Crime (Overseas Production Orders) Bill [HL] - Commons Amendments

Part of the debate – in the House of Lords at 3:15 pm on 11th February 2019.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 3:15 pm, 11th February 2019

My Lords, I have been struggling to understand what the Government’s position might be. I think I picked up the Minister saying that the amendment concerns prosecutions in the United Kingdom only. With great respect, if that is right, I do not understand how that fits in with the language of the statute and the amendment itself. I will explain where I am coming from.

Section 52 of the Investigatory Powers Act 2016—the section being amended—is headed “Interception in accordance with overseas requests”. We are contemplating a situation where a request comes from another country, presumably for prosecution in that country, on the basis of information that we have obtained via intercepts. The whole point of Section 52, without the amendments, is to authorise the making of interceptions in accordance with that request.

My understanding is that subsections (6) and (7) of Clause 1 deal with a precaution against the kind of point that the noble Lord, Lord Paddick, was talking about—our international obligations. I agree almost precisely with the background which the noble Lord traced for us, set against Article 1 of Protocol 13 of the European Convention of Human Rights, which provides that sentencing to death is a violation of the right to life under Article 2 of the convention. If one applies Article 1 of Protocol 13, it would seem to be a breach of our convention obligations to provide information to a foreign country that would lead to somebody being sentenced to death. I do not know whether that has ever been tested in a court, because I do not think the issue has been brought before a court—I am not aware of that happening. However, there seems to be a strong prima facie case that if the Secretary of State was proposing to do that, he could be stopped on the grounds that it would be in breach of this country’s international obligations.

I am puzzled about whether the Minister is right that the purpose of this section is to enable us to prosecute in our own country, where we have no death penalty. The idea of an international agreement is, I think, that it should be reciprocal; it would be a bilateral agreement with a particular country—let us assume it is the United States—and there would be obligations on both sides. We would seek the benefit of the agreement to obtain information for us to prosecute cases of child abuse, which the Minister referred to; one would very much want to secure an agreement which would enable that information to come to us. However, in the context of Section 52, the thrust seems to be the authorisation of intercept information by us to provide for prosecution abroad. I am having difficulty seeing how that fits in with what the Minister said earlier.

Let us assume that the noble Lord, Lord Paddick, is right that this is really dealing with provision of information to go abroad. Then one comes right up against Article 1 of Protocol 13. What mechanism does one install to prevent a breach of the article? I think I am right that the mechanism of an assurance is well established in international law. In fact, in 2006 the United Nations produced a very helpful note, Diplomatic Assurances and International Refugee Protection, which traced the mechanisms that had been established to protect people who were being sent abroad by a country in answer to a request. The message in the United Nations paper is that one can protect oneself or one’s country against a breach of the international obligation by obtaining an assurance. However, the emphasis is on obtaining the assurance, because an assurance is given by the requesting country to the country from which the information to go abroad is being requested.

There was sometimes some doubt about whether that mechanism was reliable in a case where the threat abroad was of torture, because some countries are really not capable of preventing torture being perpetrated by all manner of officials, so an undertaking in that sort of situation is not really reliable. The paper goes on to say that if one is dealing with the kind of problem that we are contemplating—the risk of a death penalty being imposed—that is easily verifiable and an assurance could be relied upon as a secure protection against a breach of the international obligation.

Of course, all this assumes that the assurance is actually given in answer to the request. I suppose that the question comes down to whether it is necessary to put “received” into the amendment or whether one can simply assume that it is implied. I am inclined to think that it is implied because that is the background against which the whole amendment was drafted. There is no point in simply seeking an assurance because that in itself is not enough to protect this country against a breach of the international obligation.

There is a possible further point to be considered: the various stages at which this process is pursued. In the first place there is a negotiation stage, which I think the Minister was talking about, which involves making the agreement to get it in place. Secondly, there is the CRaG process, whereby if the negotiation is successful, the treaty has to be approved. Thirdly, there is the process of giving effect to whatever requests come in under the treaty once it is established. As I understand the Minister’s position, we are at stage one—the negotiation—and the Government are seeking authority to enter these negotiations without being too restricted at that stage. I am inclined to give some leeway to the Government’s wish, so long as it is understood that when we come to the point of actually releasing information the assurance would have been given in response to the request.

I hope that I have not made things too complicated. One needs to understand, first, whether we are talking about the provision of information to go abroad, which I think is the correct reading of the statute. Secondly, there is the question of which stage these amendments are contemplating. If it is the initial stage of negotiation, so that we can get the benefit of the other side of the agreement—provision of information to us—the amendment may be unnecessary or premature. The background, however, goes back to the point made by the noble Lord, Lord Paddick: ultimately, we have to be extremely careful that we do not run ourselves into a situation where we are in breach of Article 1 of Protocol 13 of the convention.