I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, for their points. I turn first to Amendment 5. Clause 1 outlines the circumstances in which an overseas production order can be made. This includes that an application must specify a designated international co-operation arrangement. This is defined in Clause 1(5), to which the noble Baroness has proposed her amendment. The amendment would ensure that only treaties as defined by the Constitutional Reform and Governance Act 2010 would be capable of designation as an international co-operation arrangement under the Bill.
The definition of “designated international co-operation arrangement” in Clause 1(5) has been drafted to take into account that there may be circumstances in which a relationship with another country is established which would not attract the procedures set out in Part 2 of the Constitutional Reform and Governance Act. Those procedures require that, prior to ratification, a treaty is to be laid by a Minister of the Crown before Parliament for 21 sitting days without either House having resolved that it should not be ratified. The process does not apply to certain types of treaties including those covered by Section 5 of the European Union (Amendment) Act 2008, which include treaties that amend the founding EU treaties.
Also, some treaties can come into force on signature and do not require formal ratification and are therefore not subject to the Part 2 procedure. The definition of “treaty” in the Constitutional Reform and Governance Act also excludes instruments made under a treaty, so EU instruments would not be capable of being designated. Without necessarily knowing which countries the UK may choose to operate this arrangement with, the clause had been intentionally drafted to be wider than the definition of “treaty” under the Constitutional Reform and Governance Act to ensure that the UK can enter into arrangements with international partners where both have committed to remove any barriers to compliance for an overseas production order. In reality, it is unlikely for either the UK or another country to commit to complying with orders that have extraterritorial scope without acknowledging this through a formalised agreement or arrangement.
The noble Baroness also mentioned the point about standard clauses in all international agreements. This is a new approach to cross-border data access for law enforcement purposes. Actually, there are no templates to follow. If she means something different by “standard clauses”, perhaps we could have a further discussion. We are working with the US to develop an agreement as a matter of priority and we hope that this will act as the template for future arrangements with other appropriate countries.
On Amendment 6, the definition of an international co-operation arrangement is expansive to account for a situation where the UK itself is a contracting party to an arrangement, in the form of a bilateral treaty or multilateral convention, as well as a situation where the UK is a member of a supranational body and that body is a contracting party to such an arrangement in its own right, or has created its own internal rules which apply to its members. In the latter case, those rules would be the international arrangement in which the UK participates. Current membership of the EU is a good example whereby, in many cases, the EU—not the individual member states—is the party to an arrangement between it and a non-EU country. Further, the EU creates internal rules in the form of regulations and directives in which the UK participates as a member state. In both these scenarios, the UK participates by virtue of its membership of the EU. I hope that is as clear as mud to everyone.
I accept that with the UK’s imminent departure from the EU, a scenario in which the UK participates indirectly in an arrangement through its membership of a supranational organisation is less likely to happen. However, until that time and as long as the UK remains an EU member state, legislating along these lines recognises the status quo as now, which is that the UK can be a participant to an arrangement without necessarily being a party to it.
On Amendment 38, I refer noble Lords to the Delegated Powers and Regulatory Reform Committee memorandum, which sets out our justification for the approach that we have taken. In the memorandum, the Government state that:
“The Bill specifies in full what the implications of a designation are, and does not permit the implementation into UK law of any international arrangement in relation to the investigation or prosecution of offences, but only one that reflects the terms of the Bill. The provisions of the Bill will ensure that an order is only served where it meets the requirements of the designated international co-operation arrangement … Further, most international arrangements entered into will be subject to the procedure in Part 2 of the Constitutional Reform and Governance Act 2010, so Parliament will have had an opportunity to scrutinise the arrangement before it is ratified by the Government … Accordingly, since any exercise of the power is subject to the safeguards set out in the Bill and Parliament will already have had an opportunity to scrutinise the arrangements, the negative procedure is proposed”.
For the purposes of outgoing requests which the Bill is to be used for, any international co-operation arrangement would set out the terms of our UK law enforcement being able to make requests from another country. Although the terms will set out the reciprocal process, the arrangement will also be designated under regulations made under Section 52 of the IP Act 2016, which is how the UK will recognise any international arrangement for an incoming request. Regulations
under Section 52 are also subject to the negative procedure, so the approach taken here is consistent. With those words, I hope that the noble Lord and the noble Baroness might feel happy to withdraw or not press their amendments.