Covert Human Intelligence Sources (Criminal Conduct) Bill
Monday 5th October 2020
(4 years, 2 months ago)
Commons ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts
21:42 - The House divided: - Ayes: 182 / Noes: 20 - Question accordingly agreed to.
Mr Deputy Speaker (Mr Nigel Evans)
I inform the House that I have not selected the reasoned amendment.
The Minister for Security (James Brokenshire)
I beg to move, That the Bill be now read a Second time.
This legislation is being introduced to keep our country safe and to ensure that our operational agencies and public authorities have access to the tools and intelligence that they need to keep us safe—safe from terrorists, safe from serious organised crime groups, and safe from others who wish to cause harm to our country and our citizens. Specifically, the Bill deals with participation in criminal conduct by covert human intelligence sources—so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups.
Throughout history, those entrusted to uphold the law or safeguard national security have used covert human intelligence to support and progress their activity. From Sir Francis Walsingham’s use of informers to defend the reign of Elizabeth I from internal and external threats, to the deployments by the newly formed detective units of the Metropolitan police in the latter half of the 19th century, to the double-cross system in the second world war, covert human intelligence has always been a vital part of our national security and law enforcement framework.
More recently, though, CHIS have been critical in identifying and disrupting terrorist plots, drugs and firearms offences, child sexual exploitation and abuse, and other serious organised crime. Since March 2017, MI5 and counter-terrorism police have together thwarted some 27 terror attacks. As the director general of MI5 said when the Bill was introduced:
“Without the contribution of human agents, be in no doubt…these attacks would not have been prevented.”
I have been advised that between November 2018 and 2019 CHIS operations within the Metropolitan police area alone led to 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kg of class A drugs, and the recovery of more than £2.5 million in cash. Similarly, CHIS operations in 2019 alone enabled the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. This is an important and unique tactic; by working their way into the heart of criminal groups, CHIS are able to access intelligence that other investigatory powers may simply never detect.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
The Minister knows how seriously I take these matters and the equipping of our security services to do the job that they need to do, often in horrendous circumstances that affect the integrity of our country and its individuals, but he will also appreciate that safeguards have to be in place. What does he have to say to those who have raised serious concerns that the Bill, as it stands, does not have the safeguards in place to prevent assault, murder and torture, about which there is an absolute prohibition? He knows that we are a signatory to the convention on human rights, so what does he have to say on those matters?
James Brokenshire
I hope I will be able to respond to the hon. Gentleman during my speech, underlining some of the safeguards—the importance of oversight, which we attach equally to this Bill, and the operation of a criminal conduct authorisation, as contemplated by the Bill. I hope he will also have noted the specific reference to the Human Rights Act in the Bill, in order to underline some of the important points he makes about convention rights.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
The Minister has reeled off an impressive number of statistics, which justify the use of CHIS operations. How many or what proportion of the operations were undertaken by the Food Standards Agency, which will also come under the ambit of this Bill?
James Brokenshire
The right hon. Gentleman is drawing me on to talk about some of those wider bodies. I will address that later in my speech, but I point out that the FSA is required to deal with issues associated with misrepresented food—food that may be harmful for human consumption. Therefore the issues of proportionality and necessity are bound within the frame of the Bill, and limit the activities that would be reasonable for such agencies to act upon. Perhaps I can come back to that a little later in my contribution.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
We have had discussions on the points of concern to me, and my right hon. Friend has given answers to three written questions today, which were helpful indeed. He will understand the importance of the point made by the hon. Member for Cardiff South and Penarth (Stephen Doughty): that these are significant powers for us to grant in a democratic society. I believe my right hon. Friend has made the point in the past, but will he confirm today that the Human Rights Act trumps the provisions in this Bill which the hon. Gentleman and I are most concerned about?
James Brokenshire
I am grateful to my right hon. Friend for his intervention. Again, I intend to draw out this point during my contribution in the House this evening. He rightly highlights the import and implication of the Human Rights Act and what that then imports in terms of the convention rights, which we are clear provide restrictions and inhibitions on how agencies are able to operate.
James Brokenshire
I will give way twice more and then get into some of the important details that I know right hon. and hon. Members would like me to address.
Sir John Hayes
The point surely is that as well as proportionality and necessity, the Bill is particular about specificity, so that those matters that lie outside the specific permission can be challenged in court and can indeed lead to prosecutions. That specificity is at the heart of this measure.
James Brokenshire
I am grateful to my right hon. Friend for that point. The issue of specifici—I cannot even say it; I shall settle for saying the specific authorisations that are granted. They are tightly bound and that is important. That is why we published the guidance that sits alongside the operationalisation of the Bill at the same time as the Bill—to give that sense of confirmation and clarity on how it will operate.
Mr David Davis
I hear what my right hon. Friend says about the Human Rights Act, but the defence that the Government put up in the legal case that was brought against them said in terms that the state is “not the instigator” of such activity and
“cannot be treated as somehow responsible for it”.
The memorandum to the Bill states that
“it is to be expected that there would not be State responsibility”.
How is that using the Human Rights Act to underpin the rights of our citizens?
James Brokenshire
I know that my right hon. Friend, rightly, takes these issues incredibly seriously. The issues we are talking about go to the kernel of our national security, and equally, our confidence in our criminal justice system and the way in which our operatives, who are there to protect us, act. I do place weight on what he has said.
Stewart Hosie (Dundee East) (SNP)
Will the Minister give way before he moves on?
James Brokenshire
I would quite like to answer the previous intervention before I give way again, and I need to make some progress.
I can say to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) that the way in which agencies are required to act under the Bill means that they cannot act in a way that is inconsistent with the convention rights, hence the importation by the specific reference to the Human Rights Act on the face of the Bill to underline that. It is important to state that and be clear as to how the Bill operates and the protections. The hon. Member for Dundee East (Stewart Hosie) has tempted me, so I will give way one final time, and then I will make some progress, because I know that others want to speak.
Stewart Hosie
On the point that the Minister just made in relation to the Human Rights Act, proposed new section 29B(7) of the Regulation of Investigatory Powers Act 2000 in clause 1 and proposed new section 7A(6) of the Regulation of Investigatory Powers (Scotland) Act 2000 in schedule 1, say, for example, that subsection X is
“without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”
Why is it not more explicit that there is an obligation to obey the Human Rights Act rather than simply referring to it as an example?
James Brokenshire
The hon. Gentleman makes an interesting point. Some may argue that the inclusion of those words was not of itself necessary, because those agencies are already bound by that requirement. We take the judgment, because of the very relevant points that have been made during the course of the debate, that being clear on the face of the Bill in that regard is helpful. It is reassuring. It creates the context as to how this regime is intended to operate, and that is why it is included in the way that it is.
James Brokenshire
If the hon. Lady will allow me, I will make some further progress, but I will allow her to intervene on me later.
In order to build the credibility and trust of those under investigations, there are occasions where, in carefully managed circumstances and subject to robust independent safeguards, CHIS may need to participate in criminality themselves. This is an inescapable and essential feature of CHIS use and has always been fundamental to this work. Although I am unable to go into the detail about the specific criminality that a CHIS may participate in, for reasons I will come to, limited examples have been discussed in the public domain. For example, a CHIS may be required to join the organisation that they are seeking to disrupt. This membership alone will sometimes be criminal but will be deemed necessary and proportionate to prevent more serious criminality from taking place. Again, without going into the specifics, the use of that tactic enabled the police and MI5 to disrupt a planned terrorist attack on No. 10 and the then Prime Minister in 2017. The necessity of CHIS participation in criminal conduct has been accepted in the UK and around the world for many years. In December 2019, the Investigatory Powers Tribunal found that MI5 has a lawful basis for this activity and recognised that CHIS participation formed an essential part of MI5’s core activities. I want to reassure the House that this Bill does not confer the power to carry out a new activity, but enables CHIS to continue to deploy the methods that they already use. Notwithstanding those powers, this Bill puts that existing practice onto a clearer statutory footing, putting the matter beyond doubt as to Parliament’s intentions. The Bill provides certainty for CHIS and their handlers and will augment our ability to recruit and retain in the future in this regard. It is important to stress that the Bill does not change the position of CHIS who have previously been properly authorised to participate in criminal activity. It has no retrospective effect.
Dr Julian Lewis (New Forest East) (Ind)
Can the Minister explain one difference between the situation that has applied in the past and the situation that will apply in the future if the Bill goes through as it is? We are now legislating to make properly authorised criminal conduct lawful, rather than continuing with the current position whereby MI5 or another authorising authority is able to argue that it would not be in the public interest for prosecuting authorities to prosecute properly authorised criminal conduct, but there is no guarantee of immunity. What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute. Why the reason for that change?
James Brokenshire
The right hon. Gentleman, the Chair of the Intelligence and Security Committee, makes an important point when he draws that distinction. I say to him that, under the current regime, the Crown Prosecution Service will consider the prosecution of a properly authorised CHIS as perverse. So in essence, the Bill will offer no practical difference in the application of the power, because obviously the conduct will have to be properly authorised, as it does now. If something has not been properly authorised, then clearly the authorisation will not have effect. Where CHIS conduct is outside that authorisation, there will be no impact on the ability to prosecute. Public authorities tightly limit the scope of CHIS criminal conduct, so this will not provide a licence to commit crime outside those stringent limits. In reality, the practical difference between providing a defence and making conduct lawful is limited. Indeed, we say that the provisions actually reflect broader provisions within the current legislative regime, governing all other aspects as well. There is a distinction, which the right hon. Gentleman makes, but in practice, we do not see that there is the fundamentals difference that perhaps some might wish to paint into it.
Mr Steve Baker (Wycombe) (Con)
One of the problems that the Government have today is that, for those of us who like the red meat of law enforcement and law and order, the Minister has forced us to look inside the abattoir, and of course we do not like what we see. On this point about stringent limits, will he explain why there is not more in the Bill to put those limits in place? I cannot imagine Ministers will be authorising killing or torture, so why are those things not in the Bill, so that the public can have very clear confidence that they will not be authorised?
James Brokenshire
I will come on to that issue—this is why, although I wanted to give way to many Members, I wanted at the same time to make progress with my speech. I will not go into the limits of what can and cannot be done because of this issue of what is known as CHIS testing—providing a list against which sources can be tested, which has practical implications to it. What I can say to my hon. Friend is that I will come on to the import of the Human Rights Act in just a second, if he will be patient.
James Brokenshire
I will give way to the hon. Lady, who has been very patient.
Bell Ribeiro-Addy
The Minister has talked about practices that are already permitted, but does he appreciate that there are many, many questions about those practices? That is why there has been the Pitchford inquiry, which has now dragged on for so long that it is about to be called something else. Are the Government not the slightest bit concerned about laying down such a piece of legislation before the inquiry has reported, given the history of agents provocateurs undermining progressive movements such as our trade unions and deceiving women in intimate relationships? All of these things have been carried out before, and people have major concerns about that. Will the Government explain why they have no concerns whatsoever about laying down a piece of legislation without having looked at what that inquiry finds?
James Brokenshire
The hon. Lady makes a serious point. First, there is no retrospective effect—it is quite important for me to state that explicitly. Therefore, actions that have occurred in the past and are subject to further inquiry, and potentially further criminal investigation, are untouched by the Bill. On the position moving forward, I have explained the different safeguards. She refers to trade union activity. Trade union activity is lawful. I recognise some of the concerns expressed, and it is important that I state that in order to provide assurance. This is tightly bound—it is about providing the oversight, the governance and the proportionality and setting out the necessity of this for criminal justice, security and other issues that I have already alluded to. I am grateful to her for intervening to allow me, I hope, to be more specific on that point.
Chris Stephens (Glasgow South West) (SNP)
On the previous intervention, there are real concerns about women who are seeking legal redress for sexual assaults at the hands of police officers in the spy cops inquiry. Can the Minister guarantee that if those situations were to occur again, survivors of sexual assault could seek legal redress?
James Brokenshire
I can certainly say that there are clearly ongoing inquiries in relation to this important and sensitive issue. I have highlighted the lack of any retrospection, and I point the hon. Gentleman to what has happened since then and what the police themselves have underlined in this regard. There is an enhanced regime of what are known as relevant sources—in other words, undercover police officers—and the criminal conduct authorisation is in addition to the regime to authorise and approve a CHIS covert source in the first place.
It has never been acceptable, as the police have said, for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target, or who they may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic in deployment. That is made clear through the code of ethics for the police as well as the updated law enforcement agency undercover operative authorised professional practice.
I hope that I have explained what the Bill does and what it does not do, and therefore how it is quite specific. On the point about what is on the face of the Bill, it is about locking in the existing regime and other safeguards on the authorisation of a source in the first place. That has to happen first, and then, if it is warranted, justified and fits within the boundaries of the Bill, there is the criminal conduct authorisation that sits alongside it, which has to be subject to the earlier authorisation.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Does the Minister agree that sexual assault and rape are clearly prohibited by article 3 of the Human Rights Act? Does he recognise that the importance of the Human Rights Act in providing a safeguard to this Bill means that it would be helpful to hear wider support for the purposes of the Act from across his Government, not just from him on the Front Bench?
James Brokenshire
Obviously there is the specific reference on the face of the Bill that I have alluded to, and therefore there is that requirement. As the right hon. Lady will know what the convention rights say, for operational and other reasons I will not go beyond what the convention says. There are very clear issues that I will now, I hope, come on to in that regard that will help to draw this out.
James Brokenshire
I will give way one last time and then make further progress.
Mrs Miller
I thank the Minister; he is being very generous. He has been clear that sexual assaults on women such as the ones that have been referred to are entirely prohibited and not allowed, but they have obviously happened. In the past, those cases have been brought forward for proper review. How will they be brought forward in future under this Bill?
James Brokenshire
I have drawn out the separate regime that operates in relation to the authorisation of, for example, undercover officers, as well as the tight remit, the ambit and some of the additional oversight that is provided in respect of that regime. Again, that is all subject to the supervisory nature of the Investigatory Powers Commissioner and can, therefore, as with the provisions proposed through the Bill, be drawn out through that route. However, I will hopefully make some more progress and be able to get into how the Bill works and some of the further assurances. I may not be quite as generous with interventions, so that I can hopefully make progress and let other right hon. and hon. Members in.
The Bill amends the Regulation of Investigatory Powers Act 2000 by inserting a new section to provide a power for public authorities to grant a criminal conduct authorisation. Equivalent amendments are also proposed to the equivalent legislation in Scotland, subject to ongoing constructive engagement with the Scottish Government.
A CCA may be granted only where it is necessary for one of three statutory purposes: national security, the prevention or detection of crime, or in the interests of the economic wellbeing of the UK. It must also be proportionate to what it is seeking to achieve, and consideration must be given to whether the objective could be achieved by conduct that is not criminal. These authorisations will be tightly bound and granted by a highly trained and experienced authorising officer. They must also be compliant with our obligations under the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. Again, I will expand a little further shortly.
A CCA can also apply only where the deployment or engagement of the CHIS has already been authorised under the existing section 29 of RIPA, and is subject to the limits that that section provides. As such, there is a two-stage process: first, the authorisation of the use of a CHIS and, secondly, the separate authorisation of that source to carry out criminal conduct in the tightly prescribed circumstances proposed by the Bill.
It is worth highlighting that, alongside the Bill, we have published draft provisions of the CHIS code of practice, which provides further detail as to how the authorisation process will work and the factors an authorising officer must consider before granting an authorisation. To be clear, all authorisations are precise and explicit. A CHIS will never be given unlimited authority to commit any or all crimes. The effect of an authorisation is to render the authorised conduct lawful. This model is consistent with the approach we have taken for other investigatory powers. Of course, where a CHIS commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can consider this in the normal way.
Members will understand that, because of the clandestine nature of their work, there are limits to what I can say publicly about the role that CHIS play in saving lives and property, without exposing sensitive information about their methods and techniques. I know that there are concerns about the Bill somehow providing a licence to kill or to commit torture. Let me be clear that there are upper limits to the activity that can be authorised under the Bill, and those are contained in the Human Rights Act. That includes the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. It is unlawful for any public authority to act in a way that is incompatible with the European convention on human rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. Therefore, an act that would be incompatible with the ECHR could not lawfully be granted under this Bill.
We do not believe, however, that it is appropriate to draw up a list of specific crimes that may be authorised or prohibited. To do so would place in the hands of criminals, terrorists and hostile states a means of identifying our agents and sources, creating a potential checklist for suspected CHIS to be tested against. That would threaten the future of the CHIS capability and result in an increased threat to the public. Protecting CHIS from prosecution will have achieved little if we cannot also protect them from being identified by the terrorist and criminal groups they inform against, placing them at personal risk.
Stephen Doughty
I am listening very carefully to what the Minister is saying, but will he be clear? This is all predicated on our continued membership of the European convention on human rights and on the Human Rights Act staying as it is, and at the moment we have an Attorney General who has made very clear her intentions towards both those instruments. Can he make it clear that we will stay in the ECHR and that the Human Rights Act will stay as the bedrock of the guarantees on this, but also that other international conventions we are signatories to, including the convention against torture, would also apply in restricting actions that could be authorised under this Bill?
James Brokenshire
I have been pretty clear about the way this Bill operates and the manner in which agencies and the different bodies that can be authorised are able to act. Clearly, I cannot bind this House for the future, but I am very clear that we stand by our ECHR commitments, which is why this has been expressed in the way that it has in the Bill. I hope that is helpful to him.
Mr David Davis
What my right hon. Friend has described is, in effect, a wish not to provide a terrorist checklist, as it were, to test a member of such an organisation. Did he read the article in The Times this morning by probably one of the best Directors of Public Prosecutions of modern times, who would probably know more about this than all of us in this House? It was scathing about that analysis and said it simply did not stand up?
James Brokenshire
I am happy to respond to that point specifically. We are not suggesting that there is routine testing of suspected CHIS in all criminal groups, but there is evidence that this does occur more than infrequently, and I say that in clear terms. We are asking CHIS to put themselves in difficult positions to help the state investigate these criminal groups, and it is our judgment that we need to make sure that we can best protect them, and that means avoiding the provision of a checklist of crimes that can be tested against. I note that this risk is not just to CHIS, but to people who are not CHIS but may be suspected of being so.
Julian Smith (Skipton and Ripon) (Con)
Does my right hon. Friend agree that the independent commissioner, established under the 2016 Act by this House, has, in the 2018 report of the analysis on MI5 and other agencies, written very positively about the processes, the applications for CHIS and the rigour that these organisations go through? It is important that the House realises that these processes are rigorous, detailed and already in place.
James Brokenshire
Yes, and I am grateful to my right hon. Friend for making that point. With his experience as a former Secretary of State for Northern Ireland, he knows the importance of these national security issues in the context of Northern Ireland. He is right, and this point about safeguards and oversight is precisely what I was about to come on to. It is about the rigorous and careful way in which the agencies operate and the focus that they attach to this, as shown in the response the commissioner provided in his 2018 report and equally by the Investigatory Powers Tribunal when it reflected on this.
James Brokenshire
I will give way, but this is probably the last time as I am conscious of time and of getting others in.
Liz Saville Roberts
In the 2018 report by the Investigatory Powers Commissioner, one of the issues that raised concern was the sheer prevalence of human error. We are rolling this out to further Departments. Surely, we are also rolling out the potential for further human error.
James Brokenshire
The right hon. Lady makes an important point about training and about ensuring that the high standards necessary here are applied. I would say to her that, equally, such focus needs to be applied to those who operate this regime in order to get this right because of the potential criminality that sits alongside it. There are obligations to report errors to the commissioner, and equally the commissioner will report on those too. Rigorous standards are necessary to ensure that criminal conduct authorisations are made appropriately and well, and the way in which that operates now and will operate for all agencies—whether the Security Service, policing or some of the other agencies—is subject to that clear oversight, and the Bill draws that out and makes it explicit.
As I have said, it is important to state that, in view of the restrictions on what can be disclosed publicly, the Government also recognise the importance of robust independent oversight. The authorisation of CHIS participation in criminal conduct is and will continue to be subject to this robust oversight of the Investigatory Powers Commissioner. The IPC—
James Brokenshire
I am very conscious that I am now eating into the time of others who may wish to speak, so I will perhaps make some more progress, and we will see where we get to.
The Investigatory Powers Commissioner, and his judicial commissioners, have all held high judicial office. The current IPC, Sir Brian Leveson, was most recently president of the Queen’s bench division and is entirely independent of Government. The commissioners are supported by expert inspectors and others, such as technical experts, qualified to assist the commissioners in their work.
The IPC conducts wide-ranging inspections of public authorities and publishes an annual report on the findings from those inspections. The IPC himself sets the frequency of those inspections, and public authorities are required to provide unfettered access to documents and information. The Bill strengthens the IPC’s role by providing that the IPC must explicitly keep CCAs under review and include information on the use of them in his annual report. The most recent report from the IPC found that in all instances MI5’s authorisations of CHIS participation in criminal conduct were proportionate to the anticipated operational benefits and met a high necessity threshold.
Further, the Intelligence and Security Committee of Parliament has statutory responsibility to oversee the UK intelligence community. Hon. and right hon. Friends on the Committee have a vital role in scrutinising the work of the intelligence agencies, and I am grateful to the Committee for its support for the legislation and welcome its expertise as the House considers the Bill in detail. I also note that Select Committees will equally play an important role in scrutinising the work of law enforcement and wider public authorities.
James Brokenshire
On that note, I give way to the Chair of the Home Affairs Committee.
Yvette Cooper
I am very grateful to the Minister, who has been very generous with his time. Clearly he makes the case that we need to continue with covert intelligence, particularly on extremist groups that may be proscribed. Associating with them in any way is currently a crime, so clearly he makes a strong case for legislation to ensure that such intelligence can continue in the interests of national security. I know that he recognises, though, that having safeguards is also in the interests of national security and of the intelligence agencies and the police.
The safeguards in place on the Investigatory Powers Commissioner in the Bill are still very vague. It is very broad and very much retrospective, as opposed to concurrent assessments. Will the Minister look again at the potential for amendments on authorisation and very timely oversight, and on strengthening the measures on Investigatory Powers Commissioners, so that it is possible to get the details of the legislation right?
James Brokenshire
Obviously, we will have continued debate during the passage of the Bill. I believe that it provides strong oversight and governance, but I will continue to reflect. Judicial approval is an important safeguard for the operation of some of our investigatory powers; however, it is not the only way to provide a robust oversight of a power. It is important to recognise the context of this: we are talking about human beings. Some challenging issues operate around this space, which is why we judge that robust retrospective oversight is the right approach, but I will keep the timeliness of that, and how it operates, under reflection so that perhaps further reassurance can be provided, specifically on the point of how soon oversight can occur after an authorisation has been made.
Mr Mitchell
I am grateful to my right hon. Friend, who is being generous. At what level will the original authorisation take place in the various organisations? From reading the Bill, it seems to me that the level in the police is a relatively junior police officer. In view of the seriousness that such authorisation leads to, should it not be given at chief constable level, and why can it not be given through a warrant overseen by a judge?
James Brokenshire
I have responded to the latter point on the judgment that we have made in relation to this regime and how we believe that deep retrospective oversight is the right approach. This is distinct from phones or cameras. The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking. There are different elements to how this operates, and the experience and highly trained nature of the authorising officer in some ways informs the relevant authorising level that is specified within the guidance. Robust retrospective oversight is provided equally by the commissioner himself, to give further assurance.
If I may, I shall turn to a separate point about specific public authorities’ ability to grant a criminal conduct authorisation. The RIPA already lists a range of public authorities that use CHIS for general investigative purposes. Far fewer public authorities will be able to grant a criminal conduct authorisation. Only those public authorities that have demonstrated a clear operational need for the tactic are able to use the power. These are the intelligence agencies, the police, the National Crime Agency, the armed forces, Her Majesty’s Revenue and Customs and 10 other public authorities. Pausing momentarily on this list, I want to highlight the role that these wider public authorities also have in investigating and preventing serious criminal activity. The Environment Agency, for example, investigates the illegal dumping of toxic waste that can permanently harm our environment. The Serious Fraud Office investigates complex fraud cases that risk costing the public millions of pounds. The Food Standards Agency investigates deliberate mislabelling and the sale of unsafe food to the public. HMRC tackles the money laundering and trafficking of illicit goods that would risk significant damage to the economy.
We expect the wider public authorities to have only limited use of this power, because a criminal conduct authorisation can be granted only where it is necessary and proportionate to the criminality it is seeking to frustrate. There will, however, be occasions where CHIS will be critical in providing the intelligence to prevent, detect and prosecute serious crimes. This is increasingly important as organised crime groups expand into areas overseen by these public authorities.
This is an important and necessary Bill—
Mr Baker
I am extremely grateful. He mentioned the armed forces very briskly there. Could he clarify why the armed forces might need to engage in criminal conduct? I suspect it is because they each operate their own military police, and that those police might need to have covert operations, but I would be grateful if he clarified that, because there will be suspicious souls out there worrying that there is some other motive for the armed forces being authorised to break the law.
James Brokenshire
My hon. Friend highlights one particular aspect of the role of the Ministry of Defence. It is difficult to go into detail, but one further example I would give is that it might be necessary to access a proscribed organisation. As I say, the reporting regime is quite specific. Indeed, the oversight that is envisaged—and the oversight in the existing legislation—draws this out quite carefully and clearly for the issues that I have highlighted, on proportionality and necessity, as well as those specific aspects in the Bill, stating that it can relate only to national security, criminality and economic wellbeing. It has to anchor to those three elements, as well as to the Human Rights Act application that we have debated at length this evening.
This is an important and necessary Bill. It is not about providing agents with an unfettered ability to break the law and commit any crime. There are strict requirements that must be satisfied, and robust and independent oversight will be in place. The Bill is really looking to achieve just one thing, which is to ensure that our intelligence agencies and law enforcement bodies with important intelligence functions are able to continue to utilise a tactic that has been, and will continue to be, critical to keeping us all safe. Accordingly, I commend the Bill to the House.
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Minister for his opening speech, and for his briefings and approach to this Bill. He has been generous with his time and I appreciate that.
First, I thank our police and security services, the National Crime Agency and wider law enforcement for the work they do in keeping us safe. Those on the frontline put themselves in danger every day to help others, to protect us and to prevent loss of life. That work is vital and in the national interest, and we thank them for what they do on our behalf. We on the Opposition Benches recognise the importance of that work, and of covert human intelligence sources and the results they achieve. The issue is how we ensure that vital work continues, but on a statutory footing and with the strong safeguards that are also vital.
I have listened carefully to what our law enforcement agencies have said about covert human intelligence sources. The Minister referenced the director general of MI5, who has said that
“Since March 2017, MI5 and Counter Terror Police have together thwarted 27 terror attacks.”
His judgment was that
“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented.”
To be clear, that activity is saving lives by stopping terrorist attacks on people.
I have also considered the wider data available, particularly on the National Crime Agency. In 2018, for example, covert human intelligence operations disrupted threats to life, arrested serious criminals, seized thousands of kilograms of class A drugs, safeguarded over 200 vulnerable people, and took firearms and rounds of ammunition off the streets. I also appreciate the role that covert human intelligence sources play in addressing heinous crimes such as child sexual exploitation, and organised crime such as black markets in, among other things, vital medicine. We on the Opposition side of the House recognise the importance of that work.
At the same time, though, that work has not been on a statutory footing. Frankly, it should be, alongside formal safeguards. This activity is not new; it has been going on under existing practices for many years, and it should be on a statutory footing because that will allow for the necessary and robust safeguards that we on the Opposition Benches will be pressing for. It should be on a consistent and clear basis, and a system with clear protections should be in place. As we put this system on to a statutory footing, it is a moment to be clear about what we expect of those engaged in this conduct and the standards we should set; as this Bill passes through the House, it is a moment to detail not just those standards, but how we expect them to be implemented. That is why we in the Opposition will not be voting against this Bill tonight, but feel it should move to Committee for consideration and improvement.
