Crime (Overseas Production Orders) Bill [Lords] — House of Commons, 2019-01-30
Topic: Law and Crime
John Simon Bercow (Conservative, Centre-right): With this it will be convenient to discuss the following: Amendment 1, in clause 1, page 1, line 19, at end insert— ‘(4A) The Secretary of State may not make regulations designating an international co-operation agreement providing for the use of— (a) section 52 of the Investigatory Powers Act 2016 (interception in accordance with overseas requests), or (b) any other enactment which provides for the collection of electronic data, unless the condition in subsection 4B is met (4B) The condition is that the states party to or participating in the international cooperation agreement have given assurances that the death penalty will not be imposed in any case in which or in whose preparation the intercepted communication or electronic data obtained under this Act has been used.’ This amendment would prohibit the Government from entering into a treaty for the provision of intercepted communication or electronic data without securing assurances that the death penalty will not be imposed in cases where that data is used. Amendment 12, page 1, line 19, at end insert— ‘(4A) The Secretary of State may not make regulations designating a treaty as an international co-operation arrangement under subsection (5)(b) where that treaty provides for requests to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned (4B) Subsection (4A) does not apply if the country or territory has, within the international co-operation arrangement, given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.’ This amendment would require that assurances be secured from the foreign country or territory concerned that the death penalty will not be applied in respect of any offence for which a defendant has been found guilty and in which the information provided from the United Kingdom contributed in any way to securing. Amendment 18, page 2, line 3, at end insert— ‘(5A) The Secretary of State may only make regulations designating an international agreement under subsection (5) 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’ rights sources as Article 10 of the European Convention on Human Rights and section 10 of the Contempt of Court Act 1981.’ This would 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. Amendment 10, in clause 3, page 3, line 40, at end insert ", or (c) confidential journalistic data (within meaning of section 12(4))." This amendment would bring confidential journalistic data within the definition of "excepted electronic data". Amendment 14, in clause 4, page 4, line 39, leave out "(6)" and insert "(6A)" This amendment is consequential on Amendment 13. Government amendment 2 Amendment 13, page 5, line 26, 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. Government amendment 3 Amendment 15, page 6, line 9, 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 13. Government amendments 4 to 6 and 19 Amendment 16, in clause 12, page 10, line 11, leave out "that is confidential journalistic data" This amendment would require notice to be given of an application for an overseas production order for electronic data which is believed to contain any journalistic data, not just confidential journalistic data. Amendment 17, page 10, line 12, at end insert— ‘(1A) Where an application is for journalistic data, the court must not determine such an application in the absence of the journalist affected, unless— (a) the journalist has had at least two business days in which to make representations; or (b) the court is satisfied that— (i) the applicant cannot identify or contact the journalist, (ii) it would prejudice the investigation if the journalist were present, (iii) it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or (iv) the journalist has waived the opportunity to attend.’ This amendment would give a journalist opportunities to make representations in relation to any application for data which he or she may hold. Government amendment 20 Amendment 9, page 10, line 20, leave out subsection (4) and insert— ‘(4) Confidential journalistic data" means data— (a) that a journalist holds that is subject to such an undertaking, restriction or obligation; and (b) that has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.’ This amendment would redefine confidential journalistic data for the purposes of the Bill. Amendment 11, page 10, line 20, leave out subsection (4) and insert— ‘(4) Journalistic data is "confidential journalistic data" if— (a) it is acquired or created by a person or persons in their capacity as a journalist and is held in confidence, or (b) it is communications data of a person acting in their capacity as a journalist, or (c) it is held subject to a restriction on disclosure, or an obligation of secrecy, contained in any enactment (whenever passed or made).’ This amendment would amend the definition of confidential journalistic data. Government amendments 21 to 23, 7 and 8.