‘(1) Section 52 of the Investigatory Powers Act 2016 (interception of communications in accordance with overseas requests) is amended as follows.
(2) In subsection (3), at the end insert “(see further subsections (6) and (7))”.
(3) After subsection (5) insert—
“(6) Subsection (7) applies where an international agreement provides for requests for the interception of a communication 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.
Such an offence is referred to in subsection (7) as a “death penalty offence”.
(7) Where this subsection applies, the Secretary of State may not designate the agreement as a relevant international agreement unless the Secretary of State has sought, in respect of each country or territory referred to in subsection (6), a written assurance, or written assurances, relating to the non-use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory.’—(Mr Wallace.)
This new clause amends section 52 of the Investigatory Powers Act 2016 to set out the assurances that must be sought before the Secretary of State may designate, for the purposes of that section, an international agreement that provides for the making of interception requests by countries or territories which have the death penalty.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
‘(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.
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 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.
As the Security Minister well knows, we have been working constructively on this Bill and I will not be opposing it on Third Reading irrespective of the outcome of various votes, but it is correct to say that, in the case in the summer in respect of which the High Court has just issued its judgment, the American embassy told the Government, when they failed incidentally to seek assurances at all, that if they asked:
“At worst, they will wind the president up to complain to the P.M.”— the Prime Minister—
“and, potentially, to hold a grudge.”
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 in favour of speeding up the data exchange. Under the mutual legal assistance treaty, since 1994 the seeking and securing of assurances has been commonplace. I take this from the High Court judgment. Ministers did not even bother to ask for assurances in the summer, so I am not confident that they have been as robust as they should be in their negotiations with the United States. There is no point in saying there is not equality of arms in this treaty. What if the Minister says that about a trade deal with the US—are we going to be allowing, then, US companies to come and take our NHS? The Minister should stand up for this principle.
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.
Does the Minister agree that this should not be a point of political division in this House? It is the overwhelming priority of Parliament to protect children who are being raped, abused and exploited, and data sharing is very important. One of the barriers to protecting children has been getting data to identify people who are doing this. We want to prevent the exploitation of children and to do that we need to identify those who would exploit them. Does the Minister agree that this should be the issue, not views about Donald Trump or otherwise?
I totally agree. The hon. Lady will have heard the example I had to listen to. That was a sobering and scary experience. It is an experience that our law enforcement officers hear every single day and it is our duty to find a balance. I wish we had our own Google. I wish that all my constituents’ data were held in the United Kingdom so we would have more control over it. But the fact is we live in the world we do. That is the tragedy and it makes us have to make deals that might not always be, as we would wish, perfect. But in this case, I am concerned, like her, that what must come first is the children’s needs and dealing with terrorists, illicit finance and all the oligarchs we worry about—and Labour Front Benchers also worry about—and how we are going to get them. Until we can crack that data map, this is something that is important.
The Minister is making an important case for the provisions in the Bill, and I agree that we have to have this data sharing. We have to speed this up and get on with it. His new clause 1 looks like a pretty reasonable compromise to provide the necessary reassurances. It looks fairly complete to me, and I can see no reason why the House would not unanimously agree to it.
The hon. Gentleman is right. Further amendments that we have tabled provide for concessions to protect journalistic data. I have taken on board these points from Members on both sides of the House. Throughout the Bill, I have met many Opposition colleagues, including my shadow, Nick Thomas-Symonds, on numerous occasions, and we have offered concessions that have never been offered before. One of them will put in primary legislation a mandate for the Secretary of State to seek assurances. In my view, we cannot go beyond that and force them to get those assurances, because a responsible Government might not have the upper hand at the time or have the leverage to do that, but the necessity for security is important.
This will be the first time that that has been put in primary legislation. It will put in place a policy that existed in loose form under the last Labour Government, when, in exceptional circumstances, Ministers were allowed not to seek assurances. The overseas security and justice assistance—OSJA—guidance was published in 2010 by the coalition Government, of which I think Sir Edward Davey was a member. That put in writing part 9. There are occasions on which we might be allowed not to seek a death penalty assurance, but I do not want that to become the dominant force. As I have said, we have not found a single example in the past 20 years that produced this challenge or quandary for a Minister. This is simply about comms content data; that is all it is about.
I hope the Minister recognises that all Members on both sides of the House want to find ways of sharing data so that we can go after these wicked people who abuse children. Will he therefore tell us what efforts have been made, in discussions with our American friends, to find a treaty that deals with those crimes and others but stops short of those crimes that could result in the death penalty? What efforts have been made to carve out those crimes so that they could be dealt with in a second treaty?
I have personally asked them to look at carve-outs in that area, and I know that officials are still working on the drafts. This is my point: the treaty will come before the House when it is still in its draft stage. I have not read the draft as it stands; it is too early. This is not going to appear next Tuesday as a treaty. We will try to maintain as much as we can in the treaty, but we must recognise the leverage that we have, the generosity of the Obama Administration’s original offer and the need of our law enforcement agencies to get on with these investigations as soon as possible.
I will press on, because I want to give the House an example. An operation commenced in August 2017 in which there were indications that a UK male suspect was using Facebook, Instagram, Gmail and Snapchat for the purpose of committing child sex offences. On the male suspect’s Facebook profile, he purports to be a teenage girl requesting friendship with teenage boys. He then engages them in sexual communication, asking them to send indecent images and/or videos of themselves committing sexual acts. The suspect sent indecent images of females sourced from the internet as bait to lure his victims into believing that they were communicating with and sharing indecent images with a teenage girl. The investigation has identified several individual Facebook accounts where indecent images of children have been sent to the user of the suspect Facebook account. Those individual accounts all belong to children.
The value of data evidence is apparent, because in that operation, the data has helped to identify in excess of 150 vulnerable child victims and enabled law enforcement to safeguard the children. However, the law enforcement agencies are still awaiting the authorisation from a judge in a US court to release the content that would enable us to prosecute and put away the individual who is doing this. Consequently, that individual is still at large. We have safeguarded the victims we know of, but our ability to charge and prosecute that person is being frustrated. We should not forget that a great deal of data is held for only 12 months, and some of the MLAT cases go on for two years or more. Not taking up the US’s offer would mean shutting the door on our police’s ability to stop abuse more quickly and to detect terror plots before they reach fruition.
