Making of overseas production order on application

Crime (Overseas Production Orders) Bill [Lords] – in a Public Bill Committee am 9:25 am ar 18 Rhagfyr 2018.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security) 9:25, 18 Rhagfyr 2018

I beg to move amendment 1, in clause 1, page 1, line 20, leave out subsections (5) and (6).

This amendment removes subsections (5) and (6) from Clause 1 of the Bill. These subsections concern the designation of international agreements under section 52 of the Investigatory Powers Act 2016.

It is a delight to serve under your chairmanship today, Mrs Moon. I thank hon. Members for having listened in a consensual manner on Second Reading. This should not be a controversial piece of legislation. As people know, the Bill is designed as a docking station to give power to our law enforcement agencies to go to our courts to seek orders for the production of data overseas. It is about removing bureaucratic barriers to our law enforcement and allowing investigations to be concluded in a timely manner—often very quickly, compared with the delays of up to two years that can sometimes be experienced abroad. Fundamentally, it is a piece of legislation about UK law enforcement’s request for inward-coming data, so that our law enforcement can seek from the courts data from overseas. I ask hon. Members to bear that in mind.

At the moment, the majority of communications service providers, such as Facebook and Google, hold their data in the United States. It is therefore obvious that one of the countries we will seek to sign a treaty with so that it recognises these court orders is the United States. No doubt there will be one with the European Union at a future date. More than 90% of the data resides in the United States, so when our law enforcement tracks paedophiles, terrorists or organised crime, it is very important that we have timely access to it. At the moment, we go from the United Kingdom to the US Department of Justice to a US court to a CSP, and then it goes back down the line. In some cases, that can take up to two years and, regretfully, some cases have been abandoned as a result of that delay, while all the time offenders are abusing.

I have tabled an amendment today to remove from clause 1 the additional sections added by the House of Lords on international agreements. Subsections (5) and (6) of clause 1, which were added in the Lords, will prevent the Government and all future Governments from designating international agreements under section 52 of the Investigatory Powers Act 2016 with a country that retains capital punishment, unless assurances have been received.

I understand the strength of feeling on this issue and am grateful to Members of both Houses for their contributions. I have listened carefully to their arguments, including those made in the House of Lords. I want us to work together to reach a position that we can all support ahead of Report. However, if the Lords amendments stand, they will put at risk the Bill itself and any future treaty with the United States or, potentially, any other country. Live international negotiations do not work where the host Government—this Government or any future Government—can have their hands tied in this manner. It would prevent our making a negotiation and could effectively disqualify us from getting where we are trying to get to with the United States.

The Bill is about producing the power for a court to make an order in the United Kingdom. Subsequent scrutiny of any international treaty that we seek to make will be done through the normal processes of Parliament. We would table any international treaty for ratification in both Houses, providing 21 working days for scrutiny. Anyone in the House can object to the treaty as formed. If they do not like the terms of the international treaty, that is how they can register their objections or stop it going ahead.

The Bill is agnostic about the countries that we might make a treaty with. That is for the treaty itself. While I understand what is at stake here and what the Lords amendments try to achieve, the principle would be absolutely the same with a Labour Government, as it has been in the past, or any other Government. We should resist attempts in primary legislation to bind our position in negotiations that have not yet concluded and have not come to the House. I believe that would be upheld by any sitting Government.

When it comes to death penalty assurances, it is a fact that under the last three Governments over the past two decades, there have been very rare occasions—two occasions—when a Government have felt that there have been exceptional circumstances and either a death penalty assurance has not been sought when exchanging evidence or one been sought but not been achieved, and the exchange of evidence has nevertheless progressed. That has happened incredibly rarely, but it did happen under the Labour Government in the early 2000s and under the coalition Government when Liberal Democrats Member were in the Department. A legal case is currently outstanding about an occasion when it happened under this Government.

It is not that this or any other Government have wantonly done it with enthusiasm, but there may be occasions when something so egregious has happened to a friend and ally that we make a decision that it is not for us to dictate such stringent terms to that ally in our decision to help keep us all secure or to balance the needs of security with the needs of human rights. I could give an example, but the terms of the confidentiality involved mean that we are unable to do so.

