Crime (Overseas Production Orders) Bill [Lords]

John Bercow Excerpts

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

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 1, in clause 1, page 1, line 19, at end insert—

‘(4A) The Secretary of State may not make regulations designating an international co-operation agreement providing for the use of—

(a) section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests), or

(b) any other enactment which provides for the collection of electronic data,

unless the condition in subsection 4B is met.

(4B) The condition is that the states party to or participating in the international cooperation agreement have given assurances that the death penalty will not be imposed in any case in which or in whose preparation the intercepted communication or electronic data obtained under this Act has been used.’

This amendment would prohibit the Government from entering into a treaty for the provision of intercepted communication or electronic data without securing assurances that the death penalty will not be imposed in cases where that data is used.

Amendment 12, page 1, line 19, at end insert—

‘(4A) The Secretary of State may not make regulations designating a treaty as an international co-operation arrangement under subsection (5)(b) where that treaty provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned.

(4B) Subsection (4A) does not apply if the country or territory has, within the international co-operation arrangement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.’

This amendment would require that assurances be secured from the foreign country or territory concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from the United Kingdom contributed in any way to securing.

Amendment 18, page 2, line 3, at end insert—

‘(5A) The Secretary of State may only make regulations designating an international agreement under subsection (5) where that agreement—

(a) provides for safeguards and special procedures in respect of applications by competent authorities of a country or territory other than the United Kingdom for orders in respect of journalistic data and confidential journalistic data that are equivalent to those in this Act, and

(b) provides for at least as much protection for freedom of expression and the protection of journalists’ rights sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.’

This would amendment would seek to ensure that the terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom.

Amendment 10, in clause 3, page 3, line 40, at end insert “, or

(c) confidential journalistic data (within meaning of section 12(4)).”

This amendment would bring confidential journalistic data within the definition of “excepted electronic data”.

Amendment 14, in clause 4, page 4, line 39, leave out “(6)” and insert “(6A)”

This amendment is consequential on Amendment 13.

Government amendment 2.

Amendment 13, page 5, line 26, at end insert—

‘(6A) Where an application for an order includes or consists of journalistic data, the judge must also be satisfied—

(a) that there are reasonable grounds to believe that the specified data is likely to be relevant evidence;

(b) that accessing the data is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the data is obtained; and

(ii) to the circumstances under which the person is possession of the data holds it,

(c) that other methods of obtaining the data have been tried without success or have not been tried because it appeared that they were bound to fail.’

This amendment would require a judge to be satisfied that journalistic data which is the subject of an application for an order constitutes relevant evidence.

Government amendment 3.

Amendment 15, page 6, line 9, after “section” insert—

‘“relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.’

This amendment is consequential on Amendment 13.

Government amendments 4 to 6 and 19.

Amendment 16, in clause 12, page 10, line 11, leave out

“that is confidential journalistic data”

This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data.

Amendment 17, page 10, line 12, at end insert—

‘(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless—

(a) the journalist has had at least two business days in which to make representations; or

(b) the court is satisfied that—

(i) the applicant cannot identify or contact the journalist,

(ii) it would prejudice the investigation if the journalist were present,

(iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or

(iv) the journalist has waived the opportunity to attend.’

This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold.

Government amendment 20.

Amendment 9, page 10, line 20, leave out subsection (4) and insert—

‘(4) Confidential journalistic data” means data—

(a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and

(b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.’

This amendment would redefine confidential journalistic data for the purposes of the Bill.

Amendment 11, page 10, line 20, leave out subsection (4) and insert—

‘(4) Journalistic data is “confidential journalistic data” if—

(a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or

(b) it is communications data of a person acting in their capacity as a journalist, or

(c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).’

This amendment would amend the definition of confidential journalistic data.

Government amendments 21 to 23, 7 and 8.

[Mr Wallace]

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 want. 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.