I repeat that the case the Minister is making is supported on both sides of the House. I very much doubt that there will be a Division on Third Reading—certainly we on these Benches will be supporting the Bill at that time—so he does not need to make this case, because we all support him. The issue of this debate on new clause 1 and other alternatives is whether we can achieve the goals on which we all agree while also finding a way to implement existing Government policy on death penalty assurances. The Minister is recognised for working across the House—that is why he is held in such high regard—but it is our right to scrutinise legislation in this place, and in this debate we want to tease out whether we can find a way, through the treaties or through the Bill, to get those death penalty assurances that I am sure he also wants.
I understand what the right hon. Gentleman is saying, and I do not question his heartfelt desire to ensure that we keep people safe, but actions have consequences. He does not have to believe me when I say this, but the United States has indicated to the Government that if we attach strings to the treaty in the way that the Lords amendment would, the treaty will not progress. He does not have to believe me; he does not have to believe the United States; he can decide whether he thinks the United States will change its position or not, but let me tell him my reading of it. I have met representatives from the US Department of Justice, along with my officials and representatives from our embassy, and looked at the political situation in the Senate—I live in the real world; that is not necessarily how I would vote—and I am living with the challenge of balancing those realities, as any hon. Member would do. If these amendments, including that of the right hon. Gentleman, go through, they will jeopardise the treaty. I have set out clearly what the consequence would be if the treaty were jeopardised, and no amount of “I wish it wasn’t” will change that simple fact.
Are we not in danger of believing that there is a false choice between upholding the UK’s international obligations and taking action to secure this treaty? Will the UK not be obliged to follow its treaty obligations, including those under protocol 12 of the European convention on human rights, without needing to follow one of the wrecking amendments tabled by the Opposition parties and making the treaty that we apparently all want impossible to achieve?
Yes, and in answer to the amendment that was tabled but not selected, Ministers are obliged to act in accordance with our ECHR obligations. Throughout this process, we have a legal duty under the Human Rights Act 1998 to act compatibly with convention rights, including article 1 of the 13th protocol, which was incorporated in schedule 1 to the Human Rights Acts 1998 through the Human Rights Act (Amendment) Order 2004. Were Ministers to act unlawfully in making subordinate legislation under subsection 5(b) which was incompatible with the convention rights, it would be open to the courts to strike down that legislation by applying ordinary public law principles.
First, I want to confirm what my right hon. Friend has said. This treaty being negotiated with United States has taken a long time to achieve. I remember being connected with it when I was Attorney General, and raising the matter subsequently on visits to the United States when I was Chairman of the Intelligence and Security Committee. It is quite apparent that the treaty is essential to prevent crime in this country. It is equally clear that attaching the proposed strings to it would destroy it; I have no doubt about that at all. I also endorse the point that the European convention on human rights has to govern everything that we do. In my view, in regard to the sort of data we are seeking to access and share for the purpose of fighting crime, the issue of whether the death penalty might result from an eventual criminal proceeding, which would be speculative at that stage, is entirely irrelevant.
My right hon. and learned Friend, whom I have known a long time, is the straightest politician in this House and always has the best motives. He is also the lawyer that one would want at one’s side in government, because he tells it how it is, not how one wants it to be. I thank him for his point. He knows how far back this effort goes. This Bill is not a political charge or an ideological step. In fact, without this amendment, it is probably one of the most boring Bills that we have taken through the House, but it is not a playground for ideological posturing on a theoretical issue.
There is a clear choice here: take up the offer from the United States, reject the amendment and help to keep our constituents safe, or agree with the right hon. Member for Hackney North and Stoke Newington who believes that this matter is a problem even though there are no examples from the past 20 years. She believes that we should say no to the US offer and put the whole thing at risk because our tiny amount of data could be combined with a criminal investigation overseas, when the crime is a capital offence and the offender is in a country or US state that has the death penalty, and our data alone could be the crucial piece of evidence that leads to a conviction. If ever there was an example of politics getting in the way for the most bizarre and abstract reason, it is here.
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.
I regret the Minister’s tone in places, because it is clear that we have worked together on this Bill and that the Opposition are in favour of it. Let me be clear about the difference here. The Minister is essentially saying that he is happy to be mandated to secure death penalty assurances. Labour’s amendment simply sets out that in the event that assurances are sought but not obtained, the data should not be handed over. As he says, the change will affect a tiny amount of cases, but nobody is disputing the need to speed up the MLAT process to obtain the data. That is exactly what the difference is.
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.
The Minister is being generous in giving way. I repeat that, as he knows, both sides of the House want exactly what he has just described. However, this House’s job is to scrutinise and ensure that legislation is being done in the right way so that other parts of Government policy are also upheld. He said in response to Mr Grieve, a former Attorney General, that we should not worry about this because ECHR obligations, which he read out in some detail, would prevent Ministers from not complying with this policy. Will the Minister elaborate on that for the benefit the House? When the Home Secretary recently did not seek death penalty assurances, was that decision in line with our convention obligations?
I refer the right hon. Gentleman to the rulings by the High Court and the Lord Chief Justice. On five of the grounds for challenge from the plaintiff—if that is the right word in a civil challenge—the rulings found in favour of the Government. I am happy to have a conversation with him about that further if he reads the whole judgment, but it was certainly the case that the OSJA guidance and other things were not found to be in conflict with our ECHR obligations or any other obligation. If my memory serves me right, it was also found that we were not breaking our own Government policy on the matter. I caution the House that we do not know whether that judgment will be appealed, but a hearing related to it is ongoing. The case does not relate to data; it is about broader evidence that would remain through the MLAT process. As I pointed out earlier, extradition is a separate process. This legislation is about the data predominantly held by Facebook and Google and everything else, and it is so much part of the 21st century that we cannot escape the impact that it has on us.
Turning to amendment 18, I recall the hon. Member for Torfaen tabling something similar in Committee, and I am afraid that I am going to make the same arguments in response. Amendment 18 seeks to ensure that terms on which other states may access electronic data held in the UK mirror the UK’s own safeguards for press freedom. Forgive me, because I know that I have made this point countless times, but this amendment relates to incoming requests for UK-held data when this Bill is only about the UK’s outgoing requests for electronic data held overseas.
I completely accept the point that this Bill cannot work without a reciprocal international agreement in place, but amendment 18 directly relates to international agreements, as opposed to what our Bill provides for. This Bill is simply not the right place to mandate what is a right and laudable protection for journalists and their data. We cannot impose such conditions in advance of the negotiations of an international agreement. It is not a constructive proposition to tie our hands. I say to Opposition Members that I hear the case for change and that the United States’ first amendment is probably one of the strongest journalistic protections, so that would no doubt be reflected in a treaty. Of course, the UK would never agree to share data with a country with insufficient safeguards, but to mandate that on the face of this Bill is neither helpful nor necessary. Amendment 18 seeks to control the UK Government’s negotiating position, which would not prove desirable to any Government of the day.