Suffice it to say that a fictional example could be that someone in this country has launched a biological weapon—or, at least, a horrendous weapon—that has caused death and destruction to thousands of people in the United States. That person manages to make it back here and the United States seeks evidence from us about that individual. If there is no evidence in this country to charge him or her with an offence, the Government would have to decide whether evidence about the individual should be shared with the United States authorities. There may be occasions when the US authorities say, “Look, we cannot guarantee that what you do with that evidence will not lead to a death sentence, either indirectly or directly. We cannot do that.” This Government or a future Government might realise that the individual poses a real threat—we do not want him residing here any more than anyone else would want him residing anywhere else—and in that position there would be very strong reasons why, if a death penalty assurance was not received, we should share the evidence.

That would be sharing evidence with a country such as the United States or the European Union that has due process, fair trials, independent defence and an independent judiciary, and therefore meets all our values and matches our view of the rule of law, so this is not about making an agreement with a country that does not have the rule of law. It is a very difficult choice, but ultimately the duty of Government is to keep us safe and that is why the Lords amendment puts at risk not only this Bill but the treaties that we could potentially sign and the ability to keep people safe in the United Kingdom.

Let me be very clear that if the Bill was not able to proceed, that would mean that in the 99.9% of cases that are not attached to a death penalty at all—indeed, I have said that there have only been three occasions in 20 years where Governments have been involved in cases where there is a potential death penalty, and interestingly enough in two cases there was not one—offenders such as the people I referred to on Second Reading, who had serially abused children for the most horrendous crimes, will be able to continue to abuse with a longer timetable for being caught. At the heart of my mission is to catch those people as soon as possible.

That is the choice that right hon. and hon. Members are making with this legislation. We can stand on a totally purist principle of absolute opposition, irrespective of strong reasons or exceptional reasons, or we can decide that we have to balance the security needs of our constituents and our national security with the Government’s duty towards human rights and to observe the European convention on human rights. It is not an easy balance and it is sometimes tested in the extremes, but I cannot look right hon. and hon. Members in the face and say, “This consideration is so necessary that I would be willing to put at risk the cases that I have seen, as Security Minister, of child abuse, where the data is stored in America.” I do not think any hon. Member in this House, of whatever party, would be able to say to their constituents that they would put that at risk.

I am happy to provide the Committee with example after example after example of seriously dangerous people’s behaviour towards our children and our friends, and also of terrorists plotting mass-casualty events, where this Bill will help incredibly our law enforcement agencies to get the evidence they need.

The example that I used on Second Reading was of a man—Matthew Falder—so egregious in his abuse that he abused hundreds of people across the world using highly specialised encryption. He was an academic. He persuaded people to commit suicide, or to abuse themselves. He set up chatrooms that people were only qualified to enter by bringing their own images of abuse of children to that chatroom, where they could then share those images among themselves.

When our law enforcement agencies come across these chatrooms or follow the leads, people do not use their real names. Sometimes, one sees things from outside the chatroom and all one sees is a jumble of numbers. We might hear them speaking. We might see, as I have done, some of the footage. Therefore, getting the data from the CSPs, 90% of which is in the United States, is vital for us to do our job and to bring those people to justice. In fact, the first efforts are to stop them abusing, and then to bring them to justice.

That is the difficult choice that we have to make in Government. It is the Government’s responsibility. The last Labour Government recognised that choice, because their internal advice on such events was that in exceptional circumstances they did not need to seek or require death penalty assurances. The coalition Government went further and, for the first time, published something called OSJA—overseas security and justice assistance—guidance. It is a publicly available document with a very clear guideline about what we need to do to uphold our human rights obligations. However, under paragraph 9(b), where there are strong reasons not to seek assurances, we can proceed without them.

That was a public document—never published by any previous Government—that was published under the coalition Government, via the Foreign Office. It was a landmark and it truly opened up the whole process of risk and balance that people go through. I was not the Security Minister at the time, but none of us received any objections. No political party in this House made an issue of it. I did not hear any objections from the Scottish National party, the Labour party or the Liberal Democrats, who were part of the Government at the time, and it stood as a serious piece of work, and still does.

