evaluation, making judgements about the differences between what is said and what is meant; between what is threatened, explicitly or implicitly, and what is likely to happen; about the impact of action of the UK. That is what was done here. The Home Secretary had the advice of the British Ambassador…The suggestion that he was not entitled to take it into account and rely on that expert assessment when making his own judgement is misconceived.”
The Lord Chief Justice recognises the political realities within which we operate in the course of trying to keep people safe in this nation. It is a great shame that the shadow Home Secretary cannot manage to recognise those realities when the Lord Chief Justice can.
Question put, That the clause be read a Second time.
Break in Debate
I beg to move, That the Bill be now read the Third time.
Throughout the process, the Bill has been about giving our law enforcement agencies a step change in capability to access the vital data needed to investigate some of the worst crimes perpetrated against our constituents. The House has spoken. We examined the Opposition’s amendment 18 and the amendments that mirrored those attempted in the House of Lords. A majority of 53 in rejecting amendment 18 sends a clear notice that Members in this House have considered the delicate balance between obligations and security and have favoured that we should send the Bill back to the Lords with the amendment rejected. I hope that their lordships will reflect on that.
This Bill is about the security of our children and our constituents and about taking up an offer made by President Obama’s Administration to help us with vital investigations where time is of the essence, so that we do not have to go down the long bureaucratic route of the MLAT process, which can take months or years. Indeed, I meet police officers who tell me that they cannot actually progress investigations as a result. When that process of obtaining vital data is turned into days and weeks, this House should be proud not only of our special relationship with the United States that has enabled this to happen, but of the fact that our police will be able to get the necessary data.
Members from across the House often quite rightly complain that data from faraway CSPs, such as Facebook and Google—data that is corrupting the internet and radicalising our families and our children—is being used to prosecute cybercrime and that we need to do more about that. We need to take action to stop such things happening. This Bill contains a strong measure offered by the US Administration, and it means that we will be able to do much more to keep our citizens safe. It is the responsible thing to do.
I have listened to suggestions throughout the Bill’s progress and have taken them into the Bill where and as much as possible, including on the protection and notification of journalists. I hope that the other place recognises the consensual way in which we have made progress on 90% of the Bill. We will be the first nation to have such an arrangement, although there is more work to be done around the treaty.
I do not know whether the Lords will send the Bill back—I pray that they do not—so I will say a grateful thanks to my Parliamentary Private Secretary, my hon. Friend the Member for North Dorset (Simon Hoare), who has done great work; to the usual channels; and to the Labour and SNP Front-Bench spokespeople, the Democratic Unionist party and the Liberal Democrats, who have all either accommodated offers or had the time to listen to me in private to try to resolve matters. I thank my officials and the Bill manager. This is her first Bill, and she was allocated a Bill that looked so boring and innocuous that there would be no controversy. Little did she know how our friends in the upper House would behave—I can only apologise for that. I thank the team for doing a sterling job. I hope that the Bill does not return and that we can look forward to its coming into law.
This group of amendments relates to the new port and border powers in schedule 3 to the Bill to tackle hostile state activity, as well as to the existing counter-terrorism ports powers in schedule 7 to the Terrorism Act 2000. I will focus my remarks on the substantive amendments.
During the passage of the Bill through this House, the hon. Member for Torfaen (Nick Thomas-Symonds) has pressed the Government on whether there is an alternative to the power exercisable in exceptional circumstances for a police officer to be in the sight and hearing of a consultation between an individual detained under schedule 3 and their solicitor. While the Government were clear that safeguards were needed to prevent the right to consult a solicitor from being abused, thereby potentially putting lives at risk, the hon. Gentleman argued that such a provision would undermine the principle of confidentiality of consultations between lawyer and client.
On Report in September, I undertook to consider the issue further. Where there are concerns about a detainee’s chosen solicitor, Lords amendments 35 to 37, 39 and 40 would allow a senior police officer to direct that the individual consult a different solicitor. In practice, that is likely to be the duty solicitor. This provision is modelled on the Police and Criminal Evidence Act 1984—PACE—code H and reflects the suggestion made by the Law Society in its evidence to the Public Bill Committee in June last year. The change will apply to persons detained under both schedule 3 to the Bill and schedule 7 to the 2000 Act. I hope that the hon. Gentleman will agree that this change adequately addresses the concerns that he raised.
Lords amendment 25 provides for a procedure to enable the urgent examination of a detainee’s property, including confidential journalistic or legally privileged material, in cases where there is an imminent threat to life or significant injury, or where there is an imminent threat of a hostile act being carried out. In such cases, the police must be able to act with immediate effect and, consequently, the usual process whereby any such examination must be approved in advance by the Investigatory Powers Commissioner cannot apply.
These Lords amendments to schedule 3 would instead allow an examining officer, with the approval of a senior officer, to examine a detainee’s property before a decision has been made by the commissioner. Under this exceptional procedure, authorisation would be required to be given or withheld by the commissioner or a judicial commissioner after the event. Where the commissioner withholds authorisation, he would have the power to direct that the property be returned and that information taken from it, including copies, is not used and destroyed.
As with the existing process provided for in the Bill, the commissioner’s decision will be taken after consideration of any representations made by affected parties, and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner. That approach is consistent with the Court of Appeal’s judgment in the case of Miranda, where the Court recognised that there might be a need for
“post factum oversight in urgent cases”.
Further details of the process for examining retained property, including where it contains confidential material, will be set out in the schedule 3 code of practice, which must be debated and approved by both Houses before the provisions in schedule 3 can come into force. These Lords amendments improve the provisions in the Bill, and I commend them to the House.
At present, the schedule 7 code of practice requires that an individual examined under schedule 7 is informed of their rights on first being detained. There is analogous provision in the draft schedule 3 code of practice. The Joint Committee on Human Rights suggested that this protection for detainees is sufficiently important that it should be provided for on the face of the Bill and not left to a code of practice. The Government were content to accept the Joint Committee’s recommendation, and Lords amendments 33, 34 and 38 provide for that.
Lords amendments 41 and 42 respond to a recommendation from the Delegated Powers and Regulatory Reform Committee. The Committee argued that the regulation- making power in paragraph 53 of schedule 3 is too widely drawn. Under that power, the Home Secretary must specify additional categories of persons with whom information acquired by an examining officer may be shared. The Delegated Powers and Regulatory Reform Committee pointed out that this regulation-making power places no limitation on the categories of persons who could be specified for those purposes, including an organisation in the private sector. Lords amendment 41 narrows the schedule 3 regulation-making power so that it can be used only to specify persons carrying out public functions, and Lords amendment 42 makes a similar change to the Terrorism Act 2000. I commend these amendments to the House.
