Requirements for making of order

Crime (Overseas Production Orders) Bill [Lords] – in a Public Bill Committee am 10:30 am ar 18 Rhagfyr 2018.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 10:30, 18 Rhagfyr 2018

I beg to move amendment 5, in clause 4, page 5, line 1, leave out “(6)” and insert “(6A)”.

This amendment is consequential on Amendment 4.

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 4, in clause 4, page 5, line 34, 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.

Amendment 6, in clause 4, page 6, line 16, 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 4.

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

This group of amendments consists of amendment 4 and two consequential amendments. Again, the amendments refer to the read-over to the Police and Criminal Evidence Act 1984. Under that Act, the warrant can be made for journalistic material only if the judge is satisfied that a series of conditions have been met, including that there are reasonable grounds to believe that an indictable offence has been committed, that the materials sought would be of substantial value to the investigation, that all other avenues of procuring the evidence have been exhausted or would be bound to fail, and that the evidence sought is relevant to the investigation. The amendments probe that relevance test.

Although the Bill offers a public interest test and a substantial value test, it does not include a relevant evidence test. Nor does it speak about a requirement that all other means of obtaining the information have been exhausted. I am pushing the Minister on the relevance test. Adopting a threshold for what data are relevant to an investigation is necessary and proportionate. It enables clarity and constituency in all cases, and is in line with our human rights obligations. As the Minister pointed out, the judges who will be considering these applications will be familiar with the application of a relevance test. It is a recognised legal standard, and it would be a simple, sensible safeguard that would bring these provisions in line with those under the Police and Criminal Evidence Act 1984. I ask the Minister to consider carefully the inclusion of a relevance test.

Photo of Huw Merriman Huw Merriman Ceidwadwyr, Bexhill and Battle 10:45, 18 Rhagfyr 2018

It is a pleasure to serve under your chairmanship, Mrs Moon. I wish to speak to amendment 4. I declare an interest: I chair the all-party parliamentary BBC group, but my concerns relate to all organisations. As the hon. Member for Torfaen said, under schedule 1 to the Police and Criminal Evidence Act, there are three conditions that must be met. One is that there are reasonable grounds for believing that the material is likely to be of substantial value. That is replicated in this Bill. Another is that it is in the public interest to have regard to certain matters. That is also included. What is not included is the requirement that there are reasonable grounds for believing that the material is likely to be relevant evidence. I support the move to add that third limb to the Bill.

Let me use as an example a typical application that I have received for all material relating to a matter. It relates to all journalistic material including but not limited to audio, visual recordings and documentation related to and arising from interactions with X and Y in respect of allegations linked to certain addresses. That can be incredibly wide, so the relevant evidence test is very important.

Journalists and media organisations rely on individuals to come forward, and their investigations can be incredibly broad. There could be a large onus on them to supply a lot of information, which could include legal advice and editorial content back and forth. Without this amendment, I believe that there would be difficulties. The amendment would make the Bill entirely consistent with the Police and Criminal Evidence Act, which should be its benchmark.

The Bill states:

“The judge must be satisfied that there are reasonable grounds for believing that…the electronic data…is likely to be of substantial value”.

I recognise that there are additional bulwarks in the Bill to give us assurance, but I gently suggest to the Minister and his excellent Committee team that, if we extend the Bill to include the third limb, that would make me comfortable.

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

Amendments 4, 5 and 6 seek to include in the Bill an additional test of relevant evidence, which the judge must be satisfied has been met before granting an overseas production order for journalistic data, and the additional requirement that all other avenues for obtaining the data have been exhausted before applying for an overseas production order. On the relevant evidence test, under schedule 1 to PACE, there are certain conditions that must be satisfied before the judge can order the production of special procedure material. Under these conditions, first, there must be reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection with which the application is made. Secondly, there must be reasonable grounds for believing that the material is likely to be relevant evidence, which means, in relation to an offence, anything that is admissible in trial for that offence. Thirdly, it must be in the public interest, having regard to certain matters, for the material to be produced.

