Clause 1: Making of overseas production order on application
1: Clause 1, page 2, line 16, at end insert “and it has been ratified in accordance with that section”
My Lords, I want to raise two areas of questioning of which, I hope, the Minister has had notice. We have had correspondence and I am grateful to her and her officials, but I am keen to get the explanation in Hansard. Clause 1 provides for the making of overseas production orders, and Clause 1(8) provides for a treaty to be laid before Parliament under the Constitutional Reform and Governance Act 2010. I tabled an amendment covering this question on Report and I regret that I am still not entirely clear about the answer. Can we not provide for a reference to ratification on the face of the Bill? It would deal with Parliament’s involvement in the process and I think it is important that legislation is as clear as possible to the reader.
The Act provides for a two-stage process. One is the laying of a treaty; the other is Parliament’s role in ratifying it—or perhaps not ratifying it. I have asked the Home Office what the problem would be. I understand from the Minister that there may be operational timing reasons why one would want to designate an agreement after it had been laid before Parliament but before it has been ratified, and the Minister has also told me in correspondence that an agreement that came into force on ratification would impose that obligation immediately, which would be a problem. I am a little puzzled as to why one cannot provide, in the parliamentary process, either that a designated agreement comes into force at a future date linked to the designation, or that the designation is linked to ratification. I would be grateful if she could help me and the House as to the need not to include a reference to the second stage of the process.
The importance of this is that Clause 1 deals with designation of an agreement under Section 52 of the Investigatory Powers Act. That section relates to the interception of a communication in the course of transmission, as I understand it, not to other data. My noble friend Lord Paddick raised this in the debate and we would be grateful if the Minister would explain how all data is covered, not just data intercepted in the course of transmission. That phrase implies data intercepted before or at the same time as it reaches the recipient, so would it not include itemised phone bills, geolocation data and internet connection records?
Communication, the word used in the relevant section, is defined in the Investigatory Powers Act and the term “communications data” is also defined: they are different. The great importance of this is that at the previous stage your Lordships inserted a requirement for death penalty assurances—or to put it the other way around and more accurately, that an agreement should not be designated without death penalty assurances in the case of an agreement where it is possible that a person may receive a death penalty as a result of, or in connection with, the provision of data under that agreement. I hope that those two separate but closely linked areas of questioning are clear and I beg to move.
My Lords, I thank the noble Baroness for her explanation of her amendment. The powers in the Crime (Overseas Production Orders) Bill will work only if a relevant international agreement is in place. The effect of the amendment would be that an international treaty could not be designated under the Bill until it had been fully ratified. Ratification is the process by which relevant parties signal their consent to be bound by a treaty, contract or agreement. I hope I will be able to reassure the noble Baroness as to why it is not needed, and that she might be persuaded to withdraw it.
There may be operational reasons why a Government would want to designate an agreement under the Bill before the process to ratify a relevant treaty is finalised. If we had to wait until the agreement had been ratified before making the regulations that designate the agreement under the Bill, and the agreement came into force on ratification, there would be a delay, as the noble Baroness said, in respect of our use of the agreement. We may want the regulations to be in place when the agreement comes into force so that officers in the UK can immediately start applying for overseas production orders. I am concerned that we should not unnecessarily delay their access to vital evidence. I make it clear that designating the agreement under the Bill prior to ratification will not permit applications to be made until such time as the agreement has been ratified and is in force.
I will give a practical example of this. An example of an operational reason to designate an agreement under the Investigatory Powers Act prior to ratification arises in the context of the development of an agreement with the US. One of the core obligations of the agreement with the US will be the removal of any legal barriers that would prevent a UK company complying with a request from the US. The IP Act itself contains one of those barriers, in that it criminalises the interception of communications, save for where a person has lawful authority.