Yes, I agree with my hon. Friend. It is in all our interests to ensure that our financial sector and country tackle financial crime. The global scale of it demands that all of us play our part to burden-share, which is why the serious and organised crime strategy last year specifically committed to ensuring the widest response from both Government and the private sector.
I am grateful to the hon. Gentleman for giving me the opportunity to clarify some of his remarks. First, those orders were not introduced—enacted—until April last year, so they have not been used for a year; and two, not one, have been used. At the same time, the Criminal Finances Act 2017 brought into existence asset-freezing orders. In one year, since April, we have seen asset-freezing orders used 200 times alone in the Metropolitan police, freezing over £40 million. I assure him that the use of unexplained wealth orders will continue. However, he will know as a lawyer that the courts and the judiciary have to get used to understanding them, and we have to understand how the courts interpret the legislation; but he should not worry, the asset-freezing orders are doing their job, as will the unexplained wealth orders.
I beg to move amendment 1, in clause 1, page 1, line 20, leave out subsections (5) and (6).
This amendment removes subsections (5) and (6) from Clause 1 of the Bill. These subsections concern the designation of international agreements under section 52 of the Investigatory Powers Act 2016.
It is a delight to serve under your chairmanship today, Mrs Moon. I thank hon. Members for having listened in a consensual manner on Second Reading. This should not be a controversial piece of legislation. As people know, the Bill is designed as a docking station to give power to our law enforcement agencies to go to our courts to seek orders for the production of data overseas. It is about removing bureaucratic barriers to our law enforcement and allowing investigations to be concluded in a timely manner—often very quickly, compared with the delays of up to two years that can sometimes be experienced abroad. Fundamentally, it is a piece of legislation about UK law enforcement’s request for inward-coming data, so that our law enforcement can seek from the courts data from overseas. I ask hon. Members to bear that in mind.
At the moment, the majority of communications service providers, such as Facebook and Google, hold their data in the United States. It is therefore obvious that one of the countries we will seek to sign a treaty with so that it recognises these court orders is the United States. No doubt there will be one with the European Union at a future date. More than 90% of the data resides in the United States, so when our law enforcement tracks paedophiles, terrorists or organised crime, it is very important that we have timely access to it. At the moment, we go from the United Kingdom to the US Department of Justice to a US court to a CSP, and then it goes back down the line. In some cases, that can take up to two years and, regretfully, some cases have been abandoned as a result of that delay, while all the time offenders are abusing.
I have tabled an amendment today to remove from clause 1 the additional sections added by the House of Lords on international agreements. Subsections (5) and (6) of clause 1, which were added in the Lords, will prevent the Government and all future Governments from designating international agreements under section 52 of the Investigatory Powers Act 2016 with a country that retains capital punishment, unless assurances have been received.
I understand the strength of feeling on this issue and am grateful to Members of both Houses for their contributions. I have listened carefully to their arguments, including those made in the House of Lords. I want us to work together to reach a position that we can all support ahead of Report. However, if the Lords amendments stand, they will put at risk the Bill itself and any future treaty with the United States or, potentially, any other country. Live international negotiations do not work where the host Government—this Government or any future Government—can have their hands tied in this manner. It would prevent our making a negotiation and could effectively disqualify us from getting where we are trying to get to with the United States.
The Bill is about producing the power for a court to make an order in the United Kingdom. Subsequent scrutiny of any international treaty that we seek to make will be done through the normal processes of Parliament. We would table any international treaty for ratification in both Houses, providing 21 working days for scrutiny. Anyone in the House can object to the treaty as formed. If they do not like the terms of the international treaty, that is how they can register their objections or stop it going ahead.
The Bill is agnostic about the countries that we might make a treaty with. That is for the treaty itself. While I understand what is at stake here and what the Lords amendments try to achieve, the principle would be absolutely the same with a Labour Government, as it has been in the past, or any other Government. We should resist attempts in primary legislation to bind our position in negotiations that have not yet concluded and have not come to the House. I believe that would be upheld by any sitting Government.
When it comes to death penalty assurances, it is a fact that under the last three Governments over the past two decades, there have been very rare occasions—two occasions—when a Government have felt that there have been exceptional circumstances and either a death penalty assurance has not been sought when exchanging evidence or one been sought but not been achieved, and the exchange of evidence has nevertheless progressed. That has happened incredibly rarely, but it did happen under the Labour Government in the early 2000s and under the coalition Government when Liberal Democrats Member were in the Department. A legal case is currently outstanding about an occasion when it happened under this Government.
It is not that this or any other Government have wantonly done it with enthusiasm, but there may be occasions when something so egregious has happened to a friend and ally that we make a decision that it is not for us to dictate such stringent terms to that ally in our decision to help keep us all secure or to balance the needs of security with the needs of human rights. I could give an example, but the terms of the confidentiality involved mean that we are unable to do so.
Suffice it to say that a fictional example could be that someone in this country has launched a biological weapon—or, at least, a horrendous weapon—that has caused death and destruction to thousands of people in the United States. That person manages to make it back here and the United States seeks evidence from us about that individual. If there is no evidence in this country to charge him or her with an offence, the Government would have to decide whether evidence about the individual should be shared with the United States authorities. There may be occasions when the US authorities say, “Look, we cannot guarantee that what you do with that evidence will not lead to a death sentence, either indirectly or directly. We cannot do that.” This Government or a future Government might realise that the individual poses a real threat—we do not want him residing here any more than anyone else would want him residing anywhere else—and in that position there would be very strong reasons why, if a death penalty assurance was not received, we should share the evidence.
That would be sharing evidence with a country such as the United States or the European Union that has due process, fair trials, independent defence and an independent judiciary, and therefore meets all our values and matches our view of the rule of law, so this is not about making an agreement with a country that does not have the rule of law. It is a very difficult choice, but ultimately the duty of Government is to keep us safe and that is why the Lords amendment puts at risk not only this Bill but the treaties that we could potentially sign and the ability to keep people safe in the United Kingdom.
Let me be very clear that if the Bill was not able to proceed, that would mean that in the 99.9% of cases that are not attached to a death penalty at all—indeed, I have said that there have only been three occasions in 20 years where Governments have been involved in cases where there is a potential death penalty, and interestingly enough in two cases there was not one—offenders such as the people I referred to on Second Reading, who had serially abused children for the most horrendous crimes, will be able to continue to abuse with a longer timetable for being caught. At the heart of my mission is to catch those people as soon as possible.
