Crime (Overseas Production Orders) Bill

The Crime (Overseas Production Orders) Bill [HL] was introduced in the House of Lords on 27 June 2018. It had its second reading in the House of Commons on 3 December and was considered in a single Committee sitting on 18 December. The remaining stages are scheduled for 30 January 2019.

The Bill would create a framework to enable law enforcement agencies and prosecutors to apply to a UK court for an ‘overseas production order’ requiring a person (in practice, generally a communications service provider or ‘CSP’) in a foreign jurisdiction to produce or grant access to electronic data for the purposes of investigating and prosecuting serious crime. An application would only be granted if the judge was satisfied that the data was likely to be of substantial value to the criminal proceedings or investigations for which it was sought, and that it would be in the public interest.

Overseas production orders would only be available where there was a designated international agreement in place between the UK and the country or territory where the CSP was based. No such agreements are currently in force, but the UK has been in the process of negotiating a data sharing agreement with the USA since 2015.

In March 2018 the US passed the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act), which provides authorisation for a form of international agreement to be concluded by the US, allowing foreign governments to seek data directly from US companies without going through political channels.

The Government has stated that the Bill is required due to the increasing use of software applications over public networks to facilitate criminal activities. Evidence generated by such activity is crucial for investigations into serious crimes, including terrorism. However, the companies holding the data are largely situated outside the UK and therefore beyond the reach of existing domestic production orders.

The Bill received broad support in the House of Lords, but was amended to ensure sufficient parliamentary scrutiny of future international cooperation agreements, and to provide safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.