I thank the noble Baroness and the noble Lord for their points. I will give them a very long answer because a full explanation is being sought. I shall speak first to Clause 7 standing part of the Bill and then cover the individual amendments.
The purpose of Clause 7 is to allow an appropriate officer who applied for the order, or an equivalent officer, any person affected by the order, the Secretary of State or the Lord Advocate the ability to apply to a judge to vary or revoke an overseas production order. The clause broadly reflects the existing domestic framework; for example, a production order made under the PACE Act 1984 does not contain provision about applications that can be made to vary or revoke a production order. However, court rules allow for the respondent of an order, or any person affected by it, to apply for the order to be varied or discharged. In addition, a judge’s decision to make a domestic production order may be challenged by way of judicial review.
Inclusion of this clause is an important safeguard to ensure that anyone affected by an order has an opportunity to challenge it and its contents, especially because appeal rights as such do not exist in respect of production orders. The intention behind Clause 7 was to make clear the existence of the power to vary or revoke an overseas production order and the circumstances under which that power might be used, and to set out the categories of persons who might apply for such variations or revocations. These persons include the person subject to the order, who is therefore required to produce the data sought, the person who applied for the order and anybody else who might be affected by it; for example, the person to whom any personal data sought relates. For example, where notice is given, an innocent third party who was communicating with the suspect over email may not want certain data to be disclosed or may challenge the existence of the order to protect information of a private nature disclosed to the suspect. Ultimately, a judge, when considering whether such an order should be varied, will need to be satisfied that the requirements in Clause 4 continue to be fulfilled.
Clause 7 also recognises that in some cases an appropriate officer may wish to apply to vary or revoke an order; for example, the electronic data sought may not be valuable to the investigation any more or the data may have been sourced elsewhere. In addition, the power to apply to vary or revoke an order exists for the Secretary of State and the Lord Advocate. Given that they are responsible for serving an order on a person, they will need to ensure that the order reflects the international co-operation arrangement terms.
It is right that any application to vary an order should satisfy the same requirements as those that should be satisfied when an application for such an order is made in the first instance. This will include specifying the international co-operation arrangement and specifying or describing the electronic data for which the varied order is sought. Similarly, an application may not be made to vary an order to include data which the applicant reasonably believes consists of or includes excepted electronic data. When considering a varied order, the judge will need to take into account
the same factors as when the order was originally granted. This will ensure that the data sought still serves a purpose to the investigation.
Amendment 24, moved by the noble Baroness, Lady Hamwee, seeks to clarify that the power to vary or revoke an overseas production order given to a judge under Clause 7(1) can be used to revoke part of an order. I reassure her that the amendment is not needed. Subsection (1)(a) already gives a power to vary an overseas production order, which would include revoking it in part—for example, by narrowing the scope of electronic data to be produced—and I therefore hope that she will withdraw the amendment.
The noble Baroness asked whether a provider can say that it will refer this to the judge. The noble Lord, Lord Rosser, asked a similar question. The provider must refer to the judge but cannot actively say it is doing so because of a potential non-disclosure requirement. It is up to the judge whether an order can be disclosed, including the fact of it.
On Amendment 25, when making an overseas production order, a judge may also include a non-disclosure requirement as part of that order, in line with my previous comment. It is not mandatory and whether a non-disclosure requirement is necessary will depend on the facts of each case. Clause 7(1) already includes a provision for revoking or varying an overseas production order. Where a non-disclosure requirement is part of that production order, Clause 7(1) will also apply, allowing the judge to consider an application to vary the order so that it no longer includes such a requirement. There are further provisions in subsections (4) and (5) of Clause 8 that provide a discretion for the judge, when revoking an overseas production order, to order that an unexpired non-disclosure requirement continues to operate. The judge can specify a time when the non-disclosure requirement is to expire that is different from that specified in the revoked overseas production order.
It is the Government’s intention that such orders—that is, an order which maintains a non-disclosure requirement even when the overseas production order has been revoked to ensure that an ongoing or future investigation is not prejudiced—should be capable of being varied or revoked on application. We intend to use court rules to provide for this. The Government will review whether these provisions can be made in court rules and will come back to this issue on Report.
