Designation of international agreements for purposes of section 52 of Investigatory Powers Act 2016

Part of Crime (Overseas Production Orders) Bill [Lords] – in the House of Commons at 2:30 pm on 30th January 2019.

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Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security) 2:30 pm, 30th January 2019

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.