All we seek in the Bill is to reflect that. I therefore hope that hon. Members will support our efforts to get the legislation through the House and to make a treaty with the United States, and other countries as required, in a way that allows us to uphold our values, but recognises that the Government have to balance that with their duty, which is often not easy but is necessary, to keep us safe. That is why we will remove the amendment made in the Lords and progress the Bill, which I do not believe is controversial. I also do not believe that the amendment tabled in the Lords has anything to do with the legislation, which is about empowering a court order. If the Lords want to object to the treaty that we make with the United States, they can do that through the ratification process that takes place in this House and in the House of Lords when, hopefully, it arrives at a later date.

I am afraid that there are high stakes. I wish that I could tell the United States what to do and bind its hands, but I simply cannot. The reality of international negotiations is that none of us holds all the cards. We all have to negotiate, just as I negotiate with Her Majesty’s official Opposition, and just as I negotiate with the Scottish National party. That is what we do. I cannot speak for the Scottish National party any more than the Scottish National party can speak for me. [Interruption.] The tartan Tories! Similarly, I cannot speak for international communities.

I therefore commend our amendment to remove the additions that were made in the House of Lords, so that we can get on with the important job of protecting our constituents, while having the highest regard for our obligations under the European convention on human rights.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

It is a pleasure to serve with you as Chair this morning, Mrs Moon. The Opposition oppose the attempt to remove the amendment that was inserted into the Bill in the other place. Indeed, I am grateful to my Labour colleagues in the other place, where the Bill started, for their persistence and success in securing the amendment. On Report in the other place, Lord Rosser outlined the Opposition’s concerns and, indeed, Labour’s position on the death penalty. However, I point out that the amendment in the House of Lords proceeded on a multi-party basis, with support from other political parties.

Prior to its amendment, the Bill allowed for electronic data to be shared with another country when requested. I totally accept that the existing MLAT—mutual legal assistance treaty—system is slower than that which would be allowed under the Bill. The Minister is quite right to set out the efforts that are being made to deal with the despicable crime of child sexual abuse. He referred to the case of Dr Matthew Falder, to which he previously referred on Second Reading. He can have no doubt that the Opposition fully support an efficient, quick method of sharing data to ensure that such people are brought to justice.

The issue that we are talking about arises in a small number of cases—the Minister mentioned the statistic of three in the past 20 years. Unfortunately, it is the case that several countries around the world still operate the death penalty. The view of the Opposition in the other place was that the Bill did not include the safeguards required to ensure that the data handed over by UK communications service providers would not be used in death penalty cases. My Labour colleagues pressed that issue and secured the amendment, as seen in the Bill.

To be clear, that amendment would allow the Home Secretary of the day—of whatever political party—to seek assurances that the information would not be used directly as evidence in a death penalty case or to obtain evidence to be used in a death penalty case. The amendment makes it clear that if those assurances were not forthcoming, the information could not be handed over—that is the effect of the amendment. It passed through the other place by 208 votes to 185.

The Minister referred to the United States. I appreciate that the United States is in sharp focus for two reasons: first, because of the ongoing negotiations with regard to a treaty to plug in, as it were, to the Bill, and secondly, because, as the Minister has pointed out, the majority, perhaps as much as 90%, of communications service provider data is in the United States. The issue is that 30 states in America still operate the death penalty.

It is a live issue. In July, the shadow Home Secretary, my right hon. Friend Ms Abbott, asked an urgent question in the House about the case of Mr Elsheikh and Mr Kotey. The letter from the Home Secretary that was referred to in that debate said:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought”.

In that case, the assurances had not even been sought in the first place.

In his response in July, the Minister said:

The UK has a long-standing policy of opposing the death penalty as a matter of principle regardless of nationality and we act compatibly with the European convention on human rights.”—[Official Report, 23 July 2018; Vol. 645, c. 725.]

I am not for a moment suggesting that he is somehow in favour of the death penalty, or anything like that, because I know he is not. The issue is a matter of judgment that he has made on the Bill.