Only the public interest and substantial value conditions are included in the Bill. That was deliberate drafting to ensure that our law enforcement agencies have the powers they need to gain access to material that could help further investigation, even if that material is not necessarily admissible as evidence in court. Although the intent of the powers is to allow for data gathered to be used as evidence in court, we do not intend admissibility as evidence to be a barrier to obtaining material that has been identified as being of substantial value to an investigation. My officials have worked closely with operational partners to understand the need for this. Investigators from law enforcement agencies advise that there are often cases in which access to data is fundamental in discovering certain leads in an investigation, although they will not necessarily be used as evidence in court. For example, if someone is being investigated for storing inappropriate images of young children, an overseas production order could reveal further references to other platforms where inappropriate content was being stored. While the images themselves would be used as evidence in court, the lead to the platforms on which they were stored might not be.

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

The Minister is talking about admissibility, not relevance. Why on earth would anyone want to investigate something that is irrelevant?

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

I do not think that is what I am saying. I am saying that some material would be used as evidence and some would be used as a lead through which to access or potentially find evidence. This is not about anyone going to the court and asking for irrelevant material. It is about asking for material that is substantial and meets the test of the judges.

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

I do not see how a relevance test would prevent that from taking place.

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

I will give another reason. Unlike PACE, the Bill allows for the investigation of terrorist offences. It has been drafted to mirror the relevant parts of the Terrorism Act and POCA, neither of which has a requirement for relevant evidence tests to be met.

The concept of relevant evidence works only if an application is made in relation to a particular offence. That is why it does not exist in the Terrorism Act, under which an application does not have to be made in respect of one particular offence, but only for a terrorist investigation. Given that an overseas production order made under the Bill could be served in support of a terrorist investigation, we cannot simply import a relevant evidence test into the Bill, as in PACE. I do not believe that introducing a markedly different legal test depending on the investigation is helpful.

I reiterate that the Bill deliberately brings different police powers under one piece of legislation. The intention is to create a single set of test criteria, which the Government believe provides appropriate safeguards to accessing content data.

Photo of Huw Merriman Huw Merriman Ceidwadwyr, Bexhill and Battle

In a way, the Minister has answered my point, but I will still prod him in this direction. If we will not have the same three limbs as in PACE, is there no justification—notwithstanding what he just said, which makes it more complex—to have two separate related texts? One could have terrorism-related activity under the Bill, and one could not and could follow the three limbs of PACE.

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

We are in the process of trying to balance the safeguards. Let us remember that the Bill effectively covers a relationship between the law enforcement agencies, the courts and the CSPs—not the journalists or the person under investigation or anybody else. Journalists will be notified effectively to make a representation to a court about why, for example, half of their address book is irrelevant. They have an opportunity to make that point to the judge. Nobody else does. That provides a different type of safeguard from what my hon. Friend is looking for.

The point is well made about an investigation. Many of these investigations are about discovery and are very fast moving; starting with one mobile telephone number or one individual, it very quickly becomes a plot in a terrorist case. It is therefore about giving our law enforcement agencies the ability to pursue an investigation. However, when the investigation comes across journalistic material, the journalist will be given a notification that they are allowed to make a case for why it is irrelevant and effectively influence the parameters of that request. I venture that a judge would take that very seriously.

Some 99.9% of journalists do not have anything to fear from this process. The ones who do have something to fear are those who call themselves journalists at the Dabiq or Inspire magazines from Al-Qaeda and IS and so on, who pump out propaganda and journalism, as they see it, around the world. They have something to fear because this Bill will help us catch those people much quicker. I do not call them journalists, however; I call them first-class terrorists. Ultimately, they are the ones who would love to see bureaucracy slow down the investigation. I do not think our journalists—mainstream journalists, law-abiding journalists, and not even mainstream journalists—have anything to fear from this.

Another point was made about exhausting all avenues of accessing journalists’ data before an overseas production order is granted. First, if the amendment were incorporated in the Bill, that could have the adverse effect of compelling a judge to ensure law enforcement agencies have tried the mutual legal assistance route, which is the route we are currently trying to fix because that can take up to two years before an overseas production order can be granted. That would defeat the point of our creating this new process to prevent up to two years of delays via MLA. The caveat the hon. Member for Torfaen has added to his amendment with the phrase,

“tried without success or have not been tried because it appeared that they were bound to fail”,

would not mitigate this risk either. We are not worried about MLA failing, but about the length of time it takes to gain access to vital evidence.

