I thank the noble Baroness for moving her amendment and for raising this point again. Perhaps my response in Committee was not persuasive enough for her.
The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. “Excepted electronic data” means electronic data that is either an item subject to legal privilege or a confidential personal record. The Government do not want to see overseas production orders being used to obtain such information, nor do we expect our officers to target it.
First, Clause 1(3) sets out that an appropriate officer must not apply for an overseas production order in respect of electronic data where that officer has reasonable grounds for believing that it consists of excepted electronic data. Clause 5(2) includes another one of these safeguards: a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is important given that there is no guarantee, at the time of considering an application, that either the judge or the applicant can be certain if the data sought will, in fact, contain excepted data.
Let me put it in this context: say the email records of criminal X were requested from June in a certain year because law enforcement agencies believed they had been communicating for criminal purposes with someone else. It would be impossible for either the law enforcement agency or the judge to know for certain that within those emails, there also happened to be correspondence between criminal X and their doctor.
I understand that the noble Baroness’s concerns in Committee were about the objectivity of the judge in allowing an order including potentially excepted data. The Government believe that the term “reasonable grounds for believing” gets us as close to objectivity as practicable. If a judge has “reasonable grounds for believing” that excepted data is included in the data sought in an application, they will not specify that excepted data when making the order. But if they do not have “reasonable grounds for believing”, as long as the other criteria are satisfied, the judge can make the order.
Indeed, should the respondent in receipt of an order know that it includes excepted data, Clause 6(4)(b) ensures that, despite the terms of the order, they are not required to produce that data. The noble Baroness asked in Committee how, if electronic data was within an order, it could be varied or revoked. The fact that the respondent is under no obligation to produce the excepted data removes any need for the respondent to apply to vary or revoke the order. To the extent that the order includes excepted data, it has no effect.
If we return briefly to criminal X, if a judge has allowed an order to be served on a communication service provider where the judge did not know that the emails requested included medical records, but the CSP did, that CSP would not be required to produce those emails. If the CSP provided the emails, knowingly or by accident, the data would then be sifted out by the appropriate body during the sifting exercise. It is therefore reasonable and proportionate for the Bill to retain the term “reasonable grounds for believing”, and it is a sensible reflection of what would happen in practice with overseas production orders.
I hope that, with that explanation, the noble Baroness will feel happy to withdraw her amendment.