During the passage of the Crime (Overseas Production Orders) Act earlier this year, the Secretary of State for Defence, my right hon. Friend (Mr Wallace), the previous Minister of State for Security and Economic Crime, made a commitment to attempt to secure assurances related to the US use of the death penalty in relation to data acquired from a UK telecommunications operator pursuant to the UK/US agreement, and to formally update this House as to the outcome of those attempts.
The UK/US agreement was signed on 3 October 2019 and a Command Paper was laid before this House on 7 October. The agreement is a vital tool to facilitate law enforcement in the prevention, detection, investigation, and prosecution of serious crime, and to protect the public. It will remove any legal prohibitions which would otherwise prevent communications service providers (CSPs) in each country from complying with lawful orders for the production of electronic communications from the other, avoiding a conflict of laws and greatly facilitating the investigation and prosecution of serious crime.
We have agreed a binding position with the US, enshrined in the body of the agreement, preventing them from using material obtained from a UK telecommunications operator under the agreement as prosecution evidence in a US case where the death penalty may be imposed, unless they obtain the prior permission of the UK to use that material as prosecution evidence.
This will allow Ministers to make a decision on a case-by-case basis, continuing the existing practice under mutual legal assistance. It is the policy of this Government to continue to oppose the death penalty in all circumstances.
The death penalty has been recognised as a UK essential interest on the face of the agreement, enshrined in article 8 section 4:
Where an issuing party has received data pursuant to legal process from a covered provider, and
The United Kingdom has declared that its essential interests may be implicated by the introduction of such data as evidence in the prosecution’s case in the United States for an offence for which the death penalty is sought;
Prior to use of the data in a manner that is or could be contrary to those essential interests, the issuing party shall via, the receiving party’s designated authority, obtain permission to do so. The receiving party’s designated authority may grant permission, subject to such conditions as it deems necessary, and if it does so, the issuing party may only introduce this data in compliance with those conditions. If the receiving party does not grant approval, the issuing party shall not use the data it has received pursuant to the legal process in that manner.