Justice Committee

Meeting date: Tuesday, October 23, 2018

Official Report 859KB pdf

Crime (Overseas Production Orders) Bill

Agenda item 5 is consideration of a legislative consent memorandum relating to the Crime (Overseas Production Orders) Bill, which is currently before the UK Parliament. The bill touches on devolved matters, and the Scottish Government recommends that this Parliament gives the UK Parliament its consent to the relevant provisions in the bill. I refer members to paper 5, which is a note from the clerk, and invite the cabinet secretary to make a brief opening statement.

Thank you for the opportunity to speak in support of the LCM for the Crime (Overseas Production Orders) Bill, which was introduced in the House of Lords on 27 June.

The purpose of the bill is to enable law enforcement officials and prosecutors to apply for a court order that would enable them to obtain electronic data directly from persons who are based or operating overseas for the purposes of investigating and prosecuting serious crimes. At present, if data that may constitute evidence is located outside the UK, UK courts can generally only access it through current mutual legal assistance agreements. That process requires a domestic order and the engagement of domestic law enforcement from the territory in which the data is held. It can, therefore, be a slow and very cumbersome process, taking on average 10 months to complete.

The bill seeks to create a more efficient process for obtaining data from overseas, meaning that evidence can be recovered more quickly—the default position is within seven days, beginning with the day on which the order is served—and supporting swifter investigations and prosecutions. The new process will sit alongside the current mutual legal assistance arrangements.

The main elements of the bill are as follows. The bill allows a judge to make, vary or revoke an overseas production order; defines data, such as medical records, that is exempt from such orders; and sets out what a person must do if they are served with an order. An LCM is required as the bill provides a means for devolved law enforcement officials to seek electronic data evidence in relation to a wide range of serious offences, many of which are not reserved. The bill also confers new functions on the Lord Advocate, who is to serve orders that are made in Scotland, thereby altering the executive competence of Scottish ministers.

I ask the committee to support the draft LCM. My officials and I are more than happy to take any questions that members might have.

Thank you, cabinet secretary. John Finnie has a question.

The cabinet secretary has covered the point that I was going to raise. Thank you.

That is fine. Members have no further questions. Do members agree that we give our consent? Do members also agree to delegate to me the task of working with the clerks on the publication of a short factual report?

Members indicated agreement.