That is the choice that right hon. and hon. Members are making with this legislation. We can stand on a totally purist principle of absolute opposition, irrespective of strong reasons or exceptional reasons, or we can decide that we have to balance the security needs of our constituents and our national security with the Government’s duty towards human rights and to observe the European convention on human rights. It is not an easy balance and it is sometimes tested in the extremes, but I cannot look right hon. and hon. Members in the face and say, “This consideration is so necessary that I would be willing to put at risk the cases that I have seen, as Security Minister, of child abuse, where the data is stored in America.” I do not think any hon. Member in this House, of whatever party, would be able to say to their constituents that they would put that at risk.
I am happy to provide the Committee with example after example after example of seriously dangerous people’s behaviour towards our children and our friends, and also of terrorists plotting mass-casualty events, where this Bill will help incredibly our law enforcement agencies to get the evidence they need.
The example that I used on Second Reading was of a man—Matthew Falder—so egregious in his abuse that he abused hundreds of people across the world using highly specialised encryption. He was an academic. He persuaded people to commit suicide, or to abuse themselves. He set up chatrooms that people were only qualified to enter by bringing their own images of abuse of children to that chatroom, where they could then share those images among themselves.
When our law enforcement agencies come across these chatrooms or follow the leads, people do not use their real names. Sometimes, one sees things from outside the chatroom and all one sees is a jumble of numbers. We might hear them speaking. We might see, as I have done, some of the footage. Therefore, getting the data from the CSPs, 90% of which is in the United States, is vital for us to do our job and to bring those people to justice. In fact, the first efforts are to stop them abusing, and then to bring them to justice.
That is the difficult choice that we have to make in Government. It is the Government’s responsibility. The last Labour Government recognised that choice, because their internal advice on such events was that in exceptional circumstances they did not need to seek or require death penalty assurances. The coalition Government went further and, for the first time, published something called OSJA—overseas security and justice assistance—guidance. It is a publicly available document with a very clear guideline about what we need to do to uphold our human rights obligations. However, under paragraph 9(b), where there are strong reasons not to seek assurances, we can proceed without them.
That was a public document—never published by any previous Government—that was published under the coalition Government, via the Foreign Office. It was a landmark and it truly opened up the whole process of risk and balance that people go through. I was not the Security Minister at the time, but none of us received any objections. No political party in this House made an issue of it. I did not hear any objections from the Scottish National party, the Labour party or the Liberal Democrats, who were part of the Government at the time, and it stood as a serious piece of work, and still does.
All we seek in the Bill is to reflect that. I therefore hope that hon. Members will support our efforts to get the legislation through the House and to make a treaty with the United States, and other countries as required, in a way that allows us to uphold our values, but recognises that the Government have to balance that with their duty, which is often not easy but is necessary, to keep us safe. That is why we will remove the amendment made in the Lords and progress the Bill, which I do not believe is controversial. I also do not believe that the amendment tabled in the Lords has anything to do with the legislation, which is about empowering a court order. If the Lords want to object to the treaty that we make with the United States, they can do that through the ratification process that takes place in this House and in the House of Lords when, hopefully, it arrives at a later date.
I am afraid that there are high stakes. I wish that I could tell the United States what to do and bind its hands, but I simply cannot. The reality of international negotiations is that none of us holds all the cards. We all have to negotiate, just as I negotiate with Her Majesty’s official Opposition, and just as I negotiate with the Scottish National party. That is what we do. I cannot speak for the Scottish National party any more than the Scottish National party can speak for me. [Interruption.] The tartan Tories! Similarly, I cannot speak for international communities.
I therefore commend our amendment to remove the additions that were made in the House of Lords, so that we can get on with the important job of protecting our constituents, while having the highest regard for our obligations under the European convention on human rights.
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The hon. Gentleman fails to recognise that there is no equality of arms here. Because of the creation and development of the internet, 90%-plus of the data we need is held in the United States. If it were 50:50 or 60:40, it would be different. The United States has been absolutely categorical with us that, should we adopt the principle of effectively telling it how to conduct its justice system, it will not proceed with the treaty. That is the choice in the real world that I, as the Minister with responsibility for this, have to make. Do I like it? No. Do I have to make the decision? Yes—that is a fact. There is no conjecture about whether the United States will or will not: it will not. In addition, it holds 90% of the data. If the hon. Gentleman would like to like to come here so we can change the law together on how we store data, I would be delighted to do that, but that is a fact. That is the reality that I have to live with. Therefore, if he knows that the United States will not do that, does he recognise that the implication of supporting the amendment made in the Lords is that the Bill will fall over?
We can debate that when we make the country-by-country treaty. That is the difference between this Bill and the treaty. The hon. Gentleman and his colleagues will have plenty of time to scrutinise the international treaties as they come before this House and the Lords under the process that has been well established. That is the time to scrutinise the decisions we have come to, and whether we agree or disagree to make the case at that time. It is perfectly possible to refuse to ratify the treaty.
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I understand that the Bill is not the most exciting piece of legislation, but after the first vote the Labour party lost three of its Committee members, who have gone off to do something else. The hon. Member for Wolverhampton South West, for example, has done a bunk—I shall go through the others as we proceed. [Interruption.] The Scottish National party is present in all its yellow glory. The Bill might not be exciting, but I do not think that Members should turn up for the controversial vote and then do a bunk. We should recognise that this legislation is incredibly important to our law enforcement community and our constituents.
I understand that the hon. Member for Torfaen is concerned about the additional proceedings in relation to serving an overseas production order while PACE refers only to the investigation. However, I believe that PACE has been misread in this regard. Nothing in law says that an investigation ceases once proceedings have been brought to court. Indeed, PACE does not state anywhere—I do not believe it infers this either—that orders may be used only up until someone is charged.
The operational partners we work closely with have made it clear that, in the context of applying for production orders under PACE, they do not consider an investigation to have come to an end until convictions have been secured. It is common for new evidence to come to light and to be obtained throughout the criminal process after charge. Evidence gathering is not limited to the investigation. I believe that it is highly unlikely that a court would construe PACE so narrowly that the police could lose access to investigative tools once the person has been charged.
I understand. I suspect that the wording just comes from the parliamentary draftsmen. Given no significant difference, as I am explaining, the wording was simply put in that way.
As I was saying, that interpretation would be perverse, and it would have an impact not only on the prosecution but on the defence, given the duty on the police to exhaust avenues of inquiry even if they point away from the defendant’s guilt. The COPO Bill therefore deliberately references “proceedings” to make it clear that orders are available for all stages of the investigation. That was influenced by language used in section 7 of the Crime (International Co-operation) Act 2003, which deals with a request for assistance when obtaining evidence from abroad.