Another point that I make repeatedly is to remind hon. Members that they will get ample opportunity to scrutinise any international agreement when the agreement is brought before Parliament, before it can be ratified under the Constitutional Reform and Governance Act 2010 process, and then again when secondary legislation is laid before Parliament designating the agreement for the purposes of clause 1 and under section 52 of the Investigatory Powers Act 2016. The Government amended the Bill in the other place to make it clear that only agreements to which the CRAG process applies may be designated under the Bill, so that scrutiny process must be followed in every case. Members will get the opportunity to scrutinise all international agreements related to this Bill properly before they are ratified.
I have two other brief points. First, the initial international agreement will be with the United States, as the majority of overseas CSPs are currently based there. As hon. Members will know, the US places a high regard on protecting freedom of speech and freedom of the press. Indeed, it is enshrined in the first amendment to their constitution.
Secondly, any additional international agreement that the UK enters into in future will, of course, be based on trust, mutual respect and each country’s adherence to principles that include the rule of law, due process and judicial oversight for obtaining and handling electronic evidence with regards to serious crime. No rational Government of the day would do a deal with a country that lacked regard for the rule of law or that failed to maintain press freedom. If a CSP moved to a country with insufficient legal safeguards, I would not push the Government of the day in any way to negotiate such an agreement, and I highly doubt that Parliament would ratify such a treaty.
This Bill is not the right place for the proposals raised by amendment 18. The amendment is not necessary for the reasons I have outlined, and therefore the Government will not support it. I ask the hon. Member for Torfaen not to press it.
Amendment 10 seeks to make confidential journalistic data an excepted category of material for overseas production orders, meaning that it cannot be sought using the Bill’s powers. Amendments 9 and 11 seek to define confidential journalistic data for the purposes of the Bill. Members have previously raised concerns about confidential journalistic data under the Bill, and I do not want to pre-empt our debate on other protections for journalists, which will come later, but the Government’s concessions in this area are appropriate and proportionate. I do not think it is right that confidential journalistic data should be entirely outside the reach of law enforcement agencies.
As with the amendment tabled in Committee, amendment 10 goes further than what is currently provided for under the Police and Criminal Evidence Act 1984. Although confidential journalistic material is excluded under PACE, it is accessible if certain access conditions are met.
I repeat the point I made previously. The Bill has not been drafted to mirror PACE exactly. It also takes into account provisions of the Terrorism Act 2000 and the Proceeds of Crime Act 2002. The whole point of the Bill is to speed up the unnecessarily long, drawn out process that law enforcement agencies currently endure to get access to material to help keep our constituents safe. Of course, this in no way undermines the stringent tests that must be passed for an order to be granted in a court by a judge. The substantial value test and the public interest test will both have to be satisfied, and I will shortly come on to the further inclusion of a relevant evidence test.
Amendment 11 would carve out journalists’ communications data so that it cannot be accessed under the powers of the Bill. Such an amendment is not necessary, because clause 3(4) already precludes the possibility of obtaining communications data via an overseas production order. Where an overseas production order is sought against a telecommunications operator, the Bill will apply as if references to excepted electronic data included communications data.
The Bill has been deliberately drafted so as to avoid overlap with the existing regime for communications data under the Investigatory Powers Act 2016. Should law enforcement agencies wish to obtain any form of communications data, journalistic or otherwise, they will need to proceed using existing legislation to obtain it. To be clear, this Bill does not allow for the acquisition of communications data.
I agree entirely with the hon. Gentleman that journalists play a fundamental role in our society, but amendments 9 to 11 are not appropriate. This Bill will ensure that all journalists are part of the process of applying for an overseas production order when the material sought relates to them from the outset. Uniquely, they will be able to make representations to the court. I am confident that journalists will continue to be able to make a robust defence if they believe that is relevant.
Indeed, when working with the BBC on this legislation, one lawyer told my officials that not once in 10 years could he recall a court having overruled such representations. It is important that legislation drafted in the 21st century reflects the context of the day. The nature of journalism is evolving, and law enforcement officers must be able to adapt to those changes. I therefore ask the hon. Gentleman not to press amendments 9 to 11.
In Committee, colleagues including the hon. Members for Torfaen and for Paisley and Renfrewshire North (Gavin Newlands) and my hon. Friend Huw Merriman expressed concern that the tests in clause 4 do not fully replicate the tests under schedule 1 of PACE, under which there is a relevant evidence test as well as a substantial value test and a public interest test, whereas the Bill currently includes only the substantial value and public interest tests. The Bill does not contain the relevant evidence test. As I explained in Committee, the Bill replicates the production orders not only under PACE but under POCA and the Terrorism Act. Neither POCA nor the Terrorism Act requires the relevant evidence test when seeking evidence in relation to the proceeds of crime, as our law enforcement agencies will do with overseas production orders. Nevertheless, I promise to go away and consider the issues.
My officials have discussed the issues with operational partners, and their feedback is that a relevant evidence test would have neither a preventive effect nor a negative effect on their operation. I will therefore include a relevant evidence test in the Bill, and Government amendments 2 and 3 are sufficient in that respect and render amendments 13 to 15 unnecessary. I trust that introducing a relevant evidence test will satisfy the concerns of hon. Members.
Amendments 4 to 7 will ensure that the Bill is subject to and consistent with the existing data protection framework. I am sure hon. Members will welcome that clarification. It is also the Government’s intention to ensure that the provisions of the Bill involving the use of personal data be read in conjunction with and remain subject to our existing data protection framework. These amendments will therefore avoid any confusion in how those measures are interpreted.
Under amendment 7, clause 17 will make it clear that references to data protection legislation have the same meaning as the definition in section 3 of the Data Protection Act 2018, which includes the general data protection regulation, the 2018 Act and any regulations made under it. Members may recall that part 3 of the 2018 Act includes specific rules for the processing of data for criminal law enforcement purposes and implements the law enforcement directive.
In practice, the amendments to clause 6 clarify that a communications service provider against whom an overseas production order is made is under no obligation—taking into account the existence of the order—to comply in any way that would contravene the requirements of the data protection legislation, as defined in the 2018 Act. The amendments also clarify that, where UK law enforcement agencies receive electronic data from a communications service provider following a court-approved order, they must process the data in accordance with part 3 of the 2018 Act. That responds to important questions about clause 10 raised by peers during the Bill’s passage in the other place. I hope my clarification of those points will be welcomed by hon. Members and will reassure peers. I therefore ask hon. Members to accept and support these clarifying amendments.
