This amendment is in my name, that of my noble friend Lord Kennedy, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It would delete Clause 3(5), which states:
“Where an application for an overseas production order is made for the purposes of a terrorist investigation other than a terrorist financing investigation, this Act applies as if references to excepted electronic data did not include electronic data that is a personal record which is a confidential personal record”.
Confidential personal records are generally included as excepted data in the Bill, but this subsection provides an exception so that in terrorism cases, confidential personal records can be requested in an order.
A confidential personal record is defined in Clause 3 as a personal record,
“created in circumstances giving rise to an obligation of confidence owed to,”
an individual, whether living or dead,
“and the obligation continues to be owed”,
or the personal record,
“is held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment (whenever passed or made)”.
I seek to find out why this subsection is in the Bill, why the Government seek to make this exception or distinction in respect of terrorism investigation and what substantial electronic data information the Government think could be secured in terrorist investigations through Clause 3(5) which would otherwise be impossible to secure.
I and indeed others have already raised the question in an earlier debate of how consistently the parties to a bilateral agreement will interpret the term “terrorist investigation”. If more electronic data can be obtained through determining that an investigation was a terrorism one, and that would be the case for other serious crimes, there could be a temptation to define an investigation as a terrorism one under an overseas production order, purely or largely for that objective. What safeguards will there be to prevent that happening? If the view is taken that the term “terrorist investigation” is being rather loosely interpreted by a party to an international agreement on overseas production orders, how can that decision be challenged? I beg to move.
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