I reiterate that, despite the difference in the language used, the Government do not intend any difference in effect between the Bill and PACE in that regard. We do not consider that the use of the word “proceedings” in the Bill increases the likelihood of “criminal proceedings” in PACE being interpreted unduly narrowly. PACE will continue to be available to law enforcement agencies once proceedings have begun for use up to charge and beyond.
The hon. Member for Torfaen has suggested that once a trial begins the investigation is often handed over from law enforcement agencies to the Crown Prosecution Service, but it is still possible that—this happens a lot—the law enforcement agencies that were investigating the crime will then come across new evidence, which of course they would share with the prosecuting authorities. I therefore ask him to withdraw the amendment.
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The hon. Gentleman makes a valid point, and I recognise the slight difference between this amendment and amendments 13 and 14, in which he deals with confidentiality. First, as I pointed out earlier, hon. Members are talking about incoming requests for UK-held data, but the Bill relates only to the UK’s outgoing requests for electronic data held overseas. I completely accept the point that the Bill cannot work without a reciprocal international agreement in place, but amendments 15 and 18 are directly related to the international agreement, as opposed to what our Bill provides for.
The Bill is simply not the right place to mandate what is, I agree, a right and laudable protection for journalists and their data. We cannot impose these conditions in advance of negotiations on an international agreement. In my view, this goes back to the principle of allowing the Government of the day to have those negotiations without necessarily having their hands tied. Of course, the UK would never agree to share data with a country that had insufficient safeguards—not as long as I am the Minister and this is our Government. I do not think that it is necessary or helpful to mandate this in the Bill.
The amendments, which seek to control the Government’s negotiating position before they have begun considering future international agreements, would not prove desirable to any Government. However, I remind hon. Members that they will get ample opportunity to scrutinise any international agreement, both when the agreement is designated and again, ahead of ratification, under the Constitutional Reform and Governance Act 2010. The Government already amended the Bill in the other place to provide that extra level of scrutiny of all international agreements.
The first, most immediate and most important international agreement will be, I hope, with the United States. As hon. Members know, the US has an even higher regard for protecting freedom of speech and freedom of the press than the UK has, as set out in the first amendment to its constitution. In addition, the US-UK agreement has been drafted to be fully compliant with EU law. If hon. Members want to know how strong the US holds the first amendment to be, I tell them that when they lobby me about neo-Nazi websites hosted in the United States—as they often do—and we seek to have them taken down because of the vile extremism that they spout, our challenge is that under the first amendment it is extremely hard, even domestically, for the US to do that.
To some extent, we would not have the same problem—well, let us hope not—but the US definitely has that problem. That is an example of how these international agreements will be between like-minded countries with similar values and rights, the rule of law and so on. In this case, on the journalistic issue, the US has a stronger protection than we currently have in the European Union. That is why we have done this in the way we have.
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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.
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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.
Clause 1 is the meaty part of the Bill, and the Government have removed the amendment made in the Lords. I do not need to reiterate the importance of the Bill progressing in the way that we have tried to take it through. I have offered concessions throughout, as I have done elsewhere, and concessions are still on offer to Opposition Members, and indeed to Conservative Back Benchers. However, I cannot say that I will put the Bill in jeopardy, because I believe that fundamentally that would make our constituents less safe. That is why we have removed the amendment, and why I believe clause 1 should stand part of the Bill.
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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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The amendment would make confidential journalistic data an excepted category for material for an overseas production order, meaning it cannot be sought using the powers in the Bill. The amendment goes further than what is currently in place under PACE. While confidential journalistic material is excluded material in PACE, it is accessible if certain access conditions are met.
Under PACE, a constable may obtain access to excluded material for the purposes of a criminal investigation by making an application under schedule 1. Excluded material can be applied for only if there is a statute that would have authorised obtaining material in question under warrant before PACE was introduced.
While the Bill was based on some of the provisions in PACE, its powers extend to further offences, such as terrorism investigations. In the Terrorism Act 2000—the legislation that law enforcement agencies currently use for terrorism investigations—confidential journalistic material is not excepted data. The Bill creates a new power to obtain an overseas production order, drawing on existing powers available to law enforcement domestically for the acquisition of content data overseas, to help to prevent unnecessary delays in tackling serious crime.
It is sensible to ensure that we do not have significantly different legal tests in the Bill. The existence of different court procedures for different sorts of court orders leads to unnecessary confusion, avoidable litigation and further delays in investigations.
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I hear my hon. Friend’s point. The whole point of the Bill is to increase the speed of the process and smooth it. What we will come on to later is obviously that in this process there is notification for journalists; other people do not get notification. Journalists are brought into the process early on, so that they are able to make representations to a judge in a way that does not apply to the rest of the public. Indeed, it does not apply to Members of Parliament; if MPs are under investigation, they will not get a chance to make representations to the judge. But a journalist will get that chance.
Our view is that the terrorism law is domestic law, and that judgment has been in existence since the last Labour Government. What is important is that the judge uses his or her discretion, guided by the fact that any judgment needs to be proportionate, necessary, in the public interest, targeted at an individual and in line with the range of domestic laws. So, yes, there is POCA, PACE and the Terrorism Act 2000. However, all of those laws are established UK pieces of legislation.
If we add the notification to the judge’s discretion—the point of it has to be proportionate and necessary—and to the fact that the laws are already established, I believe that journalists will have the protection that they need. I am happy to look at the issue, which we will come to in later amendments, about effectively improving the definition of journalistic material to make sure that it is not broad and spread wide.
In this case, we must remember that the appropriate officer will need to provide evidence against each of the access conditions, and the judge will scrutinise them carefully. It is almost inevitable that in any situation where the police attempt to obtain journalistic material, there will be understandable resistance from the journalist or media organisation that holds it. Both are well versed in the process of making representations to court, and it is rare that access to confidential material is granted through PACE.
It is the Government’s intention that journalists’ interactions with their sources should be protected, but that does not mean that journalists should receive blanket protection from legitimate investigation, simply because of their chosen profession. The Bill takes a reasoned balanced approach, so I ask the hon. Gentleman to withdraw amendment 13.
Amendment 14 seeks to redefine “confidential journalistic data”. The definition in the Bill is taken from the Investigatory Powers Act 2016, which the Government feel is sufficient protection for source material.
I am satisfied, and the court rules will also expand on that. I am satisfied that judges, who regularly come down not on the Government’s side, will take the Bill and scrutinise the requests properly. We have to go to a judge, so our law enforcement agencies cannot examine the information without going via the judiciary; it goes via the judiciary in this case. I have every faith that they will be able to uphold those important principles.