On Amendment 26, the Bill makes it clear that a non-disclosure requirement can be imposed as part of an overseas production order. With the leave of the judge under Clause 8(2)(a), or with the written permission of the appropriate officer who applied for the order or an equivalent officer under Clause 8(2)(b), a person who is subject to a non-disclosure requirement could disclose the making of an order or its contents to any person.
Therefore, a mechanism exists by which a person against whom the order is made has a route to challenge and disapply the provisions of the non-disclosure order under Clause 8. Furthermore, when a non-disclosure requirement is included as part of an overseas production order, that order is capable of being varied under
Clause 7, in its entirety as it currently stands. No further clarification is needed for non-disclosure requirements separately, as is proposed by Amendment 25.
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On Amendment 26, notice provisions can be dispensed with,
“with the leave of a judge”,
as provided by Clause 13(2)(a) or,
“with the written permission of the appropriate officer who made the application”,
or any equivalent appropriate officer, as provided by Clause 13(2)(b), to remove the prohibitions put in place following notice.
On Amendment 28, Clause 8 seeks to protect the confidentiality of any request for electronic data which would otherwise compromise an investigation or prosecution. There may be valid operational reasons for not exposing any request. In light of those operational reasons and if a judge is satisfied that it is necessary, a non-disclosure requirement can be made as part of an order. Amendment 28 would have the effect of allowing those on whom the order is served to disclose that the order exists, albeit retaining the confidentiality of the contents of an order. I am very concerned that if a company was able to disclose to a customer that it had received a request for data from a UK law enforcement officer, and it did so, the investigation for which the data is being sought could be jeopardised.
For example, where an order has been made against a person but there is only a requirement not to disclose the contents of that order, there would be nothing to stop that person from disclosing the making of an order to the suspect or subject of interest. In my view, the risks to investigations associated with this are fairly clear. The subject of interest could abscond or stop using the service in question and a vital line of inquiry could be lost.
A non-disclosure requirement may be included in an overseas production order at the discretion of the judge. They will be charged with making a proportionate decision as to whether a non-disclosure requirement is necessary and the risks to an investigation should no such requirement be imposed. Where a non-disclosure requirement is included in an order, an expiry date for the non-disclosure requirement must be specified. This ensures that an indefinite requirement to keep confidential an order being imposed will be unreasonable, especially where an investigation or proceedings have concluded. While it is not directly relevant to the non-disclosure provisions set out in the Bill, I also point out that a defendant would have the opportunity to challenge the admissibility of any evidence in a case which comes before a court if the prosecution seeks to rely on it. Again, this is consistent with existing legislation.
On Amendment 35, Clause 13 imposes certain duties on a person served with notice of an application for an overseas production order. These are: the duties not to conceal, destroy, alter or dispose of the electronic data specified in the application; and the duty not to disclose the existence of the application to any other person. It is open to the judge to order that either of these duties should continue to apply, even where the application does not result in an overseas production order being
made or where such an order is made but is revoked before it is served. As I have indicated, a person can, at any point while subject to these duties seek leave from a judge or obtain written permission from the relevant appropriate officer, if the person needs to do something which would otherwise put them in breach of the duties set out in the order.
Clause 7 says that one can vary or revoke a non-disclosure requirement only where it relates to an overseas production order. As I have mentioned, we intend to use court rules to provide for the amendment of such requirements. The Government will review whether these provisions can be made in court rules and come back to the House on Report.
I will pick up some questions that I may not even have looked at and probably have not answered. The noble Lord, Lord Rosser, asked about the circumstances in which the Secretary of State might vary or revoke. The Secretary of State is required to serve an order under the Bill. As part of this, they will need to ensure that any order does not contradict the international co-operation arrangement. For example, they might find that an order does not comply with such an arrangement and might need to vary or revoke it. He also asked what legal tests apply to variation or revocation applications. The same legal requirements are required to be satisfied in respect of a varied order—that is, a judge cannot grant variation unless the requirement for the original application continues to be met, which may be public interest, substantial value or no excepted data.
The noble Lord asked about the seven days to action an order. The period to comply with the order is seven days, which is a standard timeframe. The respondent would therefore need to apply for a revocation in those seven days if they did not wish to be in breach of that order. We consider the timeframe to be proportionate given the purpose of these orders and the need for information to be produced quickly. With that quite lengthy explanation, I hope that noble Lords will be happy not to press their amendments.