I know that there are deep concerns about the safeguards in this Bill and it is to that crucial issue I now turn. The matters we are dealing with today are difficult for any Parliament; they are deep and serious questions for any democratic society, and raise critical issues that the Government will need to address as the Bill progresses through the House and the other place. It is crucial, too, that there is public confidence in what our security services and other agencies that use covert human intelligence sources actually do with regard to authorised criminal conduct. I entirely accept that an agent embedded in a proscribed organisation is committing an offence every day by virtue of being part of it, but is doing so for the purpose of thwarting plots and stopping greater loss of life. I appreciate that, but it is still vital that the wider framework under which they operate has trust and confidence.
Theresa Villiers (Chipping Barnet) (Con)
Does the hon. Gentleman agree that Members of this House, when considering this Bill, should take comfort from the fact that we have one of the most rigorous and toughest oversight regimes in the world for regulating our intelligence services?
Nick Thomas-Symonds
I of course welcome the oversight that has been introduced for our intelligence services; the situation is very different from how it was in decades past. However, that does not detract from the additional safeguards that are needed in this specific Bill.
Under the Bill as it stands—I am quoting, because I want to press the Minister on this point—authorisations for participation in criminal conduct may only be granted
“if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; or (c) in the interests of the economic well-being of the United Kingdom.”
The Government need to be clear about what is within the scope of that framework. It cannot and should not encompass any lawful activity, nor should we allow mission creep in the years ahead.
I hope the Minister would agree that a Bill such as this one should have no business whatsoever interfering with the legitimate and lawful work of our trade union movement, which is a cornerstone of our democracy and a bastion of rights. I welcome what the Minister said in answer to an intervention—that trade union activity is legitimate and lawful and therefore is not within the ambit of the Bill—but some concerns have been expressed that the words I quoted referring to economic interests could refer to the legitimate work of trade unions. I would welcome it if the Solicitor General, when he responds to the debate, could repeat the Minister’s assurance that trade unions are not meant to come within the ambit of those words.
In addition to the test of necessity, the authorisation may be granted only where it is
“proportionate to what is sought to be achieved by”
the conduct. I welcome and note the test of necessity and proportionality. Nothing should be authorised in contravention of the European convention on human rights, to which I will return in a moment. But first the Government must justify the need for each and every agency and body listed in the Bill—what powers, what purpose. Nobody expects details on ongoing investigations—of course we do not—but a sense of the type of issues expected to arise is crucial to enable the House to consider that list properly and whether the presence of the organisation on the list is necessary.
In answer to an intervention from the right hon. Member for Orkney and Shetland (Mr Carmichael), who is no longer in his place, the Minister mentioned, with regard to the Food Standards Agency, mislabelling and unsafe food. We need more detail on that and the links to organised and serious crime. Similarly, the Gambling Commission is another example, and it is absolutely clear as to why that is on the list. I do not propose to go through the list one by one; suffice it to say that each and every one needs to be justified.
Mr Kevan Jones (North Durham) (Lab)
As a member of the Intelligence and Security Committee, I have seen how the security services conduct these activities in detail in some cases. When I saw the Bill and the list of organisations, I was a bit shocked, to be honest. The Minister made the argument for the inclusion of the Food Standards Agency; from my experience—not personal experience, I hasten to add—of a case that involved waste theft and the Environment Agency, the lead was the police, and the Environment Agency worked across agencies. I want some assurance as to why it is necessary for the Food Standards Agency or the Environment Agency, for that matter, to have a lead in these situations.
Nick Thomas-Symonds
I was relieved to have the reassurance that my right hon. Friend’s experience did not involve him personally, but he is entirely right about the reassurances that are necessary in terms of each and every case.
As the Minister has said, there is a section 19 certification from the Home Secretary on the face of the Bill regarding its compatibility with convention rights. In addition to that, I note that in clause 1, what will become the new section 29B(7) of the Regulation of Investigatory Powers Act 2000 mentions the Human Rights Act 1998 specifically. There is a real need for reassurance on this issue, so that the public and the House know that the most heinous of crimes will not be carried out in the name of this Government or, indeed, any other future Government. I appreciate that the European convention on human rights protects the right to life and is clear about the prohibition of torture or, indeed, subjecting anyone to inhuman or degrading treatment or punishment, and that is important, but the Government need to be crystal clear about their intention for when the courts come to consider this legislation, as they inevitably will. We cannot have any doubts about the Government’s intention or Parliament’s intention.
I accept that it is important that the Human Rights Act is, unusually, mentioned on the face of the Bill, and I notice that the accompanying memorandum sets out the following:
“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”
What we cannot have is a position, referred to by the right hon. Member for Haltemprice and Howden (Mr Davis), in which any argument is put on the Government’s behalf in courts or tribunals that this system is not in place covering the activities of covert human intelligence sources, or that this system is somehow free or exempt from Human Rights Act considerations. Nor could we have a situation where there are deliberate attempts to prevent the Human Rights Act from coming into play. That is why we will be pressing the Government on public limits and on their position regarding those limits on criminal activity to be authorised.
Mr David Davis
Does the hon. Gentleman agree that, by not specifying in terms, the Government are inviting a challenge to the whole Bill, not under the Human Rights Act but under the torture convention? The international view of torture is more absolute than the international view of murder. Therefore, I think it highly likely that if the Bill goes through as it stands, the Government will be facing the courts within the next year, losing their case and having to rewrite the Bill.
Nick Thomas-Symonds
The right hon. Gentleman is absolutely right. If the Bill does not have those safeguards on its face as it should, it will simply be successfully challenged in our courts. It is in nobody’s interests for that position to pertain, which is why I am making this point, on which I hope we can work on a cross-party basis.
Julian Smith
In its legal adjudication on the third direction earlier this year, a majority on the Investigatory Powers Tribunal—the special tribunal overseeing the intelligence services—found that the oversight powers currently given to the Investigatory Powers Commissioner provided
“adequate safeguards against the risk of abuse of discretionary power”.
It is important in our debate on the Bill to recognise those comments in that judgment, which is partly the reason that the Government have introduced the Bill.
Nick Thomas-Symonds
The right hon. Gentleman refers to the Investigatory Powers Commissioner, an issue to which I will return in a moment, but what he is actually referring to is one of the instances where the Government have tried to argue that the Human Rights Act did not apply. It is precisely for that reason, and because such arguments were raised in the past, that I am raising the point that I am.
Stephen Doughty
My hon. Friend is making an excellent speech. I understand that one of the filings that the Government put to the Investigatory Powers Tribunal said that
“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”
Does he share my concern about the various get-out clauses for the Government in these powers, and does he agree that it is better to have a public limit and safeguards, as they do in Canada for example, on a number of such activities?
Nick Thomas-Symonds
I agree entirely with my hon. Friend, both on the Canada model and on the point, which I put to the Government, that we cannot have a situation in future where there is any doubt about what was meant on the face of this Bill. We cannot have the Government having put forward on their behalf the argument that the Human Rights Act somehow does not apply.
Mr David Davis
The Government should not rest too hard on an IPT judgment. It is normal in these intelligence oversight commissions to have unanimity from the judges. In this case it was a 3-2 judgment, and the minority in that judgment described the Government’s argument as “fanciful” and “extraordinary” and as setting “dangerous precedents”, so I do not think they should rest on that at all.
Nick Thomas-Symonds
No, and the right hon. Gentleman illustrates precisely the point I am making. That is why the position has to be crystal clear. We cannot have a situation where such arguments are being put in written submissions, or in other ways, before a tribunal or indeed any other court. The public limit—this reassurance—is so important because, as I have said, if the Government do not get it right, and if they are not crystal clear on issues such as murder, torture and sexual violence, they will get into trouble in the courts in any event.
Given the nature of some of the networks that the Bill looks to disrupt, there are also clear concerns about the gendered impact of actions by covert human intelligence sources. The Government must seek to uphold the highest possible standards on gender impact. We will be pushing for such safeguards as the Bill moves forward, particularly in relation to rape and sexual violence. Members have also rightly expressed concerns about the risk of a disproportionate impact on black, Asian and other ethnic minority communities. We will push for safeguards on that, too, as the Bill progresses. When the Solicitor General winds up, I hope he can also provide assurances about the work being undertaken by law enforcement to address that and commit to publishing full and extensive Equality Act 2010 assessments.
On those who make decisions to authorise criminal conduct, the memorandum on the European convention on human rights supplied with the Bill states:
“The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing.”
A legal framework is needed—I am clear that this activity should not continue in the shadows without clear accountability—but at present there is self-authorisation in the Bill.
If the police were to enter the property of any Member of this House, they would need a warrant to do so beforehand. I appreciate that things in this sphere move at speed, but in a number of areas of law we have judges available 24 hours a day who can offer services and give judgments on things such as emergency injunctions, so we will press that issue of prior judicial oversight. The more serious the crime authorised, the more senior the level of authorisation necessary—the right hon. Member for Sutton Coldfield (Mr Mitchell) made that point—subject to that oversight, and there needs to be assurance that the standards that this House sets will be adhered to and implemented.
Clause 4(3) amends section 234 of the Investigatory Powers Act 2016 to require the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in its annual report. It is stated that that will include statistics on use of the power, the operation of safeguards, and errors, which I will come back to in a moment.
I appreciate that that requirement is subject to the existing protections in the Investigatory Powers Act for information that relates to national security. I also appreciate that public authorities will have to disclose all documents necessary to the Investigatory Powers Commissioner. However, as it stands, the requirement is too vague, as was pointed out by the Chair of the Home Affairs Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper).
The requirement must involve more than the inclusion of a section or some sort of confidential annexe in the commissioner’s annual report. There is no reason why, for example, categories of crime cannot be published without compromising operational security. Every single authorisation should be notified to the commissioner, who can then provide ongoing oversight. That seems to me to be a far more effective way of giving reassurance on the operation of safeguards and of ensuring that where there are errors—again, I will return to that—something can be done immediately to ensure that such a mistake does not happen again. It seems to me that if this is looked at only on an annual basis, there is more scope for errors to be built into the system. I do not think it is unduly onerous for each and every authorisation to be notified to the commissioner.
I also see no reason why Members of this House—I mean the Intelligence and Security Committee, which deals with sensitive information all the time—cannot have more detail about the use of this power and in what context. Again, that would give far greater reassurance about the use of the power over time and public confidence in it.
In addition, there is the issue of redress and civil claims for wholly innocent victims. In the memorandum on convention rights, the Government state:
“The individuals who are most likely to be affected by the criminal conduct of a CHIS are those with whom the agent is engaging in order to thwart the criminality.”
That may be, but the key words there are “most likely”. What about a wholly innocent person who ends up with material or other loss as a consequence of the actions of a covert human intelligence source?
The position in the Bill is that a complaint can be made to the Investigatory Powers Commissioner with regard to these powers, which can be independently considered. I appreciate that the Investigatory Powers Tribunal has the jurisdiction to determine complaints against public authorities’ use of investigatory powers, including the use of covert human intelligence sources, but that is not the same as a proper civil claim. What if the authorised criminal act is botched? What if there is mistaken identity? Again, that is something that we will press in Committee.
While there is a narrow but fundamental part of the Bill about authorising criminal conduct, I want to talk about some wider issues. In relation to Northern Ireland, it must be clear that legacy issues are not affected by the Bill in the context of the peace process. On the issue of past injustices, I am grateful to the Minister for setting out again that this is not a retrospective Bill, but it has to be clear that those seeking justice for what happened in the past can still do so. We on the Labour Benches are committed to a full, independent public inquiry into the events at the Orgreave coking plant on 18 June 1984. It will only be by shining a penetrating light on the events of that day that we can have justice, and I commend those who have been campaigning on it for so long.
There is an ongoing inquiry into undercover policing—the so-called spy cop scandal, referred to by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy)—chaired by Sir John Mitting. The evidential hearings open next month, and it has to be clear that recommendations from that inquiry will be implemented and victims will not be denied access to justice. I appreciated the Minister’s reassurance that such appalling behaviour was never lawful in the past and will not be lawful in the future. We must never stand to one side on issues like this. We commit again to pressing for justice for all victims. The delays in the existing inquiry have been unacceptable. Victims have been put through a terrible ordeal, and the least they deserve is access to justice.
I also want to talk about the practice of deceitful and unlawful blacklisting. In doing so, I refer to my entry into the Register of Members’ Financial Interests regarding my union, the Unite union, and its financial support for my election campaign to this House. I appreciate that the Bill is a narrow one on criminal conduct, rather than the wider issue of when an undercover policing operation begins, but since the blacklisting scandal surfaced over a decade ago, it is clear that these are not merely allegations. I appreciate that, in relation to blacklisting in the construction industry, we have seen a substantial out-of-court settlement, and there are ongoing proceedings. However, Deputy Assistant Commissioner Martin’s findings in the Metropolitan police’s internal investigation stated:
“The report concludes that, on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven.’ Material revealed a potentially improper flow of information from Special Branch to external organisations, which ultimately appeared on the blacklist.”
That is a hugely serious issue. The Government should be on notice that we will not hesitate to raise this and hold Ministers to account on the involvement of our law enforcement in the disgraceful process of blacklisting.
Nick Thomas-Symonds
I am grateful for the right hon. Gentleman’s support in that matter, and I am happy that the Minister has made clear that this legislation has no impact on the search for justice in relation to that appalling practice.
The aim of this legislation should be to keep people safe and bring dangerous criminals to justice. I appreciate the assurance that this does not, and is not designed in any way to, disrupt legitimate and lawful trade union activity. Should any Bill do that, it would be opposed by Labour Members.
Bell Ribeiro-Addy
From listening to the arguments that have been made, it strikes me that the Bill is presumably intended to protect undercover officers from facing prosecution in a situation where they should not, because they are doing their work. More experienced Members might be able to give me examples of situations where officers have faced prosecution in those circumstances, but I certainly cannot think of any. A few weeks ago, during our debate on the Overseas Operations (Service Personnel and Veterans) Bill, we were told about ambulance-chasing lawyers, and I am wondering whether we will now hear about police-chasing prosecution services.
Nick Thomas-Symonds
I certainly would never use divisive rhetoric about those before our courts who are protecting people’s rights; we should be absolutely clear about that. This Bill is on the narrow issue of criminal conduct. It should not and would not have anything to do with trade union and lawful activity, and if it ever did, it would, of course, be strongly opposed. On my hon. Friend’s final point, existing practice versus what happens now is a very important issue. At the moment, this happens in the shadows: it happens where prosecuting authorities are given specific information and the prosecutions simply do not take place. This should be on a proper statutory footing, with the safeguards we are arguing for.
Labour’s commitment is to work in the national interest to keep people, their families, their community and the country safe. That is why I have taken the approach I have with the Bill. We recognise the importance of this activity being on a statutory footing, which is why I will not be opposing the passage of the Bill today. However, in Committee we will look to press the Government on their position. We will hold Ministers to account, seeking to improve the Bill on the vital issue of safeguards, so that the public can have confidence in the process, while law enforcement bodies can carry out the vital work of keeping us all safe.
Madam Deputy Speaker (Dame Eleanor Laing)
I am going to start with a time limit of nine minutes, which is advisory. I put on a time limit of nine minutes so that no individual Member is encouraged to take dozens of interventions and therefore take 20 minutes. I hope that that will be roughly about right to ensure that everybody gets a decent chance to speak on this extremely important issue.
Dr Julian Lewis (New Forest East) (Ind)
Thank you, Madam Deputy Speaker. I shall endeavour to set a good example.
Both Front Benchers have begun this debate in a solemn, sober and thoroughly non-partisan way. That is greatly to be welcomed. The Opposition Front Bench spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), referred briefly to the oversight role of the Intelligence and Security Committee. I can give advance warning, as it were, that other members of the Committee will be referring—in particular, I believe, my hon. Friend the Member for The Wrekin (Mark Pritchard)—to at least one amendment the ISC will probably put forward, relating to accountability and oversight by the ISC, at a later stage in these proceedings.
The work of the United Kingdom’s domestic and overseas intelligence agencies would be considerably less complicated and decidedly less dangerous if we could rely solely on the technical triumphs which achieved so much in Room 40 in the first world war, and via the Ultra organisation in the second. Sadly, that has never been the case and, as long as spying has existed, spies in human form have proven indispensable. Covert agents operate under extremely hazardous conditions inside hostile organisations, or cells of organisations, where discovery of their true identity and purpose could prove fatal. The explanatory notes accompanying the Bill describe the use of covert human intelligence sources as
“a key tactic in protecting national security and investigating serious crime”,
and the operation of such agents as
“a core part of security, intelligence and policing work”.
It is hard to disagree with that evaluation. If it were known that CHIS agents could never engage in criminal activity in concert with the groups they are infiltrating, it would be simplicity itself for ruthless organisations to devise techniques to flush them out and eliminate them.
Until now, the security service has had an implied power, derived from the Security Service Act 1989, to authorise CHIS agents to take part in criminality. As we have heard, last December the investigatory powers tribunal ruled in favour of MI5 in a case which challenged such authorisations. However, that ruling was by just a 3-2 majority, thus illustrating the point well known to the Intelligence and Security Committee that the switch of a single vote can dramatically change even a carefully pre-planned outcome. [Laughter.] The ISC welcomes the principle behind the Bill to put existing powers to authorise criminal conduct, in certain circumstances, on to an explicit statutory basis.
One of our predecessor Committees was told in 2016 by the then director general of MI5 that CHIS agents are
“the intelligence collection asset that we could not operate without. They give you insight that technical intelligence cannot give”.
Despite necessary redactions, the 2017-19 ISC’s own report on Northern Ireland-related terrorism, presented to Parliament today, although it was drafted before I rejoined the Committee, convincingly concludes at paragraph 39 that:
“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only where necessary and proportionate, and subject to proper scrutiny.”
Like its predecessor, the current ISC believes that these authorisations are essential if innocent lives are to be saved. Indeed, we have seen real examples where precisely that has happened—and where lives would definitely have been lost if a courageous agent had been banned from participating in any criminal activity.
Naturally, this power must be properly circumscribed and must be used, as repeatedly stated, only where necessary and proportionate. At later stages, consideration of the Bill will surely focus on how to apply necessity and proportionality, but I urge colleagues in all parts of the House not to seek too much specificity regarding what criminality meets those standards. Preventing agents inside a criminal enterprise from engaging in a specified checklist of possible crimes would make their unmasking and potential execution very much more likely. It would be dangerously counterproductive to compile such a checklist. We need to remember that there is more than one way for society to have blood on its hands.
Richard Thomson (Gordon) (SNP)
Allow me to begin by placing on the record my party’s gratitude to the agencies covered by the Bill for the work they do to keep all of us safe, and expressing our understanding and appreciation that in carrying out that work, there are circumstances where the use of a covert human intelligence source may be necessary. We accept that it can be legitimate to perpetuate a harm in order to prevent a greater harm down the line, and while naturally attention is drawn to the police, the armed forces and the security services in this Bill, the inclusion of the other agencies listed requires equal attention if we are to protect people’s rights.
I think it is a matter of fundamental principle, when we are dealing with the coercive powers of the state, that we are right to proceed with the greatest of care. Although we accept that the Bill seeks to put on a legal footing many activities that we know have always taken place, even if we have not known that they were taking place, we know that often they have taken place to our great discredit. Putting that on a legal footing, where everyone knows the rules of engagement and the legal parameters within which those activities take place, is a positive.
The Bill must do that in a way which ensures proper safeguards to protect rights, and which commands the support not just of Parliament but of the public at large. Scottish National party Members consider that the Bill still has some distance to go in that regard. Although there are principles inherent to the Bill that we can support, there are outstanding concerns that mean that, while we will not be able to support Second Reading, we look forward to working with the Government to improve the Bill as it progresses. I will use the time available to me to outline those concerns.
First, as the Minister well knows from his dialogue with the Scottish Government, the Lord Advocate in Scotland retains concerns about how aspects of this Bill might progress. I know there has been constructive dialogue between the Scottish Government and the UK Government; we welcome that, and we hope and expect that it will continue. We hope those outstanding concerns can be addressed, allowing the legislative competence motion to be laid at Holyrood.
I come on to the principles we can support. Subject to qualifications regarding potential entrapment, no usage beyond that which is reasonable and proportionate, and any viable alternatives being absent, it can, in certain circumstances, be reasonable to allow the law to be broken in order to prevent a more serious harm from taking place. But our questions today relate to what is and is not reasonable, and how to ensure that the safeguards of governance and scrutiny on that are adequate. As has been said by a few Members, the first of those concerns relates to authorisation. The Bill, as it stands, would allow the authorisation of a CHIS by a senior and experienced officer within the organisation authorising it. I hope hon. Members can see the potential conflict of interest there straightaway, no matter how senior and experienced that authorising officer might be. As far as we are concerned, that is inappropriate. If there were to be a form of external authorisation, that would overcome that concern. We are willing to work with the UK Government to find a way that would permit that authorisation in a way that is reasonable, proportionate, appropriate and with suitable independence.
Our second question relates to the reporting of the authorisations and the planned use of a CHIS. An annual report to Parliament seems to us to be a wholly inadequate way of going about that. Reporting each instance to the Investigatory Powers Commissioner’s Office can fulfil that role, as long as the reports happen either in real time or as close to that as is operationally possible. We would very much welcome the Minister’s observations on that.
Our third question relates to the scope of the illegality being authorised or rendered lawful for all purposes. The Law Society of Scotland has observed that potentially there are no limits on the types of criminal conduct that could be permitted under this authorisation, which raises the obvious concerns about the potential use of murder, torture and sexual violence. I understand the argument the Minister advanced about the prohibitions that would be placed upon any such activities by compliance with the ECHR or the Human Rights Act, which could act as backstops, but we on these Benches remain unpersuaded on that. Given that there is some doubt as to the long-term commitment of supporters of the Government to those human rights backstops, it would be better to see those actions that are to be prohibited enshrined in the Bill.
We have heard about the possibility of a purity test being used, and I can understand those concerns, but that does not seem to an issue in either Canada or the United States of America, where just such legal prohibitions are already in place. Without that, there are real concerns that the Bill could open the way to legitimising the subcontracting of activities that should not be carried out either by or on behalf of the state. I suggest to the Minister that if the provisions of the ECHR and HRA are deemed sufficient, it would be beneficial to see that written more explicitly in the Bill, as that might provide further assurance.
By authorising law-breaking that is lawful for all purposes, we run the risk of creating an upper limit of illegality, in that it sets out the actions that are permitted without there necessarily being any restraint then on whether or not the actions taken within that parameter of legality remain legitimate, proportionate and appropriate. We would therefore welcome further clarity from the Minister on how Parliament might be assured that any illegal actions authorised for this purpose can be taken and still remain within those parameters, while also being reasonable and appropriate, without going beyond what is needed for that, even if it does not cross that threshold that has already been permitted.
Fourthly, if we are committing a harm to prevent a greater harm, that raises a fundamental question of legal liability. At the margins, the use of these powers could lead to adverse life-changing consequences for the innocent. If individual CHIS operatives are to be exonerated from what in other circumstances would be illegal actions, that might be understandable. What is less understandable is the manner in which the state may ultimately also be able to escape any liability for that, and that is hugely problematic for us.
Sarah Owen (Luton North) (Lab)
I thank we all understand and agree that keeping the public safe often means difficult decisions, but the Bill in its current form is weak where it needs to be strong—strong particularly on safeguards around sexual violence, torture and the creep into anti-trade union practices such as blacklisting.
Richard Thomson
I thank the hon. Lady for that intervention. She makes a number of important points, and we will need assurances on those going forward.
The situation is hugely problematic as it stands, and we do not believe that the Government should attempt to escape their vicarious liability on this issue.
Mr David Davis
I am following with interest what the hon. Gentleman has to say, and, unusually, though he is an SNP Member I have a great deal of agreement with him. However, in terms of civil liability, perhaps the simplest test is to look at one of the worst cases in recent times, which is the Finucane murder. Whatever we think of Mr Finucane—I would have different politics from him—he was an innocent party, but even more so were his three children and his wife, who were there when a state-supported group—almost—murdered him with 14 bullets over his Sunday lunch. That is a good demonstration of the point that, if this civil exclusion applies, those innocent parties—the wife and children of Finucane—would have no recourse. That surely cannot be right.
Richard Thomson
I thank the right hon. Gentleman for that intervention, and he makes the point very elegantly. If individuals are to be exonerated for actions that have been authorised, where is the redress for the innocent whose lives are impacted? It is right to look at the extremities in terms of where that might lead us.
In giving the state the ability to uphold rights, we accept that we must also give it the ability to have limited powers of coercion to uphold those rights. However, those powers must never be in conflict with the fundamental rights of individuals. In terms of the Bill, the only way we can ensure that is through good governance, effective scrutiny, limited scope and clarity on the limitations; ensuring that there is accountability for the use of the powers; and limiting opportunities for their misuse. I believe those are legitimate concerns, which many will share, both inside and outside this place, and we hope to see them addressed as the Bill continues its passage.
Mark Pritchard (The Wrekin) (Con)
I would like to put on record my thanks to all those who serve in our security agencies—they keep us all safe every day of every week—and to add my support for this important Bill.
Covert human intelligence sources, or agents, provide invaluable information to the UK’s intelligence agencies and those tasked with fighting serious and organised crime. These sources provide vital information—often time-sensitive—in saving lives. Even as I speak, they are probably saving lives—lives not in the abstract, but real lives; the lives and futures of men, women and children. We know that terrorists are no respecters of age, gender, faith, nationality or community. They seek to kill and to maim, to divide, to terrorise and to spread misery and fear.
Covert sources disrupt plots, secure prosecutions and give our intelligence agencies a critical human intelligence edge. Let me be clear: this type of human intelligence work is unique and cannot, as we have heard from the distinguished Chairman of the Intelligence and Security Committee, be replicated through regulated signals intelligence or communication intercepts. Covert sources save lives. As the head of the Security Service recently said, without covert human intelligence sources many of the attacks planned over recent years would not have been foiled. Covert human intelligence sources deny terrorists success.
I think there has been some misunderstanding about some parts of this Bill. It seeks to put existing powers on an explicit statutory basis and existing practice on a clear and consistent statutory footing, and surely that should be welcomed by the House. I am very pleased that the Minister has been explicit today about safeguards. They are needed, necessary and very welcome.
For the record, I would not be supporting the Bill if those robust safeguards and those meaningful checks and balances were not in place. Clause 4 should offer reassurance to any colleague who still has concerns about oversight. In it, colleagues will find a reference to significant oversight measures, with the Investigatory Powers Commissioner having significant powers of scrutiny and oversight.
I referred to my right hon. Friend the Member for Skipton and Ripon (Julian Smith), who rightly referenced improvements of oversight over recent years. However, it would provide further reassurance to colleagues from all parts of the House if those oversight measures were strengthened further to include an annual report to the Intelligence and Security Committee on the use of those authorisations, broken down by each organisation the Committee oversees and by the category of the conduct authorised. The Committee will be looking potentially to table an amendment to the Bill as it progresses through the House, although the Government are at liberty to listen to some of the comments that are being made today. I hope that amendment will reassure those on the Opposition Front Bench, as well.
I am also reassured that all authorisations will be compliant with the European convention on human rights, and rightly so. Indeed, I encourage all right hon. Members and hon. Members to read the Government’s ECHR memorandum, which accompanies the Bill.
Covert human intelligence sources are vital in the fight against terrorism, as well as against serious and organised crime. They are a critical operational element for the security of the whole of the United Kingdom and the whole of the Union. Given the improved oversight and scrutiny, the important application of the test of proportionality, the legislation’s compliance with the Human Rights Act and the European convention on human rights, and with further amendments to it, I support the Bill.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
I am very pleased to be called this evening to make a short contribution in this Second Reading debate. This is the first opportunity I have had to speak since becoming a member of the Intelligence and Security Committee, and I start by paying tribute to all who work in our security services to protect us and our freedoms from those who do not operate under the rule of law and do not value our freedoms.
We have heard at some length the background for why the Bill is necessary. People who infiltrate criminal or terrorist groups do so at great risk to themselves to provide that unique source of intelligence. We know that many terrorist and serious criminal acts have been thwarted by that information. Innocent lives have been saved, including that of a current Member of this House. Moreover, because of the largely criminal nature of the people under investigation, the individual is sometimes required to participate in criminal activity themselves. It is therefore important that organisations such as MI5 protect those individuals who are putting themselves at such risk by authorising them to carry out criminal acts in certain limited circumstances and with specific safeguards.