On amendment 14, the term “confidential journalistic data” reflects the reality whereby journalistic material can be hosted on servers where the data would technically belong to the communications service provider, rather than the journalist. To ensure that source material has proportionate protections, the term “confidential journalistic data” has been borrowed from the 2016 Act. I am happy to discuss that further with hon. Members before Report. I therefore ask the hon. Gentleman to withdraw the amendment.
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Amendments 4, 5 and 6 seek to include in the Bill an additional test of relevant evidence, which the judge must be satisfied has been met before granting an overseas production order for journalistic data, and the additional requirement that all other avenues for obtaining the data have been exhausted before applying for an overseas production order. On the relevant evidence test, under schedule 1 to PACE, there are certain conditions that must be satisfied before the judge can order the production of special procedure material. Under these conditions, first, there must be reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection with which the application is made. Secondly, there must be reasonable grounds for believing that the material is likely to be relevant evidence, which means, in relation to an offence, anything that is admissible in trial for that offence. Thirdly, it must be in the public interest, having regard to certain matters, for the material to be produced.
Only the public interest and substantial value conditions are included in the Bill. That was deliberate drafting to ensure that our law enforcement agencies have the powers they need to gain access to material that could help further investigation, even if that material is not necessarily admissible as evidence in court. Although the intent of the powers is to allow for data gathered to be used as evidence in court, we do not intend admissibility as evidence to be a barrier to obtaining material that has been identified as being of substantial value to an investigation. My officials have worked closely with operational partners to understand the need for this. Investigators from law enforcement agencies advise that there are often cases in which access to data is fundamental in discovering certain leads in an investigation, although they will not necessarily be used as evidence in court. For example, if someone is being investigated for storing inappropriate images of young children, an overseas production order could reveal further references to other platforms where inappropriate content was being stored. While the images themselves would be used as evidence in court, the lead to the platforms on which they were stored might not be.
I do not think that is what I am saying. I am saying that some material would be used as evidence and some would be used as a lead through which to access or potentially find evidence. This is not about anyone going to the court and asking for irrelevant material. It is about asking for material that is substantial and meets the test of the judges.
I will give another reason. Unlike PACE, the Bill allows for the investigation of terrorist offences. It has been drafted to mirror the relevant parts of the Terrorism Act and POCA, neither of which has a requirement for relevant evidence tests to be met.
The concept of relevant evidence works only if an application is made in relation to a particular offence. That is why it does not exist in the Terrorism Act, under which an application does not have to be made in respect of one particular offence, but only for a terrorist investigation. Given that an overseas production order made under the Bill could be served in support of a terrorist investigation, we cannot simply import a relevant evidence test into the Bill, as in PACE. I do not believe that introducing a markedly different legal test depending on the investigation is helpful.
I reiterate that the Bill deliberately brings different police powers under one piece of legislation. The intention is to create a single set of test criteria, which the Government believe provides appropriate safeguards to accessing content data.
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We are in the process of trying to balance the safeguards. Let us remember that the Bill effectively covers a relationship between the law enforcement agencies, the courts and the CSPs—not the journalists or the person under investigation or anybody else. Journalists will be notified effectively to make a representation to a court about why, for example, half of their address book is irrelevant. They have an opportunity to make that point to the judge. Nobody else does. That provides a different type of safeguard from what my hon. Friend is looking for.
The point is well made about an investigation. Many of these investigations are about discovery and are very fast moving; starting with one mobile telephone number or one individual, it very quickly becomes a plot in a terrorist case. It is therefore about giving our law enforcement agencies the ability to pursue an investigation. However, when the investigation comes across journalistic material, the journalist will be given a notification that they are allowed to make a case for why it is irrelevant and effectively influence the parameters of that request. I venture that a judge would take that very seriously.
Some 99.9% of journalists do not have anything to fear from this process. The ones who do have something to fear are those who call themselves journalists at the Dabiq or Inspire magazines from Al-Qaeda and IS and so on, who pump out propaganda and journalism, as they see it, around the world. They have something to fear because this Bill will help us catch those people much quicker. I do not call them journalists, however; I call them first-class terrorists. Ultimately, they are the ones who would love to see bureaucracy slow down the investigation. I do not think our journalists—mainstream journalists, law-abiding journalists, and not even mainstream journalists—have anything to fear from this.
Another point was made about exhausting all avenues of accessing journalists’ data before an overseas production order is granted. First, if the amendment were incorporated in the Bill, that could have the adverse effect of compelling a judge to ensure law enforcement agencies have tried the mutual legal assistance route, which is the route we are currently trying to fix because that can take up to two years before an overseas production order can be granted. That would defeat the point of our creating this new process to prevent up to two years of delays via MLA. The caveat the hon. Member for Torfaen has added to his amendment with the phrase,
“tried without success or have not been tried because it appeared that they were bound to fail”,
would not mitigate this risk either. We are not worried about MLA failing, but about the length of time it takes to gain access to vital evidence.
It is worth noting that, in practice, law enforcement agencies would have exhausted less coercive methods of obtaining data, if they exist. Agencies will only go through the process of applying to court for potential evidence as a last resort in the investigation, for example, should suspects refuse to release or unlock access to their phones and so on. I therefore urge the hon. Gentleman to withdraw his amendment.
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As the hon. Gentleman outlined, the clause allows for a judge making an overseas production order to include a non-disclosure requirement. Such a requirement would be imposed on the person against whom the order is made. It would prevent that person disclosing the making of the order or its contents to any person, unless with the leave of the judge or the written permission of the appropriate officer who applied for the order.
In deciding whether to include a non-disclosure requirement, judges are under a general obligation to make a reasonable decision and to take into account all relevant factors when making that decision. Furthermore, as a public authority, the court is under an obligation to act compatibly with convention rights. I hope that hon. Members are reassured that a decision to include a non-disclosure requirement will not be taken arbitrarily.
There might be circumstances in which it is appropriate for non-disclosure requirements to remain in place once the order has been complied with, or on revocation of it, for example when it could prejudice an ongoing investigation. In such instances we would expect a judge to include such a requirement as he or she would consider reasonable in the circumstances.
If the person subject to the non-disclosure requirement wants to disclose either the contents or the making of the order, the Bill already contains provisions under which the non-disclosure requirements may be challenged, including that of duration. First, when the person against whom the order is made wishes to oppose that requirement, the duration of the non-disclosure can be amended on application. In an individual case, the person against whom the order is made could seek leave of the judge, under subsection (2)(a), or written permission of the appropriate officer, under subsection (2)(b),
“to disclose the making of the order or its contents to any person”.
A mechanism therefore exists by which a person against whom the order is made can seek permission to disclose information relating to the order.