The reality of the situation is that the Minister’s argument appears to be that, for the sake of two or three cases, the United States would be willing to put the entire Bill at risk. It has to be said—I agree with the him—that they are despicable crimes, particularly when they relate to illegal images or other online exploitation, but none of those crimes in and of themselves carry the death penalty in the United States in any event.

We are talking about a tiny number of cases, so why is the principle important? If we are genuinely opposed to the death penalty, that should include the fact not only that we do not use it here in the United Kingdom, but that we will never be complicit in its use abroad either. It is about us as a country acting up to different moral standards. If we wish to go around the world using our soft power and our commitment to human rights to say to other countries that their human rights records should improve—and we should—we as a country need to set the highest standards to have the moral authority to do that.

The Opposition will oppose the attempt to remove the amendment from the Bill. It is important as a matter of principle. This issue affects a tiny number of cases. We would urge the United States to think again about putting at risk the enormous amount of work that can be done to speed up the process of information exchange for a very small number of cases.

Photo of Huw Merriman Huw Merriman Ceidwadwyr, Bexhill and Battle 9:45, 18 Rhagfyr 2018

I agree with many of the hon. Gentleman’s arguments, but change that he is seeking will drive a coach and horses through this Bill, which will protect the vulnerable. Is he not using the wrong vehicle for that?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

No, I am not using the wrong vehicle. This plug-in mechanism will have an impact on many other treaties. My answer to the hon. Gentleman is a rhetorical one: if we do not make a stand here, where will we make a stand? The idea that this huge amount of data and information relating to cases that do not carry the death penalty will be put at risk for a small number of cases—three in 20 years, as the Minister said—is, to my mind, not the most credible position.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The hon. Gentleman fails to recognise that there is no equality of arms here. Because of the creation and development of the internet, 90%-plus of the data we need is held in the United States. If it were 50:50 or 60:40, it would be different. The United States has been absolutely categorical with us that, should we adopt the principle of effectively telling it how to conduct its justice system, it will not proceed with the treaty. That is the choice in the real world that I, as the Minister with responsibility for this, have to make. Do I like it? No. Do I have to make the decision? Yes—that is a fact. There is no conjecture about whether the United States will or will not: it will not. In addition, it holds 90% of the data. If the hon. Gentleman would like to like to come here so we can change the law together on how we store data, I would be delighted to do that, but that is a fact. That is the reality that I have to live with. Therefore, if he knows that the United States will not do that, does he recognise that the implication of supporting the amendment made in the Lords is that the Bill will fall over?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I do not for a minute question the Minister’s perspective, but let me just say this. We are talking about the United States which, as he rightly points out, at this moment in time holds the substantial majority of CSP data. That is the treaty that is being negotiated. This Bill could be used for treaty plug-ins for many other countries. What if in eight, nine or 10 years down the line, it is not the United States that still holds the majority of CSP data? What if it is another country that does not have a particularly attractive human rights record? Will the Minister say the same thing—that it does not matter?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

We can debate that when we make the country-by-country treaty. That is the difference between this Bill and the treaty. The hon. Gentleman and his colleagues will have plenty of time to scrutinise the international treaties as they come before this House and the Lords under the process that has been well established. That is the time to scrutinise the decisions we have come to, and whether we agree or disagree to make the case at that time. It is perfectly possible to refuse to ratify the treaty.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

It seems to me that the Minister is saying that there are circumstances in which he would make a different judgment. His judgment to me is that now is not the time to make a stand. Respectfully, I have to disagree with him. I believe that now is the moment to make a stand. The Opposition oppose the removal of the amendment.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

It is a pleasure to serve under your chairmanship, Mrs Moon. The hon. Gentleman has set out the opposition to the Government amendment with commendable detail and clarity. I do not seek to repeat too much of that, but I will make a brief statement setting out the Scottish National party position.

The Minister spoke of principles and of tying the hands of Governments. I have a different set of principles: the SNP has not been a member of a Government who have passed on information without seeking or receiving assurances about the death penalty. The Minister also spoke about a compromise potentially before Report. That is largely a matter for the Government and the Labour party, although we would be more than happy to engage in that process.