The ISC can only comment on the organisations that it oversees: MI5, MI6 and GCHQ. The ISC strongly supports the principle behind the legislation, and we support the use of criminal conduct authorisations by the security and intelligence agencies on the condition that they are properly circumscribed, used only where it is necessary and proportionate, in a way that is compatible with the Human Rights Act and subject to proper scrutiny. As this is a Government Bill, it is for the Minister to make the case for the specific provisions within it and to answer the legitimate questions and challenges of hon. Members, many of which he has faced this evening.
The Intelligence and Security Committee has taken evidence from the police in relation to a number of our past inquiries, so I think the Committee would support their use of the powers. I would, however, like to press the Minister, as other Members have already, on the list of bodies included in the Bill, some of which the Committee does not have oversight of, and for which it is not immediately obvious why they should be given such power.
The Minister talked about the mislabelling of food as an example of why the Food Standards Agency, which has already been raised with him, should be included in the Bill. In the Bill Committee, we will really want to see further information about the kind of cases that the Food Standards Agency would be dealing with that makes it appropriate for it to be in the Bill. The same goes for the Environment Agency, about which my right hon. Friend the Member for North Durham (Mr Jones) has already raised questions. What does the Minister think about other Select Committees having oversight in the areas for which they are responsible—the Environment, Food and Rural Affairs Committee having oversight with regard to the Food Standards Agency and the Environment Agency, for example?
Speaking personally, I would really like the Minister to give full consideration to what the Chair of the Home Affairs Committee and the shadow Home Secretary have said about additional powers to strengthen the oversight of the Investigatory Powers Commissioner. I am pleased that the Minister has already said that he is willing to look at the timing of that oversight, which could be quite important. I would also like to be reassured about the authorisation procedures and the level at which advance authorisations can be signed off within organisations. What level of experience and knowledge would he expect a person to have, and where will that be set out?
I agree with what the hon. Member for The Wrekin (Mark Pritchard) said, and I hope that the Minister will look at giving additional responsibilities to the Intelligence and Security Committee to have oversight of the use of these powers. That could really help with the concerns of parliamentarians about the use of the provisions by ensuring a level of ongoing parliamentary scrutiny. I hope that in Committee we can look at those proposals in detail in order to achieve balanced and workable legislation that safeguards those who put their lives at risk while upholding the rule of law, to which we all subscribe.
Bob Stewart (Beckenham) (Con)
I am in awe of the constant, cold courage of those who run huge risks for us as covert human intelligence sources; in fact, in a past life I was involved slightly. I am clear that covert agents play a vital part in disrupting terrorist plots, and they often save lives. It is vital that such agents gain the trust of those on whom they have to report if they are to gain the information that the authorities need to keep us all safe. In view of the largely criminal nature of people under investigation, covert agents are sometimes required themselves to participate in criminal activities; we all understand that. If they do not participate in those activities, it will cause their loyalty to that group to be questioned. Suspicions will immediately be raised and they could be in peril, or, sometimes, in mortal danger. It is therefore essential that covert agents are able to participate in some criminal activity. Organisations such as MI5 need to be able to authorise them to do so—obviously in certain circumstances and with the safeguards that we hope to put in the Bill.
In order to decide whether to authorise such covert agents to participate in criminal activity, intelligence organisations will have to consider whether the anticipated result of that involvement, which is getting information that could help save lives—information rather than intelligence, because there is a difference—outweighs the criminal conduct. This is a very fine balance, and it requires very, very experienced officers to make that judgment. Obviously, we all understand that this is an ethical dilemma for us, but I accept that it is necessary and I will be fully supporting the Bill.
Gavin Robinson (Belfast East) (DUP)
It is a pleasure to take part in this debate, Madam Deputy Speaker, and I am grateful to be called to speak so early.
I listened very clearly to the Security Minister, and I am grateful to him for his thoughtful engagement with me and my hon. and right hon. colleagues in my party. Although I think it is right that some of the issues have been raised in this debate, as they are worthy of further exploration, I want to place it on record that the Security Minister knows that he has our support on Second Reading. We look forward to thoughtful engagement over the weeks to come.
There have been references already to Northern Ireland in this debate; the right hon. Member for New Forest East (Dr Lewis) referred to the Intelligence and Security Committee’s report, which was published just today. It spans two years of activity, culminating just before the election, and provides stark reading for those who believe that issues in Northern Ireland have moved on. It provides a very stark assessment of the proportion of MI5’s work that still pertains in Northern Ireland and the fact that there is a need for that work. Those of us who represent Northern Ireland understand that, while the security situation has evolved and got so much better over the past two decades, MI5’s work is still important to us. With that brings the need to operate beyond the realm of what is legal in the truest sense—of necessity our state is required to engage in acts that might not be considered lawful on the face of it. The Security Minister has gone through very clearly and properly what is proportionate, what is necessary, and the appropriate tests that are embedded in the process by an authorising officer, who must be accountable for those decisions through the oversight that has been referred to earlier in the debate. That is crucially important.
During my short time in this Chamber—the past five years—I have referred to the incidents that have occurred in my constituency, including the murder of a prison officer, and the attempted murder of a police officer within the past year. I engage with that police officer regularly. The fear and concern that arose as a result of him being targeted going from his home to his local golf club with a device under his car because of his service in the Police Service of Northern Ireland highlights acutely the dangers that still pertain within our society.
In the past six weeks, MI5 has had an extraordinarily successful operation in Northern Ireland, and we now have within our prison system—not yet before the courts— almost the entirety of the New IRA’s army council. That is a huge success. It was down to not only the bravery of our security services in Northern Ireland but a covert human intelligence source. I am referring to open source data, so there is no concern about what I have shared. It has been raised within the courts. An agent of our state was embedded within the New IRA and its political apparatus for over a decade. Being involved in what he was involved in—being a member of the New IRA—is necessarily a criminal offence as it is a proscribed organisation. Holding information that is of use to terrorists is a criminal offence. Booking a property that the army council was meeting in and therefore enabling our security services to place listening devices and so on in that property was crucially important. That individual—just to encapsulate the dangers that come from this—has now left Northern Ireland and is in protective custody. His name is in the public domain and there is no need for me to share it today.
I noted on the “Irish Republican News” website a brief but quite explicit and chilling threat at the end of its analysis of what happened following the individual’s arrest. It says:
“The apparent exposure of a leading double agent within Saoradh”—
the political body—
“recalls December 2005, when top Sinn Féin official Denis Donaldson was exposed as an MI5 agent.”
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I hope that the hon. Gentleman will be very careful about matters to which he refers and individuals whom he identifies either by name or otherwise, because I know he fully appreciates that some matters are sub judice and some matters are under investigation, and that we have to be extremely sensitive in these circumstances.
Gavin Robinson
I hope you appreciate, Madam Deputy Speaker, that not only do I agree entirely with you but I have been very careful in what I have shared and I will not delve beyond that which is public.
I just want to finish the quote about the case that occurred in 2005:
“After four months living in isolation, he”—
Denis Donaldson—
was shot dead in an attack claimed by another…IRA group”.
That has to encapsulate for Members the severity —the seriousness—of the danger that arises for those who engage on our behalf and who serve our country. [Interruption.] I see that there seems to be some level of concern. Those who have listened to what I have said as I have gone through it should have total comfort. Not only is what I have said appropriate, but they should also know me and the way in which I approach these issues, and understand that it would not be my intention, nor is it my purpose, to say anything inappropriate in this debate.
Madam Deputy Speaker
Order. Just to confirm, I am certain that the hon. Gentleman has no intention of saying anything inappropriate and that he is very careful, but because this is so sensitive, I simply reiterate that there is a difference between that which is in the public domain and that which is sub judice. I have the duty of urging that anything that is sub judice should not be mentioned in the Chamber. The hon. Gentleman has already made his point very well, and it might not be necessary for him to go into further detail.
Gavin Robinson
Thank you, Madam Deputy Speaker. The point that I was making has been made, so I see no need to re-emphasise it or to go over it again. The Minister has our support, and we will engage thoughtfully with him as this Bill progresses. I ask the Minister to look at clause 1(5), which is amending part of RIPA, where it outlines what is permitted within a criminal conduct authorisation. I simply ask the question whether
“for the purpose of preventing or detecting crime”
sufficiently encapsulates issues of self-defence and whether that needs to be expounded more clearly.
The Minister touched on the Bill not being retrospective. He is right that the Bill in itself is not retrospective, but it would be useful if the Solicitor General, in his concluding remarks, could touch on retrospective authorisation of criminal conduct. We know clearly from the Bill that, when somebody is authorised as a CHIS, they can be authorised either at that time or subsequently for criminal conduct. The question is not whether they are authorised in advance, but whether if they engage in criminal conduct that would require authorisation, that authorisation can be given after the commission of the conduct. I hope the Solicitor General will refer to that. I do not see any preclusion of it, as there is nothing contained in the Bill that suggests it has to be in advance. Can it come after the conduct has been engaged in, and people are aware of that and an authorisation is sought for it?
Madam Deputy Speaker, time is marching on, and I will let you proceed. Thank you very much.
Theresa Villiers (Chipping Barnet) (Con)
On 12 February 1989, the solicitor Pat Finucane was shot 14 times as he sat down for dinner with his wife and three children in his home in north Belfast. He died in front of them, and his wife Geraldine was seriously injured as well. The 2012 review of the case by Sir Desmond de Silva, QC, concluded that two agents of the state, Brian Nelson and William Stobie, were heavily involved in that brutal killing. This was a truly shocking finding, albeit that Sir Desmond concluded that there was no overarching state conspiracy to kill Mr Finucane. David Cameron issued an apology on behalf of the Government to the Finucane family, one of whom was of course elected to this House last year.
I am afraid this case shows the horrific consequences that can result where decisions about agents are handled badly, where clear and binding rules are not in place for handling covert human intelligence sources, and where proper oversight and accountability is not in place. But I can assure the House that, during my time as Northern Ireland Secretary, I saw the clearest of evidence that modern police and security forces are utterly transformed since the appalling events that were the subject of the De Silva review. That is especially true of agent handling and the legal framework that governs it now. What I saw at first hand as Secretary of State was that today’s police and intelligence services have a rigorous focus on compliance with legal and human rights requirements in all aspects of intelligence gathering, including the use of agents, so that is why I support the Bill this evening.
Agents, as others have pointed out, provide invaluable information and play a crucial role in disrupting terrorist plots and serious crime. The simple fact is that we would become far more vulnerable to, for example, Islamist terrorist attacks if the intelligence services could no longer effectively use agents. More people would fall victim to terrorist attack. Certainly, the nature of the organisations these agents infiltrate unfortunately means that sometimes it is simply impossible for them to remain in place and provide information without some involvement in criminality. I wish this were not the case, but I would provide the reassurance that we already have one of the toughest and most comprehensive oversight regimes in the world for regulating our intelligence services.
This Bill will put that on an even clearer statutory footing by confirming the rules on authorisation of agent criminal activity. The core principle underlying all our laws regulating intelligence gathering is that activities can be carried out only if they are both necessary and proportionate, and under this Bill, that golden thread will continue to run through our rules on the use of agents and authorising criminal behaviour.
While there are horrific legacy cases such as those of Brian Nelson and William Stobie, there have been hundreds and hundreds of other men and women who have been agents whose story is very different. These are men and women who have put their lives at risk to provide information to help the police and security services; men and women who have saved many lives, but whose bravery has to remain unacknowledged and untold for their own safety. We will never know their names, and we will never hear their stories in this House, but for their sake and in order to ensure that we can continue to combat the lethal threats we face from terrorism and serious crime, I urge this House to back this Bill in the Division Lobby this evening.
Mr Kevan Jones (North Durham) (Lab)
In the fast-moving electronic age that we live in, I think there is a misunderstanding that somehow, the state can beam into everyone’s communications and listen to everything that is going on, and that that is the way in which modern-day intelligence is gathered. As outlined by the right hon. Member for New Forest East (Dr Lewis), that could not be further from the truth. The role of human intelligence is of vital importance, not only for our intelligence work in this country but for police work in other areas.
As a member of the ISC, I have seen examples of terrorism cases in which human intelligence has prevented the deaths of our citizens. Is this a pretty area we are dealing with? Honestly, no, it is not. The individuals who the police and other security agencies are engaging with have to interact with people who are not pleasant. That is the nature of the territory we are dealing with, and in order to keep their covers in place, those individuals will have to engage in certain amounts of criminal activity. I have seen some examples of what they do; I am not going to go through them tonight, or refer to any of those cases, because that would be completely wrong. However, as has been referred to by the hon. Member for Belfast East (Gavin Robinson), the obvious one is membership of a proscribed organisation, which would be deemed as breaking the law.
We also need to highlight this idea that somehow, authorisation of these things is a free-for-all. I welcome this legislation, because it will put on to a statutory footing something that is quite a grey area in its legal position, but its opponents seem to think that there is no control of authorisation at all. As the right hon. Member for Chipping Barnet (Theresa Villiers) has just outlined, the authorisations are very clear about what can and cannot be done.
For some unknown reason, a curveball has come into this debate that I had not really expected: the idea that this Bill will affect trade unions. I am not sure how it can do so. Likewise, regarding rape and serious sexual assault, I agree that those safeguards should be there, but I think they are already in the Bill. The individual who did the authorisation would not authorise that, and if a CHIS who was involved in general activities undertook one of those acts, they would not get immunity for doing it. Again, I think a lot of things have been thrown into the debate about this Bill that do not actually apply to it.
Rehman Chishti (Gillingham and Rainham) (Con)
With regard to the appropriate checks and balances and the need for authorisation to be proportionate and necessary, does the right hon. Gentleman agree that it would be wrong to straitjacket our agencies? There needs to be discretion. Our country works with judicial discretion, whereby judges can depart in exceptional circumstances. Without knowing what will come, it would not be appropriate to straitjacket the action that may or may not be taken with regard to what is proportionate and necessary.
Mr Jones
The hon. Gentleman raises a good point about proportionality, which is key. Clearly the authorising officer will not authorise something if they know that it is disproportionate to the act, which was covered earlier in the debate. I am also pretty confident about what is proposed in terms of the Investigatory Powers Commissioner, but like the hon. Member for The Wrekin (Mark Pritchard), I would like to go one step further. We need more detailed oversight in the ISC. It is not necessarily about seeing individual warrants, but there could perhaps be an annual report listing the categories in which warrants were issued. That would be helpful for us to look at, and if we wanted more information about any of those, we could use the powers we have to request that. We may well table an amendment on that in Committee.
I turn to the issue of the other organisations listed in the Bill. There is a tendency sometimes, when civil servants see a piece of legislation, to jump on to it. The list of organisations weakens the strong case for why we need this legislation. I have not yet heard a good justification for why the Food Standards Agency needs these powers. My concern is that the police and the security services—MI5, MI6 and others—are used to dealing with CHIS and giving authorisation, and they have the training. The danger of extending this to other organisations is that the expertise that comes from regular use is not there, and that concerns me. For example, the Environment Agency usually works in co-operation with the police, and I would be happy for the police to have the lead in terms of CHIS, rather than the Environment Agency. In Committee, we need justification for why all these organisations need to be included and reassurance that this is not a case of civil servants seeing this as a good way to add some powers to a Bill.
I support this Bill. This is a complex area, and some of the things that we are asking individuals to undertake are not pleasant, but it is vital work for keeping us safe. Like my hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson), I pay tribute to not only the brave individuals who provide information but the men and women of our security services who work day in, day out to keep us safe.
Julian Smith (Skipton and Ripon) (Con)
I support the Bill, and I congratulate the Security Minister on bringing his practical knowledge from many years to guiding the Bill through the House. I want to make four brief points on the security services.
This Bill makes the ongoing function explicitly clear in law, but it is really important that we fully understand that there are already very clear processes in place regarding agent handling and how they interact with criminal acts. As the third direction hearing and adjudication by the Investigatory Powers Tribunal showed, no further powers were required. It was just a win—it was 3-2—but the IPT said that it was lawful. The 2018 Investigatory Powers Commissioner report, which is well worth reading, confirms that there is adequate guidance in place within MI5 regarding agent handling and that the then Prime Minister directed the commissioner to ensure that that guidance was being enforced. The report also points to the quality of applications by MI5 for the use of CHIS, noting that there are strong controls already in place.
The second point is that this Bill builds on an already rigorous oversight regime for our intelligence services. This stringent control environment has developed over many years, but the Investigatory Powers Act 2016 established a new single oversight body. The Investigatory Powers Commissioner has had a transformative impact on the level of oversight on all aspects of intelligence gathering. As IPCO’s annual reports show, the double lock on warrantry applications, for example, involves detailed interaction between the authorising Secretary of State and their officials, and IPCO and its judicial commissioners. Anybody who has been involved in the process will know that it is a very strong double lock. The Investigatory Powers Tribunal, which is independent of Government, provides a further independent appeal route, which is available to all at no cost.
The third point, with regard to CHIS, agents and criminality, is that this is an area of intelligence-gathering activity that is invariably difficult to manage in the same way as other intelligence gathering—for example, warrantry —is. We cannot hope to micromanage such activity from this House. The House and colleagues have to take comfort from the initiatives of the Intelligence and Security Committee, the application of the European convention on human rights to CHIS activity, and the role of independent commissioners to provide rigorous oversight. The Bill is clear that these powers do not give carte blanche to agents. The Crown Prosecution Service can still consider prosecutions for activities that fall outside those that have been authorised.
Finally, it is vital to note, as my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), the former Secretary of State for Northern Ireland, has just stated, that the Bill is not retrospective and will not impact on any historical investigation.
The women and men in our intelligence agencies, and those who supervise and work with them, work behind the scenes, are never publicly recognised. They are civil servants of the highest quality and integrity, and I believe the Bill will further strengthen their ability to do their work.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
It is a pleasure to follow the right hon. Member for York Outer (Julian Sturdy), who made a characteristically thoughtful, measured and knowledgeable contribution to the debate. It is a debate that I am very proud to be part of, because I think the House has approached this subject tonight in exactly the right way. I suspect that we have probably done that because of how the Minister opened the debate. I am also grateful to see him still in his place. He sets a good example that others in Government might do well to follow.
I am, however, a little bit weary when I consider this Bill, because it looks like almost yet another Bill into which so many other things have been ladled, so that at the end of the day, after it has been through the other place, the Government might get what they want. The right hon. Member for York Outer also has a history as a Government business manager and has no doubt been in meetings where he is given instructions to go and defend the indefensible, so that the Government can then concede the indefensible and might then be left with what is defensible. I have to say, it is a tactic that is just a little bit tired and lacks subtlety and nuance. I suggest that this is a good point at which the Government might seek to do things differently.
Considering the importance of the matter, my real frustration with this Bill is that it is a colossal missed opportunity. We all know the importance of putting these things on a statutory footing, and it is a significant advance that we should be doing so. However, that we should do so in such a haphazard way, and which compares so badly with other jurisdictions, such as Canada, which has undertaken the same business in recent years, puts a duty on this House to engage with the Minister and to seek to improve the Bill at later stages.
The House will be aware that I tabled a reasoned amendment, which was not selected. I did that because of the serious concerns I have about the Bill. In the normal course of things, when a reasoned amendment is not selected, one considers whether it would be appropriate to divide the House. On balance, I am persuaded that that is not the right thing to do, but it is important that we should have the opportunity at later stages to give substantial consideration to three particular areas. First, there is the inadequacy of the authorisation, and on that I can do no better than to quote the words of Lord Macdonald, the former Director of Public Prosecutions, from his article in The Times this morning. He says:
“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other authority. Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”
The second area that causes me serious concern is the total lack of any limitation on the offences that would be covered. We are back in familiar territory here. This is not dissimilar to the territory we were covering when we considered the Overseas Operations (Service Personnel and Veterans) Bill. Why would it not, for example, include torture? I would say to the Government’s business managers that if, in Committee, this House were to introduce a limitation on murder, sexual offences and torture, the Bill would be virtually bomb-proof when it got to the other place.
Thirdly, there is the question of the scope. The Minister referred, with quite disarming elan, to the “10 other public authorities” that are covered in the Bill. I referred earlier to the Food Standards Agency, and others have referred to the Environment Agency and the Gambling Commission. This is a matter of concern because, as the right hon. Member for North Durham (Mr Jones) said, including these organisations in the same breath as the police and military intelligence and other serious operators in this field is seeking to do too much. In fact, it would undermine the substance of the work of the more serious bodies.
I am afraid that the answers we have had from the Minister are somewhat lacking in conviction. The idea that the protections or limitations can be found in the Human Rights Act and that they are necessary, because to have them on the face of the Bill would somehow give a checklist to the bad guys that they could use to test and to imperil agents in the field, is, if we consider it in its entirety, somewhat lacking in conviction. The Minister seems to be suggesting that serious organised criminals can get legal advice or will look for themselves to the face of this Bill, but that they will not look to the face of the Human Rights Act. If these limitations are there, they are there for all to see, regardless of where they are. I would also be more persuaded if it had not until fairly recently been the policy of the Conservatives to repeal the Human Rights Act. If we were to see them return to that position, I wonder what protections would be left.
The other point about the protection coming from the Human Rights Act is the one that was made by the right hon. Member for Haltemprice and Howden (Mr Davis) in an intervention on the Minister. The reliance on the Human Rights Act stands in stark contrast to the position taken by the Government in their submissions to the Investigatory Powers Tribunal, where they were adamant that, where an agent is authorised to commit severe abuses such as torture, the Human Rights Act does not apply because—I quote from the Government pleadings—
“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”
It seems to me that the Government are pleading one case here tonight and a quite different and contradictory case in the IPT.
These are all matters to which we can return in Committee. I think we must, and judging by what we have heard from Government Back Benchers today, we almost certainly will. This is an important matter, which it is good to have put on a statutory footing, but the way in which the Government are doing it is cack-handed. It requires this House to do its job and to improve the Bill before it today.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and my right hon. Friend the Member for Skipton and Ripon (Julian Smith), both of whom made important and powerful speeches. I agree with what both of them said, and the two are not irreconcilable.
It seems to me that the Government, having brought forward a necessary and appropriate measure—it is right to put these matters on a statutory footing—need to bear in mind the need to tighten up the language in a number of places. I support the basic thrust of the Bill, but there is nothing more profound than to authorise the agents of the state to break the criminal law. That can be done only in the most exceptional circumstances, and those circumstances are not things that can be trailed in public, so obviously we need a degree of discretion about how we do it. I will deal swiftly with just a few matters.
First, given that principle, I am concerned about how we deal with the pre or post-authorisation arrangements. Having put the matter on a statutory footing and having previously established the independent commissioner and then the tribunal, I would be worried about the exclusion of pre-authorisation save in the most exceptional circumstances. I am not saying that every type of criminal offence should be excluded at this stage, but when we come to Committee, we should examine whether we should in any circumstance contemplate setting on the face of an Act of Parliament provision for someone committing the offence of murder, for example, or something equally extreme, other than when they would probably be entitled to run the defence of self-defence anyway.
Given the ability of any High Court jurisdiction to deal immediately and swiftly with interlocutory matters, there is no reason to think that the same arrangements cannot be made in relation to the commissioner. The quality of the commissioners— Sir Adrian Fulford and now Sir Brian Leveson—is of such an extent that I would have thought that their early authorisation would be a great support to our security services in doing what they have to do. We must think about where the balance lies.
The second point I wish to deal with is the list of organisations. The obvious ones are there, and of course they must be supported. Like others, however, I question the need to list bodies such as the Food Standards Agency and, up to a point, the Financial Conduct Authority. Is this really a Bill about counteracting terrorism and life-or-death threats, or is it actually just about enabling the National Crime Agency—a worthy body in itself—to deal with economic crime? That may be a legitimate concern, but I do not think it should be put in this type of legislation, unless it is spelled out a bit more carefully.
The Minister of State and I have personal and shared casework experience relating to constituents of overreach and mission creep on the part of Her Majesty’s Customs and Excise, which frankly behaved appallingly. Ultimately, it was overridden by the courts, but I am worried that it might be thought that the imprecise definition of serious crime could be stretched to cover some of the cases we have dealt with. The Minister looks as though he thinks that is impossible, but serious crime is not defined in statute; it is a matter of fact and degree. It requires either a definition or, more likely, a more robust pre-application process.
James Brokenshire
I appreciate the contribution that my hon. Friend, the Chair of the Justice Committee, is making and perhaps we can continue this conversation. I point him to the issues of proportionality and necessity, the requirement to consider matters that are not criminal to the end itself and the safeguards that the Human Rights Act provides, which I set out earlier. Therefore, there is a strong framework, as well as the subsequent oversight, but I will listen carefully to what he says. I am reflective on some of the timeliness of oversight, as I indicated, and I appreciate his points.
Sir Robert Neill
I understand the spirit in which my right hon. Friend makes that point. I suspect that many of those fears could be set at nought if we can do this sensibly. The point is that without either having an obligation to comply with the ECHR on the face of the Bill and certain most grave offences being excluded in the Bill, or, on the other hand, greater clarity on the timeliness and the way in which that will work, there are still issues that we need to deal with.
Mr Carmichael
Is not another factor that comes into play after necessity and proportionality human nature? It is human nature for people who work all the time in these specific areas—whether that is customs and excise, the Gambling Commission or food standards—to persuade themselves that the thing that they are doing is the most important thing, and they see the whole world differently. The most zealous enforcers of anything that I have ever come across were television licensing enforcement officers. I can say only that I take some small comfort from the fact that they are not on the face of this Bill.
Sir Robert Neill
To my shame, I was once instructed to prosecute a list of television licence enforcements in the Epping magistrates court, when it still existed—a most inappropriate waste of court time, I have to say, thereafter. However, the point is well made.
Everybody supports where we want to go, but a bit of tightening up in Committee would not be awry on all those matters. We have to reassure the law-abiding citizen about, not a deliberate mission creep—not anything done by mala fides—but the over-zealousness of the public official, and that, so often, is actually where things are eroded in our public life. It is about the person who genuinely believes that he or she is doing the right thing, but who does things in an over-zealous way and encroaches, time and again, upon the protections that are necessarily there. That is what I want the Minister and the Solicitor General to take away.
We all want this Bill to go through swiftly, but it would do no harm to reflect a little, improve it and, above all, have faith in the process that we have set in statute with the independent complaints commissioner. For heaven’s sake, if people such as Brian Leveson and Adrian Fulford are not to be relied upon, why not bring them in at the very earliest point in the process, rather than having them retrospectively sweep up and pass judgment? I trust them and I think the public trust them more than almost anybody, and I suspect that that would support morally and effectively the agents that we have to employ under these very difficult circumstances.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I welcome plans to place these activities on a statutory footing. I doubt that any of us can feel comfortable about criminal actions undertaken at the behest of the state, but it is naive in the extreme to pretend that we do not live in a world where undercover operations are necessary. The reality is that we need people to carry out these activities, often in great secrecy and sometimes outside the law, as it stands. The question is surely whether such actions are sanctioned, controlled and approved, or involve rogue elements in a very opaque area. I admire those whose actions keep us safe, and I am only too aware of the risks and temptations that might face individuals embedded in alien environments for long periods. Any legislation must ensure maximum supervision by controllers and handlers.
I want to be sure that the Bill ends up legitimising conduct which is necessary. I recall the dissatisfaction with the Regulation of Investigatory Powers Act 2000 as it became apparent that many more agencies were using it to snoop in a way that had not really been envisaged during its passage and that had little to do with security. I acknowledge that the Bill extends beyond national security and covers crime, fraud and other abuses, but we need legislation that is narrow in scope and tightly controlled. We need a presumption against criminal acts unless absolutely necessary and, at all times, behaviour that is proportionate. I want to be certain that the doubts raised by Amnesty that the Bill could end up providing informers and agents with a licence to kill, are wrong. I want to know that, in accordance with section 9.3 of the code of practice, all material obtained through the authorisation of a CHIS is subject to proper safeguards and any breaches properly reported. We need to be certain, as section 2.12 of the code highlights, that appropriate care will be taken to ensure that it is clear what is and is not authorised, and that all CHIS activities are properly risk assessed. I also wonder if 12 months is the appropriate period.