Secondly, the non-disclosure requirement will form part of the overseas production order itself. Clause 7 confers a right to apply for the variation of an order. An application for a variation can be made by the appropriate officer, any person affected by the order, the Secretary of State, or the Lord Advocate in Scotland. That could include varying the order to remove the non-disclosure requirement entirely, or to alter its duration to a period that the applicant feels is reasonable.
As hon. Members know and respect, our judges and courts are under an obligation to act reasonably. There is therefore no need to amend the Bill as is proposed. When a person subject to a non-disclosure requirement believes that it is not reasonable to remain subject to the requirement, provision already exists in the Bill for an application to the court to amend the order accordingly. The amendment is therefore unnecessary and the Government cannot support it.
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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.
I beg to move amendment 2, in clause 12, page 10, line 39, at end insert—
“(6) In determining for the purposes of subsection (5) whether or not a purpose is a criminal purpose, crime is to be taken to mean conduct which—
(a) constitutes one or more criminal offences under the law of a part of the United Kingdom, or
(b) is, or corresponds to, conduct which, if it all took place in a particular part of the United Kingdom, would constitute one or more criminal offences under the law of that part of the United Kingdom.”
This amendment clarifies what is meant in Clause 12(5)(a) of the Bill by the reference to creating or acquiring electronic data with the intention of furthering a criminal purpose. What is criminal is to be judged by reference to what is, or would be, a criminal offence under the law of a part of the United Kingdom.
Clause 12(5) provides that electronic data is not to be regarded as having been created or acquired for the purpose of journalism if it was created or acquired with the intention of furthering a criminal purpose, and that electronic data that a person intends to use to further such a purpose is not to be regarded as intended to be used for the purpose of journalism. As drafted, the Bill does not explicitly define what is meant by a criminal purpose in that context. Without a definition of criminal purpose or a crime in the Bill, there is a risk that the provision could be interpreted inconsistently within UK law. Our intention is that a criminal purpose is criminal only if the conduct constituting a related crime is an offence under UK law, regardless of whether it is a crime in the place where the relevant data was created or acquired, or where it was intended to be used.
For example, if a person located in another country was creating an extremist blog that encouraged others to join a terrorist organisation that is proscribed in the UK, such as ISIS, that person should not benefit from any protections afforded to journalistic data under the Bill. That could be the case even when that country does not criminalise the same conduct. That reflects the principle that the criminal purpose must be recognised as criminal under UK law.
To flip the example the other way, if a legitimate British journalist based abroad is writing an article about political corruption, which the country that they are in deems illegal, we should absolutely ensure that they are given the right protection under the Bill, given that their conduct is perfectly acceptable under British law. Without something that links criminal purpose to conduct that is criminal in the UK, or to conduct that would be criminal had it occurred here, there is a risk that the term will be interpreted by reference to the criminal law of the place where the person who created or acquired the data is located. I therefore propose amending the Bill to include a definition of what is meant by “criminal purpose”. I hope that hon. Members will support the need for this clarifying amendment.
Break in Debate
Thank you, Mrs Moon, for your swift and efficient chairmanship. I am glad that something is functioning in Parliament and Government, and it is this small corner of the United Kingdom. I thank hon. Members for their contributions. I thank the hon. Member for Torfaen, who has contributed throughout, and the hon. Member for Paisley and Renfrewshire North, who has also contributed in as consensual a way as possible. It is regretful that we disagree on one important part.
The Bill will allow our citizens to be kept safer than they are now. As unexciting as its title is—I designed it that way—the Bill is an incredibly important piece of legislation. I hope that it progresses to Report soon and then returns to the House of Lords. I thank hon. Members for their attendance. The speed of our consideration does not reflect the seriousness of the Bill.
As I have said, some of them have gone on for years. Some cases are still sitting in courts overseas. It is predominantly a matter of months and years at present, and we want to reduce that to days and weeks. Every day on which we cannot access content in this area—and let us remember that it is the court, not me, that must be satisfied that a request from the police is valid—is a day on which, in many cases, the offenders are still offending. That is why we think the Bill is so important. It reflects the changes in how offending is happening, and the fact that it is now happening online. For many months, Members on both sides of the House have asked what more the Government can do about not only online radicalisation but online offending. This is a concrete step to ensure that we can do more to counter it.
The MLA process will continue to exist. It remains critical to other types of evidence that are not within the scope of the Bill, and to any electronic evidence that may not be provided for by the relevant international agreement. However, one of the biggest pitfalls of the current system is the long wait to secure electronic data that, by its nature, can be shared very quickly. The Bill provides the solution in the form of an additional, streamlined alternative: the overseas production order.
I do not doubt that Members will support the crucial purpose of the Bill, which is to provide a significantly faster mechanism for obtaining vital electronic data that is held by overseas providers in order to prosecute the most serious offenders, and to safeguard vulnerable people in our society from further unnecessary harm. I commend it to the House.
Break in Debate
With the leave of the House, I will close the debate on Second Reading. I thank hon. Members for engaging with the Bill, for their support of what it will achieve and for their considered comments.
Overseas production orders will be vital in ensuring that criminals do not remain at large for longer than is necessary due to delays in accessing electronic content data held overseas. Overseas production orders also reflect the technological developments of recent years. The use of modern electronic communication technologies by serious criminals to perpetrate their crimes and to seek to evade justice is increasing exponentially. This means that the evidence needed to convict such criminals is increasingly in the form of emails, Facebook messages, images stored with providers like Dropbox or elsewhere in the cloud, and similar electronic content data. UK law enforcement agencies and prosecutors now need a faster, 21st-century process for obtaining such evidence, not least to protect victims of child sexual abuse living in our communities and in our constituencies.
The length of time it currently takes to obtain electronic evidence leaves child victims to be abused while our dedicated law enforcement agencies and prosecutors navigate unnecessary bureaucracy. Bureaucracy prevents us from getting to the heart of an investigation sooner and puts more children at risk. The longer it takes, the longer these vile criminals are free to carry on offending. We must prioritise the safeguarding of the most vulnerable people in our society as far as possible.
I will now briefly address the comments of hon. Members. The hon. Members for Torfaen (Nick Thomas-Symonds) and for Paisley and Renfrewshire North (Gavin Newlands) and the right hon. Member for Kingston and Surbiton (Sir Edward Davey) all spoke about journalistic data. I absolutely hear what they say, and will give substantial consideration to their ideas and suggestions. I can perhaps provide some clarity on this. I do not think that, as the right hon. Member for Kingston and Surbiton suggested, officials picked this off the top of their heads; it was in not only the Terrorism Act 2000, but the Proceeds of Crime Act 2002. As with a lot of different case law, there have been different developments on the definitions of “data” and “confidential data” as it relates to journalistic material. Of course, the substantial value and public interest test is already in place to ensure that data relevant to a particular investigation or proceedings can be the subject of an access production order, but I am happy to discuss this further in Committee.