It is worth noting that, in practice, law enforcement agencies would have exhausted less coercive methods of obtaining data, if they exist. Agencies will only go through the process of applying to court for potential evidence as a last resort in the investigation, for example, should suspects refuse to release or unlock access to their phones and so on. I therefore urge the hon. Gentleman to withdraw his amendment.

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

I am not minded to divide the Committee on this, and I am willing to withdraw the amendment. I just say to the Minister that I am not sure the relevance test has quite the impact he thinks it does. I urge him to look again, because its inclusion would provide greater safeguards and reassurance without doing the damage he thinks. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 16, in clause 4, page 5, line 16, at end insert—

“(3A) In any case which —

(a) falls within subsection (3)(a), and

(b) relates to data which comprises or includes excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984) or special procedure material (as defined by section 14 of the Police and Criminal Evidence Act 1984) the judge may only make an order if satisfied that the relevant set of access conditions in Paragraphs 2 or 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 would be fulfilled if the application had been brought under that Schedule.”

This amendment would that, in the case of excluded or special procedure material, a judge could only make an order if the relevant provisions on access conditions in the Police and Criminal Evidence Act 1984 were complied with.

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

With this it will be convenient to discuss amendment 17, in clause 4, page 5, line 17, leave out subsections (4) to (6) and insert—

“(1) In any other case, the judge must be satisfied that there are reasonable grounds for believing that —

(a) the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application for the order.

(b) all or part of the electronic data specified or described in the application for the order is likely to be of substantial value (whether or not by itself) to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation.

(c) is in the public interest for all or part of the electronic data specified or described in the application for the order to be produced or, as the case may be, accessed having regard to—

(i) the benefit likely to accrue, if the data is obtained, to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation, and

(ii) the circumstances under which the person against whom the order is sought has possession or control of any of the data.”

This follows on from Amendment 16 and brings the current subsections (4), (5) and (6) together in one subsection.

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

Many of the arguments relating to these amendments have largely been made in the previous set of amendments about PACE. To clarify, from our point of view, journalists are currently given notice under PACE, which allows them to negotiate changes to their application in most cases. These amendments simply replicates what already exists and works well under PACE for the measures in the Bill. They would ensure that the evidential value test mirrors the current law on both terrorism and non-terrorism cases, in reference to the point made by the hon. Member for Bexhill and Battle. They would also ensure that confidential journalistic material is protected as under the current law for domestic applications. As has been said already, the Bill strips out the requirement that the information sought is likely to be relevant evidence and that other means of obtaining it have at least been considered. In a free, democratic society, seizing journalistic material should be a last resort.

Although there is a public interest test in clause 4, it sets a lower threshold than in PACE. Instead of the judge being required to determine whether granting access to information would be in the public interest, as in PACE, the judge must merely be satisfied that there are reasonable grounds to believe that it would be in the public interest. Separately, the police and security services have covert powers, primarily under the Investigatory Powers Act 2016. These powers are exercised through the issuing of a warrant by the Secretary of State and the Investigatory Powers Commissioner. Exceptionally, these powers have been used by the police to identify a source. Most infamously, the police used a journalist’s phone number to identify the police source who had leaked the “plebgate” story to The Sun. As a result of concern from the press about this, some safeguards have been added. However, neither the journalists nor the CSP is given notice of an application for an IPA warrant.

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

I support what the hon. Gentleman is saying, and there is a later amendment for a notice. Is not the essential issue here that, as the Bill stands, the notice provision is not there for material that might not be confidential but is none the less extremely sensitive? It would be sensible to have the notice provision for that journalistic material as well.

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

I could not agree more. The Investigatory Powers Act—I thought I left it behind a couple of years ago but I am on it again—provides for communications to be intercepted in the course of transmission; for communications data, but not content, to be produced to the police; and for the bulk surveillance of communications, with access to the content of specific communications that are highlighted in this process. Other than that, there is not a general right under the Act to apply for the content of stored communications, so there is no general ability under domestic law to obtain the content of journalistic communications other than through applying for a domestic production order.

In simple terms, under domestic law the police can apply to search premises and require electronic information to be copied and provided, but that is not really of use to obtain abuse images stored in the cloud. Instead, the police would have to use surveillance and interception powers, and their powers to make communications providers supply communications data, in order to identify suspects. They do not generally have the power to require the communications provider to provide electronically stored content. The police are therefore likely to use information gleaned from interception and communications data to apply under PACE for a search warrant of individuals’ premises, and to seize computers and phones.