It seems to me that the Bill can be improved to address those matters. Some items that appear in the code and other safeguards might be better on the face of the Bill. Like others, I want to be clear that what we legitimatise is consistent with this country’s obligations under the European convention on human rights and the Human Rights Act. At a time when this House is grappling with some Ministers appearing unduly relaxed about breaking the law, we must be certain that this Bill does not weaken respect for the law, or risk creating a two-tier system with laws for ordinary citizens from which members of Government agencies are exempt. We must know this country will abide by the highest ethical standards, no matter how inconvenient it might sometimes be. We have to know there is no intention of legitimising routine law breaking. I feel we need further assurances about control and supervision, and more about the nature of reporting to the Intelligence and Security Committee and the Investigatory Powers Commissioner. We also need guarantees about further opportunities for Parliament, if the Bill makes it on to the statute book, to scrutinise how it works in practice.
There are those who say we should oppose the Bill on Second Reading. For me, that would mean voting against the principle of a Bill that tries to clarify what is already a very murky area. I believe it is in our interests to try to achieve a viable piece of legislation, but it would be a dereliction of duty if we did not seek to improve the Bill and the safeguards around covert operations. I want legislation that is effective, ethical and does what it says on the tin. The Bill needs improvement and I hope that, if it receives a fair wind tonight. the Government will approach the next stage with an open mind, because that is in everyone’s interests.
Jeremy Wright (Kenilworth and Southam) (Con)
It is a great pleasure to follow the hon. Member for Birmingham, Selly Oak (Steve McCabe) and to speak in this debate, in which there have been two significant points of consensus. The first is that it is right to provide for authority to be given to commit criminal offences in appropriate circumstances. The most obvious example of that is the infiltration of criminal organisations the membership of which is in itself an offence. The second point of consensus is that if the first is so, it is better for it to be on a clear statutory basis. For that reason, I welcome the Bill.
That is not to say, though, that there are not legitimate concerns about the Bill, and many of them have been expressed already. There is more to say about the distinction to be made between civil liability and criminal liability—doubtless we will return to that issue as the Bill progresses—but the majority of the concerns expressed so far have been about scope and safeguards, so I shall briefly say something about both those things.
On scope, it seems to me that it is absolutely right that the provisions of the Bill should be tightly circumscribed so that the criminal law is broken to the minimum degree necessary to prevent greater crime. It has been said more than once that the Bill leaves open the possibility that crimes such as murder and torture could be committed with apparent authority. I am not sure that that is so. Clause 1(5) sets out what will become section 29B of the Regulation of Investigatory Powers Act 2000. What will be subsections (6) and (7) of new section 29B require a person who may authorise criminal conduct to take into account, first, whether the same objective could be achieved without committing a crime and, secondly, other relevant matters, including the Human Rights Act. That is a somewhat diffident way to express it, but it has a significant effect. Section 6 of the Human Rights Act makes it clear that public authorities, which is what we are concerned with here, may not act in a way incompatible with a convention right, including the right to life and the right not to be tortured. For as long as the UK remains a signatory to the convention and the Human Rights Act remains in force, it must be a relevant matter in the scenarios that have been raised, so the Bill’s meaning in that respect is clear.
Frankly, my concern is with criminal conduct beneath the level of murder and torture but which still may be quite serious. Here, we rely on the wording of what will be subsections (4) and (5) of section 29B of RIPA, as set out in the Bill, to counter the risk that too wide a latitude is given to break the law than is warranted and the consequent risk that an agent takes disproportionate criminal action. The point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) about the tightening of language is important here. Under the terms of the Bill as they stand, criminal conduct authorisation may not be granted unless the person granting it believes three things set out on page 2 of the Bill. They are,
“that the authorisation is necessary on grounds falling within subsection (5)…that the authorised conduct is proportionate …and…that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.”
The first question that has to be asked is what kind of belief is needed. Is it honest belief, reasonable belief? Surely, it must be the latter. It would be helpful if that could be clarified at an early stage. It matters so much because of the weight put on new subsection (4)(b), which states
“that the authorised conduct is proportionate to what is sought to be achieved by that conduct”.
Proportionality is vital to the rationale and effect of the Bill. It is also vital, of course, to answering many of the perfectly legitimate points that have been raised about the inclusion of some other agencies—several of which have been mentioned—in the list of those that can authorise criminal conduct. It must be the case that it is not proportionate to commit a relatively serious criminal offence to prevent the commission of a relatively minor one. Proportionality is at the heart of what happens in relation not just to agencies such as MI5 but all the other agencies on that list.
Finally, I want to say a word or two about safeguards. It has not been raised particularly in the course of the debate so far, but there are those who say that we should not offer authorisation in advance but instead rely on prosecutorial discretion to deal with those cases where agents commit criminal offences. I yield to no one in my faith in prosecutorial discretion—I have exercised it myself a few times and I know that it can have a significant role to play—but I think it would be wrong to put all of the burden there, and to leave those already taking considerable risk exposed to almost equally considerable legal uncertainty, when there is another way of doing it. It would also be a step back, for those individuals who are taking those risks, from where we are now, where authority and therefore reassurance is given in advance, albeit not on the legal basis that we all seek to achieve.
I have rather more sympathy for the points that have been made about judicial oversight. If we cannot get to a place where prior judicial approval is in place—I am perfectly willing to be persuaded by my right hon. Friend the Minister that there are significant practical difficulties with that—it seems to me fundamentally important that the oversight is as proximate as possible to the action. If it cannot happen in advance, it must happen as soon as possible afterwards. That is an area in which we must all focus as the Bill moves into Committee. I certainly hope it gets there, because I believe it is a good Bill, but, as others have said, it is capable of improvement.
Claire Hanna (Belfast South) (SDLP)
Like others, while acknowledging that regulation of covert human intelligence sources should be on a legislative footing and that they have a role in modern policing, we have concerns about the Bill. I would like to offer some cautionary tales and some lessons from fairly recent history in Northern Ireland about what can go wrong when the state engages in crime, even if Members understand, or potentially even endorse, the outcomes that those agents are seeking to achieve.
In that context, the scale of this Bill is quite something. It expresses no limit on the type of crimes that can be authorised if the agent believes the action is proportionate, the authorising officer need only take into account whether the objective sought could be achieved through means other than crimes, and Members have already addressed the almost bizarrely wide range of agencies that are in scope. I am sure that people have spoken about the early period of operation of RIPA and the scenarios in which those provisions were used incorrectly.
The arrangements for operational oversight and post-operational accountability are weaker than those for phone tapping or law enforcement searches, despite having a potentially much bigger impact. As former Director of Public Prosecutions Lord Ken Macdonald has said, the Bill will make it easier for a policeman to commit a serious crime than to search a shed.
The Bill would block redress through the courts for those who might experience adverse effects. It is probably disingenuous for the Bill to rely on the Human Rights Act as a safeguard, because this Government have made it clear that they do not believe that that Act applies to the actions and potential abuses of their agents, up to and including torture. The Overseas Operations (Service Personnel and Veterans) Bill, which we considered just two weeks ago in this House, proposes to severely restrict the possibility of prosecuting those serious criminal wrongdoings, which of course have been illegal under international law since 1948. This Bill will not and cannot be read in isolation from those other pieces of legislation. The fact that the Human Rights Act has been a whipping boy for many, particularly on the Government Benches, means that people will not have faith that it will be allowed to stand in the way the provisions of this Bill.
The existing extraterritorial provisions of RIPA suggest that, in theory, this Bill could apply outside the UK and, indeed, in the Republic of Ireland—that MI5 could, from its Loughshore base in Belfast, authorise a serious criminal act just over the border in Donegal or Dublin. That prompts a number of questions that I hope the Minister will be able to address. If the UK authorities were sanctioning or authorising a crime, would they be compelled to notify their counterparts in Irish agencies? Has this been discussed with Dublin? It is not a case of whether they would do these things; it is a case of whether the Bill gives them space to do so.
I speak from some experience in Northern Ireland when I say that serious crimes up to and including murder, particularly when committed by the state, are very possible. That leads first to a generation of victims and survivors, then to deep alienation from the state and further on to the perpetuation of conflict. I would caution Members about going down that road.
Many in the House might say in good faith that agents committing a serious crime was rare, and I have no doubt that most of those involved in this form of policing would not and could not conduct that sort of activity. Unfortunately, we know from very recent history that it was not just one or two bad apples. I will speak carefully because files have been referred to the DPP, and I understand the caution, but there is a continuing investigation into the agent known as Stakeknife. That investigation was discussed at length at the Northern Ireland Affairs Committee last month by John Boutcher, the former chief constable of Bedfordshire police, who is leading the investigation. He has highlighted how probably dozens of people were murdered by those in control of the IRA, but with the knowledge and sanction of those in command and control of British security agencies.
RUC special branch agent Mark Haddock is believed to have been involved in over 20 murders. As other Members have mentioned, Ken Barrett, a British agent, was involved in the murder of lawyer Pat Finucane, which former Prime Minister David Cameron conceded involved shocking levels of collusion. Multiple agents killed with impunity for Britain, and they were tangled up with both loyalist and republican paramilitaries. Current proposals from the Government relating to Northern Ireland already make the families feel like the lives of their loved ones did not matter and that the rule of law does not seem to be relevant in the case of their murders, but the Bill really risks bringing back the ghosts of our policing past.
I want to be very clear: the SDLP acknowledges the realities of life, policing, crime and terrorism. The hon. Member for Belfast East (Gavin Robinson) gave a very fair assessment of the continuing a security threat in Northern Ireland, which we are far from blind to. However, the necessary mechanisms have to be regulated under statute to avoid doubt and to uphold the rule of law, which only works if provisions are underpinned by appropriate human rights frameworks and oversight. We are not in the wild west, where the means justify the ends.
I say again that, from the SDLP’s perspective, these are not words that we casually say. We are not a party that points out all the problems and will not engage in the solutions. When the SDLP joined the Policing Board in 2001, our members did so under very serious threats and intimidation by the IRA, but we did that heavy lifting on the Policing Board precisely because we needed a new beginning for policing in Northern Ireland. We were not just going to leave the details of policing for others to deal with.
That new beginning to policing in Northern Ireland is among the most successful elements of the post-Good Friday agreement era. Policing was so divisive for many generations, but the PSNI and its oversight mechanisms are a bastion of policing in the modern era. In just five years, the Policing Board and its partners in the police, the Northern Ireland Office, the Department of Foreign Affairs and the community, and particularly the brave young women and men who stepped up and joined the police, together implemented the mechanisms and the oversight recommendations—85% of them—in the Patten report. That included the overhaul and reform of intelligence policing, because there were not at that point any rules governing what an agent could or could not do.
That was the old regime, and it did not serve the rule of law or the purpose of progressing Northern Ireland. The Bill runs the risk of recreating the new in the image of the old. That would betray the work that so many people did, fearlessly and relentlessly, to improve the outcomes from policing. The Bill compounds the problem, with even less oversight than the policing model that we tried so hard to change.
I must also say that this legislation will be viewed in the context of other actions by the Government. The statement on 18 March relating to legacy turned on their head commitments that we had previously received on truth, justice and accountability, and it breaches a treaty. The United Kingdom Internal Market Bill turns commitments to Northern Ireland and Ireland on the their head, and it breaches a treaty. The Overseas Operations (Service Personal and Veterans) Bill turns requirements for the investigation of crimes and breaches on their head. That is three proposals and three blows to confidence. People in my constituency are watching agog at the actions of this Government and the exercise of arbitrary, unilateral, reckless state power, and I caution Members that constituents in other areas will begin to do that as well. Confidence is being damaged left, right and centre, and a Bill such as this, if unamended, will only compound that error.
Apsana Begum (Poplar and Limehouse) (Lab)
Madam Deputy Speaker, thank you for calling me to speak in this important debate. Like many others, I am astounded at the gravity and significance of this Bill. The Government have said that the Bill seeks to place existing practice on a clear and consistent statutory footing and reflect existing practice, but of course many have criticisms of existing practice, and the case law shows that the legalities in this area have not yet been fully considered. This Bill goes way, way beyond the status quo, and it comes just over a week after the Overseas Operations (Service Personnel and Veterans) Bill, which could result in torture and other serious crimes being protected from prosecution.
Barely a week passes without this Government announcing yet another departure from recognised rules of domestic and international law. Just before the summer, the Counter-Terrorism and Sentencing Bill passed through Parliament, delaying the long-awaited review of Prevent, which fosters discrimination against Muslims, and introducing significant curtailments of civil liberties, which will disadvantage ethnic minorities. Last week, we debated the Coronavirus Act 2020, about which human rights and anti-racist campaigners have raised concerns that powers are being used in discriminatory ways, particularly against black, Asian and minority ethnic people.
The trajectory is chillingly clear. As Unite the union says, there is much to be concerned about in this Bill in respect of the impact on freedom and justice in the UK. The Joint Committee on Human Rights has expressed concern about the human rights implications of the Bill. Is it not the case that the Human Rights Act cannot be seen as a safeguard against the authorisation of agent criminality because the Government have previously taken the position that the HRA does not apply to crimes committed by their covert agents? Is it not the case that because an individual cannot currently be prosecuted under the HRA or the European convention on human rights, an agency or Government can only be sued after the event for damages, meaning that there would not be any protection for victims nor any disincentive for agents under this Bill? Is it not the case that covert agents would not only be committing crimes, but be inciting crimes to build their cover and undermine the moral authority of protest movements?
Mr Kevan Jones
I am sorry, but the hon. Lady obviously does not know the way in which covert agents are working. They are under strict protocols now; there is no legislation covering this issue. Although I accept the need for some more protections in the Bill, it gives authorisation in legal statute, which is not there at the moment.
Apsana Begum
I take the point, but I believe that under the HRA a prosecution cannot currently be brought, so that is not a safeguard that is actually in statute. [Interruption.] I will make some progress.
Is it not the case that covert agents would not just be committing crimes, but be inciting crimes to build their cover and undermine the moral authority of protest movements? It is, I suppose, why organisations such as Privacy International, Reprieve and others argue that the Government cannot convincingly claim that the HRA will provide a sufficient safeguard. Perhaps the Minister will say more about that today.
Let me come to what is for many the crux of the Bill. There is a grave and real danger that it could end up providing informers and agents with a licence to kill. Put simply, it is deeply alarming that the proposed law does not explicitly prohibit MI5 and other agencies from authorising crimes such as a torture and killing. This is not an abstract or philosophical question. We have seen the consequences of undercover agents in paramilitary organisations operating with what some believe to be apparent impunity while committing grave human rights abuses, including murder. Independent inquiries have found that, at times, when intelligence units of the security forces were running informants they were acting as though the law did not apply to them. This legislation also cuts across a case that is going through the courts—the third direction case—and does not give Parliament the chance to hear the higher Court’s views about the state of the law.
We have heard much rhetoric today about safety and security. Are there safeguards for potential victims of crime, for our trade unions and for people expressing their hard-won right to protest? Are there protections for ethnic minorities—Muslims, in particular—who we know are disproportionately at risk of state violence?
Apsana Begum
I will make progress. This legislation seeks to allow the state legally to act with impunity in its surveillance missions. It hard not to see the Bill as another iteration of the expansion of state surveillance and the criminalisation of marginalised communities. We should not let our fundamental values of human rights, justice and equality be undermined.
On the international stage, we must stand up for the values we share: of justice, human rights and democracy, and of working with others to keep people safe by ending conflict and tackling the climate emergency. It is because I believe in those fundamental values and because I am committed to keeping all our communities safe that I will stand up against the Government’s increasingly draconian approach, which seeks to strip away the very freedoms that people in my constituency and all over the UK hold dear.
Sir John Hayes (South Holland and The Deepings) (Con)
Following the hon. Member for Poplar and Limehouse (Apsana Begum) reminds me of how much we miss her predecessor, who was such a well-respected Member of the House.
Hegel concluded:
“What is reasonable is real; that which is real is reasonable.”
The reality of the means by which we counter the wicked plots and plans of those intent on maiming and murdering Britons—of all kinds and types, by the way—are made reasonable by the character of those deadly schemes. In essence, we must match the most ruthless adversaries in our diligence, determination and decisiveness. To do so is entirely reasonable.
As the Minister said, since 2017 numerous terrorist attacks have been anticipated and thwarted through the skilful efforts of the security and intelligence agencies and the police, but some have not. The death at terrorist hands of 22 innocent civilians in Manchester, including many children, haunts us all. At the heart of our democracy here in Westminster, where four individuals were executed on the bridge and PC Keith Palmer lost his own life heroically resisting the murderer sent to hell by the bullets of other heroes, we saw again what Islamist terror can mean for the innocent. Those and all other tragedies of this type haunt us, but they also harden our resolve. As we are strengthened by grief, those we mission to keep us safe from such ills each and every day need to be sure that we stand for them and by them, and that is just what the Bill does.
Rehman Chishti
Like my right hon. Friend, I fully support the Bill going through. He mentioned the Daesh-inspired extremism. Does he agree with me that the first duty of the state is to protect its citizens, and the legislation that has been put through this Parliament on counter-terrorism has been designed with that in mind, irrespective of creed, colour or background? What I have seen with the Prevent and Channel programmes, having sat on the Home Affairs Committee, is that there are now far more individuals from right-wing-inspired extremism than there are from Daesh-inspired extremism. The threat to our country is therefore from both kinds of extremism, and the legislation we put through this Parliament is designed with the duty to protect our citizens of all creeds, colours and background.
Sir John Hayes
That is certainly true, as my hon. Friend will know that I was once responsible for overseeing the Prevent programme and indeed introduced the Prevent duty. Extremism of all kinds that leads to violence and threatens life and limb needs to be countered. The mechanisms we use to do so are common to all those who seek, in my earlier words, to maim and murder us.
When I guided the Investigatory Powers Bill through this House as the Security Minister, I learned that infiltration is a vital tool for our security and intelligence agencies to penetrate terrorist groups. Those brave enough to do so must be credible to those they need to trust them, so it is axiomatic that they must look and sound like those they live among and do as they do. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they fail to convince those they infiltrate, it is no exaggeration to say they may be killed—indeed, that is the essence of undercover agents’ work.
The Bill, as has been emphasised repeatedly, provides a clear legal basis for that long-standing, invaluable covert tactic, which enables the detection and discovery of crucial, critical intelligence that other investigative tools might never detect. We have heard, as I have said repeatedly, that 27 terrorist attacks have been averted, in part because of interception and infiltration. Preventing those atrocities has saved real lives of individuals loved and known, who live today thanks to the tireless work of our police and intelligence services.
Of course there must be accountability and scrutiny, as I recognised during the passage of the Investigatory Powers Bill, in which we introduced the double lock to which my right hon. Friend the Member for Skipton and Ripon (Julian Smith) has drawn the House’s attention. We also established the Investigatory Powers Commissioner and, indeed, the Investigatory Powers Tribunal. It is critical that we look at things in a way that reassures members of the public that powers are used only where necessary and proportionate, as the Minister emphasised. Our standards must be maintained as we struggle with threats from those who have no meaningful ethical standards.
As well as being proportionate and necessary, the security agencies’ test for all their work, as the right hon. Member for North Durham (Mr Jones) pointed out, is that the particularity of any criminal endeavour entered into must—as the Bill makes clear—be specific, limited and detailed in permission granted. Where the objective can be secured without criminal activity, it will be; criminal activity will apply only where there is no other credible alternative. It is essential that it be limited to only the activity specifically authorised in the criminal conduct authorisation granted exclusively by highly trained and experienced officers. Moreover, there will be effective scrutiny, with authorisations overseen by the independent Investigatory Powers Commissioner, the ISC kept informed of the use of CCAs, and the tribunal able to investigate any complaints against public authorities’ use of the power.
Reasonableness is defined by the bitter reality of our continuing struggle against the individuals and groups whose defining purpose is to do us harm. It is my estimation that as terrorists become more adaptable and flexible and as terrorism itself metamorphoses, we will need to look again at the power, resources and legal means by which those whom we wish to keep us safe do their work. Historically, major pieces of legislation have gone through this House perhaps every decade or a little more, but I suspect that we will legislate more often as terrorism changes, particularly as a result of the changing nature of communications and other technology.
We must resource and equip the brave men and women who put themselves at great risk in our interest to keep us safe and to safeguard our way of life. To legislate to give them the much-needed powers provided by the Bill is both timely and, most of all, it is reasonable.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
It is an honour to follow the right hon. Member for South Holland and The Deepings (Sir John Hayes).
I approach the Bill, as I am sure we all do, knowing that what is at stake is trust in our legal system and public consent for those agencies that we empower to protect us all. Given the provisions enabling criminality, sufficient scrutiny is therefore vital. It is right that the Government have sought to remedy the previous murky arrangements and bring clarity through legislation, but the Bill needs to be beyond reproach when it is enacted.
As hon. Members have already identified, the Bill with its ambiguity and its powers gives a legal power to individuals to commit crimes. That is rightly alarming to the public. The phrase
“authorised conduct is rendered ‘lawful for all purposes’”
on page 3 of the explanatory notes must be questioned and clarified. It is not sufficient to state that all public bodies are bound by the Human Rights Act to comply with the European convention on human rights; it must be set out in the Bill, for the sake of public confidence, that the very worst acts of violence, including sexual violence, torture and murder are not permissible. The Bill is looked at by all people, not just those to whom it applies. Confidence in our Government and in our institutions is significant.
Mr Kevan Jones
I agree that explaining the Bill to the public is very difficult. We therefore need to have the safeguards that the right hon. Lady talks about, but the example that she just gave would not get through the authorisation stage, which is overseen by the commissioner at the moment. Does she think that there is another way of doing it, without having a long list of crimes and of what can and cannot be done?
Liz Saville Roberts
That is a very fair point, which we have discussed to a considerable degree. None the less, there is a public revulsion at the prospect of sexual violence, murder and crimes of that nature, which warrant being mentioned in the Bill for that very reason.
Equally profound and disturbing at first appearance is the power to grant authorisations, which will be given to organisations to decide for themselves internally, without judicial oversight and with limited redress for victims. It is quite extraordinary that there is no provision for how innocent victims of authorised criminal conduct might be compensated, which is surely to be expected in the Bill. I also believe—this point has already been well expressed, but I want to add my voice to it—that trade unions have legitimate concerns, given that covert surveillance has been undertaken in the past against entirely legitimate trade union activity in conjunction with criminal blacklisting.
While quick to quote the book of human rights, the Government have failed to quote chapter and verse of what is permissible and what is beyond the pale. Would the use of sensory overload or stress positions by agents constitute torture and be a violation of human rights? Would they then be criminally culpable? What guarantee can the Minister give that a future UK Government, or even this one, might not seek to legislate for derogations from the European convention on human rights? Given the horizon-spanning nature of the criminal conduct covered by the Bill, where is the threshold for authorising acts, such as phone tapping, that rightly concern the public? What does “proportionate” actually mean? If we do not define it, who does? By what algorithm do we assess the range of proportionality? Where is the shift and the mission creep there?
The Government have also empowered a range of organisations with this new authorisation of criminality, from the Environment Agency to England’s Department of Health and Social Care, but how do the Government intend to prevent creep by Government Departments and the erosion of law? What safeguards will the Government put in place within those Departments? Does the Investigatory Powers Commissioner have sufficient measures and capacity to deal in a timely fashion with the incremental increase in his workload?
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Does the right hon. Member agree that it is all well and good having oversight after the effect, but there is a real danger that the authority providing authorisation before the effect is the same authority that is doing the investigation? We all have systems of tunnel vision when we are in the middle of something and are unable to see the wider aspect, and independence at the pre-authorisation stage is really important.
Liz Saville Roberts
Professional intent, although very laudable in certain circumstances, in this instance could well lead to unpredicted circumstances, and possibly most undesirable ones.
The Bill at present is ill defined and explained, with a focus trained on selected specific issues, and it risks undermining the trust upon which the public agencies tasked with our defence depends. Many, including the Front Benchers of Her Majesty’s Opposition, have said that that will be discussed on Report and in Committee. It is very important, and will evidently be significant when we are able to table amendments and discuss the Bill in detail. However, consideration is down for Thursday week. There will be a Thursday afternoon for Committee and all remaining stages. That is insufficient for the level of scrutiny that a Bill of this seriousness warrants. I beg the Government to consider whether, in all honesty, that is the impression that they wish to leave on the international stage, on which we hope to lead in the rules-based dimension in the future.
Mrs Maria Miller (Basingstoke) (Con)
It is a great pleasure to follow the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). She is absolutely right that public confidence is a critical issue with regard to a Bill of this nature. I am sure that those on the Government Front Bench will have been listening very carefully to her remarks, and indeed those of everybody today. I sense that one or two Members’ contributions, perhaps including that of the hon. Member for Poplar and Limehouse (Apsana Begum), were not thought to have been much in alignment with everybody else’s. Well, I say all power to her for voicing her views, because it is important that the Government hear everybody’s views, whether or not they are consistent with what might be felt elsewhere.
Having listened very carefully to the debate, I think that, by and large, there is cross-party support for the proposed legislation, notwithstanding the specific issues that have been raised by hon. and right hon. Members throughout, particularly on issues of safeguards and oversight. That support stems from a clear understanding of the role of covert human intelligence sources in helping to keep safe us every day of the week—safe from those who scheme every day to take the lives of innocent British citizens in terrorist attacks like the one that we saw here in Parliament not so long ago.
This very narrowly focused Bill seeks to put on a statutory footing activities that frankly most of us would like never to know about—courageous work done by people who may never have the value of their work recognised publicly because of the security issues involved. The Bill gives those agents a more legally certain environment within which to operate and give more protection, through the safeguards, to those in broader society. In the past, activities that have involved breaches of the law, including belonging to a proscribed organisation, were undertaken on the basis of what appears to have been an implied power. The right hon. Member for Dwyfor Meirionnydd talked about murky proceedings. I do not know whether that is the correct term, but it seemed to fit. The Bill removes any ambiguity and, in doing so, ensures that already strong procedures and oversight are more transparent and perhaps, hopefully, more understandable to everybody concerned.
We have heard some very learned analysis of the way that the Bill works from some very learned Members, particularly my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright). I do not intend to compete with their many years of expertise, but I do want to look at some of the issues that are presented by the safeguards in the Bill.
It was important that my right hon. Friend the Minister put on the record some of the actions that have been undertaken by covert human intelligence sources in the past—actions that could never be sanctioned or authorised either in the past or, indeed, under this new legislation. Understandably, the debate has focused on safeguards to ensure that further such unauthorised behaviour is eliminated. The Bill and the code of practice set out very clear safeguards that, as other hon. Members have pointed out, are for the most part already in place and operational. However, the Bill puts in place a protocol and safeguards to put them on a statutory basis, be that authorisation from a trained and experienced officer, oversight by the Investigatory Powers Commissioner or accountability to the Intelligence and Security Committee under my right hon. Friend the Member for New Forest East (Dr Lewis), with the Investigatory Powers Tribunal to investigate and determine complaints and grievances independent of Government and any Government organisations.
However, if these procedures are already in place, then I am concerned to hear from the Minister how we are going to make sure that they work better in future, because a number of issues raised in the debate require some further thought and response from the Government. Many are rightly concerned that in the past women have been sexually abused and even raped as part of covert operations. The Minister has been clear that these actions would never be sanctioned, either in the past or now, but regardless of the rules, reports of widespread involvement by officers in these sorts of very serious sexual assaults are concerning and have emerged. What will be done differently under this Bill to stop such blatant abuses happening in future?
Lloyd Russell-Moyle
I wonder whether the right hon. Lady agrees that the Bill is partly about enabling self-restraint, and therefore putting certain things that cannot be done into the Bill provides an understanding for officers so that it is clear, whereas a more general human rights approach could create the danger of it being less clear, just as in Canada or America.
Mrs Miller
The hon. Gentleman could argue that point from completely the opposite side, because by in some way bringing into question whether this piece of legislation will be treated like all other pieces of legislation—in other words, that a Minister will authorise it only if it is compliant, under the Human Rights Act, with sections of the European convention on human rights—I think he actually brings the whole thing into question; probably unintentionally, of course.