I thank my hon. Friend the Member for Bexhill and Battle for his contributions in Committee on the protection of journalists under the Bill. He performs an important role as chair of the all-party BBC group, and in that capacity he has played a valuable role in discussions on the provisions relating to journalistic data. I listened carefully to his arguments and to the arguments of other hon. Members on both sides of the House.
I agree that the Bill should include appropriate safeguards for legitimate journalism, and I have listened carefully to the arguments as to what form those safeguards should take, while preventing those who might falsely pose as a journalist from hiding behind protections to which they are not entitled. The Government therefore tabled amendments 19 to 23, which my hon. Friend suggested, to ensure that, when journalistic data is sought, the journalist is notified of the application. This will give journalists and media outlets the opportunity, should they want to, to make representations to the court about whether an application for an overseas production order should be granted. That was always the Government’s intention, but our proposal was that the process be provided for in the criminal procedure rules—the relevant rules of court for production orders. Amendments 19 to 23 will now make these notice requirements explicit in the Bill so that there can be no doubt about the requirement to notify journalists of a relevant application.
The representations from the BBC show that the amendments will make the Bill completely consistent with the provisions under PACE and will help the administration of justice, as they may mean that many applications do not need to be spoken against. I am incredibly grateful to the Minister for listening to us, for working very closely with all of us and for filtering in our ideas.
All Members have raised the importance of protecting journalistic freedom, and I think we have struck the right balance between not excluding their material entirely—because I do not believe that anyone should be above the law, no matter what their profession—and giving them notice that other people would not be given, to allow them to make representations. All the way through this process, even in considering the controversial part of the Bill, we should not forget that this is done before a judge. It is not done between officials in two Administrations: these orders will be applied for in front of a court and granted by a judge. It will be for the law enforcement agencies to satisfy the range of tests and for journalists to make their representations. That will safeguard the process while at the same ensuring that we get data if it is needed to keep us safe.
I should point out that unlike the Opposition amendment—I think the shadow Front-Bench team largely supported the same change—the amendment that I tabled was realistic about the point that if the journalist could not be contacted, that would not mean that we would end the process. Ultimately, what is important is the protection of victims of appalling offences. My amendment will make sure that we strike that balance between the protection of journalists and the protection of victims, which is at the core of this excellent Bill.
Yes, my hon. Friend makes a true point. We have put in a carve-out for some very urgent situations, including if there is a threat to life or, indeed, if the journalist is impossible to track down and may in fact be a front for a foreign state, for example, in a fake news scenario or something else. All Members have had genuine views and made their points well. I am happy to accept my hon. Friend’s amendment, but there were many good parts of the amendments tabled by the Labour party, too. This is not a party political point. The exemptions get the right balance and we will be able to protect journalists, so I hope I will have the support of the whole House in asking that the relevant amendments not be pressed.
Before I finish, I should apologise for the length of my opening address. There were originally two groups of amendments, but that was changed to one group, so I needed to deal with everyone’s amendments in one go.
I think we have struck the right balance. The Bill reflects some of the day-to-day challenges that we face in keeping us safe. I urge Members not to support amendments 12 and 18, and some of the others tabled by the Opposition Front-Bench team. As I indicated at the start, throughout the passage of this Bill and other Bills, I have accepted a number of amendments from Government and Opposition Members. That is the spirit in which I have tried to conclude the passage of this Bill, and in which I hope to do so.
Order. Before we continue with the debate, the House has the exciting prospect of the results of the deferred Divisions.
In respect of the question relating to consumer protection, the Ayes were 309 and the Noes were 268, so the Ayes have it.
In respect of the question relating to financial services and markets, the Ayes were 309 and the Noes were 261, so the Ayes have it.
In respect of the question relating to floods and water, the Ayes were 310 and the Noes were 267, so the Ayes have it.
In respect of the question relating to radioactive substances, the Ayes were 309 and the Noes were 265, so the Ayes have it.
[The Division lists are published at the end of today’s debates.]
The first thing I should point out is that everyone in the House wants to see a way in which the mutual legal assistance treaty system is speeded. I do not think there is any issue with that in any part of this House. The issues to which I shall come in a moment in essence fall into two categories: first, the issue of death penalty assurances; and secondly, protections for journalistic data.
In respect of the intervention from Huw Merriman, he has tabled an amendment that is essentially the same as the one that I pursued in Committee. I do not accept in any sense the difference that he suggests there is between the two. I am pleased that his amendment has been accepted and adopted by the Government.
I apologise if I have got this wrong, but my understanding is that the hon. Gentleman’s amendment would not have included circumstances in which the journalist could not be traced, whereas the amendment I have tabled takes that into account, meaning that it would not be a blocker. It is in that limited aspect that our amendments differ.
All I will say is that I had discussions about that amendment and others with the Minister, and they were things on which we were able to compromise. I am trying to assure the hon. Gentleman that the idea that I was trying to do something to scupper the treaty is completely wrong. I am sure he would accept that that was the case, whatever the differences between us on the detail.
I absolutely accept that. The hon. Gentleman will know that he and I worked closely throughout the Committee proceedings to make sure that the intent behind what we have now was in the Bill. I pay credit to him for that assistance.
I am grateful to the hon. Gentleman for acknowledging that.
Let me turn to the issue of death penalty assurances, which has clearly aroused a great deal of controversy, and explain our position. I should say to the Security Minister that I totally accept that new clause 1 is an improvement. The position the Opposition have ended up in today is a procedural one: unfortunately, because new clause 1 is the lead provision in the group and is therefore at the head of the list to be voted on, the only way that the Opposition can secure a vote on our own amendment is by voting against new clause 1. That is just the procedural position we have ended up in, but accept that it is a step forward and make that entirely clear from the Dispatch Box at the outset.
Just to be clear on the procedure, my hon. Friend’s direction to Labour MPs will be to vote against new clause 1, although he accepts it to be an improvement; were he successful in stripping out new clause 1 and unsuccessful in passing his own amendment, would that not put us back to a worse position?