To be crystal clear, the SNP will only support a compromise where the default position of Parliament would be not to provide data where assurances on the death penalty have not been received or sought and where it would be for the Government to argue otherwise in exceptional circumstances. At the end of the day, article 2 and protocol 139 obligations should be met and our shared principles across the United Kingdom on capital punishment should be protected.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The hon. Gentleman says it is for the Government to argue about exceptional circumstances. Is he saying that a Government should always seek death penalty assurances and if they do not get them, there could be exceptional circumstances, or is he saying that there are no circumstances or no exceptional circumstances—no nothing—where they would be allowed to seek that?

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

I am saying that it is our position, and it should be Parliament’s position, that we should not give information to any country seeking the death penalty or seeking information from the United Kingdom in pursuit of the death penalty.

We are trying to listen to the principle that the Minister has set out, and we are trying not to bind completely the hands of future Governments. If we are looking to achieve compromise and there is a small glimmer whereby the Government can argue in exceptional circumstances for that duty to be removed—we will be arguing against that at every turn, I am sure—it should be set out in the Bill, so that we are not handing over information, but Governments can argue for doing that in exceptional circumstances. What the Minister has been arguing should be flipped on its head. We will vote against the Government amendment.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I have listened to the SNP, and I am happy to look at further scrutiny of those decisions when we consider exceptional circumstances. The SNP, having been in government in Scotland for a long time, will know that Governments very occasionally encounter circumstances where they have to make difficult decisions. If the hon. Gentleman is looking for more scrutiny, we are absolutely happy to provide that. We are also happy to provide in the Bill a primary obligation to seek death penalty assurances in a way that has never been done before. We are happy to look at that.

What we cannot do is seek and acquire those assurances, because we are not in charge of the other country. We can certainly bind our hands to seek it in primary legislation and to explain why we have made an exceptional circumstance. I have no objection to trying to reach that position. My challenge is in the absolute. My challenge is in the bit where there is absolutely no position for a Government to make a choice or decision that is so exceptional that something has to be done. It was never any different with the previous Labour Government. In fact, a Secretary of State of that Government did exactly that when push came to shove, and the details around that are even more extreme.

Never did I hear an objection about the overseas security and justice assistance document, which is a public document that has been in circulation since 2014. It is not from the shadow Attorney General or the Liberal Democrat shadow Attorney General. It says absolutely clearly in part 9:

“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’”—

I think we recognise that and agree on it—

“and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”

That is the reality.

If this is about making a stand, what has been the Labour party’s stand been since 2014, or since 2000, when it was carrying out these things? I venture that it has not taken that stand because it knows that in government—it aspires to be a Government sooner rather than later—it might have to make those decisions. That is why members of the Committee are seeking not to agree that amendment. We can offer more assurances and scrutiny of that decision, but as the Minister of State for Security, I make the decision to try to help our law enforcement agencies catch these people time and again, and I cannot bind their hands 100%. The United States has made it clear that we will not be able to progress with the treaty if the amendment falls in the legislation in the way it does.

On top of that, the Lords amendment is deficient for technical reasons that I will not bore the Committee with—I cannot remember off the top of my head, but there are some technical drafting deficiencies. Nevertheless, the amendment is absolutely important and reflects the reality of where we find ourselves in today’s world of the internet. When there was no internet or encrypted chat rooms, it was different. We have those things today; people use our servers here, but the vast majority reside in the United States—that is the point about the equality of arms. There may come a day when it is not that way. I hope we have a British Google and away we go!

The hon. Member for Torfaen asked what would be the position if another country had the majority of servers. My starting point for any treaty on another country about this issue is whether it has the rule of law, an independent judiciary, oversight, the right to defend and a similar legal system to us. The United States and Europe absolutely do. This is not a treaty between us and countries with no rule of law, elections, democracy or accountability—I would not sit here and talk about a treaty with North Korea or any other country such as that. The starting point is a country with an English legal system, let us not forget. It is difficult but necessary to remove the Lords amendment and to make the case that, on balance, I am keen to protect my children and my citizens in the constituency I represent, as my colleagues are. That is the difficult but real choice before us when it comes to this Bill.

Question put, That the amendment be made.

The Committee divided:

Ayes 9, Noes 6.