The hon. Member for Paisley and Renfrewshire North talked about a number of things. First, he asked why we had not opted into the European protection order scheme, by which I assume he means the Europe e-evidence proposals. The Government chose not to opt into the e-evidence regulation as it is not clear that the new EU legislation will be a practical and effective way to address the global issue of providing lawful access to data held anywhere in the world. Clearly, however, I agree with the principles, which is why we are introducing this Bill.
The hon. Gentleman also raised the issue of bulk data. An application for an overseas production order must specify what data is being sought. The judge approving the order must be satisfied that the data requested is of substantial value to the proceedings or investigations, and that it is in the public interest for the data to be obtained. I know the hon. Gentleman may not be satisfied by that, but the hon. and learned Member for Edinburgh South West (Joanna Cherry), being a barrister, will no doubt be absolutely supportive of judicial discretion. Interestingly, people in this House often hold strong views on this—I am a great believer in judicial discretion—yet when we ask them to make that decision about public interest or certain tests, the same people sometimes seek to restrict that judicial discretion. I trust our judiciary and believe that in this environment of a bulk data request and so on, if this is laid by our law enforcement agencies before the court, the judge can use his or her discretion to make that decision, if it is in the public interest, and the police and law enforcement satisfy the requests made.
My hon. Friends the Members for Chelmsford (Vicky Ford) and for Sleaford and North Hykeham (Dr Johnson) were absolutely right about the potential damage that the online environment is doing to our young people and the tools that the internet gives some persistent offenders to exploit and abuse people, both adults and children. I mentioned Dr Matthew Falder at the opening of this debate. To see that case in detail is disturbing, and it will stay with me for most of my life. We know that he affected people’s lives, not just at home in the UK, but across the world, including by encouraging people to commit suicide and so on. He set up chatrooms where the qualification for entry was for people to bring their own abuse images into the chatroom—people were tasked with abusing children and bringing those images in. These are the people this Bill is targeted at, and every day we cannot deal with them is a day they continue to abuse.
The right hon. Member for Kingston and Surbiton, and the hon. Members for Torfaen and for Paisley and Renfrewshire North asked about the issue of the death penalty. I understand the importance of it and the key principle that people hold on it. The right hon. Gentleman was a member of the first Government who published the overseas security and justice assistance guidance—OSJAG. This is human rights guidance on requests for evidence and it contains all the guidance for law enforcement and government on the extent to which we seek and uphold our principle on the death penalty. I am happy to debate this in Committee. It does however reflect the issues and challenges we face as to balancing our security with our belief on human rights. This affects any Government, including the last Labour Government, who did not have OSJAG but still believed there were exceptional circumstances when assurances need not be sought. That is why I will welcome the discussion in Committee, but I make the point to Members that this Bill is an enabling Bill. It is, in effect, a plug for international agreement that we will then go and negotiate around the world, depending on where risk comes from and need. Both Houses will get a further chance to scrutinise those individual agreements and we can then ascertain whether they uphold our principles. I look forward to debating with interested Members in Committee, and I commend this Bill on Second Reading.
Question put and agreed to.
Bill accordingly read a Second time.
CRIME (OVERSEAS PRODUCTION ORDERS) BILL [LORDS] (PROGRAMME)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Crime (Overseas Production Orders) Bill [Lords]:
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 18 December 2018.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
(7) Any other proceedings on the Bill may be programmed.—(Amanda Milling.)
Question agreed to.
My hon. Friend makes the point that the GRU’s fingerprints have been all over these types of events. MH17 was a civilian airliner travelling between Schiphol and Asia, and 200-plus people—women and children going on holiday—were blown out of the sky. It is an outrageous thing to have happened to anyone, and it seems that Russia does not want to bear responsibility for any of that. This is way outside any international norm—it is on another planet from any international norm—and it is time that we said, “Enough is enough.”
Russia has now started to undermine international institutions and degrade the structures and treaties that keep us safe. Russia is failing to act as a responsible member of the international community—one that has the privilege and responsibility of a permanent seat on the UN Security Council. The Russian state must account for the despicable use of chemical weapons by the GRU on British soil. It must recognise that there can be no place in any civilised international order for the kind of barbaric activity we saw in Salisbury in March.
Regrettably, there are some who repeatedly flout the established rules of international conduct, their flagrant disregard threatening the entire international rules-based system. We have acted to protect our citizens and allies against the malign activities of those who disregard international norms and to send a message to all those who would contravene the international rules-based system: you cannot and will not act with impunity.
Deterring unacceptable actions by Russia and other malign actors is critical to our collective security. Recent joint action using transparent, multilateral mechanisms such as the OPCW demonstrates the strength of our shared commitment to tackle the threat of malign state activity and to reinforce the global rules-based system. The June European Council endorsed a comprehensive package to tackle hybrid threats, including the creation of a new chemical weapons sanction regime. We will continue to work with our European partners for its speedy adoption. The US has announced additional sanctions against Russia for the Salisbury attack, and in June, the G7 agreed in Canada a rapid response mechanism to share intelligence on hostile state activity. NATO has subsequently strengthened its collective deterrence, including through a new cyber-operations centre.
As the Prime Minister has said, we will push for new sanctions regimes against those responsible for gross human rights violations and cyber-attacks, as well as robustly enforcing the existing regime against Russia. We will also work with our partners to build the OPCW’s capacity to attribute chemical weapons in Syria and more widely.
Malign actors have, for some time, been using a range of methods to undermine the international norms and laws, and our security and prosperity, and it depends on us to make sure we take a stand. They are trying to destabilise our advanced democracies, open societies and free economies. Those methods range from conventional military interventions to acts of non-military aggression in the form of disinformation and cyber-attacks. All these methods are designed to destabilise by sowing chaos, fear, uncertainty, division and mistrust.
In the face of such behaviour, the international community must continue to unite and to defend the laws, norms and institutions that safeguard our citizens. We must maintain and build on our strong alliances with those who share our values, stand shoulder to shoulder with our many partners and allies, send clear messages to malign actors that unacceptable behaviour will not be tolerated, and remain resolute, determined and united against those who seek to divide us.