I accept that there is always a danger that when we vote on a number of new clauses and amendments in a row, the order matters and what happens on them matters, as we have seen in recent days. Let me reassure my hon. Friend: what I am trying to say is that although I do accept that new clause 1, with its duty to seek assurances, is certainly an improvement on the case we had in the summer, when no assurances were sought at all, it does not match the position of the Labour Front-Bench team, which is that if there are circumstances—they will be rare—in which assurances are sought but not given, the data should not be handed over. That is the difference between myself and the Minister. The Minister accepts that we should be getting assurances. That is the difference: new clause 1 is an improvement, but it does not match our position.
As a children’s doctor, I have looked after a number of children who have been sexually abused, and they have sometimes horrific physical injuries and, as we know, physical and mental scars. The mental scars in particular can last a lifetime. The House is united in wanting to be able to prevent that. Am I misunderstanding the hon. Gentleman when he says that seeking assurances is not adequate, and that if faced with a real situation in which a child is in imminent danger and those assurances cannot be got, that child should remain in danger and in a situation in which he or she is being abused, to avoid the theoretical risk of something that has not happened in 20 years?
I just do not accept that conception of how this works or, indeed, how the MLAT treaty would work. I am afraid it would not work in the way the hon. Lady suggests. The point I am making is about cases in which assurances were not secured. By the way, I totally agree with the Minister that the United States looms into view because of this treaty, but this is a framework for other treaties with countries all around the world, and the Opposition are simply saying that we should be embedding into it the idea that, in the event that those assurances are not forthcoming from whichever country it is—rare though those circumstances are—the data should not be handed over. It is as simple as that. By the way, that has been the position for decades.
Does the hon. Gentleman not accept that, in this situation, which is not perfect, what he is having to do is weigh up the risk of an actual child on whom abuse can clearly be seen to be happening or at risk of happening, with a theoretical possibility, which the Minister has said has not happened in 20 years, and that such evidence can potentially, theoretically, possibly, at some point in the future, be used to convict somebody in a way that may or may not ultimately end in the death penalty? Meanwhile that real child will end up being further abused while this data is waited for.
I do not accept that at all. The hon. Lady talks about theoretical possibilities, but these will be actual cases—actual cases, not theoretical cases.
I am grateful to the shadow Minister for giving way. Despite the fact that this is about not extradition, but data exchange and that it is heinous crimes that will incorporate this provision, does he accept that the threshold for the death penalty, both at state and federal level, is actually far higher—the bar is higher?
Yes, it is significantly higher, and the cases will be extraordinarily rare. That is what everybody who has looked at this says.
I am very grateful. The hon. Gentleman is being more than generous. On the issue of assurances, does he also accept—I know that he thinks logically—that if those assurances were given and were not actually fulfilled, future assurances would obviously not carry the same weight as previous assurances that were carried through?
I honestly cannot imagine a situation where a country that gave those assurances did not stand by them. That would undermine the whole system if that were the case. I do need to make some progress now. I hope that the House will realise that I have been generous in giving way to Government Members.
We absolutely agree, as I have said, with speeding up the mechanism, but we believe that in this framework, which will be a framework which many reciprocal treaties will be plugged into in the years to come, we should make clear our opposition to the death penalty in all circumstances. The Security Minister has spoken about the United States. I appreciate that that is where much data is held. I also appreciate that that is the treaty that is being negotiated at the moment. First, let us look at what the practice is at the moment. It is obvious that the United States would expect us to require full death penalty assurances prior to sharing this information. It routinely complies with that requirement. It has long been the case, under the 1944 Treaty on Mutual Legal Assistance in Criminal Matters that now exists, that the seeking and securing of assurances is commonplace. What the Opposition are trying to put into law is what has been the norm for decades.
The Minister makes the point about his judgment as to whether or not the US would wish to conclude a treaty in those circumstances—in the circumstances that the House passed the amendment that the Opposition have proposed. I just want to examine this because the recent High Court judgment in El Gizouli, which has been published in recent days, is instructive in this regard. It is very rare that we see Government papers in the public domain so soon after a particular decision is taken. That is because in July last year the House became aware of correspondence between the Home Secretary and the then United States Attorney General that the Government had not sought death penalty assurances at all. Let me be clear that we on these Benches absolutely condemn the actions of the so-called foreign fighters, which is why I have worked with the Minister to put the designated areas offence onto the statute book—it is not quite on our statute book yet, but it will be in due course. I made various suggestions about that matter, as the Minister knows, that were eventually incorporated into the Bill. We supported that principle and it will be on the statute book. However, the fact is that that matter did lead to a court case, which is instructive about Minister’s decision making.
I go back to one of the earlier interventions. This is not about naked partisan politics. These are very serious issues on which Members from all parts of the House have very strongly held opinions, and I respect whatever those perspectives are. A number of things came forward from that case in the summer. The UK embassy in Washington was asked what was the likely response from the US Administration if the UK were to seek full or partial assurances on the death penalty. The response was that
“parts of the US machinery—notably career DOJ officials—would not be surprised if we asked for death penalty assurances. It is what they expect of us.”
That, I suggest, is what I said a moment or two ago. It then added:
“But that doesn’t go for the senior political levels of this administration...At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge.”
That is worrying to see, and it would not be a way to run any negotiation. It is no surprise really that the Foreign and Commonwealth Office gave strong advice to seek an assurance. This was cited as the Government’s consistent policy over many years, which has been maintained without exception—I appreciate the one point that was made in an intervention by the Minister that there may be an exception to that. I accept that, but this is what the advice says—and without difficulty in co-operating with allies such as the US. It agreed that a sole exception would undermine the UK’s consistent and total opposition. This is what the Foreign and Commonwealth Office said about this in the summer:
“Her Majesty’s Government seeks a comprehensive assurance that the suspects will not be subject to the death penalty. This is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance…Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future attempts to secure similar assurances from other countries with which we have a security relationship... particularly if it seems likely that there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.”
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.
I am not disputing the outcome of the case; that is very clear. This goes back to the earlier point that I was making about new clause 1. It is clearly not currently set out in primary legislation that there is a duty to seek assurances. I am not questioning the genuine nature of what the Minister does or his decision making, but in that case and against that backdrop, no assurances were sought at all. The Minister has set out the reasons for that, but that is the brutal reality of what happened in that case, against the backdrop of the advice that I have read to the House.
More widely, Governments across the piece—this Government, the coalition Government and previous Labour Governments—have, on numerous occasions, sought to promote the UK’s opposition to the use of the death penalty around the world. There are multiple examples where Governments of all colours have sought to avoid any complicity with the use of capital punishment and have argued around the world for its abolition. In fact, the Prime Minister herself said in the House on
“Our long-standing position on the death penalty is well known: we call for its abolition globally.”—[Official Report,
Vol. 648, c. 911.]