Rhif adran 1 Crime (Overseas Production Orders) Bill [Lords] — Making of overseas production order on application

Ie: 9 MPs

Na: 6 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly agreed to.

Amendment 1 agreed to.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I beg to move amendment 7, in clause 1, page 2, line 10, leave out “or prosecution”.

This amendment would refine the definition of international agreement which could serve as the basis for an order.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee, Chair, Defence Sub-Committee

With this it will be convenient to discuss the following:

Amendment 8, in clause 4, page 5, line 24, leave out “proceedings or”.

This amendment would mean that a judge would need to be satisfied that the data sought is likely to be of substantial value during the period of the investigation: an application could not be granted solely because the data might be of value during any proceedings in relation to the alleged offence.

Amendment 9, in clause 4, page 5, line 30, leave out “proceedings or”.

This amendment would mean that a judge would need to be satisfied that, before granting an order, there is likely to be a benefit in the public interest during the period of the investigation: an application could not be granted solely because the data might be of value during any proceedings in relation to the alleged offence.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I will deal with these three amendments quite quickly because, in essence, they would all do the same thing: bring the provisions in line with the Police and Criminal Evidence Act 1984. Specifically, they would limit the use of the information to an investigation, rather than investigation and proceedings. That is the position set out in the 1984 Act.

To be clear, the Police and Criminal Evidence Act outlines that material may be used when it is likely to be of substantial value to an investigation. It does not use the term “prosecution”. Paragraphs 2 and 14 of schedule 1 to the Act detail that applications can be made of material if they benefit the investigation. For overseas production orders, however, the clause also details the term “prosecution”. Our simple position is that, in so far as is possible, the provisions should be in line with those of the Police and Criminal Evidence Act, rather than those of the Terrorism Act 2000 and the Proceeds of Crime Act 2002, given the nature of the cases that the Bill will deal with.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I understand that the Bill is not the most exciting piece of legislation, but after the first vote the Labour party lost three of its Committee members, who have gone off to do something else. The hon. Member for Wolverhampton South West, for example, has done a bunk—I shall go through the others as we proceed. [Interruption.] The Scottish National party is present in all its yellow glory. The Bill might not be exciting, but I do not think that Members should turn up for the controversial vote and then do a bunk. We should recognise that this legislation is incredibly important to our law enforcement community and our constituents.

I understand that the hon. Member for Torfaen is concerned about the additional proceedings in relation to serving an overseas production order while PACE refers only to the investigation. However, I believe that PACE has been misread in this regard. Nothing in law says that an investigation ceases once proceedings have been brought to court. Indeed, PACE does not state anywhere—I do not believe it infers this either—that orders may be used only up until someone is charged.

The operational partners we work closely with have made it clear that, in the context of applying for production orders under PACE, they do not consider an investigation to have come to an end until convictions have been secured. It is common for new evidence to come to light and to be obtained throughout the criminal process after charge. Evidence gathering is not limited to the investigation. I believe that it is highly unlikely that a court would construe PACE so narrowly that the police could lose access to investigative tools once the person has been charged.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

The Minister seems to be making the case that there is little practical difference between the two, but my point is that PACE does not include the word “prosecution.” Where has the wording for the Bill come from, because it does not mirror PACE?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I understand. I suspect that the wording just comes from the parliamentary draftsmen. Given no significant difference, as I am explaining, the wording was simply put in that way.

As I was saying, that interpretation would be perverse, and it would have an impact not only on the prosecution but on the defence, given the duty on the police to exhaust avenues of inquiry even if they point away from the defendant’s guilt. The COPO Bill therefore deliberately references “proceedings” to make it clear that orders are available for all stages of the investigation. That was influenced by language used in section 7 of the Crime (International Co-operation) Act 2003, which deals with a request for assistance when obtaining evidence from abroad.

I reiterate that, despite the difference in the language used, the Government do not intend any difference in effect between the Bill and PACE in that regard. We do not consider that the use of the word “proceedings” in the Bill increases the likelihood of “criminal proceedings” in PACE being interpreted unduly narrowly. PACE will continue to be available to law enforcement agencies once proceedings have begun for use up to charge and beyond.