Could the Minister explain the key differences between the powers he seeks in the Bill and the provisions in the Investigatory Powers Act for relevant international agreements designated by the Secretary of State to serve warrants overseas? It could be argued that, for the use of such covert surveillance and interception powers, the Investigatory Powers Act already has the international capacity that the Bill strives to provide. The hon. Member for Bexhill and Battle said that the protections outlined in PACE should be copied over to the Bill. I urge the Minister to accept the amendment.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security) 11:00, 18 Rhagfyr 2018

I appreciate the intention behind the amendments, but I hope that I can explain why they are not in line with the policy intention behind the general tests set out in the clause. To summarise, amendment 16 would incorporate the tests under PACE for special procedure and excluded material. Amendment 17 would ensure that our existing tests in the Bill apply to all other data in scope, including any electronic data obtained from terrorist investigations. The amendments would introduce a separate set of access conditions for special procedure and excluded material, but the Bill has been carefully drafted with serious consideration. The rational policy intention reached was that it is not desirable to introduce a separate set of access conditions, as the Bill seeks to reduce bureaucracy and streamline process, not complicate it.

More crucially, the Bill was designed not to imitate PACE but to take relevant parts of PACE, the Terrorism Act and POCA and merge them into something appropriate for an entirely new tool: a streamlined version of mutual legal assistance called overseas production orders—a new tool that confers a new or revised set of conditions. I accept that the greatest number of production orders are issued under PACE, but the power under PACE is limited to just one type of production order, for special procedure material and excluded material. If material that is not special procedure or excluded material is not voluntarily given to the police, an ordinary search warrant would be used.

The purpose of the overseas production orders will be to request evidence held overseas where we could not use search warrants. In addition to PACE, production orders can be issued under the Terrorism Act and POCA for different types of evidence. Indeed, overseas production orders will seek electronic content data for a range of offences related to serious crime, which may include terrorism.

Therefore, the overarching policy intention is to provide a careful, considered and blended set of tests that reflect the current legislation in PACE, the Terrorism Act and POCA, which would work for all types of evidence sought through overseas production orders. We do not want to introduce two different legal tests; we want to keep this simple for police and judges, in order to offer a streamlined alternative to an existing bureaucratic process. That policy intention was the goal firmly in mind, but certainly not at the expense of any necessary safeguards.

None the less, the Bill incorporates the robust tests required to request electronic content data for all types of serious crime, including terrorism. The Bill and the general tests set out in clause 4 are what we deem reasonable for all the types of evidence that overseas production orders can access. It is important to reiterate that an issued overseas production order has been deemed proportionate by an independent judge, having concluded that the tests in clause 4 have been satisfied—tests that we believe are sufficient safeguards to prohibit officers from just requesting any data they wish.

On the point about the difference between the powers under the Bill and powers under the Investigatory Powers Act, miraculously—as if in a Christmas pantomime—the answer has appeared in my hand. The Investigatory Powers Act provides for lawful intercept of communications, but US companies have been prevented from complying with requests by domestic US legislation. The agreement will hopefully fix those problems and remove those barriers.

I hope that I have convinced the hon. Member for Paisley and Renfrewshire North that his amendments are not in line with the policy intention, and I hope that he will be content not to press them to a vote.

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

The Minister will be surprised to hear that I am not content. He said that the Bill is not designed to replicate PACE. We and others argue that it should. I look behind me, however, and realise that attempting to divide the Committee would be a futile gesture this morning, so I shall not press the amendments. However, if the Government do not bring forward protections that we feel appropriate—

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

Given that the hon. Gentleman wants to put the provision in line with POCA, is he saying that he would want to amend the Terrorism Act to put many of the Terrorism Act orders and requests on exactly the same line as the Proceeds of Crime Act 2002? That is a consequence of his view.

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

We are talking about PACE, not POCA—I think that the Minister meant that, so I will answer accordingly. What he outlined is not before us today. If he introduces another Bill to make such changes to legislation, then perhaps on considering it we would argue the same points. That is for another day, but I take his point.

If the Government do not table appropriate amendments to provide protections, I suspect that we shall revisit the matter on Report, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clauses 5 to 7 ordered to stand part of the Bill.

Clause 8