Going back to the point that I was making, what will be done differently? First, the Bill briefing note provides some detail on what might be done differently, but there is room for perhaps a little more, perhaps in Committee or beyond. The Bill provides detail on training for authorising officers about the way this new legislation would work, but absolutely no mention is made of training for the agents themselves. Given the problems of the past, can the Minister outline more fully what training agents receive on awareness, knowledge and expertise in the application of the Human Rights Act? I think many Members could do with some training on that at certain stages, because it is incredibly complex, and compliance with the European convention on human rights adds even more complexity.
Secondly, in 2016 the College of Policing published “Undercover policing: Authorised Professional Practice”, which is national guidance for officers. It would be helpful if the Minister updated the House on the status of that guidance, and whether any further operational guidance is envisaged for agents who will be under this new legislation. Covert human intelligence has an impact on many vulnerable people in society, and particularly women who may have had intimate sexual relations with undercover officers. Is the Minister reviewing the effectiveness of the way that policy impact is assessed to ensure that these sorts of blatant breaches are caught more quickly and, drawing on what my right hon. and learned Friend the Member for Kenilworth and Southam said, caught right away, rather than at a point in the future? The 70-page code of practice that accompanies the Bill is welcome, but perhaps a little unwieldy. How will the intent behind this Bill be turned into practice for agents on the ground?
Finally, if errors are made or agents do not follow the rules, there needs to be a clear and transparent pathway of redress for victims. What is that pathway for victims: what path would they follow under this legislation, and how is it different from what went before? All legislation we pass in this place is authorised by Ministers on the proviso that it accords with the provisions in the Human Rights Act and the European convention on human rights—this goes to the point made by the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle)—but mention has been made of the defence used by the Government previously in apparently carving out the actions of agents as being separate from the rules applying to public authorities. We have heard an explanation of that already in the debate today, but I think more clarity on that would be helpful when we think about building confidence both within the Chamber and beyond.
In conclusion, I fully support the Bill before us today, and there is a great deal of merit in what the Government are attempting to do. I again pay tribute to all those in our security services who work to help keep us safe. This legislation will put on a firmer footing the protocols within which they work and the safeguards that are there to ensure those provisions work as we intend them to do, which is to bring criminals to justice. Governance, security and oversight will not diminish this Bill; they will strengthen it to give it the full confidence of this House and the people we represent.
Zarah Sultana (Coventry South) (Lab)
As I am making the final Back-Bench speech, I will not be taking any interventions—apologies.
On 12 February 1989, Pat Finucane, an Irish lawyer in Belfast, sat at his kitchen table to have dinner with his wife and three children. As they ate, two gunmen burst through the door, entered the room and shot Mr Finucane 14 times. He was killed by a loyalist paramilitary group that, as the Prime Minister at the time, David Cameron, admitted in 2012, was acting in complicity with British security services. Far from stopping Mr Finnigan’s murder, the Prime Minister described the
“shocking levels of state collusion”—[Official Report, 12 December 2012; Vol. 555, c. 296]
in Mr Finucane’s murder. His family are still owed a public inquiry into the murder.
Deeply troubling acts of state agents such as those in the Finucane case are not isolated. In 2010, it came to light that for 40 years, Britain’s police had run covert operations spying on thousands of civilians. More than 1,000 political groups were spied on. Overwhelmingly, it was left-wing, anti-racist and climate justice groups that were spied on, with just three far-right groups included on the list. The spy cops revelations have shown that police operatives deceived women into sexual relationships and even spied on grieving families seeking justice, including the parents of Stephen Lawrence.
This Bill must be opposed. It places no limits on the crimes that state agents can be authorised to commit. It does not prohibit torture. It does not prohibit murder. It does not prohibit sexual violence. Instead, all it requires is that authorising officers themselves believe that the conduct is appropriate, necessary by broadly defined criteria and meets requirements that may be imposed by an order made by the Secretary of State. Even the FBI expressly bans operatives from certain criminal conduct, but this Bill does not ban any type of criminal conduct for British state agents.
The grounds upon which the authorisations can be granted are ill-defined and wide-ranging. They include not only national security but “preventing disorder” and to promote
“the interests of the economic well-being of the United Kingdom.”
That has rightly raised alarm bells for trade unions such as my union, Unite, and justice campaigns such as the Orgreave Truth and Justice Campaign, who fear that these powers could be used to interfere with the legitimate activities of trade unions.
The Bill grants these powers to a dizzying array of agencies—not just intelligence agencies and the police, but the Competition and Markets Authority, the Gambling Commission and the Environment Agency, just to name a few. The oversight for authorisation of potentially serious crimes is scandalously weak. There are no provisions in the Bill for warrants or independent judicial approval. Instead, authorisation will be granted internally, which means that incredibly serious crimes could be authorised with less oversight than is currently required for phone tapping or police searches. As the human rights group Reprieve has noted, survivors of the spy cops scandal have sought justice through the courts for abuses they suffered, but this Bill will block future claims being brought forward, since it outlaws civil action against authorised activities. That is utterly unconscionable.
In the Bill’s defence, the Government claim that public authorities are bound by the Human Rights Act, and for that reason, the prohibition of crimes such as torture is guarded. In reality, that offers no protection against agent criminality, because in the Government’s view, the Human Rights Act does not apply to crimes committed by covert agents. The Government told the Investigatory Powers Tribunal in November 2019 that, in tasking agents, the state
“is not the instigator of that activity and cannot be treated as responsible for it”.
According to the Government’s own standards, the Bill will therefore not place any limits on the crimes that agents could be authorised to commit—not on torture, not on murder and not on sexual violence.
Zarah Sultana
I must make progress.
This Bill marks the latest step in a frightening descent into authoritarianism by this Government. In the past two weeks, they have proposed the effective decriminalisation of torture by British soldiers overseas, the shipping of asylum seekers more than 4,000 miles away to be imprisoned on Ascension Island, the ban on anti-capitalist teaching materials in schools and now this—licensing undercover agents to commit torture, sexual violence and murder. This descent into authoritarianism should be a concern to us all. It must be resisted.
Conor McGinn (St Helens North) (Lab)
It is a pleasure to close the debate on behalf of the Opposition. The serious and sombre tone of the debate, which is appropriate given the measures we are discussing, was set by the Security Minister and the shadow Home Secretary. The debate has been well informed and enhanced by the contribution of former Cabinet Ministers, particularly Secretaries of State for Northern Ireland, who have a working knowledge of these matters, and also the former Attorney General and the Chairs of the Intelligence and Security Committee and Justice Committee.
As the Leader of the Opposition has made clear, security is a top priority for the Labour party under his leadership. As I have said before from this Dispatch Box, we will be forceful and robust in supporting the fight against terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our communities safe. We will meet our duty to support those who put their own safety and lives at risk to protect us. We acknowledge and understand the purpose of this Bill, which seeks to put on a statutory footing the activity of those working to disrupt some of the most vile crimes imaginable, including terrorism, the activities of violent drug gangs, serious and organised crime, and child sexual exploitation.
We know that the threat from criminal and terrorist activity is very real and that the ability to gather intelligence is a vital tool in disrupting this activity, preventing further crime and bringing those responsible for it to justice. Since March 2017, the security services and counter-terror police have thwarted 27 terror attacks. In 2018, covert human intelligence sources helped to disrupt over 30 threats to life, leading to the arrest of numerous serious organised criminals and the seizure of more than 3,000 kilograms of class A drugs, and taking more than 50 firearms off the street.
During the course of those operations, it is inevitable that agents will at times transgress existing laws in a limited way. This activity has been happening for a long time. It is not always comfortable for us in this House to think about what we need people to do to protect us and prevent harm coming to us, but real life is not a film. There is no Superman, it is not a fairy tale and there is not always a happy ending. That is why it is a step forward that this activity will now be properly covered by statute and open to greater transparency, accountability, regulation and safeguarding in a way that it has not been before.
We are told that under this legislation covert human intelligence sources will not be given carte blanche—the Minister made that very clear. It is therefore absolutely vital that during the passage of the Bill we get those safeguards and the processes and structures for accountability and proportionality absolutely right, both for the maintenance of our country’s hard-won civil liberties and human rights and for the protection of those who undertake such activity, as my hon. Friends the Members for Birmingham, Selly Oak (Steve McCabe) and for Kingston upon Hull North (Dame Diana Johnson) outlined so eloquently.
The Bill is certified as compliant with the Human Rights Act, as the Minister set out. All public authorities are bound by it to act in a way that is compatible with the rights protected by the European convention on human rights, including the right to life, the prohibition of torture or subjecting someone to inhuman or degrading treatment. The Human Rights Act is specifically mentioned in the Bill, providing important and necessary protection. However, it is right that during the Bill’s progress we will be pressing the Government on safeguards as to what acts can be carried out. I therefore take this opportunity to let the Government know, as the hon. Member for Gordon (Richard Thomson) and the right hon. Member for Orkney and Shetland (Mr Carmichael) have, about those areas where we believe the Bill requires scrutiny and can be strengthened on its journey.
We need to explore in greater detail how we might get closer to the specifics of what offences can be allowed, as has been done in, for example, Canada and indeed the United States. There is nothing in the Bill to limit or specify the kinds of offences covered, only that they are to be necessary and proportionate. Despite the fact that the Human Rights Act is applicable in all circumstances, we will be pressing the Minister for an understanding as to why offences such as murder, torture and sexual violence are not explicitly ruled out in this legislation.
Moreover, the Bill certifies that an authorisation may be given only if it is deemed necessary
“in the interests of national security…for the purpose of preventing or detecting crime or of preventing disorder; or…in the interests of the economic well-being of the United Kingdom.”
These are broad statements that could have wide-ranging interpretations, particularly the last of the three, by a large list of agencies. We want to explore some of that and will press for assurances.
We also want to look at levels of accountability and sign-off for authorisation. As the Bill stands, the use of such powers will be overseen by the independent Investigatory Powers Commissioner, who can report on an annual basis. We believe the Bill needs to go further and that each and every authorisation should be notified to the commissioner in real time, so that scrutiny can be robust and ongoing. I also welcome indications from the members of the Intelligence and Security Committee that they too will seek to bring forward safeguards in that respect through amendments.
Sir John Hayes
I appreciate the hon. Gentleman’s comments and, indeed, the tone of his contribution, but he must surely acknowledge that being very specific about what covert agents can and cannot do would expose them to great risk, for those they infiltrate would know what their parameters of activity are likely to be.
Conor McGinn
The right hon Gentleman makes a very fair point. I completely appreciate that and have taken into account the comments that have been made by Ministers and those with experience of this, but I just seek simply to see whether there is a way that we can add more reassurance for people around some of the specificity of these matters without exposing people to the dangers that have been rightly outlined.
Conor McGinn
My hon. Friend is doing very well. He has been in the Chamber for only 20 minutes and this is his third intervention, but I will, of course, give way to him.
Lloyd Russell-Moyle
I did apply to speak, but I was refused by the Speaker’s Office, so I have been listening to the debate in my office.
Would it not be better if we took a Canadian or even an American model, where there are some things that are excluded from the scope of actions? This idea of testing does not seem to cause problems for the Canadians or the Americans.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. The hon. Gentleman said that he had been refused permission to speak by the Speaker’s Office, but if he had submitted his name in time, he would have been on the list, so I do not quite understand. Perhaps he would like to come and see me and explain exactly what happened.
Conor McGinn
Sorry, Madam Deputy Speaker, I did not mean to start a discussion with the Speaker’s Office. My hon. Friend makes an important point, which is why I specifically referenced Canada and the United States in terms of the model that we would probe.
I wish to make some progress now and draw to a conclusion. We also have concerns over the potential use of these powers in relation to retrospective action. It says that approval will be sought as soon as it is practically possible. Our view is that there should be a time limit on that, and we would look to a period of around a month. I am happy to discuss this with the Minister as there does need to be some sort of a hard deadline on retrospective authority. There is nothing in the Bill to prevent retrospective action, which could see it being abused. Where there are allegations of historical injustices involving law enforcement and the security services, justice must take its course and the Bill cannot interfere with that.
We will also be carefully scrutinising the number and nature of the public agencies approved for this activity, which was a point very well made by my right hon. Friend the Member for North Durham (Mr Jones). These are serious powers—granting the ability for an individual to break the law—so there must be a clear and substantial case for the many agencies listed in the Bill. We also want assurances that the powers are not to be used to undermine the legitimate activities of trade unions, civil society groups or campaigns. Opposition Members are very clear that there can be no repeat of the historical attitudes and, frankly, the moral and legal corruptions that led to workers being blacklisted, to political interference or, indeed, to inappropriate relationships as the Spycops inquiry will examine. Similarly, it must also be the case that victims who have been wronged are not inadvertently prevented from seeking adequate forms of redress or fair compensation. On the issue of trade unions specifically, the Investigatory Powers Act 2016, which is the only legal basis for the use of powers to obtain communications, specifies that the monitoring of trade unions is not grounds for such activity, so will the Solicitor-General assure the House—if he cannot do it now, perhaps he might write to me if he would be so good—that nothing in this Bill changes that? Furthermore, the process of blacklisting trade unionists has been unlawful since 2010, with the passing of the Employment Relations Act 1999 (Blacklists) Regulations 2010, and, again, will he confirm that nothing in this Bill would affect that?
I want to turn briefly to the issue of legacy in Northern Ireland. I welcome the Minister’s assurance that this Bill in no way impinges on or affects that process. I urge the Treasury Bench to take into account the comments that were made both by the hon. Member for Belfast East (Gavin Robinson) and the hon. Member for Belfast South (Claire Hanna). Let me say this: I know Pat Finucane’s wife, Geraldine, and I know her sons John and Michael and her family. For 10 years, before I came into the House and since I have been in the House, I have steadfastly admired and supported them in their quest for justice, and that is not something that I will resile from at this Dispatch Box now. Let me also say that I do not need to be convinced about the consequences of the state exceeding its power in this arena. I do not need to read a briefing about it. I do not need to hear it in a meeting because I and the community in which I grew up lived with the consequences of it, which is why we need to get this right.
In summary, we on the Opposition side of the House understand the importance of this Bill. I have set out the areas of concern that we have, and where we would like to see the Bill strengthened, we will work with the Government constructively to try to do so robustly and effectively. This legislation puts existing practice on a clear and consistent statutory footing. It acknowledges the need for the role of covert human intelligence sources and, above all else, it must keep the public safe. I believe that security and human rights are not incompatible, but co-dependent, and that will govern the approach that I take as this Bill proceeds through the House.
The Solicitor General (Michael Ellis)
Let me start by thanking colleagues across the House for the constructive way in which Members have approached today’s debate. I think we all agree that national security and preventing serious crime is an area in which we want to ensure that operational agencies are best equipped to protect us and keep us safe, and this Bill does just that. It is in that spirit that we have engaged many Members in advance of this debate, and I can assure Members that we will look to continue to work together as the Bill passes through Parliament.
If I may, I will respond briefly to some of the points made during the debate. My right hon. Friend the Security Minister has already responded to a number of interventions, but turning first to safeguards and oversight, I agree with those colleagues who have emphasised the importance of ensuring that there is robust oversight of the use of criminal conduct authorisations, or CCAs. That is why we have a world-leading investigatory powers regime, and it is why there is significant, independent oversight of the use of those powers; few other countries in the world, if any, have such a regime. With regards to safeguards within the public authority, all authorising officers are highly trained. My right hon. Friend the Member for Basingstoke (Mrs Miller) spoke about training a few moments ago, and I can say that these officers are experienced and have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct.
In response to the point raised by my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), let me confirm that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. All authorising officers must be appropriately trained, and the independent Investigatory Powers Commissioner can identify if any public body is failing to train their officers or assess them to a sufficiently high standard. To respond specifically to the point raised by the hon. Member for Belfast East (Gavin Robinson), I can confirm that an authorisation must be granted before activity commences. The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation; this is not a retrospective Bill.
I turn now to independent oversight. The Investigatory Powers Commissioner is entirely independent of Her Majesty’s Government and has wide-ranging powers to support his crucial oversight functions, which include the ability to inspect all the public authorities able to grant a criminal conduct authorisation at a frequency of his choosing. Public authorities are required to provide unfettered access to all of their documents and information, and the results of those inspections are published within his annual report. A public authority must then take steps to implement any recommendations made by the IPC. This Bill looks to provide robust independent oversight, while ensuring that such oversight does not result in a loss of operational effectiveness. Authorisations may need to be granted at short notice, and here I want to emphasise the human element of CHIS, unlike other investigatory powers. That human element means that these decisions cannot really be retaken; they impact directly on the safety and welfare of covert human intelligence sources.
Sir John Hayes
While dealing with safeguards and scrutiny, can my right hon. and learned Friend confirm that the tribunal has the ability to deal with any complaints about inappropriate use of these powers? Furthermore, will he do as I did when I took the Act through the House and give an absolute assurance that this will not be applied to civil society organisations, including trade unions?
The Solicitor General
Yes I can, and I will come to that point in a moment.
I have been listening to the views expressed in the debate by the Chair of the Home Affairs Committee, my right hon. and learned Friend the Member for Kenilworth and Southam and the hon. Member for Torfaen (Nick Thomas-Symonds) that providing the Investigatory Powers Commissioner with more real-time oversight would strengthen that oversight. We have always been clear that we are willing to engage with workable proposals; I understand the spirit in which these remarks were made and I am listening carefully.
I thank the members of the Intelligence and Security Committee for their support for the Bill and recognise the important role they play in providing oversight of our intelligence agencies. The Committee’s oversight role is complemented by the work of the Investigatory Powers Commissioner, who is tasked with providing information on public authorities’ use of the power.
The shadow Home Secretary made a specific point regarding the disproportionate impact on women or members of the BME community. Those under investigation are targeted because of their criminal or terrorist activities, not on the basis of such characteristics. If there are any specific concerns, I am of course happy to discuss them further, but I can confirm that that is the case.
Regarding limits, I understand the concerns expressed by colleagues around the House, but let me be clear: covert human intelligence sources will never be provided with unlimited authority to commit all or any crime. They will never be provided with an authorisation that is contrary to our obligations under the Human Rights Act. The Bill makes that specifically clear. This is not a “licence to kill” Bill. An authorisation is tightly bound: it must be necessary, and it must be proportionate to the activity it seeks to prevent.
As my right hon. Friend the Member for New Forest East (Dr Lewis) and others set out, creating a specific list of prohibited activity, were we to do that, would place into the hands of criminals, terrorists and hostile states the means to create a checklist against which suspected covert human intelligence sources could be tested. That would threaten the future of CHIS capability and consequently increase the threat to the public. The Investigatory Powers Commissioner has wide-ranging powers to ensure that the requirements of the legislation, which have been clearly set out in the House today, are adhered to.
Let me deal with some international comparisons. Different countries have different legal systems, threat pictures and operational practices; simply comparing legislation, therefore, gives only a partial picture. However, with regard specifically to Canada—our strong ally, which has been mentioned a number of times this evening—our understanding is that the parts of the Canadian Security Intelligence Service Act to which Members have referred do not actually relate to covert human intelligence sources. The specifics of what a CHIS may be tasked by the agency to do in Canada—the information some say is contained in the Canadian Act—is not on the face of their legislation. That is our understanding.
Regarding the point made about trade unions, economic wellbeing is of course one of the established statutory purposes for which the covert investigatory powers may be deployed by public authorities. That is to recognise the threats to the economic wellbeing of the United Kingdom and that they could be immensely damaging and fundamental in their effect. For example, such threats may include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government itself. However, it is not the intention in the Bill to prevent legitimate and lawful activity, including activity by trade union organisations. Preventing such activity would not be necessary for the purpose of economic wellbeing. Trade unions have historically been a bastion of rights in this country and they are, of course, a lawful authority.
In response to concerns about the Bill’s impact on potential victims’ ability to seek compensation, it is not the intention of the Bill to affect any individual’s ability to pursue a claim for compensation where appropriate. It is not the case that any or all conduct by a CHIS could be exempted from civil liability under the Bill regime.
Finally, I have heard several Members, including the right hon. Member for Orkney and Shetland (Mr Carmichael) and the right hon. Member for North Durham (Mr Jones), question the need for wider public authorities to have the power. These public authorities have important investigative and enforcement responsibilities. It is right that they are given the necessary powers to undertake these functions themselves. Very briefly, I could perhaps give an example to do with the Food Standards Agency, which has been mentioned a number of times.
The Food Standards Agency is tasked with protecting consumers and the food industry from food crime within food supply chains. Examples of food crime include the use of stolen food in the supply chain, the unlawful slaughter of animals, the diversion of unsafe food not fit for human consumption, adulteration of foodstuffs, substitution or misrepresentation of foodstuffs, and document fraud. The continuing presence of an individual within a workplace may necessitate them actively participating in presenting, packaging and relabelling produce in order to misrepresent its quality and fitness for consumption, which would be criminal offences. As I say, all public authorities will be subject to the same robust safeguards and oversight and it is right that we equip them all with the powers they need to protect us.
In closing, we should not underestimate the immense contribution that covert human intelligence sources have made, and continue to make, to protecting the public and this country. We can never publicly set out the exact details of what they do on our behalf, but let me assure hon. and right hon. Members that without them lives would have been lost. They are exceptional people, courageous and devoted, and we are all grateful to them. It is right that covert human intelligence sources, their handlers and the public authorities to whom the Bill relates have the certainty and clarity to continue to use this tactic. It is also right, however, that this is subject to robust safeguards and independent oversight. This legislation will achieve both those things and ensure we can continue to bring to justice those who want to do us harm.
Question put, That the Bill be now read a Second time.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Thursday 15th October 2020
(4 years, 2 months ago)
Commons ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 October 2020 - (15 Oct 2020)
16:00 - The Committee divided: - Ayes: 256 / Noes: 317 - Question accordingly negatived.
16:16 - The Committee divided: - Ayes: 256 / Noes: 316 - Question accordingly negatived.
16:31 - The House divided: - Ayes: 65 / Noes: 311 - Question accordingly negatived.
16:46 - The Committee divided: - Ayes: 255 / Noes: 314 - Question accordingly negatived.
17:02 - The House divided: - Ayes: 313 / Noes: 98 - Question accordingly agreed to.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
I should explain that in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s chair during Committee stage, in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. We should be addressed as Chairs of the Committee, rather than as Deputy Speakers.
Clause 1
Authorisation of criminal conduct
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I beg to move amendment 20, page 1, line 18, at end insert—
“(3A) In section 27 (Lawful surveillance etc.), in subsection (1)—
(a) after ‘applies’ insert ‘(other than conduct authorised under section 29B)’; and
(b) after ‘Part’ insert ‘(other than conduct authorised under section 29B)’.”
This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.
The Second Deputy Chairman
With this it will be convenient to discuss the following:
Amendment 7, page 2, line 7, at end insert—
“(1A) The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by a judge.
(1B) An application to a judge under subsection (1A) shall be made in writing and be accompanied by an affidavit of the person granting the criminal conduct authorisation which sets out—
(a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required;
(b) the persons or classes of persons to whom the warrant is proposed to be directed;
(c) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;
(d) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force; and
(e) any previous application made under subsection (1A) in relation to a person who is identified in the application for the warrant, the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.”
Amendment 25, page 2, line 7, at end insert—
“(1A) Authorisations granted under this section require approval in accordance with section 29C.”
Amendment 14, page 2, line 16, after “person” insert “reasonably”.
This amendment would raise the standard for granting a criminal conduct authorisation from believing that it is necessary and proportionate to reasonably believing that it is necessary and proportionate.
Amendment 11, page 2, line 20, at end leave out “; and” and insert “, taking into account—
(i) balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm;
(ii) explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;
(iii) whether the conduct to be authorised will have any implications for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation;
(iv) evidence, as far as reasonably practicable, of what other methods had been considered and why they were not implemented, or have been implemented unsuccessfully; and
(v) whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought; or”.
Amendment 1, page 2, line 22, at end insert—
“(d) that the authorisation does not have a disproportionate impact on people with one or more protected characteristics within the meaning of the Equality Act 2010.”
This amendment ensures that discrimination on the grounds of protected characteristics will be taken into account before the granting of a criminal conduct authorisation.
Amendment 3, page 2, line 26, leave out “or of preventing disorder”.
Amendment 23, page 2, line 27, leave out from “disorder” to end of line 29.
Amendment 4, page 2, line 28, leave out paragraph (c).
Amendment 15, page 2, line 29, after “Kingdom” insert “so far as those interests are also relevant to the interests of national security”.
This would only allow a criminal conduct authorisation to be granted on economic grounds if it is relevant to national security.
Amendment 5, page 2, line 29, at end insert—
“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source within trade unions.
(5B) In this section, ‘trade unions’ is defined as in the Trade Union and Labour Relations (Consolidation) Act 1992.”
Amendment 6, page 2, line 29, at end insert—
“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source engaged in blacklisting.”
Amendment 10, page 2, line 29, at end insert—
“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”
Amendment 13, page 2, line 36, at end insert—
“(7B) The following conduct may never be authorised by a criminal conduct authorisation—
(a) causing death or serious bodily harm to a person;
(b) obstructing, perverting or interfering with the course of justice;
(c) violating the sexual integrity of a person;
(d) torture or cruel, inhuman or degrading treatment or punishment;
(e) detention; or
(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of a person.
(7C) Subsection (7B) shall not prevent—
(a) a decision not to prosecute in the public interest; or
(b) the entry of a nolle prosequi.”
Amendment 8, page 3, line 2, at end insert—
“(8A) Nothing in this section justifies—
(a) causing, intentionally or by criminal negligence, death or bodily harm to an individual;
(b) wilfully attempting in any manner to obstruct, pervert or defeat the course of justice;
(c) violating the sexual integrity of an individual;
(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;
(e) detaining an individual; or
(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.”
Amendment 22, page 3, line 2, at end insert—
“(8A) A criminal conduct authorisation may not authorise any criminal conduct—
(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;
(b) involving an attempt in any manner to obstruct or pervert the course of justice;
(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;
(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or
(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”
Amendment 2, page 3, line 9, at end insert—
“(9A) The Investigatory Powers Commissioner or any affected person may apply for judicial review, in relation to the conduct of a relevant public authority.
(9B) For the purposes of subsection (1), a ‘relevant public authority’ are those set out in section 2(9) of the Act.”
This amendment ensures that the granting of criminal conduct authorisations are subject to judicial review.
Amendment 18, page 3, line 16, at end insert—
“(11) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with—
(a) the Crown Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place in England & Wales;
(b) the Crown Office and Procurator Fiscal Service, in respect of a criminal conduct authorisation relating to conduct taking place in Scotland; or
(c) the Public Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place Northern Ireland.”
This amendment will ensure that prosecutors can review crimes authorised under this Bill.
Amendment 26, page 3, line 16, at end insert—
“(11) Nothing in this section permits or authorises any criminal conduct by a covert human intelligence source in relation to investigation of any lawful activity by a member of the House of Commons, who has sworn or affirmed the oath prescribed by the Parliamentary Oaths Act 1866, or of the House of Lords, in the conduct of that member’s parliamentary or representative duties unless—
(a) the criminal conduct by the covert human intelligence source has been personally authorised by the Prime Minister and the Secretary of State, and
(b) the Prime Minister and the Secretary of State have each made a written declaration that the proposed criminal conduct by the covert human intelligence source in relation to the member of Parliament concerned is both proportionate and necessary in order to preserve national security.
(12) The Secretary of State may by regulations make parallel provision to subsection (10) in respect of members of Senedd Cymru, the Northern Ireland Assembly and the Scottish Parliament.”
Clause stand part.
Amendment 16, in clause 2, page 4, line 9, leave out from “services” to end of line 23.
This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.
Clause 2 stand part.
Clause 3 stand part.
Amendment 12, in clause 4, page 5, line 4, at end insert—
“(4ZA) Those persons who have granted criminal conduct authorisations must inform the Investigatory Powers Commissioner within seven days of the granting of the authorisation.”
Clause 4 stand part.
Clause 5 stand part.
Clause 6 stand part.
Clause 7 stand part.
New clause 1—Redress for innocent victims—
“(1) Section 65 (5) of the Regulation of Investigatory Powers Act 2000 (The Tribunal) is amended in accordance with subsection (2).
(2) At the end of subsection (5) insert—
‘(g) any conduct under Section 29B.’”