The hon. Member for Torfaen has suggested that once a trial begins the investigation is often handed over from law enforcement agencies to the Crown Prosecution Service, but it is still possible that—this happens a lot—the law enforcement agencies that were investigating the crime will then come across new evidence, which of course they would share with the prosecuting authorities. I therefore ask him to withdraw the amendment.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I do not disagree with anything the Minister has said in that interpretation. The point I was trying to probe was the difference in the wording. On the basis of the Minister’s assurances that the wording comes from somewhere else but that he does not expect there to be a substantial difference, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I beg to move amendment 15, in clause 1, page 2, line 11, at end insert—

“(7A) The Secretary of State may only make regulations designating an international agreement under subsection (7) 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’ sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.”

This 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.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee, Chair, Defence Sub-Committee

With this it will be convenient to discuss amendment 18, in clause 1, page 2, line 11, at end insert—

“(7A) The Secretary of State may only make regulations designating a treaty for the purposes of this section if that treaty provides as least as much protection for freedom of expression and the protection of journalist’s sources as guaranteed by Article 10 of the European Convention on Human Rights and Section 10 of the Contempt of Court Act 1981.”

This amendment would mean that a treaty could be designated an international co-operation arrangement for the purposes of this Act only if it provided as much protection for freedom of expression and the protection of journalistic sources as that provided in the European Convention on Human Rights and the Contempt of Court Act 1981.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

The amendment deals with the concern over what has been described as a free pass for overseas authorities to access data in the UK. Again, the issue is a fairly discrete one, on which I hope the Minster will be able to comment and give some reassurance. In its current form, the Bill allows the Government to enter into agreements with foreign Governments to enable reciprocal access to data stored in the United Kingdom. The concern is that there are no appropriate safeguards to compel the position in other countries with regard to freedom of the press, mirroring those that we have in the United Kingdom. From comments that the Minister made in a different context in a previous discussion, it may be that that is something we take into account before a particular country is considered for negotiation for such a treaty, but I would appreciate it if that was set out.

The concern is that we create a back door for overseas Governments to bypass procedures and protections laid out in the United Kingdom. Put simply, we could have a situation whereby a country that does not have our standards of press freedom is able to access something that has been obtained by journalists in this country. What assurances can the Minister give on the considerations that would be taken into account on that issue before any treaty was entered into with another country?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The hon. Gentleman makes a valid point, and I recognise the slight difference between this amendment and amendments 13 and 14, in which he deals with confidentiality. First, as I pointed out earlier, hon. Members are talking about incoming requests for UK-held data, but the Bill relates only to the UK’s outgoing requests for electronic data held overseas. I completely accept the point that the Bill cannot work without a reciprocal international agreement in place, but amendments 15 and 18 are directly related to the international agreement, as opposed to what our Bill provides for.

The Bill is simply not the right place to mandate what is, I agree, a right and laudable protection for journalists and their data. We cannot impose these conditions in advance of negotiations on an international agreement. In my view, this goes back to the principle of allowing the Government of the day to have those negotiations without necessarily having their hands tied. Of course, the UK would never agree to share data with a country that had insufficient safeguards—not as long as I am the Minister and this is our Government. I do not think that it is necessary or helpful to mandate this in the Bill.

The amendments, which seek to control the Government’s negotiating position before they have begun considering future international agreements, would not prove desirable to any Government. However, I remind hon. Members that they will get ample opportunity to scrutinise any international agreement, both when the agreement is designated and again, ahead of ratification, under the Constitutional Reform and Governance Act 2010. The Government already amended the Bill in the other place to provide that extra level of scrutiny of all international agreements.

The first, most immediate and most important international agreement will be, I hope, with the United States. As hon. Members know, the US has an even higher regard for protecting freedom of speech and freedom of the press than the UK has, as set out in the first amendment to its constitution. In addition, the US-UK agreement has been drafted to be fully compliant with EU law. If hon. Members want to know how strong the US holds the first amendment to be, I tell them that when they lobby me about neo-Nazi websites hosted in the United States—as they often do—and we seek to have them taken down because of the vile extremism that they spout, our challenge is that under the first amendment it is extremely hard, even domestically, for the US to do that.

