My Lords, the Government recognise that, when it comes to agreements for direct access to data, it is unlikely that either the UK or another country would commit to complying with orders that have extraterritorial scope without acknowledging this through a formalised agreement or arrangement. Therefore, in reality, any arrangement we choose to enter into for direct access to data will likely be in the form of a treaty requiring formal ratification before entry into force. It is not the Government’s intention to conclude such international arrangements by memoranda of understanding, for example. We do not think that such informal arrangements would afford the appropriate level of certainty that such international arrangements require.
As noble Lords know, treaties that require ratification are subject to formal parliamentary scrutiny in the form of a procedure under Part 2 of the Constitutional Reform and Governance Act 2010—CRaG—which must be followed before the Government can complete the ratification process necessary to bring the agreement into force. The text contained in the Bill introduced to this House was intended to allow the UK to consider other measures, such as EU instruments that do not fulfil the definition of “treaty” under CRaG. However, we have since concluded that it is highly unlikely that the UK, or any other country we enter into agreements with, would accept anything less than a formal treaty. I therefore propose to make an amendment to Clause 1 to make this clear.
The amendment provides that a designated international co-operation arrangement must be a “relevant treaty”. It would further provide that a “relevant treaty” is one that has been laid before Parliament under Section 20(1)(a) of CRaG. The effect of the amendment would be to ensure that where the Secretary of State, by way of regulations, wishes to designate an arrangement under the Bill, they can do so only if that arrangement is a treaty that has been laid before Parliament for scrutiny under CRaG. Only treaties that have been laid before Parliament under CRaG can be designated. However, it is still possible for an agreement to be designated before ratification. There may be operational reasons why one would want to designate an agreement before ratification has been finalised. For example, an agreement may come into force on ratification—depending on the terms of the agreement—in which case designating after ratification may be too late and there may be a risk of breach of obligations under the agreement.
The effect of Amendment 5 in the names of the noble Baroness and the noble Lord would preclude any designation of an international co-operation agreement until it has been ratified. Ratification is a
process which requires an act—for example, the exchange of diplomatic notes between the parties—which signals in international law the parties’ consent to be bound by the agreement. However, the amendment could cause a detrimental effect, as I have explained, where the terms of an agreement require that it comes into force on the day of ratification. The amendment would make it impossible to designate until after the ratification process, which may put the UK in breach of any obligations under the agreement. I should also make clear that even where an agreement is designated after having be laid under CRaG but before it is ratified, an agreement could not come into force until the process of ratification is complete and therefore any requests could not be made until the agreement is entered into force, following ratification. I hope that the noble Baroness will be happy to withdraw Amendment 5. I beg to move.
Amendment 5 (to Amendment 4)