This new clause ensures that innocent victims are able to seek redress from the Investigatory Powers Tribunal.
New clause 2—Equality Impact Assessment—
“(1) The Secretary of State must prepare and publish an annual equality impact assessment on the use of criminal conduct authorisations on covert operations involving women, children and Black, Asian and minority ethnic communities.
(2) A Minister of the Crown must, not later than three months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”
New clause 3—Oversight by the Intelligence and Security Committee of Parliament—
“(1) At the end of each relevant twelve-month period the Secretary of State must make a report to the Intelligence and Security Committee of Parliament with information on the number of criminal conduct authorisations authorised by the intelligence services and the categories of conduct authorised.
(2) In subsection (1) ‘relevant twelve-month period’ means—
(a) the period of twelve months beginning with the day on which this section comes into force, and
(b) each successive period of twelve months.”
On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the ISC is kept informed of the use of criminal conduct authorisations by the intelligence services.
New clause 4—Trade Unions—
“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source relating to a trade union or a member or officer of a trade union acting or proposing to act in contemplation or furtherance of any issue which is or could be—
(a) the subject matter of collective bargaining within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992;
(b) the subject of a trade dispute within the meaning of section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992; or
(c) within the lawful objects of the trade union.
(2) In this section, ‘trade union’ has the same meaning as in section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.”
This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.
New clause 5—Blacklisting—
“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source in relation to another person who—
(a) is a subject of a prohibited list or is suspected of being a subject of a prohibited list where the action of the covert human intelligence source is related to that fact or suspicion;
(b) compiles, uses, sells, or supplies or proposes or attempts to compile, use, sell, or supplies a prohibited list; or
(c) supplies or proposes or attempts to supply to another information which he knows or can reasonably be expected to know will be used in the compilation or use of a prohibited list.
(2) In this section ‘prohibited list’ has the same meaning as in Regulation 3(2) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 2010/493.”
This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.
New clause 6—Commissioner approval for authorisations to identify or confirm journalistic sources—
“(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.
(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.
(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—
(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and
(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.
(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—
(a) the public interest in protecting a source of journalistic information, and
(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.
(5) Where, on an application under this section, the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.
(6) In this section—
‘Journalistic material’ means material created or acquired for the purposes of journalism.”
New clause 7—Approval for criminal conduct authorisations—
“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—
‘29C Approval for criminal conduct authorisations
(1) This section applies where an authorisation has been granted under section 29B.
(2) The authorisation has no effect until such time (if any) as the Judicial Commissioner has approved the grant of the authorisation.
(3) The Judicial Commissioner may give approval under this section to the granting of an authorisation under section 29B if, and only if, the Judicial Commissioner is satisfied that—
(a) at the time of the grant the person granting the authorisation had reasonable grounds to believe that the requirements of 29B(4), and any requirements imposed by virtue of section 29B(10), were satisfied in relation to the authorisation;
(b) at the time when the Judicial Commissioner is considering the matter, there remain reasonable grounds for believing that the requirements of section 29B(4), and any requirements imposed by virtue of section 29B(10), are satisfied in relation to the authorisation; and
(c) the authorisation granted does not authorise conduct that is incompatible with any Convention rights.
(4) In this section—
“Convention rights” has the meaning given in section 1(1) of the Human Rights Act 1998; and
“Judicial Commissioner” has the meaning given in section 227 of the Investigatory Powers Act 2016.’”
This new clause is consequential on Amendment 25.
New clause 8—Criminal conduct authorisations: Granting to children and vulnerable sources—
“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—
‘29C Criminal conduct authorisations: Granting to children and vulnerable sources
(1) This section applies when the source is—
(a) under the age of 18,
(b) a vulnerable individual, as defined in subsection (5),
(c) a victim of modern slavery or trafficking, as defined in subsection (6).
(2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.
(3) Where a source is one to whom subsection (1) applies the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.
(4) In subsection (3) “appropriate adult” means—
(a) the parent or guardian of the source;
(b) any other person who has for the time being assumed responsibility for his welfare; or
(c) where no person falling within paragraph (a) or (b) is available, any responsible person aged eighteen or over who is neither a member of nor employed by any relevant investigating authority.
(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.
(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015, or exploitation as defined by section 3 of the Modern Slavery Act 2015.
(7) The “exceptional circumstances” in subsection (2) include—
(a) where authorisation of the criminal conduct authorisation is necessary to protect life and limb, including in relation to the CHIS; and
(b) where authorisation of the criminal conduct authorisation is necessary on the grounds of national security.’”
Amendment 21, in schedule 1, page 6, line 22, at end insert—
“(3A) In section 5 (Lawful surveillance etc.), in subsection (1)—
(a) after ‘applies’ insert ‘(other than conduct authorised under section 7A)’; and
(b) after ‘Part’ insert ‘(other than conduct authorised under section 7A)’.”
This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.
Amendment 19, page 7, line 49, at end insert—
“(10) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with the Crown Office and Procurator Fiscal Service.”
This amendment will ensure that prosecutors can review crimes authorised under this Bill.
That schedule 1 be the First schedule to the Bill.
Amendment 17, in schedule 2, page 10, line 19, leave out from “it” to end of line 30.
This amendment is consequential on amendment 16.
That schedule 2 be the Second schedule to the Bill.
Mr Carmichael
I wish to speak also to amendments 14 to 19, which were tabled in my name and the names of other right hon. and hon. Members.
It is worth reminding ourselves at the start why we are debating the Bill and why it is being proceeded with in all the dispatch that is apparent, what with Second Reading having been just on Monday of last week. As we know, the Government had a bit of a narrow squeak—a legal term—in the Investigatory Powers Tribunal, and that case is now going off to the Appeal Court. We are now getting what many of us, including those in Reprieve who brought the case to the IPT, have long asked for, and that is a regulatory statutory footing on which the very difficult decisions undertaken by the police, special branch, the security services and others should be done. That is something on which there is broad consensus, which was reflected in the attitude of the House, for the most part, on Second Reading. However, as was apparent from the debate on Second Reading, many of us in different parts of the House have serious concerns about the way in which these matters are being put on to this regulatory statutory footing.
Essentially, it seems to me that the Government have been brought to this point somewhat grudgingly. They have said, “Yes, we will put these things on to a statutory footing, but we will do it in such a broad and general way that, in fact, we will be able to continue to do whatever we have done in the past.” They are seen to embrace change in a way that allows them to continue to behave in the way they have always done. I suggest that that is not, in fact, sensible for any number of reasons. It defeats the purpose of putting these things on to a statutory footing, but I am pretty certain that, sooner or later, it means we will be back here looking at a future Bill because this one is not fit for the purpose the Government claim for it.
The point made repeatedly on Second Reading is that many of the concerns that I and others have, which are reflected in the amendments, are in fact covered by the Human Rights Act 1998. One of the difficulties I have with that is that, throughout their pleadings in front of the IPT, the Government said that the Human Rights Act does not, in fact, apply to the actions of those responsible for covert human intelligence. When we eventually hear from the Minister, could he address a couple of points? First, will this new attitude towards the Human Rights Act, in its applicability to the activities of covert human intelligence sources, be reflected in the pleadings of the Government when it comes to the Appeal Court?
Secondly, can the Minister confirm that the Bill will allow these sources to operate overseas? That being the case, what view do the Government take of the application of the Human Rights Act to the activities of these sources overseas? The position of the Government hitherto has always been that the application extraterritorially—overseas—of the Human Rights Act would not cover these instances, so it is difficult to see if there would be any protection at all in relation to activities overseas.
Mr David Davis (Haltemprice and Howden) (Con)
I might be able to help the Government along with this. It appears that the power to authorise a covert human intelligence source to commit crime outside the UK as well is provided for under section 27(3) of the Regulation of Investigatory Powers Act 2000, which states that conduct authorised under part II of that Act
“includes conduct outside the United Kingdom.”
Mr Carmichael
With help like that, I am not sure that the Government necessarily need any obstruction. Yes, I am certain that this provision is in the Bill for a reason, but we do need to hear from the Dispatch Box about the relationship between the Human Rights Act and activities that would be carried out overseas. When we hear from the Minister, I hope that he will address that point.
Mr Kevan Jones (North Durham) (Lab)
The right hon. Gentleman is making an important point, but the Human Rights Act is not the only protection. There is also the guidance that goes alongside the Bill and that already exists for the operation of CHIS, which is nearly 70 pages long and identifies what can and cannot be authorised.
Mr Carmichael
Indeed, and the guidance is important. It is helpful to have that published, but of course, guidance is guidance, and it can be changed much more easily than an Act of Parliament. The concern that I and many Members have is that there is little by way of meaningful limits and protections in the Bill, which is where they really require to be.
I will now address the amendments that I have tabled, and I shall seek to do so as swiftly as possible, because I realise that we are under a degree of time pressure. Amendments 20 and 21 cover the question of civil redress. The Government’s proposition is that, essentially, this is a statutory embodiment of existing practice and guidelines. In fact, the truth of the matter is that the Bill goes much further than the MI5’s current guidelines. The guidelines from 2011 state that
“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution”,
and that authorisation
“may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”
The Bill goes much further than that. It states, in effect, that authorised crimes are lawful for all purposes, which means not only that an agent would be exempt from prosecution but that victims would be barred from seeking redress in the civil courts. Cases where civil claims have arisen from the use of covert activities in relation to the animal rights movement, for example, would not have any legal redress in the courts under the Bill. Essentially, the thinking behind amendments 20, 21 and others is that the independent oversight in the Bill simply is not there. We all know—it is human nature, as much as anything else—that if people are left to mark their own homework, they will always give themselves an A*. Frankly, for matters as important as this, we need something a bit more substantial.
The test for authorising criminal conduct in clause 1 is currently that the person authorising the conduct must believe that it is “necessary” and “proportionate” to do so. Amendment 14 is a very modest amendment that would mean it should be not just believed but “reasonably” believed that it is necessary and proportionate. That is not the most significant bar that will have to be crossed, but the fact that it is not there illustrates just how widely the Bill is drawn.
Jim Shannon (Strangford) (DUP)
I suspect that the right hon. Gentleman and I have slightly different opinions on the Bill. My party and I broadly support it, perhaps with some amendments that we consider appropriate. Does he agree that, whatever the outcome of today’s proceedings, it is important for those involved to have the resources and staffing necessary to ensure that the objectives set by the Bill can be achieved?
Mr Carmichael
The hon. Gentleman makes an important point; it is not perhaps germane to the legislation, but it is important. As we saw on Second Reading, there is a wide understanding across the House of the very difficult, complex and nuanced nature of the decisions that are taken and then the activities that are undertaken as a consequence of these authorisations. This absolutely should be properly resourced and staffed; that should go without saying. The payback for that resourcing is that these people should also be accountable, with some measure of independent oversight of their activities.
The Minister for Security (James Brokenshire)
I do not know whether this will be helpful to the right hon. Gentleman, but I just draw his attention to paragraph 3.10 of the supported guidance, which underlines that the person granting the authorisation should hold a “reasonable belief” that the authorisation is necessary and proportionate. The important point he makes is addressed through the guidance.
Mr Carmichael
The Minister does help me and I am grateful for his assistance, because if that reasonable belief is in the guidance, there is absolutely no reason why it should not be in the Bill. As I said to the right hon. Member for North Durham (Mr Jones), guidance can be changed without any meaningful oversight from this House. The Minister makes the point for me very well, so perhaps amendment 14, which I had thought modest, is more significant than I realised. I look forward to hearing his acceptance of it—if we could do that without a Division, it would be all the better. [Interruption.] God loves a trier.
Amendment 15 deals with the issue of economic grounds. As things stand, the Bill allows crimes to be authorised if they are necessary
“in the interests of the economic well-being of the United Kingdom.”
That conjures up all sorts of delicious prospects. If it is decided that we need a different Governor of the Bank of England, can we authorise a CHIS to wipe him out? Could we use this if we decided that a no-deal Brexit was not in the UK’s economic interests? There are at least two or three good Netflix series in this; the possibilities are almost endless. What crimes might be authorised in order to entice a foreign investor to bring their money to the UK or a car manufacturer to keep its UK plant open? There is nothing here to prevent corruption or bribery from being used in these circumstances. Amendment 15 would restrict these grounds to cases that are relevant not only in an economic sense, but to national security. There is precedent for this approach, because amendment 15 matches exactly the amendments the Government themselves made to the Counter-Terrorism and Border Security Bill last year, after my noble Friend Lord Paddick raised similar concerns about detaining people in the interests of the economic well-being of the United Kingdom. If it was good enough for that Bill, there is no reason why it should not be good enough for this one.
Amendments 18 and 19 involve oversight by prosecutors and would require criminal conduct authorisations to be shared with prosecutors before they take effect, to allow for proper independent oversight of these decisions. The amendments cover the same sort of grounds as many others have in their amendments, most notably the Mother of the House, and I believe the hon. and learned Member for Edinburgh South West (Joanna Cherry) will cover this in her contributions. They all come to the same point that there has to be independent oversight where matters are as serious as this.
Amendments 16 and 17 deal with the number of different bodies that can be authorised under the Bill as it currently stands. At present, it extends well beyond the obvious candidates and includes: MI5, the police, the security services, the Food Standards Agency, the Gambling Commission, and the Department of Health and Social Care. With these amendments, we seek to reduce the list to the National Crime Agency, the Serious Fraud Office and the intelligence services.
Mr Evans, you and I have visited an abattoir in the past and we know that there is plenty of blood in an abattoir already without actually adding to it by empowering meat inspectors to be authorised to spill even more of it. We all know, as we complete our tax returns every year, that taxation can be a tortuous business, but I do not think that we should be giving the taxman the power to apply the thumbscrews.
The need for these extra bodies to be given authorisation under these provisions has never been properly explained from the Treasury Bench. Their inclusion demeans the seriousness of those acts, especially by the security services, the police and the Serious Fraud Office that could well be required to use them in very difficult circumstances. It looks to me, almost certainly, as if these provisions have been put in the Bill with a view to giving up the fight when the Bill gets to the other place, which, I suggest, demonstrates a lack of respect not just for them, but for this House as well.
Finally, I wish to touch on other amendments that have been moved by other right hon. Members. I have added my name to the one from the Mother of the House covering the approval of the judicial commissioner and the one removing economic interest grounds and I support their inclusion in the Bill. Amendment 13 in the name of the right hon. Member for Haltemprice and Howden (Mr Davis), which removes murder, torture and others, would be one of the most obvious amendments that could be made to this Bill to render it genuinely fit for purpose. It is the purpose of this Bill that commands unity; it is the detail of it that requires still so much improvement.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
There are 22 Members—because a couple have withdrawn—on the call list. It would be really useful if Members could focus their attention on self-limiting their speeches so that we can get in as many as we possibly can.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and I very much agree with a great deal of what he has said. I hope the Minister will be able to prove to us why it is not necessary to pursue some of these amendments, but I think the right hon. Gentleman put his case very well and very moderately. I appeal to the Minister, who is himself a moderate and considered man, to think about whether it is not appropriate to look at some of the detail of the Bill rather than the thrust of the objective, which we all absolutely support.
I will, if I may, touch on some of the amendments. The broad principle that I have, again rather like the right hon. Gentleman, is that, of course, there will be certain circumstances when it is necessary in the national interest for the brave operatives of our security services to have the power to take actions that might not otherwise be countenanced in the ordinary run of life. I accept that, sometimes, there are people who have put their lives on the line for the country’s sake and that there are circumstances in which they are entitled to protections. I do not have any problem with that, but it is the broad breadth nature of the Bill that is a concern to many of us. Those of us who have served in Government have come across those tempting occasions when submissions come along, and civil servants say, “It will be useful to draw on this widely, Minister, because x, y or z circumstance may occur at some point in the future, so it is better to have this in reserve—in the back pocket.” When one is dealing with things that touch on the exceptional circumstance of the state or its agents being permitted to break the criminal law, or potentially do harm of one kind or another—perhaps out of necessity, but none the less do harm to others—we should be pretty tight in circumscribing those instances as far as we can. We should ensure that, at the very least, there is proper oversight either beforehand when it is appropriate or thereafter by way of proper parliamentary scrutiny—I will come back to that in a moment.
That is why I do not take the line of the official Opposition’s amendment that there should always be pre-authorisation, but I do think, as a basic principle, that there ought to be pre-authorisation at the appropriate level, be that by the judicial commissioner, a prosecutor or another appropriate authority, wherever possible. That ought to be the starting point unless there is some ground, such as a matter of emergency, perhaps literally of life or death, or of the highest importance, where it is not possible to do that. I would like reassurance from the Minister on the test that will be applied as to when these powers will be used, prior to authorisation by a responsible, vetted and highly dependable individual of the kind that we are talking about. That is the first point on which I would like the Minister’s reassurance, and the point about guidance is well made, as far as that is concerned.
My second point, on amendment 20, which has been referred to, is on the position of the exclusion of civil liability. Again, there may be certain circumstances where it is appropriate for agents of the Government to act in a way that may cause some harm to others. A lot of people might not have too much concern if the target of the operation is an organised criminal or a terrorist, or someone who is a threat to us all, but I am concerned that the way in which that particular clause is drawn would also prevent the innocent victim of what might have been an otherwise necessary action—a person who is the collateral damage—from seeking civil redress. I am talking about somebody who was not the target of the steps that were taken but was caught up, literally, in the incident that occurred. Is it really fair or just to say, “Well, that’s just hard luck,” and exclude them from any liability?
The number of cases that this might engage are probably very limited, but the principle is important—someone who has done no harm to the state should not be the victim by happenstance of something that might necessarily and properly have been done in the state’s interests. If we give the state and its agents that power—perhaps reasonably enough—it is not unfair to say that there should be some safeguard for those who, through no fault of their own, might be damaged by it in some way. I hope that the Minister will reflect on that carefully.
There is also the point in the amendments that touches on the authorisation of certain very grave crimes. I appreciate what the Minister said about the intention that our adherence to the Human Rights Act—which I was glad to see the Lord Chancellor restate the other day—is protected, but if that is the case, and given the importance of the subject, why not put that on the face of the Bill? What is lost by that? Should at any time any future Government—I hope not this one—ever derogate in any way from the Human Rights Act, it would be better to have the protection there. My next point is about the scope of the agencies. As the right hon. Member for Orkney and Shetland said, it is pretty difficult think of what types of extreme violence might be authorised in the national interest by the Food Standards Agency? Some greater particularity around that would not be a bad idea either.
I will touch on the point that arises from amendment 13, which is in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and others. It is important because, if we are attempting to adopt a similar approach to our important security partners, why not adopt the same approach that is appropriate in the United States or, I would say, perhaps even more persuasively, Canada? It is a Commonwealth and common law jurisdiction country, which has had no difficulty operating a security regime like our own, with operational efficiency but equal concern for protection against abuse. It has found it perfectly possible to work within a statutory parameter of the kind that is suggested. I would like to understand from the Minister a little better why he thinks that that is not appropriate and why that might not be a safeguard to brave operatives under certain circumstances against the bringing of an unjustified complaint or litigation against them.
Mr David Davis
One distinction between amendment 13 and others is that it gives the Director of Public Prosecutions the right to make a judgment. Even if a person has behaved very unlawfully and committed serious crimes, the DPP is allowed to exempt him if he was in fear of his life.
Sir Robert Neill
My right hon. Friend makes a fair point in that regard. The DPP would be entitled to do that as a matter of course, using the public interest test that would ordinarily apply. We all might concede that that is not an unreasonable proposition under the circumstances. Again, we need more justification from the Minister, as far as that is concerned.
I know that the Minister wants to get this Bill into the best possible shape, and I thank him for his welcome and constructive engagement with me over the last few weeks. I do not want him to think that I am being churlish by raising these points, but it is desirable that we get these matters right, as far as we can. He and I are in much the same place in spirit, but it is about how we can get things right in practice.
Finally, I return to amendment 14. The point was well made—dare I say it, I think the Minister made the opposing case very well—that if the test of reasonable belief is important enough to put in the guidance, it is important enough to put in statute. Anyone who has practised in criminal law will know that reasonableness of belief can be pretty important in determining whether the elements of an offence or a defence are made out, and the Government would do no harm by putting that in the Bill. I hope that the Minister will reflect on that and the other matters that I have raised, and I hope he will recognise that I have done so in the spirit of constructive discussion and in an endeavour to improve the Bill, rather than to obstruct its overall purpose.
Bell Ribeiro-Addy (Streatham) (Lab)
As I expect we will not get an opportunity for Third Reading, I start by saying this: another day, and another attempt by the Government to ram through a Bill that puts the Executive and their agents above our laws.
I rise to speak to the amendments and new clauses in my name and those of other hon. Members—amendments that seek to protect our diverse communities, our trade unions and our right to political protest. In doing so, it is important that I correctly frame my contribution and make it clear that I, and others who oppose the Bill, completely understand the need for undercover operations, such as joining a proscribed organisation or selling or possessing drugs as a means to uncover the activities of organised criminals. Ministers have, however, failed to convince us why, unlike other countries, we have decided to legislate for such operations to include authorising criminal actions with no limits—even for the most heinous crimes—with no judicial oversight, and with power so heavily concentrated in the Executive.
Likewise, it is completely bizarre to suggest that the undercover policing inquiry that is due to start next month is irrelevant to this Bill. How can that be so when the inquiry will investigate whether crimes were committed by undercover police officers? The attempt to argue that in the course of such conduct—for example, coercing women into sexual relationships, and infiltrating and sabotaging campaigns and trade unions—no crimes were committed is surprising, to say the least, but to make such assertions before the evidence has begun to be heard, and to introduce legislation that will essentially green-light further such actions, is breathtaking.
Giving the legal go-ahead to such criminal behaviour in the future totally undermines attempts to secure justice for the past. Before I hear anybody say that that is irrelevant, I will point out that it is very relevant to many people and groups, such as the 14 trade unions that recently signed a statement and campaigning organisations including Reprieve, the Pat Finucane Centre, the Hillsborough and Orgreave truth and justice campaigns, the Blacklist Support Group, anti-racist groups and family campaigns for justice. Without question, I stand with them.
Mr Kevan Jones
I agree with my hon. Friend that some of the things that have gone on in the past, such as the Finucane case in Northern Ireland, are appalling and perhaps were not covered by what is in place now. But she said that there was no limit to what the state can do under this Bill. However, there is. The Human Rights Act and the 70 pages of guidance—I accept that it should be in the Bill—place limits on such action, because it has to be proportionate. As for trade unions and the other organisations that she mentioned, they are not covered by this. I accept that in the past some bad things went on, as she has mentioned, but that is not the case at present. The Bill simply provides oversight of a process that already is going on.
Bell Ribeiro-Addy
I will have to respectfully disagree, but I will come to that point.
Let me start with our amendments that deal with trade unions and blacklisting. Amendment 5 and new clause 4 lay out that a criminal conduct authorisation cannot be granted to a covert human intelligence source within a trade union. Similarly, amendment 6 and new clause 5 seek to prevent the powers in the Bill from being used for blacklisting. Although I understand that the Bill is not about the authorisation of surveillance, in both instances I and my hon. Friends believe it is important to explicitly remove trade unions and blacklisting activity from the powers in the Bill. We cannot and will not simply accept the Government’s assurances, because trade unions are absolutely right to be alarmed. As my hon. Friend the Member for Jarrow (Kate Osborne) explained to the House last week, since 1968, over 3,000 trade unionists have been blacklisted, over 1,000 organisations have been spied on by undercover police, and tens of thousands of ordinary citizens have had files held on them by special branch.
Similarly, for the purpose of protecting legitimate political protest, amendments 3 and 4 seek to remove “preventing disorder” and the
“interests of the economic well-being of the United Kingdom.”
as legitimate grounds for the authorisation of criminality. These grounds are ill defined and wide-ranging, not to mention open to outright political abuse. Again, I point to where they have already been abused. We know that using undercover police, allegedly posing as protesters, to commit crimes and provoke violence, including a violent response from the authorities, has been reported as an ongoing tactic and been discussed in the public domain in recent years, including more recently in the past few months, with regard to the Black Lives Matter protests and climate change and G20 demonstrations. All of these necessarily constitute an unlawful interference.
That is also why I have tabled amendment 1, which seeks to ensure that discrimination on the grounds of protected characteristics are taken into account before any such allowance for criminal conduct is given. I point to that because we know that, in the spy cops scandal, women were unfortunately discriminated against through the way in which they were coerced into sexual relationships, and as we know, ethnic minorities are disproportionately the victims of state violence. As my hon. Friend the Member for Poplar and Limehouse (Apsana Begum) said last week, it is not hard to see that this Bill is just another iteration of the expansion of state surveillance of marginalised communities.
I should also point out that Members from across the House routinely disagree on what is in the interests of the economic wellbeing of this country. Could my disagreement with capitalism be perceived to fall under the auspices of the Bill? Before anybody says, “That’s absolutely ridiculous,” I would remind the House that Labour Members have been subject to surveillance, and no doubt vague and wide-reaching arguments were used at the time. Where does this end?
To respond to my right hon. Friend the Member for North Durham (Mr Jones), is it not also the case that Ministers cannot assure members of the public by saying that the Human Rights Act guards against abuses, as it cannot be applied to individuals, only to organisations? This Bill would permit crimes to be committed in contravention of the European convention on human rights and the individual perpetrators could not be prosecuted, although the UK itself might subsequently be found in breach of the ECHR—a theme that is becoming all too common in the Government’s approach to legislation.
Joanna Cherry (Edinburgh South West) (SNP)
As the hon. Lady knows, I and my hon. Friend the Member for Glasgow South West (Chris Stephens) are supporting her amendments, particularly on the trade union angle, but in relation to the Human Rights Act, is it not also true that the Government themselves have argued before the Investigatory Powers Tribunal that the state, in tasking CHIS, is not the instigator of the activity and cannot be treated as responsible for it? There is therefore a real difficulty with the Government trying to give us comfort by reference to the Human Rights Act.
Bell Ribeiro-Addy
The hon. and learned Member is absolutely right, and that is why we cannot be comforted by those assurances. They would have to be put on the face of the Bill for us to have any assurance that the Government would not move forward in that way.
It is unfortunate that the Government are laying down a Bill like this, at a time like this, without putting in place clear limitations and proper oversight to prevent what are the gravest violations and curbing the use of such powers for political reasons. Our democracy has to be protected and our rights have to be upheld. Our police and security services should exist to uphold the rule of law, not break it. I therefore urge all Members to vote for the amendments and, if they are not passed, to vote against the Bill.
Mr David Davis
I will pay attention to your encouragement to be brief, Mr Evans. Although I support the intent of the amendments in the name of the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the right hon. Member for Orkney and Shetland (Mr Carmichael), and the hon. Members for Streatham (Bell Ribeiro-Addy) and for Walthamstow (Stella Creasy), I will focus solely on amendment 13.
There is no doubt that there is a need for a Bill like this. Infiltrating terrorist gangs and going under cover as an informant is dangerous and risky work which often requires breaking the law, and the Bill enables authorisation of those breaches of the law. However, amendment 13, in my name and in those of others, explicitly exempts the most serious crimes of murder, torture, rape and others from powers in the Bill. The Government argue that that is not necessary because the Human Rights Act already limits their actions. The question before the House today is this: do we believe that? Do we think that that is sufficient?
Back in the early 1990s, I was one of the Ministers who took the Intelligence Services Act 1994 through the House. Section 7 of the Act enabled MI6 officers abroad to commit crimes in the interests of the state. Inevitably, in the tabloid press, it became known as the James Bond clause, but that is precisely what it was not. It was not a licence to kill. It was a licence to bribe, burgle, blackmail and bug, but it was not a licence to kill. Nevertheless, within a decade, section 7 was being used to authorise rendition, torture and the mass invasion of innocent people’s privacy—crimes that were never countenanced when the Act was put in place. I know that, because I did all the work behind it. It should be understood that the authorisation of those crimes, often within the United Kingdom, occurred after the Human Rights Act had been passed—indeed, while the ink was still wet on its pages in some cases—and it provided precisely zero protection. Likewise, the European convention on human rights, the international convention on torture and the 1949 Geneva convention, to all of which we are signatories and some of which are absolutely binding in law, provided no protection whatever.
