Crime (Overseas Production Orders) Bill [Lords] DebateFull Debate: Read Full Debate
Sir Edward DaveyMP Main Page: Sir Edward Davey (Liberal Democrat - Kingston and Surbiton)
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(1 year, 2 months ago)Commons Chamber
I doubt that even I could match the rates of the Attorney General.
As the Minister has explained, the purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as a court could if the information were located or controlled in the United Kingdom. That will be done via the overseas production order for which clause 1 provides. An order can be operative only if the UK signs a treaty enabling it to be exercised. UK law enforcement authorities will be able to apply for an order that requires the production of electronic evidence for the purpose of investigating or prosecuting crimes such as terrorism offences. At present, if UK law enforcement requires electronic data from another country, it must go via a mutual legal assistance treaty, but that process can be slow to complete.
I very much appreciate and accept that electronic information is crucially important for the investigation and prosecution of criminal offences, and indeed is gaining in importance. The Minister set out the case of Dr Matthew Falder and some of the horrific child sex abuse images found on various websites, and it is clear that having a smooth, fast, efficient process to obtain this information is important, which is why the Opposition support the aim of this Bill; we do need a faster system.
I should also point out that I recognise the particular importance of the United States, first because this is the country where so much of the data is held and so many communication services providers—CSPs—are based, and, secondly, because the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015.
The Minister knows that the Opposition are always happy to work with him in trying to reach consensus on matters, but there are aspects of this Bill about which I and my colleagues in the other place have concerns. First, I say to the Minister that we will be looking to pursue issues such as bulk data, confidential personal records and non-disclosure requirements in Committee.
There are also two other specific points of controversy in terms of this Bill that I will draw to the Minister’s attention now. The first of them is with regard to assurances on the use of the death penalty in cases where this country hands over data. The Bill is reciprocal, which allows countries with which a treaty is negotiated to seek a court order for electronic data stored in the UK to be transferred to another country. The current treaty is being negotiated with the US, and US law enforcement could apply via its courts for electronic data in the UK to be used as evidence in a particular case. There are currently 30 states in America that retain the death penalty.
I appreciate the Minister’s efforts to make this a more transparent process than has previously been the case, when Home Secretaries could, in private, make decisions in individual cases that are capital cases about handing over information. My right hon. Friend the shadow Home Secretary asked an urgent question on one issue in this House in July, which was due to a leaked letter from the Home Secretary to the then US Attorney General, Jeff Sessions. In the letter the Home Secretary stated:
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”
The Minister responding to my right hon. Friend stated at the Dispatch Box:
“I can reassure the House that our long-standing position on the use of the death penalty has not changed.”—[Official Report, House of Lords, 24 July 2018; Vol. 792, c. 1612.]
While I accept that the Government cannot control whether another Government provide assurances that are asked for, they can control, where assurances are not forthcoming, whether information will be handed over, and that includes information which could lead to evidence being gathered for use in a court, as well as evidence itself.
My noble Labour colleagues in the other place tabled a strong amendment in this regard which passed by 208 votes to 185 and was added to the Bill. The effect of it is to prevent such handing over of information unless there are assurances that the death penalty will not be imposed. This is important for those of us on these Benches who oppose the death penalty in all its forms and are passionate about human rights here and around the world. Furthermore, while we are, quite rightly, focused on the United States for the reasons I have set out, this Bill could be used, alongside a treaty, as the basis for reciprocal information exchange with other countries around the world where the rule of law is not respected by the regimes in power there, making the need for safeguards in this Bill even more pressing.
Secondly, there is a concern regarding the protection of journalists’ confidential information.
The right hon. Gentleman puts his finger on a crucial point. The amendment passed the other place with a comfortable majority, and if it is to be argued that there is, perhaps, a technicality that renders it defective, the Minister must identify it in Committee so the House can on Report at least take a firm view on it.
On the protection of journalists’ confidential information, while the Government have argued that provisions in the Bill match those of the Police and Criminal Evidence Act 1984, there are specific instances where it does not quite match PACE, and I will give a few examples, which no doubt can be explored in Committee.
Under PACE, notice is required in all applications for journalistic material, and there are two types: confidential or “excluded material” and non-confidential or “special procedure material”. However, under clause 12(1) of the Bill, provision is made to notify organisations only when the material is confidential journalistic material:
“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”
An application for non-confidential material—for example, where a journalist made a documentary and had some notes—often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally. The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.
Conditions must be met for the court to grant a production order for special procedure material under PACE, including the following: there are reasonable grounds for believing the material is likely to be of substantial value to the investigation; disclosure is in the public interest; and there are reasonable grounds for believing that the material is likely to be relevant evidence. While clause 4(5) and (6) include both public interest and “substantial value” tests, they do not include a “relevant evidence” test. That is again a matter we will look to pursue in Committee.