And the Opposition say the same.
There are a number of examples where this country has agreed that it is highly undesirable that drugs used by some states in the United States for the purposes of execution could have been sourced here. We have decided not to fund counter-narcotics operations in Iran because of the risk that they could lead to the use of the death penalty. When the Prime Minister was Home Secretary, she triggered a review of all security engagement when Pakistan resumed executions after a long moratorium. Back in October 2016 the Government withdrew a bid to provide offender management services to Saudi Arabian prisons, again over the issue around the death penalty. And of course the UK will not export products for use in capital punishment. That is the well-established position, as is the seeking and securing of assurances.
I will make some progress; I did give way to the hon. Gentleman about three times earlier.
What I am simply saying is that we should not move away from that norm and send any kind of signal because, in any event, this Bill goes far beyond America. I appreciate the Minister’s point about data and where it is held at present, but as the internet continues to evolve, other countries will hold more data as well. The Security Minister has often said in Committee that he would only negotiate treaties with countries that shared our respect for the rule of law. I do not disbelieve him for a moment, but of course he is not going to be the Security Minister forever. Therefore, in those circumstances, we have to put the assurance in this framework now.
Opposition to the death penalty has been a bipartisan UK Government position for over half a century. Since 1965 when the work of many across this House—including the remarkable Sydney Silverman—came to fruition, this Parliament has stood as a beacon of common human values, promoting the abolition of the death penalty across the globe. For this country to continue to stand tall in the world and to use our considerable soft power, which we must, we always have to hold ourselves to the highest standards. Put very simply, for us to credibly argue for the abolition of the death penalty in other countries, we cannot be complicit in its application ourselves, and I ask that we send that strong moral signal to the world today.
It seems an odd move to now start talking about these technical issues of confidential journalistic data, important though they are. But that is of course where we are because this whole set of amendments have been grouped together. I therefore want to deal with the matter now, as well as some of the issues raised by the hon. Member for Bexhill and Battle.
In general terms, I am pleased with the Government’s direction of travel on these issues, but there are still some real causes of concern. I am pleased with the movement on Government amendments 19 and 20, which were mentioned earlier. The notification requirement now extends to all journalistic data. There was a concern that, if we were distinguishing between confidential data and non-confidential data, some would not be covered. This move is therefore to be welcomed, as is the genuine notification requirement that specifically includes the journalist, which I believe is included in Government amendment 20.
There are still some concerns that I hope the Security Minister will take on board and listen to, although I do broadly welcome the measures. In proposed clause 12(2)(b), there is an override of this requirement where it would prejudice investigations into indictable offences and terrorism investigations. Now, I accept that emergency overrides are necessary, and I would expect to see them in this Bill and other similar types of Bill. There is, however, quite a low threshold in this measure. I totally accept that prejudicing a terrorism investigation may well constitute an emergency, but prejudicing an investigation into an indictable offence is extremely broad, because indictable offences are a huge category. Indicating that they can only be tried on indictment draws the provision extremely widely.
I think that there is a path by which the police could access confidential data still without notifying the journalist. The Minister has openly said that a number of provisions in this legislation are drawn from the Terrorism Act 2000 and the Proceeds of Crime Act 2002. Under the Terrorism Act, this can happen, although there is a concern about some of this most sensitive data being accessed without notice. It is not my intention to push amendment 10 to a vote today, but in that amendment I have raised the issue of at least some confidential journalistic data simply being beyond the reach of the police. I appreciate the Government’s position, but the breadth of this measure to cover all indictable offences is a concern, and we need to give deep consideration as to how that might work in practice. I know that the hon. Member for Bexhill and Battle genuinely intends to produce safeguards in the Bill, but we would not want to construct a path that somehow becomes the norm, as opposed to something that is meant actually to be the exception.
On amendment 18, I part company with the Minister. It is an important amendment that would attain guarantees for freedom of expression in reciprocal treaties. I draw on what the Foreign Secretary wrote in the Evening Standard on
“Defending a free media must therefore be a central element of British foreign policy, in keeping with our country’s role as an invisible chain linking the nations that share our values.”
The Minister made a technical point about incoming and outgoing data, but this system of overseas production orders is meant to work together with treaties with countries that will, in themselves, be reciprocal. Amendment 18 would be totally in line with what the Foreign Secretary said; it would really push our position as a beacon in the world of press freedom, saying that we would not be able to countenance a treaty with a country that did not have those similar levels of press freedoms, nor would we wish to have a situation where another country without the same level of press freedom as us somehow has this back door to access our data.
Although I differ with the Minister on amendment 18 and on the emotive issues that we discussed earlier, I want to finish on a more consensual note. I appreciate the Minister’s move on relevant evidence, which is to be praised. I also welcome the clear introduction in the Bill of the data protection regulation, which provides an important safeguard. On the issue of confidential journalistic data, I welcome the progress that has been made and say to the Minister that I hope that, throughout the passage of the Bill, we have shared aims and tried to work towards them.
Throughout the passage of this Bill and other Bills where we have engaged with the Security Minister and Nick Thomas-Symonds, there has been a collaborative approach. That is again the case on Report. As the Minister said, we have had a constructive relationship with him, which is why I was quite disappointed with the change in tone this afternoon—questioning the Opposition’s motives and accusing us of essentially protecting paedophiles. Every Member, as has been said, would like to see these despicable criminals convicted, but we have to ensure that legislation is passed with adequate protections for the human rights that we are obligated to protect under the ECHR. I hope that the Minister will perhaps reflect on that.
Amendment 12, as the hon. Member for Torfaen set out in granular detail—for the sake of the House, I will not seek to repeat that process—seeks to avoid the UK being complicit in allowing for the death penalty to be practised abroad using data provided by us. We have previously heard from the Government that this would amount to driving a horse and cart through the Bill, but this is a matter of principle that the SNP will simply never compromise on. We are obviously a signatory to the European convention on human rights, article 2 and protocol 139 of which provide for the complete abolition of the death penalty.
As I have said in the past, I deeply regret that the Government resisted this amendment from the Lords and took it out in Committee, but I am pleased that we have another opportunity to put this anti-death penalty provision back into the Bill today. In opposing the amendment, the Government are setting themselves not just against our responsibilities under the convention but against their own policy of opposing the death penalty in all circumstances as a matter of principle.
In response to a written question, Baroness Anelay said:
“There has been no change in the British Government’s policy of working towards global abolition of the death penalty.