Mark Pritchard (The Wrekin) (Con)
My right hon. Friend has huge experience in this area, both legislatively and professionally. He is an expert. If a checklist, as he suggests, is put in the Bill, is that not also a checklist for terrorist gang leaders to prove a rite of passage and loyalty to somebody who might be working covertly on behalf of our national security interests?
Mr Davis
I will say a couple of things on that. First, if the gangster is smart enough to read the Act, he is smart enough to read the Human Rights Act. Secondly, I put a specific reference in amendment 13 to the Director of Public Prosecutions, so that if my hon. Friend is in such a circumstance and he has to do something violent to prevent himself being killed, that is an exoneration for the DPP. So it specifically allows that clouding, if you like, of the judgment. I draw his attention to the intervention in The Times last week—I was going to mention it later, but I will mention it now—by one of the best DPPs of modern times, Lord Ken Macdonald. He is not of my politics, but he is very, very experienced and he knows all about these things. He described this as Soprano-watching judgments and Soprano-watching logic. I am afraid that I agree with him, and I will come back and illustrate why in a second.
Officers in the intelligence and policing agencies can face huge pressure to authorise improper criminal activity, particularly when the demands on the agencies themselves become enormous. We saw that after 9/11, when after the dodgy dossier we had all the rendition issues. I always said in those days that we should not prosecute the individuals, because they were trying to prevent a 9/11 happening in Canary Wharf, but it was still wrong. Those morally indefensible actions by the state and their agents occur at the darkest times in our history, and we must remember that. We must write our laws to cope with the darkest times in our history, which is what we are trying to do here today.
Mr Carmichael
On the point about rendition, the right hon. Gentleman will recall the Intelligence and Security Commission, when considering the Belhaj and Boudchar cases, said that in effect our services had outsourced work that they were not allowed to do in law themselves. Does not that alone indicate that those services require proper independent scrutiny? They should not be left to mark their own homework.
Mr Davis
The right hon. Gentleman is right, and we should not forget that the clause that was used requires ministerial approval, not approval by an officer under the pressure of, as it were, almost the battlefield sometimes. A Minister in Whitehall approved it, and it still happened. There were two sets of inquiries into those problems, one by Lord Stevens, who is nobody’s softy, and one by Sir Desmond de Silva. The latter concluded that the problems required some recognised limits to the extent to which agents should become involved in criminal enterprises and a rigorous regulatory framework to prevent abuses—not a woolly reference to the Human Rights Act.
Sir Robert Neill
I am glad that my right hon. Friend is making a powerful speech, referencing not only Lord Stevens of Kirkwhelpington but the late Sir Desmond de Silva, whom some of us knew personally and who came up with his conclusion from his long experience at the criminal Bar and also the experience of being a prosecutor in the international war crimes tribunals. He was certainly no soft touch, and he was used to going after bad people, but believed it was necessary to do so within proper constraints.
Mr Davis
My hon. Friend is absolutely right. Sir Desmond did something else in his report: he quoted Lord Atkin, who, in a landmark case during world war two, said that
“amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”
I am afraid that the Bill, necessary as it is, does not meet that test, and that is the problem.
Mark Pritchard
My right hon. Friend rightly mentions the Pat Finucane case which David Cameron, as Prime Minister, correctly apologised for, but does my right hon. Friend recognise that since then the security services have more judicial oversight than ever before? We did not then have the Investigatory Powers Commissioner, and even the powers of this House for more oversight of the security services have increased. There has been a marked difference. Times have changed.
Mr Davis
Well, they have changed a bit. One of the things that the Intelligence Services Act 1994 created was the Intelligence and Security Committee. The Committee tried to look into rendition and torture just recently, under its previous Chairman, and it was refused access to 15 cases, so I am now suing the Government on exactly this matter, to force them to have to have a proper judge-led tribunal. So even now, it is not good enough; after 20 years, it is still not good enough.
The trouble is that others do it better. America and Canada learned the hard way about the need to include specific limits on the crimes that agents can commit. In those countries, informers and their handlers were involved in carrying out numerous cases of racketeering and murder, and they were found out. Since then, both countries have set clear limits. Just as an aside on the overall public interest, we all want our agencies to be able to work, but the FBI investigation found that the lack of limits and the wooliness of the controls led to more crimes, not fewer, so the so-called Soprano effect worked in reverse in terms of protecting the public interest.
The Bill puts no express limits on the crimes that the agencies can authorise—not on murder, not on torture and not on rape—and it claims that the Human Rights Act provides a safeguard. However, their own submissions in court, which have already been referred to by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the right hon. Member for Orkney and Shetland, showed that their own lawyers do not believe that. If Members have a bit of quiet time travelling back to their constituencies, they should read the Investigatory Powers Tribunal’s findings on the behaviour of the agencies. It is almost a James Bond novel in its own right. The scathing descriptions of the operations are worth reading.
Amendment 13, tabled in my name, addresses the most egregious elements of the Bill. It puts hard limits on the extent of criminal conduct that can be authorised by officers, and it specifically prohibits murder, torture, serious bodily harm, sexual assault and other heinous crimes. Crucially, it explicitly permits prosecutors to drop a case in a situation where an agent is truly forced to participate in a serious crime and where a decision not to prosecute is in the public interest. There is a real need for legislation in this area, but the Bill as it stands carries real risks of serious injustice. My amendments would give the intelligence services the protections they need, but stop short of giving them carte blanche authorisation to carry out the heinous crimes in the name of the state that have happened too often in the past.
Stella Creasy (Walthamstow) (Lab/Co-op)
It is an honour to follow the right hon. Member for Haltemprice and Howden (Mr Davis), and I agree with much of what he has said. I think there is agreement in this Chamber that we need this legislation, because the hallmark of a grown-up democracy is that it does not shy away from taking the necessary actions to keep a country safe, and nor does it say, “Don’t ask, don’t tell.” This legislation puts on a statutory footing those practices that are part and parcel of security in this country. The question for all of us is whether it also provides the necessary accountability and oversight to ensure that they are just. I recognise that covid and the speed with which this legislation has been brought through militate against our doing our job properly on this, because we are doing it so quickly, but today I want to flag up one particular issue of concern. I suspect that it will be in the other place that we will see progress on these issues.
We know that this is a narrow Bill with a specific role around criminal conduct. I also recognise and understand the concerns that my hon. Friend the Member for Streatham (Bell Ribeiro-Addy) raised—I am sorry that she is no longer in her place—about the ongoing inquiries and the timing of this legislation. I hope the Minister will address those points in his comments and tell us what the Government would do, should those inquiries come back with further requirements for support. I also want to put on record my support for amendment 13 and for the Front-Bench amendments from my own party.
We recognise that there are genuine concerns about the Human Rights Act. In other debates in this place, people have talked about rewriting the Act, and I hope the Minister will deal with that issue. Also, it is a circular argument to suggest that the practices set out in amendment 13 and the amendments from my own Front Bench are already covered, if the Government will not accept amendments to ensure that they are part of how this legislation is dealt with.
I also hope that the Minister will talk about the equalities impact of the legislation. I represent a community that has, at best, a tangled relationship with many of the agencies that will have these powers. We are in a position of privilege in this House, so it is right and proper that we have oversight of those who do not share those same benefits.
I rise to speak in particular to new clause 8—especially the issue at the heart of this legislation, which for me is about the people who can consent to be a covert human intelligence source. It is worth looking at the definition:
“Someone who maintains a relationship for the covert purpose of providing information to another person”—
that is, not just someone who has a one-off conversation with our security services or police about something, but someone who is asked to maintain what is potentially a position of harm to support an investigation.
The right hon. Member for Haltemprice and Howden talked about the James Bond code. In most of our discussions about CHIS, we have envisaged those James Bond figures—the people from our security services or police conducting covert investigations. But I want to talk about those who are not the James Bonds: the children and vulnerable people who become covert human intelligence sources and who need us to make sure in this legislation that they are properly protected.
For the last year, there has been a legal challenge to the Government about how children have been used as covert human intelligence sources. It was settled last week in the High Court, when the Government agreed to update their guidance and code of practice on how children could be involved in this legislation. It is worth taking a step back at this point to reflect on that: we are talking about young people—children being asked to do what we previously envisaged James Bond doing. I hope that I am pushing at an open door with the Minister with the new clause because that code of practice and the recognition at the High Court that there was a case to answer reflect the fact that we need to get this right.
Our first instinct may be that no child should ever be involved in intelligence work in this way, and I sympathise with that. But when we look into the cases where it has happened, we see that there may be exceptional circumstances in which a child may become an informant. It is right, therefore, that we should have incredibly strict guidelines that have the interests of that child at heart when that happens. I am open to the idea that understanding what constitutes those exceptional circumstances is very difficult, but the new clause comes from the belief that the child’s primary interests should be, as a matter of fact, at the heart of any engagement with state services.
Let us talk for a minute about the children we are discussing. For many of us who represent communities where issues such as county lines are a real problem, they are the children in the gangs and those who have been part of child sexual exploitation, who may know valuable information and have relationships with those exploiting them. For the police and the security services, they become incredibly valuable sources of information.
Those are important investigations—nobody is suggesting otherwise. But the new clause recognises that there may be a conflict of interest between the investigation and the best interests of an incredibly vulnerable person. A young child drawn into county lines who knows the people organising things and has been given a gun—I can think of such cases—is still a child. We have a duty to that child to ensure that they are not exploited, even if people feel that the investigation is merited.
The Minister will say that that happens very rarely. The Government’s own figures show that 17 children in 11 jurisdictions were used in this way in the past couple of years. One of them was just 15—a 15-year-old child being asked to continue a relationship that puts them at harm because that helps an investigation. What troubled me was that one of the other Ministers told the court that we should actually make more use of children in such circumstances—that they could be valuable because they were getting involved in criminal activity themselves.
Again, take a step back and think that through. In other parts of our legislation, we recognise that when children engage in harmful practices it is our duty to stop that. Yet in that court case and this process with CHIS, Ministers are saying, “Actually, we might want to maintain that because it will help with an investigation”—the children would have “unique access” as “juvenile undercover agents”. They are children, Minister, and it is absolutely right that we act to protect them and see them as children first. That is what new clause 8 seeks to do.
James Brokenshire
I will respond to the hon. Lady formally in my winding-up speech, but I would like to stress that all public authorities that task juvenile CHIS must have regard to their safety, welfare and wellbeing, as required under sections 10 and 11 of the Children Act 2004 and the United Nations convention on the rights of the child. It is important that I state that. The hon. Lady is making some important points, which I am listening to intently, but I think it is right that I put that on the record.
Stella Creasy
I recognise what the Minister says. The challenge is that we already know of children and vulnerable young people who have been in this position under that legislation, but the paramount needs of the child or vulnerable person have not always been at the forefront of the minds of those involved in these investigations.
What am I talking about? I am talking, for example, about a 17-year-old girl who was in a relationship where she was sexually exploited, but she continued in that relationship because it was beneficial to the police investigating the person she was in a relationship with. She ended up witnessing a murder and being party to destroying evidence about that murder. We would be responsible for the situation that she was in.
New clause 8 does not say that there will never be a circumstance in which we might work with children, but it does say that it is right to see them as children first and to have a second pair of eyes to uphold that principle. The Minister will tell me that that is written into the guidance, but the new clause puts it in the Bill so that it is beyond doubt that somebody would take responsibility for a vulnerable person’s welfare. It also extends to vulnerable people who might have been trafficked, for example—people who may not see themselves as vulnerable but who, we would recognise, could be exploited. It is right that we have that check and balance of the appropriate adult—somebody who looks at that vulnerable person and gives an alternative perspective on what is happening to them, independent of the investigation.
The Minister may say that he cannot accept the new clause in this format, but I ask him to look seriously at this issue and to ensure that when we pass necessary legislation to formalise such powers, we take a step back and see the person we might be drawing into criminality. These people are not all James Bond and can consent freely to being involved in criminal activity and then be held accountable by RIPA. Some of them will be very vulnerable people who need us in this place to stand beside them and ensure that their interests are protected and that they have an appropriate adult to act for them.
I hope the Minister will listen to the concern that has been expressed across the House—the new clause is signed by Members from across the House—and introduce that protection into the Bill so that we put it beyond doubt. The reality is that if it is just in a code of guidance, it will not always be followed. Let us send the message that children should be children, not child spies.
James Sunderland (Bracknell) (Con)
I am grateful to be called so early in this key debate, having been unable to speak on Second Reading. I therefore wish, if I may, to speak in general terms.
The first duty of any Government is to protect their people from harm. It is called defence of the realm. Given that that overrides all other considerations, we need to see the Bill in the context of the many existential threats that we face on a daily basis, many of which are hidden in the shadows and may never reveal themselves until it is too late. We also need to consider those we trust to keep us safe by empowering, not inhibiting, what they do. Our security services are only ever as good as the tools that their operators are given and the legal framework in which they work. Not only is the Bill a necessary piece of legislation in its own right; it provides a further insurance policy against those who seek to destroy the freedoms and the democracy that we take for granted.
Having personally served in uniform, I am comfortable that the Government continue to do what they must to give our intelligence services what they need to do their job. By allowing criminal conduct authorisations in the pursuit of covert human intelligence sources, the Bill rightly maintains the services’ operating freedoms, allowing them to close on those who threaten us and bring them to justice. But let us be clear: these powers are to be used only in extremis, when the operational circumstances necessitate, when quick decisions are needed or when there is no other way to avoid compromise.
To think that our operators are naturally predisposed to committing murder, torture or sex crimes, or that the Bill somehow encourages them to do so, is just wrong. The need to exercise discretion and judgment lies at the heart of what we ask our services to perform. Not only are these people good at what they do, they intuitively know the difference between right and wrong, so it is right that a CCA may be granted where necessary for one of three purposes: national security, the prevention or detection of crime, and in the interests of the economic wellbeing of the UK. I am happy, too, that under clause 2 only responsible bodies, such as the police, the National Crime Agency, the Serious Fraud Office or the security services, will be entrusted to do so, albeit with further work needed beyond the scope of the Bill on appropriate operating procedures.
I also agree with my friends on the Opposition Benches that, for example, rules of engagement might be provided in each particular case, and that there is further work to do. Under clause 4, the Investigatory Powers Commissioner will exercise oversight of all authorising bodies, not least to ensure that unlimited powers to commit any crimes are never granted and to rightly prosecute where criminality occurs.
I noted on Second Reading that the Secretary of State was continually pressed on which practices might be exempt or otherwise. His stance that it would not be appropriate to draw up a list of specific crimes is right, for to do so would place in the hands of criminals, terrorists and hostile states a means of identifying our agents and sources, creating a potential checklist for suspected operators to be tested against. The Chair of the Intelligence and Security Committee also recognised how easy it would be for groups to flush out agents if they were aware of human intelligence being prohibited from certain acts, calling it “ dangerously counterproductive”. Although my own knowledge of covert operations is limited, I can tell Members that the work is difficult and dangerous.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
On people trying to flush out covert agents by getting them to do things that are on this supposed list, is the hon. Member therefore saying that the Human Rights Act 1998 does not prevent people from being able to do things, or does it potentially prevent certain actions and is therefore already a list? I am confused which it is.
James Sunderland
My key point is that the Human Rights Act does provide those protections, but in the context of operational service at the point at which decisions have to be taken I believe that those protections are needed.
Unlike most of our conventional forces, operators often work isolated and alone, making snap decisions that allow them to maintain trust and avoid detection. Rather than isolate them further—this goes back to my previous point—they need to know that their decisions and actions, when made in good faith and often under extreme stress, will be supported when the time comes. It is that discretion that lies at the heart of what they do, and more fool us in this place should we choose to undermine them or hang them out to dry from the sanctity of our courtrooms.
The recent evidence on why the Bill is necessary speaks for itself. Since March 2017, MI5 and counter-terrorism police have thwarted at least 27 terror attacks on home soil. In 2017, covert operations infiltrated a criminal organisation to stop a planned attack on Downing Street. In 2018, the National Crime Agency disrupted more than 30 threats to life, seized over 3,000 kg of class A drugs, safeguarded more than 200 people, and removed almost 100 firearms and 4,000 rounds of ammunition off the streets. Between 2017 and 2019, Her Majesty’s Revenue and Customs has prevented hundreds of millions of pounds of tax loss, with one case alone estimated to have saved the Treasury over £100 million. Such is the wider utility and benefit of our intelligence sources across a range of authorised bodies, what else do we not know?
I am sympathetic to new clause 3 about oversight of the ISC, but I am not convinced that the equality impact assessment cited in new clause 2 or the blacklisting cited in amendment 6 and new clause 5 would be feasible. I am sympathetic to new clause 8 in respect of CCAs being granted to under-18s and vulnerable people, but I think it would be difficult to implement in the field.
It is not always ours to reason why from the privilege of this place, nor to cast judgment on those who face more danger on a daily basis than we can imagine. I cannot agree with those who insist via amendment 7 that a criminal conduct authorisation should only be provided once a warrant has been issued by a judge or that a time limit be given. Similarly, for those who seek to balance the size and scope of the proposed activity against the gravity or the extent of the perceived crime, I regret that our operators will rarely have the luxury of doing so when danger is upon them. Given that our primary responsibility in this place is to keep our people safe and to allow those entrusted to do so to operate as they must, I will vote today for the passage of this Bill.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I welcome the remarks of the hon. Member for Bracknell (James Sunderland) about the important work that our security and intelligence agencies do.
We now have just a few short hours for the Committee stage of this Bill today. We will end up, in effect, with no Report stage. It is only 10 days since Second Reading. Third Reading is likely to be squeezed by how long it takes us to vote at the moment. I say to the Minister that this is an irresponsible way to deal with legislation that is so important. He will know that I say that as someone who strongly supports the vital work of our security and intelligence agencies, and our senior police, who deal with serious and organised crime, terror threats, and child abuse. They work with great bravery to keep us safe, and we owe them our thanks.
The Minister will also know that I have long supported much of the counter-terror work that the Home Office does, as well as its work with the police and intelligence agencies. I agree with the core purpose behind this Bill, which is to provide a legal framework for the difficult work that our Security Service, counter-terror police and National Crime Agency need to be able to do in order to keep us safe. But that is why we should take care to get the details of the legislation right. That is important because it is not only about the rule of law and safeguards for our democracy, but about the interests of the Security Service and the police. It in their interests to have the proper safeguards in place for the vital work they do. It protects them and it also protects individual officers, who have to take very difficult decisions under pressure with great integrity.
I find it difficult to believe that the court timetable has necessitated this condensed timetable. The Investigatory Powers Tribunal reported in December last year. Preparations were under way at that time for legislation, in case it might be needed. We could have had more consideration of this. We could have continued with it for a further couple of weeks in this House and then accelerated the timetable had it proved necessary at the last minute, given the court timetable and the potential for an imminent court decision.
We will therefore have an accelerated discussion of a whole range of different, important and very sensible amendments that have been put forward, such as those on pinning down the safeguards for human rights considerations and putting them more explicitly into the Bill. I strongly support the words of my hon. Friend the Member for Walthamstow (Stella Creasy) about the need to ensure that there is proper protection for children. There are measures to protect children in the use of covert human intelligence, but there should be additional safeguards in case there are ever circumstances in which children are being asked to break the law. Such safeguarding is important and does need to be seriously responded to. I also support the reinforcement of existing protections against things such as blacklisting and interference in trade union activity—protections that have been secured by work by Labour MPs on previous legislation.
The two key issues that I wanted to focus on—and the amendments that reflect those—are first around independent checks and secondly around the scope of the legislation. The Bill as it stands does not include sufficient independent checks. There is no independent check in advance and the independent checks in retrospect are very limited; all we have is the retrospective oversight of the Investigatory Powers Commissioner. Those are permissive provisions rather than clear requirements on the commissioner, which means that we will have no idea in the House, in retrospect, whether the IPC has been forensic, looking at every individual case, or whether it has had to focus on other issues that year as part of its report.
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I remind Members that there are a number of colleagues down to speak in the debate. There will be three Front-Bench winding-up speeches, which will have to start just before 3.20 pm, and then I suspect there will be votes. I cannot introduce a time limit, because we are in Committee, but I am sure that Members will be considerate to one another. I call Dr Julian Lewis.
Dr Julian Lewis (New Forest East) (Ind)
Thank you, Dame Rosie; I shall endeavour to be helpful. It is only by the good fortune, dare I say it, of there having been yet another statement on the covid crisis that many members of the Intelligence and Security Committee are able to take part in this debate at all. I have written to the Leader of the House about this, and I appeal to the Government’s business managers in future not to schedule legislation of this sort, which is directly relevant to the Intelligence and Security Committee, on the same day that it is known that the Committee has an immovable meeting. I am grateful to the right hon. Member for North Durham (Mr Jones) for being willing to leave our main meeting early, so as to be sure that new clause 3 could be covered, and I will now make some remarks about that new clause.
The Intelligence and Security Committee, as was stated on Second Reading, strongly supports the principle behind this legislation. CHIS play a vital role in identifying and disrupting terrorist plots. They save lives, often at great risk to themselves. Sometimes they must commit offences to maintain their cover, and their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. We welcome the Bill, which will place the state’s power to authorise that conduct on an explicit statutory footing.
However, concerns were raised on Second Reading that the Bill does not provide for sufficient safeguards and oversight measures. The ISC agrees. There is a clear role for the Investigatory Powers Commissioner, and it is absolutely right that the commissioner is able to use his judicial oversight powers to ensure that those powers are used only with due care and consideration by the agencies that authorise criminal conduct.
The Bill, as it stands, does not provide for any parliamentary scrutiny of the use of these authorisation powers, so the amendment that the ISC has tabled—new clause 3—proposes not to duplicate the role of the Investigatory Powers Commissioner in any way, but instead to require the Secretary of State to provide the Intelligence and Security Committee of Parliament with an annual report of information on the number of criminal conduct authorisations that have been authorised by the agencies that the Committee oversees as well as on the categories authorised. All we are looking for is a simple table saying that these are the categories of offences that have been authorised, those are the totals in each category and this is the grand total.
Bob Stewart (Beckenham) (Con)
It is only the number and the category; there is no detail, because that would be extremely dangerous.
Dr Lewis
That is absolutely right, and the whole point about the detail is that that is the job of the Investigatory Powers Commissioner. What we want to do is give an added layer of extra scrutiny on the scale and the categorisation, but nothing in terms of particularity of any individual case.
Gavin Robinson (Belfast East) (DUP)
I support new clause 3. I think the emphasis behind it is right, and the work that the right hon. Gentleman’s Committee does is very important. There was an interesting line in the report published by the Committee on 5 October on Northern Ireland terrorism that touches on this Bill. It said, “Authorisations are used sparingly”, and then it gave the proportion of members of the services that have had authorisations, but that number featured in the published report as “***”. I only want to raise with the right hon. Gentleman the point that, while it is important that his Committee has access to that important information, the information could be made available. There is always a consideration, to various degrees, about what is contained in reports and what is not, but it does not seem to me that that is sensitive, and for the purposes of this debate, it would actually have been an incredibly helpful figure to have.
Dr Lewis
The hon. Gentleman, with whom I worked so closely on the Defence Committee, as always gets to the heart of the matter. He says that, indeed, we have made reference in the context of Northern Ireland to numbers and scale in precisely the way we are seeking to be able to do here. Whether something is then made public is always a matter for debate and negotiation between the ISC and the agency concerned, but where it cannot be made public, that is where the ISC in a sense comes into its own. We exist to be able to see things that for good reasons cannot be made public, but we can then at least give assurance to Parliament that we have seen what cannot be made public and we are reasonably satisfied with it, and that is what this is all about.
Mr Kevan Jones
The reason for not giving that figure is clearly that it would give an advantage to those we are working against—for example, in Northern Ireland—through an indication of the scale of the CHIS. Could the right hon. Gentleman clarify the situation and highlight to the Committee that we would look at the numbers, but that we have powers to look at individual cases, as we have done in the past, if we have concerns about them?
Dr Lewis
Yes. What it is important to remember and, it must be said, what has not always been remembered in recent times, are the provisions of the Justice and Security Act 2013. That Act, among other things, said that the Committee would have greater powers to “require” the agencies to give certain information. Prior to that, it could only “request” the agencies to do so. The question is: will we have the power to be assured of getting these figures, or are we going to be able only to ask for them and perhaps not get them? The right hon. Gentleman is absolutely right: if we saw something that we did not like the look of, even if we did not have the power to require that particular piece of information in order to delve further, we could at least request it. For many years, that was the only basis on which the Committee could operate anyway.
Stewart Hosie (Dundee East) (SNP)
Before the right hon. Gentleman moves on to his next subject, there is also an issue of trust. The Bill envisages giving the Government a significant degree of ability to authorise criminal activity. As someone who is happy to give this Bill a fair wind with certain conditions, I say that if the Government cannot see fit to include on the face of the Bill this very modest new clause from our Committee—it is only about numbers, not details—I think trust in the Government is rather diminished.
Dr Lewis
I am obviously hoping that the Minister will convince us in the course of this afternoon that we can indeed trust the Government on this matter. If he wishes to do so, he needs to clear up the point I am about to raise concerning current operations.
Although sometimes the Government share information voluntarily with the Committee about current operations, we cannot normally demand such information. The danger with a letter and the slight amendment to the regulations is that it could still leave a loophole whereby the Government say, “We would like to give you these statistics and these categories, but unfortunately some of them relate to operations that are still ongoing.” Perhaps there have been 15 such authorisations, and one or two of them relate to current authorisations. That could be used as an excuse not to tell the Committee about the total of 15. In reality, I do not think that would be within the spirit of the understanding of the reasons why current operations are normally excluded from the purview of the work that the Committee does.
In order for the Minister to develop the degree of trust that we wish to have in the Government’s intentions, I hope that when he comes to address the arguments that have been put forward in support of new clause 3, he will rule out any suggestion that the fact that there might be one or two current operations included in a statistic will prevent the Committee from seeing those statistics that we have urged the Government to provide by tabling the amendment. I look forward to the Minister’s comments on that later, and I earnestly hope we will be able to reach a satisfactory outcome.
Jeremy Corbyn (Islington North) (Lab)
The proceedings on this Bill today are an absolute travesty of parliamentary accountability. That a major Bill such as this, with huge implications for civil rights and human rights in our society and for our standing around the world, should be pushed through in a very short time this afternoon is a travesty. I suspect we will not even vote on most of the amendments—they will not have been subject to stand-alone debates. In effect, we are having another Second Reading debate to accommodate those who have tabled amendments. We should reflect on this House’s role in holding this Government to account.
I have added my name to a number of amendments, particularly those drafted by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), to whom I pay tribute for her work on the Bill and her contribution this afternoon.
The Mitting inquiry into undercover policing operations, which succeeded the Pitchford inquiry after Pitchford’s death, is still going on. It was due to report in 2018; it has not even got into its second and third stages yet and may well go on for several years more before it reports. It covers undercover policing since 1968, a time which, I reflect, more or less covers my whole political life, so I will read with great interest the Mitting inquiry’s final report.
What has come out so far for those of us who have good friends in environmental groups, human rights groups, trade unions and many other campaigns is the sheer arrogance of police undercover operations that have infiltrated wholly legitimate and legal operations in order to disrupt them, spread negative information and cause problems for them. If we live in a free and democratic society, criminality is obviously not acceptable and policing is obviously required to deal with it, but we do not deal with criminality by authorising criminality through undercover policing operations and investigations into such groups.
There are those of us who have had the honour of meeting people, particularly women, in a number of groups that have been infiltrated by the police and the police have then knowingly formed sexual liaisons with those women. Children have been given birth to a result and then, often years later, the woman concerned finds out that she was completely duped—completely misled—and her life was ruined by an undercover police operation. Imagine what it feels like for someone to have been with what they thought was their life partner for several years, and they discover that that person was put there by the police to seduce them into giving information on, actually, legal activities done by environmental and other groups. Will the Bill protect women from that in future? I think we all know the answer to that.
I hope that, at the very least, the House of Lords is able to make some substantial amendments to the Bill. I am disappointed that the College of Policing advice, which has just come out, is that it is not necessarily wrong for undercover officers to form sexual relations with people to gain information. This is the kind of world that we are about to approve of unless the amendments tabled by my hon. Friend the Member for Streatham, my hon. Friend the Member for Walthamstow (Stella Creasy) and others are accepted by the Government today.