Adopting a threshold of what data is “relevant” to an investigation is both necessary and proportionate; as well as helping to enable clarity and consistency in cases, it is in line with human rights principles. Judges considering these applications will be familiar with the application of these recognised legal standards, and it would be a simple and sensible safeguard to bring these provisions in line with those under PACE.
Under PACE, tests are only limited to “investigations”, while the Bill is worded in such a way that the tests could be applied to include investigations and proceedings. It is not clear why this should be required right up to trial.
There is a further concern with regard to protection for “excluded material”, or journalistic material that is held subject to a duty of confidence. Under PACE, “excluded material” has a different set of conditions that need to be met. Why should that be different in this Bill?
Journalists play a fundamental role in holding those in power to account, and we must ensure that this legislation does not in any way suppress investigative journalism or the exposure of public interest matters. Thus while the Opposition do not oppose the Bill’s purpose and welcome measures for the speedy exchange of electronic data, we will be looking to put safeguards into the Bill on handing over information, to protect the clear will of the other place with regard to the death penalty assurances and to protect the long-cherished principle of confidentiality of journalists’ sources.
Break in Debate
For nearly a decade, I have been a champion of a charity called the Internet Watch Foundation. It is not a paid role, but it gives me huge pride. The IWF was set up by the previous Conservative Prime Minister, and it identifies online images of child exploitation and then removes them from the internet. Last year, the IWF took down or acted on 132,000 reports of child sexual exploitation, 55% of which involved children who appeared to be under the age of 10 and one third of which involved rape or sexual torture. Child sexual exploitation is hideous, and when the images can be taken down, sources can be traced and lives can be saved. I am proud that less than 1% of such images are now stored in the UK thanks to the work of the IWF.
However, speed is vital when tracking images and getting hold of them means that our law enforcement authorities can then build cases and hold these evil people to account. This Bill will allow our law enforcement agencies to apply via the UK courts for a court order in other countries to get access to that data, and it will be crucial in countries such as the US, where we are already negotiating such an agreement. I am concerned that the Labour party’s amendments will create extra delays in the process when children’s lives are at risk. We should be working as hard and as fast as possible to get rid of this global crime. Britain needs to stand up and take the lead and save our children from exploitation on the internet. I am proud to support the Bill tonight.
Will the right hon. Gentleman therefore clarify his party’s position if we were in a negotiation with another country and the other country said, “Look, we cannot give you the death penalty assurances”? Some 99.9% of the data requests under this Bill will be concerned with crimes of paedophilia or the other crimes that I described earlier. Should the death penalty become a bar, is the right hon. Gentleman saying that the UK should not enter into an agreement because of the rare occasions on which an offence may involve the death penalty? Would he sacrifice the 99.9% for that?
I fully understand the right hon. Gentleman’s point. He talks about “our wish”, but he cannot speak for the other country that may be involved in forming an international agreement. They may say, “That’s fine. We know what you want, but we are not prepared to do that.” In that case, the decision becomes whether we want to use this legislation for the urgent and speedy data requests that happen 99.9% of the time for offences that are egregious and horrible but do not warrant the death penalty. He cannot speak for another country, so would he sacrifice the whole Bill?
My point is that the moment for the House to look at that is not when considering this Bill but when whatever treaty or international arrangement we make with whatever country we need to make it with comes before the House for scrutiny. Then we can have a debate about whether the international treaty we have sought to give effect to this order is right for the balance of risk, but the generic primary legislation that allows an order to be made is not the right vehicle.
With the leave of the House, I will briefly respond to the debate. The hon. Member for Sleaford and North Hykeham (Dr Johnson) put her finger on it when she said that any measure that prevents one more child from suffering must be a laudable one, and she is absolutely right. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I often find ourselves working together on such Bills, and I look forward to working with him once again in Committee. He is right to raise the issue of journalists who have material that is sensitive but not necessarily confidential, which is clearly an issue to consider in Committee.
I commend the hon. Member for Chelmsford (Vicky Ford) for the work she has done in taking down horrific images from the internet through her work with the Internet Watch Foundation. I say to the right hon. Member for Kingston and Surbiton (Sir Edward Davey) that there is no difference of principle in opposition to the death penalty. I appreciate that there is an argument about other treaties, but there will also be an argument about what is within the scope of the Bill. We should do our best, on a joint basis, to protect the gain that has been made in the Lords, and I look forward to working with his party on that at later stages.
All I say to the Minister is that I hope we can proceed by working together, as we have on previous Bills. As the Bill goes into Committee we will now be looking carefully at the issue of data access being proportionate and necessary, the issue of confidentiality and journalists’ sources, and the vital issue of death penalty assurances.