My Lords, in moving Amendment 3 in my name and that of my noble friend Lady Hamwee, I will speak to Amendments 4 and 7 in our names. I will also mention very briefly Amendment 8 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.
Before I launch into the meat of the amendment, I hope the noble Lord, Lord Anderson of Ipswich, does not mind me mentioning that, on the way into the Moses Room, he said that he enjoyed reading my amendments. I am extremely grateful for the extensive
work carried out by my noble friend Lady Hamwee with regard to these amendments—if you know what I mean.
As we have heard, the purpose of the Bill is to allow UK law enforcement agencies to more easily obtain electronic evidence when it is sought outside the UK. Of course, evidence so secured would be subject to safeguards in the UK, but presumably the countries that enter into international co-operation agreements with the UK—a prerequisite for the operation of overseas production orders—will expect their own law enforcement agencies to be able to apply through their own domestic courts for equivalent orders that would allow them to seek stored electronic data directly from service providers based in the UK; the reciprocal agreement. Amendments 3 and 4 seek to probe how legal and human rights concerns over privacy and the security of personal data will be addressed and the issue of such evidence potentially resulting in the death penalty being passed on a subject. Amendment 3 requires that the Secretary of State may not make regulations entering into an international co-operation agreement in relation to states where the death penalty can be imposed unless the agreement restricts access to UK-held data to cases where an assurance has been given that the death penalty will not be imposed.
Article 2 of the European Convention on Human Rights—together with Protocol 13, of which the UK is a signatory—provides for the total abolition of the death penalty. My recollection of a meeting with the Minister on this very issue is that the UK would not hand over evidence in the knowledge that it would result in the possibility of the suspect being executed. However, since that meeting, noble Lords will recall the case of two former British citizens accused of being members of an ISIS cell. In a leaked letter, the Home Secretary apparently agreed to co-operate with the United States by sharing evidence but said that he would not seek a death penalty assurance. In an apparently totally inconsistent statement, he went on to say that,
“it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty”.
We now appear to be in a situation where government policy is to ensure that evidence does not lead to the suspect potentially facing the death penalty and to encourage the global abolition of the death penalty, except when the Home Secretary decides otherwise. How can the Government advocate the abolition of the death penalty globally on a case-by-case basis? Amendment 3 seeks to put into the Bill that an international co-operation agreement cannot be entered into with a state unless there is an agreement that the sharing of evidence would not lead to the imposition of the death penalty.
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In relation to the United States of America, the imposition of the death penalty is legal in 31 states and illegal in 19 states and the District of Columbia. Can the Minister confirm whether separate international co-operation agreements will be entered into with individual states, with different wording dependent on
whether that state allows the death penalty? Would it be possible for noble Lords to see an example of what an international co-operation agreement might look like? Would such an agreement be legally binding on both parties or would it simply be a non-legally binding memorandum of understanding? I appreciate that the Bill is about giving UK law enforcement agencies easy access to evidence held overseas but, as I mentioned before, surely foreign Governments will insist that these agreements work both ways.
Amendment 4 probes these issues of reciprocity, compliance with human rights principles and what happens in cases where UK law and the law of the other state are at odds, and is intended to ensure transparency. It uses the term “relevant UK law” and Amendment 7 therefore defines what is meant by relevant UK law. We believe that Amendment 8 seeks to achieve the same ends as our amendments but rather less elegantly—but we would say that, wouldn’t we? I beg to move Amendment 3.