To some extent, we would not have the same problem—well, let us hope not—but the US definitely has that problem. That is an example of how these international agreements will be between like-minded countries with similar values and rights, the rule of law and so on. In this case, on the journalistic issue, the US has a stronger protection than we currently have in the European Union. That is why we have done this in the way we have.

I understand what the hon. Gentleman is rightly trying to get at. Of course, I have been open throughout to anything that protects and better qualifies journalistic data. However, we should remember that under the Bill, which is about our requests out, law enforcement agencies will have to make their case not to me but to a judge, who will have to decide whether the application is proportionate, necessary and in the national interest. It cannot be a fishing exercise. Only if the judge is satisfied that it is obviously relevant to the investigation and protects the rights of the journalist will the application be granted. The journalist will be notified, so it is not as if they will be unaware. We will be able to protect their material where that is appropriate, but if there is material that is important to an investigation—and remember that no journalist, no Member of Parliament and no one else is above the law.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 10:15, 18 Rhagfyr 2018

I do not disagree with much of what the Minister says, and I take his point about the scope of the Bill. The point I was driving at is that if we had a treaty with a country that did not have the same laws about freedom of the press, that would obviously create a concern. I think the Minister is saying, in effect, that that would be taken into account before a treaty was finalised in any event. Is that correct?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The hon. Gentleman is right on that. I cannot speak for the next Government, but the Bill is about our requests to our courts, and this Government would not enter into an agreement with a Government that went around oppressing the press and the media. Despite the fake news, this Government believe that journalism and the press are vital to exposing the truth, corruption and everything else, and we absolutely would do all we could to protect that, both in domestic proceedings and with any international treaties. That is why the Bill is drafted so it is both compliant with European law and has high regard to the first amendment.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

I was going to speak to amendment 18, but the hon. Member for Torfaen made points broadly similar to those I was going to make. The Minister has addressed some of them, but I have one question. He said he would never countenance handing over information to a country with fewer journalistic safeguards than we have here. If that is the case, why can we not have that safeguard in the Bill, which all these international treaties and agreements will plug into? What is the danger of building that safeguard into the Bill?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

First of all, the Bill is simply the docking station from here to there. It is not about international treaties—when we sign our treaties, we can dock them into the Bill. The principle of allowing a Government to negotiate without their hands narrowly tied about what they can discuss is important.

Secondly, remember that—this probably comes down to how we would draft such a provision—for the purposes of security and so on we sometimes share information with countries that do not have the same high standards as us. If we had a credible threat against aeroplanes with British tourists taking off from third countries, we would not say, “We’re not going to tell you,” and let British tourists get blown out of the sky. Of course we share information with countries, but this is about journalistic information as it applies to investigations, criminal proceedings and so on.

We can do more to provide assurances about journalistic material, notification and journalists in court here, and I can give the Committee the assurance that we would enter into international agreements only where we felt there was high regard for the protection of journalists, but I do not think that safeguard needs to be in the Bill. There would be a challenge about how exactly to draft it. It would also go against the principle of letting the Government of the day be free to hold a negotiation in a way that would achieve the same things, but could address all the different issues. Every country will have things that we have issues with, and I bet that not one country will tick all our boxes across the board. What is my highest priority? Protection of the ECHR, the right to life, journalistic protections—those things will be right up there at the very top, which I think is the best way to do it.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

On the basis of the Minister’s reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

Clause 1 is the meaty part of the Bill, and the Government have removed the amendment made in the Lords. I do not need to reiterate the importance of the Bill progressing in the way that we have tried to take it through. I have offered concessions throughout, as I have done elsewhere, and concessions are still on offer to Opposition Members, and indeed to Conservative Back Benchers. However, I cannot say that I will put the Bill in jeopardy, because I believe that fundamentally that would make our constituents less safe. That is why we have removed the amendment, and why I believe clause 1 should stand part of the Bill.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

The Minister knows that I am always willing to speak to him about concessions, and that remains the case. However, I hope that he understands the real strength of feeling about death penalty assurances, which was reflected in my speech and the vote this morning. Of course we will consider the issue in further discussions, and we will revisit it on Report.

Question put and agreed to.

Clause 1, as amended, accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

Clause 3