Both noble Lords rightly raised the point of the death penalty in relation to any designated international agreement, through Amendments 3 and 8. It may be useful if I make it clear at the outset that the Bill is about outgoing requests from the UK: it puts into legislation the ability for our law enforcement agencies and prosecuting authorities to request access to electronic data stored by companies based outside the UK. The Bill is a
framework within which international agreements can operate but any such agreement will, of course, be subject to parliamentary scrutiny in the usual way, as both noble Lords alluded to, following the procedure set down in the Constitutional Reform and Governance Act 2010—otherwise known as CRaG. It usually involves laying the agreement in Parliament for 21 sitting days before it can be ratified by the Government.
The negotiation and operation of any international agreement must be compliant with the Government’s guidance on overseas security and justice assistance, which deals with the death penalty and human rights considerations. As part of that rigorous process, a detailed assessment of any human rights risks associated with a particular international agreement must be carried out. As part of reaching an agreement with any country, we can impose restrictions on how the other country can use information sought from a UK service provider. This would be considered as part of the process of developing and entering into a potential agreement and will depend on the risks that are identified during the OSJA assessment process. As I have said, these amendments focus on the extremely important issue of human rights and the OSJA guidance and assessment process already exists to ensure that human rights considerations are taken into account.
In relation to the death penalty in particular, the Government do not believe that these amendments are the appropriate way to address concerns about it but I recognise the strength of these concerns. As the noble Baroness, Lady Hamwee, said, we are going to discuss this issue in more detail on Report.
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The additional subsection proposed in Amendment 4 aims to put in the Bill requirements that must be contained in an international co-operation arrangement. In respect of the first of these requirements, arrangements that the UK enters into will be based on trust and mutual respect for each country’s adherence to principles including the rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime. I made that point at Second Reading but it is worth repeating here. The negotiation and operation of any agreement must be compliant with HMG’s guidance on overseas security and justice assistance, and that guidance has at its heart human rights considerations.
The proposed new definition in Amendment 7 raises the issue of enforcement. It suggests an agreed means of enforcement where there is inconsistency between UK law and the law of the other participating country. These agreements are expected to be negotiated on a case-by-case basis. However, it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order. These international co-operation arrangements are intended to be created and used in an environment where they are readily complied with. Any agreement is intended to create a permissive regime, by removing in domestic law barriers to compliance with a request for evidence from a country with which an agreement has been entered into. The agreement would allow
entities storing data in one country to comply with lawful orders for electronic communications from the other country without risk of breaching the host country’s domestic laws.
However, if there was any doubt about the ability of a person on whom an order was to be served to comply with that order, appropriate officers could opt to obtain the evidence required via mutual legal assistance, which will remain as an effective judicial co-operation tool to ensure that compliance can be effected through another country’s domestic powers. The Bill does not directly deal with reciprocity, however, as it merely provides the power for relevant law enforcement officers and prosecutors to apply for an overseas production order and sets out a way in which those orders are intended to operate.
As noble Lords may be aware, each agreement negotiated with another country will be designated under Section 52 of the Investigatory Powers Act 2016. This would allow another country to serve its equivalent of an overseas production order on a UK telecommunications operator. Under this provision, the Secretary of State has the power to impose additional conditions which must be met before any agreement can come into force and before a company in either country can give effect to an order from the other participating country.
The noble Lord, Lord Paddick, asked to see an example of what an agreement might look like and mentioned a state in America. However, we would not make an agreement with a state; it would be with the United States, not on a state-by-state basis. Any agreement reached with another jurisdiction—in this example, the United States—would be subject to parliamentary scrutiny in the usual way. Therefore, those agreements would be published in full and, of course, the OSJA process would be applied in each case. An international agreement reached with another jurisdiction and requiring ratification could not be ratified unless the scrutiny process under Part 2 of the Constitutional Reform and Governance Act 2010 had been complied with. This entails publishing a copy as a Command Paper, laid before Parliament in the usual way. I should also stress that regulations designating an international agreement under Section 52 of the IP Act will be subject to parliamentary scrutiny via the negative procedure and regulations imposing additional conditions will be subject to the affirmative procedure.
I have just received notes from the Box on various points that noble Lords have made. The noble Lord, Lord Rosser, asked: if another country has a lower threshold for what is regarded as reasonable belief, what would we do about the arrangement as it is all about mutual recognition of legal systems? I hope it comforts him if I say that the UK would not agree to any arrangement where the threshold did not provide similarly protective standards to those in the UK, so the agreements will actually recognise that shared acceptance of the laws of another country when we enter into them. Any agreement that the UK enters into will be based on trust and mutual respect for each other’s adherence to principles including the rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard
to serious crime. Under any proposed agreement, the UK would require the other country to set out the powers that it intended to use in the pursuance of requests made under the agreement. The UK would also ask the other country to commit that it would not rely on another power unless agreed by both parties. In addition, it will specify the evidential standard required before requests are made and ensure that the UK is satisfied with those standards before designating an agreement for incoming requests.
The noble Lord also asked the important question about why the Bill differentiates between journalistic material and journalistic material held in confidence. The Bill develops the on-notice safeguards that already exist under the PACE Act 1984 while recognising that this Bill is about the investigation of serious crime, including terrorism. In categorising material for additional protections, the Bill takes a similar approach to the IP Act 2016 by identifying confidential journalistic material for those on-notice protections. Other explicit and implicit protections under the Bill will apply to all types of journalistic material, such as: judicial control of access; the requirement for it to be in the public interest for such material to be obtained; and the requirement for all decisions to grant access to be compatible with our human rights obligations, including those that protect freedom of expression and privacy.
I end on the point about the death penalty, which of course is at the heart of these amendments and first and foremost in this discussion. I am looking forward to further discussions on Report and the meetings that we will have ahead of it. I invite the noble Lord to withdraw the amendment.