This Government pursues human rights in their universality—a more ambitious and coherent approach than focusing on a small number of single issues. Our commitment to the Rules Based International Order underpins this work, including through bilateral and multilateral support to global efforts to abolish the death penalty.”
As a signatory to the convention, we really should do everything in our power to avoid compliance in uses of the death penalty abroad. The UK at least claims to be a modern liberal democracy and a champion of human rights the world over. Opposing this amendment is entirely contradictory to those claims.
The Government have frequently refused to provide countries with aid and assistance where it is judged that that assistance could result in the use of capital punishment by the recipient party—for example, the review of UK security engagement when Pakistan resumed use of the death penalty, and declining to assist with services in Saudi Arabian prisons where juveniles were sentenced to the death penalty. Alongside this, as we have heard, the UK will not export products for use in capital punishment—for instance, medicines for use in lethal injections in the US. It would be inconsistent, not to mention a grave disregard for human rights, for the Government to refuse to supply the drugs for US executions, while providing the very information that made that execution possible.
Furthermore, the US already expects the UK to require full death penalty assurances prior to the sharing of information, and it routinely complies with this requirement—for example, in the recent “ISIS Beatles” case, when the Foreign and Commonwealth Office’s strong advice was to seek a full death penalty assurance. This was cited at the time as the Government’s consistent policy, which has been maintained without exception and without difficulty in co-operating with allies such as the US. The FCO agreed that a sole exception would undermine the UK’s consistent and total opposition. No evidence has been presented on unwillingness from the US to engage in data-sharing arrangements where death penalty assurances are required. Without clear evidence to this effect, it is difficult to accept the Government’s proposition that the US would walk away from the negotiating table for that reason.
On new clause 1, while we welcome it as an improvement, it simply does not go far enough. It is restricted to a requirement for assurances in the context of section 52 of the Investigatory Powers Act 2016. However, data could be requested by another state through a different route that does not require active interception on the part of the UK. In those circumstances, our concern would be that these protections would not operate.
The shadow Minister, rightly, gave a litany of examples where the Government have set out to abolish the death penalty worldwide. The SNP spokesman has referred to assurances on ISIS cases and other assurances. Given that we heard from the shadow Minister that assurances have been sought previously, I am a little puzzled about why that should change.
Words are great but it is deeds that are important, and we think that this should be in this Bill. As the Bill is, to use the Minister’s term, the docking station for future agreements, we think that this should be in the Bill, which sets the tone of the regulations for future agreements.
To help the House and to help me—I need all the help I can get—could the hon. Gentleman perhaps give an example of where assurances have not been sought in such cases?
That is not the point—it is about the principles. We have spoken at length about this and listed some of them. It is about the principles, and we are signatories to the ECHR as well. We should ensure that these principles and obligations are in this Bill; otherwise, in my view, we are not following those obligations.
Amendment 1, tabled by the Liberal Democrats, is an improvement on new clause 1, but my only small concern—Sir Edward Davey may address this in his speech—is that it might not cover instances where data could be requested by another state through a different route, similarly to the issues that I set out with regard to new clause 1.
Amendment 12 simply refers to
“where the treaty provides for requests” and therefore provides the most comprehensive level of protection. I urge Members from across the House to back this amendment, as our international reputation may well be degraded even further—if that were possible given the Brexit situation at the moment—if we enable this barbaric practice anywhere else in the world.
On journalistic protections, I very much welcome the amendments tabled by the Government and by Huw Merriman, but they still do not go far enough. They are fine in and of themselves, but other areas of journalistic protection still need to be looked at.
If the hon. Gentleman was sitting where I am and he had a choice before him where the United States Administration was saying, “Look, here’s the deal—we’ve got 99% of the data and you’ve got 1%. We haven’t got equality of arms. This is the deal—you either take it without strings attached or you do not,” and if there were no deals and no treaty, as the amendment would provide, what would he do?
That is almost a false choice. The Minister is painting it as a black-and-white issue. At the end of the day, on an issue of such grave importance as the death penalty, I would bring it to the House and seek the House’s view. It would not be for me to try to override our principles as set in the ECHR. The USA might well hold all the data, but if we do not hold to our principles, then what is the point? That is our view.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less extremely sensitive journalistic material. As I said in Committee, that is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work.
We believe that the Bill does not provide adequate protection of confidential journalistic material. This could seriously threaten journalistic inquiry and prevent a free press from doing its job, and the implications for our democracy are worrying. We are not alone in having those concerns; the BBC and many others have raised deep concerns about this part of the Bill. Amendment 18 is essential because it ensures that any protections afforded to our journalists in this Bill are not simply domestic but that other states that the Government enter into an agreement with must mirror the UK’s press safeguards.
Amendments 19 to 23, tabled by the Home Secretary and the hon. Member for Bexhill and Battle, would introduce a requirement that notice must be given for all applications for journalistic material. It is vital that journalists can operate freely in the knowledge that Government cannot just seize their information on a whim. As I said, we very much welcome those amendments. However, I echo the concerns aired by the hon. Member for Torfaen about proposed new section (2B) and in particular the indictable offence override. I hope that the Minister can give us some comfort on that. Under the Bill, journalists would have a significantly reduced ability to engage in arguments about what is and is not suitable for disclosure, removing the opportunity for them to make submissions on the issues that give rise to that.
In conclusion, there have been clear improvements to the Bill, and we very much welcome those concessions. However, new clause 1 and the journalistic protections simply do not go far enough, and that is why we will back the amendments tabled by the hon. Member for Torfaen.
This is a very good Bill overall. It is much needed, and it is not controversial, which is why we will not vote against its Third Reading. However, our debates have shown that there is a chance to improve the Bill. Back Benchers have been able to improve the Bill, as we have seen with the amendments tabled by Huw Merriman. I strongly support his amendments, which are well judged, and I know that the BBC supports them, too. I also support Labour’s amendment 18. It is not unreasonable to expect Government to try to ensure that there are protections for journalism and free expression in these treaties, and the world would expect Britain to uphold that. We hope to get agreement across the House on those amendments.
It is a shame that there is disagreement on the death penalty assurances. The Minister has been trying to reach out, but he will know that new clause 1 is only about seeking assurance, not receiving assurances, which is the issue at the heart of this disagreement. I intervened on the Minister earlier to ask whether there had been discussions about a carve-out for the types of offence that we are worried out. I would have thought that that would be incredibly easy, because the number of death penalty executions and cases that will result in it is tiny. I therefore would have thought that the US—a very practical people—would accept a treaty with that carve-out. The amendments tabled by my party and the Labour party would enable such a carve-out to be pushed forward. That is not unreasonable.