However, Section 52 of that Act provides lawful authority to carry out interception where it is at the request of,
“the competent authorities of a country or territory outside the United Kingdom”,
and the request has been made pursuant to an agreement which has been designated by regulations under that section. In effect, the designation of the agreement under Section 52 will be the removal of the legal barrier, thereby fulfilling our obligation. As the US agreement will come into force immediately upon ratification, regulations under Section 52 must have been made and laid before that point so that we can fulfil our obligations from the moment the agreement enters into force.
I stress that making regulations designating an agreement prior to it being ratified would not permit UK communications service providers to intercept communications in response to requests by foreign law enforcement authorities. Such activity would be permitted only once those regulations and the agreement came into force, which would happen on or immediately after ratification. This in no way changes or undermines the process of ratification or the scrutiny that Parliament is afforded of a treaty. Indeed, if Parliament resolved that the treaty should not be ratified, what is provided for in any agreement and the powers in the Bill could not be used. I hope that the noble Baroness is reassured on that point.
The noble Baroness’s second point was about how Section 52 of the IP Act covers all data, not just data intercepted in the course of transmission. As I said on Report, Section 52 can authorise obtaining stored as well as intercepted communications. Section 52 should be read alongside Section 4 of the IP Act, which outlines the definition of “interception” and related terms. According to that section, “interception” refers to the interception of a communication,
“in the course of its transmission by means of a public telecommunication system or a public postal service”.
A person intercepts a communication in the course of its transmission if the effect is to access any content of the communication “at a relevant time”. It is the meaning of “relevant time” that is significant. It can mean a time when the communication is transmitted but it can also mean, as Section 4(4) of the IP Act says,
“any time when the communication is stored in or by the system (whether before or after its transmission)”.
It is clear that where, as in Section 52, the IP Act refers to the,
“interception of a communication in the course of its transmission”,
this includes accessing stored communications from the relevant telecommunications system, such as messages stored on phones, tablets or other devices, whether before or after they are sent. By way of an example, this would include an email that has been sent and is stored on an email server or a voicemail message that has been stored on a telecommunications system to be retrieved later. It would also include an unsent, draft email that is stored on a server.
I hope that this explains it adequately to the noble Baroness but I would also direct her to the Explanatory Notes for Section 4 of the Investigatory Powers Act. To briefly sum up, I hope that I have made it clear that Section 52 of the IPA not only covers material intercepted in the course of transmission but can authorise obtaining stored communications as well.
My Lords, obviously I am not going to challenge the Minister on that but I will comment, if I may, on her latter point. The distinction between the definitions of communication, which is the subject of Section 52, and communications with data, which is defined as data held or obtained, including what relates to the provision of the service or is,
“logically associated with a communication”,
as it relates to the use of a telecommunication service, still defeats me, I am afraid. Why is it worded in that way? I see in the definitions the distinctions between communication and communications data, and the Minister referred to “the relevant time”. On the parliamentary process, there are two parts to it: laying regulations, which is the Executive’s job, and ratification, which is Parliament’s task. I was seeking to be quite clear that those are both covered.
It also baffles me that there cannot be conditional arrangements, with the laying of regulations which are conditional on designation or designation which is conditional upon the whole process under the Constitutional Reform and Governance Act. It may be that American practice would not allow it, although I am sure that I have dealt with American arrangements which are conditional. But because of the importance of the death penalty issue, I felt it was important to air these to the best of my ability, which may not be as extensive as it might have been. At least it will all be there in Hansard for others who may be exercised to satisfy themselves. I beg leave to withdraw the amendment.
That the Bill do now pass.
My Lords, in moving this Motion I thank all noble Lords who have participated in debate on the Bill, in particular the noble Lords, Lord Rosser and Lord Kennedy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Of course we can never do anything without our fabulous Bill team, who have been on hand to explain some quite complex and technical matters. I always think that your Lordships’ House improves a Bill as it passes to the other place, and I hope that it will agree when it has time to consider it. Thank you.
I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.
My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.
Bill passed and sent to the Commons.