Break in Debate
I recognise the point that the hon. Gentleman made about condemning the Russian Government. I would like to put on record the last statement by the Leader of the Opposition in his response to the statement last week, which was an opportunity to condemn the Russian state. I have just reread the response. There is condemnation about the act and the reckless use of a nerve agent and so on, but the closest I can find to a condemnation of the Government of Russia is the final line, which says that
“we will support any reasonable action to bring those responsible to justice and to take further action against Russia for its failure to co-operate with this investigation.”—[Official Report, 5 September 2018; Vol. 646, c. 172.]
What I do not see is a condemnation of the Russian Government for this act in Salisbury. I ask the hon. Gentleman to make it clear that it is his party’s position and his leader’s position that they condemn the Government of Russia for this act.
The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and they have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.
Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.
The Government recognise the sensitivities of the issues and the need to ensure proportionality and to provide appropriate safeguards, and we have been open to exploring how clause 3 can be improved to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary to allow the police to take action to protect the public from potentially very serious threats.
Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorists. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.
This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.
Break in Debate
I will start if I may by addressing the amendments in this group. First, let me turn to the Anti-Terrorism Traffic Regulation Order. Amendments 6 and 7 respond to the debate in Committee about the provisions of clause 14, which, among other things, will enable a traffic authority to impose reasonable charges in connection with the making of an Anti-Terrorism Traffic Regulation Order or Notice.
In Committee, I indicated that I would consider amendments tabled by the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Torfaen (Nick Thomas-Symonds) designed to prohibit charges from being imposed on the organisers of public processions and assemblies. They were quite properly concerned about protecting the right to peaceful protest. Having considered the matter further, I agree that it should not be possible to impose those charges as they have suggested, and amendments 6 and 7 ensure that that is the case.
Throughout the Bill, I have made it my business to make sure that we make changes with as much consensus as possible. I have made the point that, in my time as an Opposition Back Bencher, I rarely, if ever, saw my party or the Opposition get any concession—small or big—from the Government. I do not take that attitude in legislation, and I am delighted that we could make concessions. The Opposition and the SNP were correct in making their points, and it is right that we have put them on the statute book in the right place.
The other Government amendments in this group concern the new power in schedule 3 to stop, search, question and detain persons at a port for the purpose of determining whether they are, or have been, engaged in hostile state activity. It is important to note that this is an exact mirror of schedule 7 concerning counter-terrorism as was introduced by the previous Labour Government in 2000. Therefore, all the questions raised by hon. and hon. and learned Members from all parts of the House should be put in context that some of those issues have been in existence for 18 years—the point on the Irish border, for example. The power was specifically introduced into the Bill to deal with the aftermath of the attack in Salisbury in March. The point is that, in an open trading liberal democracy, we are vulnerable to hostile states abusing that ability to travel and that openness to come and do harm to our society and our citizens. It is a very real threat.
This was in fact considered before last March because the independent reviewer of terrorism legislation, David Anderson—who has often been quoted by the Opposition— highlighted the fact that we were stopping people we suspected of hostile state activity under schedule 7 counter-terrorism stops and said that hostile state activity needed its own separate stop power. We agreed with his observations and have acted on them. It was a tragic coincidence that the attack happened in March, reminding us just how hostile some states can be.
Amendment 10 is about oversight and representations to the Investigatory Powers Commissioner, as we seek to allow those representations also to be made in writing. It is incredibly important that we have these powers. We face a real challenge if a state—as opposed to an amateur or a terrorist—seeks to penetrate our border supported by the logistics of that state. An example is the recent case of GRU officers entering this country with genuine passports, logistically supported by the wider state. This type of activity is better disguised. It is not as easy as it is to stop someone with a rather dodgy back story who is coming here for the purposes of terrorism. This is serious, which is why it is important to take this power.
I know that there is concern about having no requirement for suspicion. That goes to the heart of the ability for us sometimes to action intelligence that is broad. For example, we might know about a certain route that is used or about certain flights in a period of a week, but known no more beyond that. We need to be able to act on that intelligence effectively on the spot.
I agree. We have had the power regarding the Northern Ireland border, or any other border, since 2000. In theory, we able to deal with matters using a counter-terrorism stop. Over the years, I have never seen so much nonsense written about the border of Northern Ireland. I have patrolled the border. I have lived on the border. I have been on the border of Northern Ireland as the Minister for Northern Ireland. I have known the varying powers—the smugglers and the people involved—on that thing for decades.
There have always been checks and stops on the border. There has been a different customs regime on the border of Northern Ireland since the 1920s. Famous smugglers have taken advantages of duty differences. There have been different tax ratios, duties and powers to make immigration stops, and we have carried these out even since the Good Friday agreement. In fact, one of the last things I did before the reshuffle that made me the Security Minister was to stand on the road near Newry doing a traffic stop of cars coming across from Ireland; they were squeezing the money out of me during my time there. These checks have always happened. This has happened for counter-terrorism for the last 18 years and we feel that should be mirrored in the case of hostile state activity.
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I know that the hon. Gentleman absolutely means the best in making his recommendation. I certainly give him the assurance that I will take it away and look at it before the Bill’s introduction in the other place. Many of his points about giving reassurance to people are certainly valid. He accepts, I think, that there is a risk that a state that has deliberately planned to enter this country will sometimes be making sure—if they do a proper operation—that the so-called lawyer they would consult would be in a position to be tipped off. That is why his suggestion is a good one, and I promise to take a look at it.
Break in Debate
I would say to them and to anyone else that the first duty of a Government is security, and it is absolutely important that we maintain that. The message to Michel Barnier is that security is not a competition; it is a partnership. I hope he will reflect that in his negotiations with this country, but I do not believe that putting it on the face of primary legislation is the best way to go about it, especially as it is our Government’s ask to the European Union on that issue. I therefore urge the hon. Member for Torfaen (Nick Thomas-Symonds) to withdraw his new clause.
I would be interested to know whether the hon. Gentleman could name a single Labour Minister who, during the passage of any European treaty or any other treaty, put the negotiating position—not the results of the negotiation, but the negotiating position—in primary legislation. I do not think he will find one. We do not intend to put it in primary legislation, especially because it is what we are asking for and we do not need to. I therefore urge hon. Members to reject the new clause.
Break in Debate
The hon. Gentleman’s points are well made but, with respect to him, I need to draw to a close.
If it is passed, this Bill, much of which has the support of all parties in this House, will leave this House doing the right thing to keep people safe, striking the right balance with our rights and allowing us to remember those people who in the last few months and years have lost their lives tragically to terrorism and, lately, to the actions of a hostile state. I am afraid we must remember that out there, there are very bad people, very bad terrorist organisations and, nowadays, some very bad states who wish to do real harm to our values. This Bill protects our values, but deals with the issues and gives our security services and police forces the tools that they need.