The Minister talks about the inequality of arms, and I get that—America is rather bigger than we are—but this is not about the Americans doing us a favour. We have data to offer them, too. It may only be 1%, but they want it. They want to catch their criminals—they want to catch the bad guys, too. We have a great record of working with them, and we should continue that. It is not as one-sided as he portrayed.
Let us remember what we are trying to achieve. A huge number of people in Congress and across America are campaigning to get rid of the death penalty. Nineteen US states no longer have the death penalty, and six of those have changed their laws since 2007 because of successful campaigning. That is one reason why we should stand up for this principle. This debate is live in the US, and it is important for not only the people we are talking about but US citizens that we send this signal. In addition to the states that have got rid of the death penalty, 11 states have not executed anyone for 10 years—it is de facto not used—so that makes 30 states. The federal Government have not executed anyone since 2003. The facts do not bear out the idea that we are pushing at a closed door and that there is massive opposition in the US political system.
The right hon. Gentleman makes a valid point. He also highlights how very rare this is, which goes to the point about balance. This is not just about death penalty assurances. This is about the United States Administration saying, “You can’t have your cake and eat it. You want all this help and all this data, and you want us to take back foreign fighters and try them, but no sooner do we say yes than you start telling us how to do it and giving us conditions.” That is part of the overall assessment that the Government made in some other cases. In this case, the data has never been an issue in the past 20 years. That is why our judgment and the clear message from the United States Administration is that that would jeopardise the treaty.
I hear what the Minister says, and I know that he knows there is not a lot between us on this, because we are all trying to get to the same objectives. However, the points he makes could be argued against the US position, and because we are close allies, we could close that gap. It would not be terribly great for Senators to oppose this Bill—they have Senate ratification —as they would be held to account by their citizens for getting in the way of sharing information to catch paedophiles.
As British politicians here, from all sides and including the Minister, we should stand up for British principles. Yes, we want to catch these appalling criminals, but we must make sure that we advance justice and human rights. I do not think we should see these things as separate and deal with them separately—we can bring them together. It would be a good step for this House to stand up for this principle, which we all share and which is and has for a long time been Government policy, and say to our close friends in the US that we believe we can come to some agreement.
The Minister made it clear in his response that the treaty is still in development. Nick Thomas-Symonds talked about how a lot of people in the US, particularly in the State Department, are expecting us to do this, so it is not unreasonable that we do, and I hope that the Minister, who is highly respected across this House and whose Bill we utterly support, can understand why we are trying to make this extra push. We are doing this to help him in his negotiations.
Listening to this debate, I found myself nodding along with the shadow Minister, as often I do. He made a well-honed speech about the bipartisan approach that has long been taken on the death penalty and the UK’s opposition to it on both sides. I tried to reconcile that with his party’s position, which is to oppose new clause 1. I was agreeing with what he was saying and I have some sympathy because the reasoned approach that he characteristically takes at the Front Bench is not matched by the diktat that comes down from the shadow Home Secretary and the leader of his party.
I have to say to the shadow Home Secretary: for the second time this week, she has ended up in a position where I and others are further to the left than her on a key issue. I sat behind her on Monday night, when she was explaining to the House why it was right to abstain on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Lords have rightly, and in a way that is welcome, forced a concession from the Government—to me, new clause 1 seems substantive in writing into the Bill the requirement for this and any future Government to seek assurances on the death penalty. As has been rightly said, that approach has long been practice but it was, in terms of extradition, in a way that was quite troubling, disregarded in the instance of Mohammed Emwazi and others.
New clause 1 has been tabled after pressure from the Lords. It is a step forward in legally codifying opposition to the death penalty. As I understand it, the Labour party is going to try to force its Members of Parliament to vote against it, in the hope that they will then get to an amendment which would be unworkable and would indeed wreck the chances of a treaty, as the Minister has convincingly set out. Assuming that new clause 1 goes through—I will certainly be voting for it and I am encouraging many Labour colleagues to vote for it or abstain—we are not, as I understand it, going to get to the Labour amendment, by which they appear to be setting store. I am afraid that that epitomises the deep oppositional politics that has always been a hallmark of the shadow Home Secretary and the Leader of the Opposition. It is an example, I am afraid, of why it would be so deeply troubling for the nation if they were given the chance to stand at the other Dispatch Box and have the authority to act as Home Secretary and Prime Minister.
This seems to have been another week when precedents are changing in this House. As I understand it, the Labour Whip is no longer binding on either Back-Bench or Front-Bench MPs, and it seems to be possible for Labour Front-Bench MPs to break their own Whip and remain on the Front Bench. I do not know if there is a requirement to go and sit in the Smoking Room to be exempt from what would otherwise be the strictures of the Front Bench.
This means that Labour MPs are being forced into making a false choice on human rights. We have to uphold human rights as a country. If we do not uphold them, the law will bring the Government into line, as it may yet do in the case of the so-called ISIS Beatles. The Labour leadership are forcing a choice on this incredibly important action to gain the treaty to speed up action against paedophiles, and on action to be able to convict British terrorists. They are forcing their MPs to choose one or the other. It is a false choice and one that I hope MPs will reject. I hope they will vote for new clause 1, so that we can go ahead with a strengthened Bill, which the country needs.
With the leave of the House, let me say that the amendments have been well heard and well argued. Following what John Woodcock has said, it is true that this is a false choice. This is real: it is about giving power to our law enforcement agencies to get data—data only; not the wider MLAT evidential packages, which are already covered by the overseas security and justice assistance guidance. Nor is it about extradition. It is simply about recognising the 21st century we live in, where the data is stored and the vital need for us to get it.
It is just wrong to tie this up with Trumpian ideology or anything else. It is not true. The shadow Home Secretary may like to note that it started under President Obama. We are not kowtowing to President Trump at all. This suggestion from our allies will help us to cut the time—from years and months to months and days—to get the vital data we need to protect our children and to protect us from terrorism.
May I reach out to the Opposition? As the joint chairman of the all-party group on the abolition of the death penalty, I, like the shadow Minister, Nick Thomas-Symonds, did have some concerns. However, I have addressed them with the Minister, who has listened. I think the Government have listened and I appeal to the shadow Minister and the Opposition Front-Bench team to think again in the national interest and in the interests of victims.
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.
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.
The House divided:
Ayes 310, Noes 257.