I will be brief, because there is not much time and 11 more colleagues wish to speak before 3.20 pm. The second matter to which I shall refer relates to the points made by my hon. Friend the Member for Streatham. The Bill says that people cannot do anything to undermine the economic wellbeing of the country. What does that actually mean? Does that mean, for example, that if dock workers decided to take strike action because they had reached the end of the road in negotiations with their employer and therefore wished to withdraw their labour to force a settlement of their grievance, they would be acting against the economic interests of this country, because that would disrupt trade? Or would they be acting in the interests of themselves, their colleagues and other workers by trying to improve their economic wellbeing? There is a big debate about what is economic wellbeing and what is not.
There are those, like me, who have seen the activities of undercover police operations in trade unions and the blacklisting of wholly legitimate trade union representatives, who have spent 20 years and more being unable to work, as electricians, as carpenters or as plumbers, because they have been blacklisted secretly by groups of employers, when the police knew about it all along. These were wholly illegal activities. The police need to recognise that what they have been doing is completely wrong—it is simply unacceptable.
I hope that we will have a thought for the moment for the more than 1,000 groups that have been infiltrated in some way by the police at some point over the past few years. Those of us who have spent our lives campaigning for social justice and environmental sustainability, and against racism in any form, often wonder why there is apparently much less concern about, much less involvement with and much less attention paid to far-right racist organisations than to other people within our society. We need to know the answers to all these questions, but I suspect we will not get them today.
My hon. Friend the Member for Rhondda (Chris Bryant) has tabled an amendment that proposes that activities should in future be authorised only by the Prime Minister. My hon. Friend the Member for Streatham has also proposed amendments on the issue of accountability, which is the key to this. I wonder whether Ministers actually knew what was going on or know what is going on now. I wonder whether senior police officers always knew what was going on. I wonder how many different quasi-secret operations were being conducted in different police authorities around the country without the relevant police commander even knowing what was happening. Inquiries in South Yorkshire in respect of Orgreave and Hillsborough tend to indicate there is a lack of transparency in the way the police operate.
The right hon. Member for Haltemprice and Howden (Mr Davis) spoke correctly about the issue of where we are going if we go down a road of ignoring human rights and justice within our society. He and I spent a lot of time campaigning to try to get British nationals and British residents released from Guantanamo Bay. The whole thing is a disgrace. The whole thing is extra-judicial in every conceivable way. Likewise, this country and our Government here were involved in extraordinary rendition in some form. If we are to hold our heads up around the world as being supporters of human rights, and as being a signatory to the universal declaration, the European convention and our own Human Rights Act, we need to look carefully at ourselves and at what this Bill proposes. I hope that at the very least the Minister will make it clear whether the Government are committed to continuing to support, recognise and work within the terms of the historic and important Human Rights Act or whether, once again, he will be appealing to the backwoods people in the Tory party who see human rights as somehow a term of abuse and who want to repeal that Act or reduce its power and importance. These things are very important.
I regret that we have such a short time for this crucial debate today, but I am moved by the hundreds of people who have been in touch with MPs about this, and the dozens of organisations, not necessarily all protest groups or on the left—these groups cover peace, civil liberties and human rights—that are very concerned about this Bill. These are people who think seriously about these matters and we would do well to listen to them, rather than ramming this through in a few hours on a Thursday afternoon and imagining that that will be job done. It will not be, because this will all get back in the courts at some point in the future and the Mitting inquiry report will come out at some point. Many of us will continue our vigilance in order to protect civil liberties and human rights in our society and our country, and to protect the civil liberties and rights of those who work in the police and other security services.
Dan Carden (Liverpool, Walton) (Lab)
On a point of order, Dame Rosie. I understand that my hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson) has swapped places with my right hon. Friend the Member for North Durham (Mr Jones) in the list, and they are to be on either side of my speech. I was just wondering whether there was a reason for that.
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I thank the hon. Gentleman for that point of order. I understand that the right hon. Member for North Durham (Mr Jones) spoke to my predecessor in the Chair because he is speaking to his new clause, so, very unusually, given that the hon. Member for Kingston upon Hull North (Dame Diana Johnson) was happy to swap places, that seemed reasonable. There is nothing sinister about it and it has not altered where the hon. Member for Liverpool, Walton (Dan Carden) comes in the call list, but for the value of the debate, it was felt to be reasonable that the person speaking to the new clause could move forward. It does not affect when the hon. Gentleman is speaking, I can assure him.
Mr Kevan Jones
There was a time when I used to like the hon. Member for Liverpool, Walton (Dan Carden), when he was a young researcher here. There is nothing sinister happening—it was the fact that the Intelligence and Security Committee sat this morning. I was going to move the amendment because the Committee was still sitting, and that is why it was done. It is nothing against the individual personally, and he knows I have a lot of respect for him.
I support the Bill, and obviously the new clause in the name of the ISC, because it gives a legal framework to cover this area of work. Having been on the ISC for a number of years, I have seen transcripts of some of the evidence from CHIS. Is it information that we could get in any other way? No, it is not. There is a misunderstanding that somehow now with modern technology, telecommunication intercepts and everything else, we can get all the information that we require. We cannot. The best is still from human sources. Certainly, with the cases I have seen and the transcripts for terrorism cases relating to Islamic terrorism and the ones for Northern Ireland, the work that the security services do to protect us all—including all communities, and that includes marginalised communities—could not be done without that CHIS involvement.
There has also been a misunderstanding—I think it gets crossed over in the Bill—between what is happening now and what happened in the past. I am no defender of what happened in the past, in terms of some of the things that were referred to in Northern Ireland or even the spy cops issue. Under this legislation, we will have the Investigatory Powers Commissioner’s oversight of the situation, and there is a big difference between police officers, in terms of this authorisation, and civilians. Police officers will come under the Bill, but remember, more importantly, their conduct is also covered by other legislation.
I know that the spy cops case is cited, as though this would legitimise them. It would not because police officers would still have to come under the legislation that covers their conduct. They are more controlled than the civilians or individuals we will recruit both for organised crime or national security issues, who will have to commit crimes on occasions to ensure that their cover is not blown. I have seen the transcripts, and although I cannot refer to individual cases, I have seen one where an individual was part of a proscribed organisation for many years. His actions have not only led to a major disruption of that organisation, but, I think, saved lives. Therefore, is it right that this should be on a legal footing? Yes it can.
My hon. Friend the Member for Streatham (Bell Ribeiro-Addy) said that this would give carte blanche for the security services and police to do what they want. I am sorry, but it does not. We have to look at the guidance, which many people have not looked at. I know that some Opposition Members have been saying that they will vote against the Bill on principle. Well, I am sorry, but I do not see anything principled in weakening the ability of our security services to protect us or of the police to protect trafficked women and children, or in the fact that it will make the situation worse for some of the most vulnerable people in our society, who are preyed upon not only by organised crime but terrorism groups.
All I say to Members is please read the Bill and read the guidance, because the guidance is important. I have some problems with the Bill in the sense that it could be improved. My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) made a very good point that this is probably not the way to do it. We should have had more time, and perhaps debated it in Committee upstairs, which would have been far better. It is important that we get this right, but the idea that the security services do not have any oversight is not the case. In fact, they will have more oversight. May I just say this: the individuals who are running CHISs are not just the office boys in MI5; they are senior officials who not only have training on the guidance, but know the difficult situations that are being dealt with on the ground. I say to Members: please do not go for headlines; look at what happens in the Bill. The Bill can be improved, which is why I support the oversight proposed in new clause 3.
I agree with the right hon. Member for Orkney and Shetland (Mr Carmichael) on one point—a point that was also raised by my hon. Friend the Member for Walthamstow (Stella Creasy) in her contribution in which she made some other very legitimate points. The Bill would be strengthened if the guidance was actually in the Bill. I have no problems with the guidance as it is written at the moment, because it is both strong and robust. The right hon. Gentleman’s point was that if it were in the Bill, it could not be, as he said, tinkered with or changed afterwards.
I also ask Members to look at the present, rather than at what went on in the past. My right hon. Friend the Member for Islington North (Jeremy Corbyn) is right: we cannot justify what some of the agencies did in the 1960s, ’70s and ’80s without any scrutiny—whether for the police or the security services. As for blacklisting, the Bill will not lead to a situation in which blacklisting is not given a red light. If Members read the guidance, they will see that that would fall out of the scope of that guidance. Likewise, the Investigatory Powers Commissioner will be able to look at those individual warrants. Moreover, as a former trade union official, I know that blacklisting existed, but certain members of trade unions do not have a great history in terms of their collusion, on some occasions, with employers in certain industries to blacklist trade unionists. I feel passionate about this in the sense that it is wrong, but it cannot all be necessarily put down to the employers.
May I touch on two other points? The first is the issue around amendment 7 in the names of those on the Labour Front Bench. I have problems with it. I accept that, as the Bill is written, it is looking backwards at these cases. Operationally, from the cases that I have seen, the idea that we could get a judge to cover the scope of potential criminality in certain areas would be difficult. Let us say, as an example, that we have someone who has been authorised to get involved in the drugs trade, but then they are asked to carry out a burglary. A very broad warrant would have to be issued to cover quite large things. I think that it is perhaps better leaving it in the guidance and with the officer. I have seen evidence that there are occasions when the security services will withdraw authorisation from a CHIS, and they do so because people are getting involved in things that are quite clearly not in the public interest and are not followed by the guidance. That does happen.
I have one final point, which again has been raised and which I still struggle with. Why have other organisations been lumped into the Bill? I am quite content for the police and the security services to be covered by this legislation, but I am less at ease with the Food Standards Agency and others being given authorisation. There is a level of expertise now, both in the police and in the security services, in terms of being able to authorise, train and run CHISs, which might not be there in the other organisations when, perhaps, they are dealing with very small numbers of cases over a period.
The Bill is an improvement on what we have at the moment, because it will bring in a legal framework. Can it be improved? I think that it can be, but, again, I urge people to read the Bill and read the guidance and to look at them in terms of what is happening today rather than what has happened historically.
Dan Carden
I am delighted to follow my hon. Friend the Member for North Durham (Mr Jones)—
Dan Carden
My right hon. Friend. I think that was one of the briefest speeches he has ever made in this House.
This Bill is about the power of the state, and it is also about the rights of citizens. What we have today is a book of amendments, almost each and every one of which would improve the Bill, but unfortunately, it feels to me like a fait accompli by the Government. I am not surprised that the Government are not listening to civil liberties organisations, but I am pretty surprised that they are not even listening to the Intelligence and Security Committee of this House. The way in which the House is being led down the garden path is something worth speaking up against.
I would not be in this House if it was not for my experiences growing up with a dad involved in an industrial dispute for over two years—the experience of workers taking action and the challenges they faced. That was an unofficial dispute, opposing casualisation and insecurity, and it lasted two years. It is relevant because there is a real worry that these powers could be misused. What matters is what is in the Bill. Of course we all want appropriate powers to deal with criminality and the most serious crimes. However, the scope in the Bill for organising criminal conduct by the state is wide open to abuse, and it comes down to a triple-whammy attack on our civil liberties.
First, the Bill permits secret agents of the state to commit any crime to prevent what they consider to be disorder or harm to the economic wellbeing of the UK. Secondly, it does not include the necessary independent judicial oversight, so the agencies concerned will act alone in that decision making. Finally, the Bill does not limit those crimes at all. We have heard that the Human Rights Act will be applied to this legislation, but the Human Rights Act does not create crimes like other legislation does. Rather, it means that a Government can be found in breach of that Act, so the crimes in this Bill are simply not limited.
Mr Kevan Jones
I congratulate my hon. Friend on the contribution that he is making, and I forgive him his earlier remarks. He says that the scope is unlimited, but it is not, because the guidance that goes alongside the Bill—which I accept should be in the Bill—makes it clear that it will not lead to the free-for-all that he is suggesting.
Dan Carden
I think my right hon. Friend has far more trust in the words of the Government and the guidance than I do.
What would stop an agency deciding that an unofficial dispute constituted disorder or harm to the economy that it was worth taking action against? The Bill is written so badly and broadly that it is effectively a licence to criminally disrupt working people taking action to support themselves, their co-workers and their families, and we have seen this all too often in the past. The Bill paves the way for gross abuses of state power against citizens.
In Liverpool, we have a healthy suspicion of state power, because we have felt its damaging force too often in the past. We have experienced the 30-year fight of the Hillsborough families and survivors for truth and justice. We have had striking workers targeted by state violence, and trade unionists blacklisted and spied on for representing their members, and we are not alone. Campaigners fighting miscarriages of justice across our country, such as Orgreave, the Shrewsbury 24 and now Grenfell Tower, oppose this dangerous Bill.
I fear that my own party is being taken for a ride by this Government, because I will tell you what happens. You start with the idea that legislating for something that operates in the shadows must be a good thing. You then engage in good faith with a morally bankrupt Government arguing for vital safeguards, and once that Government finish stringing you along, you end up in the perverse situation of condoning laws that ride a coach and horses through our nation’s civil liberties and could even be used against the labour movement itself.
I am sent here by my constituents to stand up for their rights, freedoms and well-being, and that is what forces me to vote against the Bill tonight.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
The reason I asked to speak later in the debate this afternoon was made clear by the speech by my right hon. Friend the Member for North Durham (Mr Jones). His knowledge and experience from his time on the ISC gives him an insight into the issue that many of us in this House just do not have. I am a very new member of the ISC, and I have a lot to learn, but I know that it is important to listen to those who have that knowledge and experience.
When I spoke on Second Reading, I made a short contribution saying that I supported the law on giving covert sources the right to break the law being set out expressly. I think that is absolutely right. We need to have those legal safeguards set out very clearly, but that also reminded me of those individuals who put themselves at great risk to go undercover to infiltrate terrorist groups, serious organised crime groups or paedophile rings. They are doing that on our behalf, and it is right that we now have a law that gives protection to them for what we are asking them to do.
As has been said already, the Bill could be improved, and I am disappointed that I have not seen much movement from the Government on the improvements that could be made on oversight and additional safeguards. I am also disappointed that consideration is being squashed into a Thursday afternoon to deal with this really important legislation. As the Chair of the Home Affairs Committee and the Chair of the Intelligence and Security Committee said, the timing of this is not helpful at all.
There has been recognition over several years that our intelligence services have needed to come out of the shadows, and the role of oversight and accountability has developed, not least through the role that Parliament has played in the creation of the Intelligence and Security Committee. Over the past few years it has extended its responsibilities and powers. So I join the Chair of the Intelligence and Security Committee and my right hon. Friend the Member for North Durham in supporting new clause 3 in the name of members of that committee, cross-party, to give that further oversight every 12 months of the numbers and categories of authorisations given under the Bill. That would, it seems to me, fit with the role that we already have under the Investigatory Powers Act 2016 in the bulk interception power. Having that on the face of the Bill is really important, because it spells out very clearly that Parliament believes that the role of the ISC is to look at issues like this on behalf of Parliament.
The ISC will only be able to review those agencies that we have responsibility for, so I agree with hon. Members who have raised questions about the oversight of some of those agencies included in the Bill. I wonder where that oversight will come from to make sure that the law is being properly applied—for example, by the Food Standards Agency.
I also add my support for the amendments tabled by the Labour Front Bench in good faith to strengthen the Bill and give independent oversight. We all have an interest in making the Bill as clear and as strong as possible, and I am disappointed that we are so limited in our debate this afternoon. I support amendment 7, which would require the use of a warrant issued by a judge when a criminal authorisation order is required. Having that prior judicial authorisation is right. I support amendments 9 and 10—
Dan Carden
That is such a fundamental oversight that is needed. Is the Bill really fit for purpose without it?
Dame Diana Johnson
As I said, I support what the Labour Front Bench is doing in making that proposal to the Government and I hope the Minister is able to give us some good news when he responds to the debate at the end of the Committee stage.
Amendments 9 and 10 are very clear on the legitimate and legal activities of trade unions, and that trade unions should be excluded, on the face of the Bill, from any such acts.
Sir John Hayes (South Holland and The Deepings) (Con)
Will the hon. Lady give way?
Dame Diana Johnson
I will not, because I know other Members want to speak. I need to say just two more things and then I will finish.
Amendment 12, on involving the Investigatory Powers Commissioner within seven days of any criminal conduct authorisation order, is also very welcome, as is new clause 2, on an equality impact assessment.
Finally, I want to pay tribute to the speech made by my hon. Friend the Member for Walthamstow (Stella Creasy) on children and young people. I hope very much that the Minister will address that issue in his closing comments and take up putting the guidance on the face of the Bill, as my hon. Friend suggests.
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
Order. I would like to try to get three more speakers in before 3.18 pm. I will just put that out there. As Members know, I cannot put a time limit on, but I think that would be fair.
Gavin Robinson
Dame Rosie, I will engage in this part of proceedings in the spirit of co-operation and collegiality, so as not to exhaust the comments others may wish to make.
It is a pleasure to follow the hon. Member for Kingston upon Hull North (Dame Diana Johnson), who I believe is now on the Intelligence and Security Committee. She is right to highlight new clause 8, tabled by the hon. Member for Walthamstow (Stella Creasy). I have to say that that is the first time appropriate consideration has been given to those issues in any of our contributions on the Bill. The Minister knows I support the general thrust of the Bill and the provisions in it. I heard him refer to the Children’s Act 2004 and some of the standards that need to be adhered to when considering children through the prism of the proposed legislation, but the hon. Lady made sincere and serious points. I hope he will reflect on them further.
In fairness, given the amount of time left in the debate and the contribution I can make, it is right that the Minister has more time to respond to the issues raised and that he does so comprehensively. I think there have been fair points made throughout the debate, even on amendments that, ultimately, I may not back. On trade unionism and blacklisting, my reading of the Bill, the guidance and the authorisation process is that there is no fear around those issues. However, there is clearly an apprehension of fear among those who have proposed amendments in that regard and I hope the Minister will deal with them comprehensively.
I have indicated my assent and support for new clause 3. I think the Minister is probably minded to accept it. I hope I am not going too far in suggesting that the Minister should accept new clause 3 from the Intelligence and Security Committee, but I ask that he does.
If I could ask anything from the Minister’s response, it would be on these two issues. First, there has been discussion and consideration around the Human Rights Act. In fairness to the hon. Member for Liverpool, Walton (Dan Carden), he did say that that only allows for retrospective accountability on the part of the state. To my mind, however, it would be wholly unlawful for anybody involved in the authorisation process to authorise something that naturally falls foul of the Human Rights Act. They could not do it. They do not have the values to allow for it. In terms of torture, torture is not permissible in any circumstances. It is against our Human Rights Act and it is against international frameworks. It cannot be allowed. That is an absolute right and I think it is clear that there should be no authorisation, and cannot be any authorisation, given on that basis.
I would like the Minister to talk about sexual crime more particularly. I still believe that that should not be, and could not be, authorised. I find that some of the amendments, because they have a total list of these issues, are unhelpfully drafted. Having each and every one of the aspects contained in an amendment—I am thinking in particular of amendment 13—means that it is unsupportable. There is a world of difference between causing loss of life or serious bodily injury and murder. It is a nuanced legal difference, but there is a world of difference between the two. There are circumstances in which, regrettably, life is lost, and there are circumstances in which it is legitimate for the state to remove life. I do not say that to be controversial; that is part of our human rights framework. That is provided for in our human rights legislation. There is a distinction between the two, and amendments that group all these issues together are unhelpful. They are individually important issues, and we should have the opportunity to engage with them individually and independently of one another. I would be grateful to hear from the Minister on those issues.
I will draw my remarks to a close, but I have to say that this process, with two hours and 20 minutes of debate for Committee stage, is wholly unsatisfactory. These issues are much too important to be left to two hours and 20 minutes of debate.
Alex Sobel (Leeds North West) (Lab/Co-op)
Time is short, so I will move on rapidly. Tackling terrorism and ensuring that all our citizens are protected from terrorism is at the core of my being. I was brought up in a family where every day my mum or dad would check under our car for suspect devices and I was prevented from getting in the car until that had happened. I have been the top target on the Fascist website Redwatch, which published my former home address and that of my workplace. Although there were never any physical attacks on me, I was threatened, even in the local newspaper.
More recently, my constituents lost their lives in the Manchester Arena bombing. Intelligence on Salman Abedi came into MI5 for six years, and he was a subject of interest right up to the months before he blew himself up and took so many lives. My constituents’ families and I do not know everything about Abedi; some of the exact detail could not be made public at the inquiry and was heard only by the chair. The security services could have placed an individual in a position to stop that attack. Of course, I would have supported that, as I am sure would everyone here.
The Bill puts the pre-authorisation of covert surveillance on a statutory footing, and that aspect must be welcome. The measures in the Bill are limited, but it is vital that its scope is fit for purpose. We must ensure that that statutory footing is limited to those organisations involved in normal policing and intelligence gathering. The scope of the criminality that is allowed for pre-authorisation must also be more tightly legislated for than in the Bill in its current form. The bar for such contentious work must surely be very high, reaching a level where the work is only to protect human life. There is the possibility, as has happened in the past, of the crimes committed by undercover agents far exceeding any danger posed by the group they are infiltrating.
The Government point to the Human Rights Act to say that actions such as torture and murder cannot be committed, but the duty to adhere to that Act applies only to Government bodies. In the Investigatory Powers Tribunal, the Government argued that covert agents were not actually part of the Government. In a 56-page judgment, the IPT declared that the guidelines do not breach human rights, in which case human rights law would not apply.
Without serious amendments to the Bill, we are looking at a toxic combination of a state licence to commit human rights abuses and the shutdown of any recourse to justice through civil or criminal courts. That leaves a complete absence of justice for victims and a drastic reduction in the ability to hold the state to account. That is why the Bill needs to specify what criminal conduct is permitted by arm’s length agents.
Some of the safeguards on activity lie in the “economic wellbeing of the UK” provision in the Investigatory Powers Act 2016. However, that is open to interpretation, which leads to perverse authorisations, such as for undercover work against peaceful environmental protests against fossil fuel sites, which in fact are against the long-term economic wellbeing of the planet.
The Minister needs to amend the Bill, as we need a regulatory footing but with a tighter regulatory scope and safeguards. He should do that today by supporting the many great amendments we have heard about, including those tabled by Labour Front Benchers, my hon. Friends the Members for Walthamstow (Stella Creasy), for Streatham (Bell Ribeiro-Addy) and others. If the Minister uses the Government’s majority to push the Bill through, however, perhaps he will listen to their lordships in the other place, as these amendments will surely come back.
How to vote on Third Reading is a marginal decision for me. With the correct safeguards, this Bill could be something that the whole House would support. Its passage in such a contentious fashion is entirely the responsibility of the Government. We all abhor terrorism and take seriously our responsibility to protect the public; at the same time, we live in a democracy and must ensure that there are protections for legitimate protest movements.
Andy Slaughter (Hammersmith) (Lab)
We have heard many excellent speeches in support of amendments that would substantially improve the Bill—God knows it needs improvement—and we have had some excellent briefings from Reprieve and others on what the deficiencies are. It is therefore appalling that we are so constrained by time and by the attitude of Government in pushing this Bill through, possibly to score political points, or just in a cavalier fashion.
Joanna Cherry
I rise to speak to amendments 25, 23 and 22, and new clause 7 in the name of the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman). She has asked me to do so because she is operating on a proxy vote at the moment. She has asked me to remind the Committee that these amendments, as well as having her support and cross-party support, also reflect concerns on the part of the Joint Committee on Human Rights, of which she and I are both members. I will run through them quickly and not address them in detail because we have heard a lot of good speeches and I want to make a couple of points that have not been made.
Amendment 25 and new clause 7 relate to judicial oversight of the grant of authorisations. They would not be effective until there was judicial authorisation from a judicial commissioner and there would be a test of reasonable grounds. Amendment 23 relates to the grounds for granting authority. As with amendments tabled by other hon. Members, we wish to take out references to preventing disorder and to economic wellbeing. Amendment 22 deals with imposing clear and specific limits on the types of crimes that could be authorised, which is done by other Five Eyes countries. I will come to that in a moment.
I also wish to speak to new clause 6 in my name and that of my hon. Friend the Member for Glasgow South West (Chris Stephens), which also has cross-party support. It reflects concerns of the National Union of Journalists in relation to matters that we discussed previously when the Investigatory Powers Act was going through the House and there was a successful campaign to require prior judicial authorisation when any application was made to identify confidential journalistic sources. Currently, those applications must be given prior authorisation by a judicial commissioner. Our fear is that this Bill, as currently framed, would give back-door access to identifying sources, so new clause 6 attempts to deal with that.
I wish to give my support and that of the Scottish National party to amendments tabled by the hon. Member for Streatham (Bell Ribeiro-Addy) in relation to trade union protection; I know that my hon. Friend the Member for Glasgow South West has worked hard on those matters. I also support amendments 20 and 16 in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and new clause 8 in the name of the hon. Member for Walthamstow (Stella Creasy).
Like others, I am extremely concerned about the fact that the Bill is being railroaded through. The indication that not even the modest amendment put forward by the Intelligence and Security Committee will be taken on board by the Government suggests that they are not giving the time of day to amendments lodged by others as we hoped for on Second Reading.
I mentioned what other Five Eyes countries do. The approach that the UK Government want to railroad through in the Bill stands in stark contrast with that of two of our closest allies: the United States of America and Canada, which are two of our closest Five Eyes intelligence partners. The Canadian Parliament prohibits serious offences from these sorts of authorisation, including murder, torture and violating the sexual integrity of an individual. Canada’s intelligence service can only use its authorisation process to give agents a defence to prosecution, rather than any blanket immunity. In America, the FBI has for many years run agents using guidelines that expressly ban certain criminal conduct. According to guidelines issued by the US Attorney General, the FBI may never authorise an informant to
“participate in any act of violence except in self-defense”.
The approach of the United Kingdom Government is without precedent. That is why my colleagues and I in the SNP will not be taking any lectures from Government Front Benchers or Back Benchers about our commitment to the security of these nations or the prosecution of serious crime.
The Bill has some implications for devolved powers, because in Scotland the prosecution of serious crime is a devolved matter. I regret to say that, while there has been regular engagement with the Scottish Government and Scotland’s Lord Advocate in relation to aspects that will impinge upon the investigation and prosecution of serious crime in Scotland, the expectations of the Scottish Government and our chief Law Officer have not been met so far by the Government, particularly in respect of independent judicial oversight and prosecutorial independence. As the Bill stands, in so far as it impinges on the prosecution of serious crime in Scotland, the Scottish Government will not be able to recommend a legislative consent motion.
My colleagues in the Scottish Government, like others in this House, recognise that, because of recent litigation, there is a need to provide a statutory footing for the security services and law enforcement agents to sanction some lawbreaking when serious crime is being investigated by covert human intelligence sources. But we think that the Bill goes far too far, and we are frankly exasperated by the lack of time given for scrutiny of the Bill and the Government’s attitude towards the many and varied amendments lodged, which is typified by the fact that they do not even seem prepared to accept the modest amendment tabled by the Intelligence and Security Committee.
I want to say something about the human rights aspect. On Second Reading and during this debate, there have been claims that the Human Rights Act is a sufficient safeguard, so we do not need to delimit the offences that can be authorised. That is wrong, and it is close to a disingenuous claim by the Government. The Government themselves, in the third direction case before the Investigatory Powers Tribunal, argued that the Human Rights Act does not apply to crimes committed by CHIS. They said:
“the state, in tasking the CHIS… is not the instigator of that activity and cannot be treated as somehow responsible for it… it would be unreal to hold the state responsible.”
That position is repeated in the human rights memorandum published with the Bill, which claims that
“there would not be State responsibility under the Convention”—
the European convention on human rights—
“for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct… and/or where the conduct would take place in any event.”
Based on that analysis, an informant could be authorised to actively participate in shooting on grounds that the perpetrator intended to disrupt crime or that the shooting would take place in any event. I just think that is frankly wrong, and I think we are being given false reassurance by reference to the Human Rights Act. I will not push my amendment to a vote, or any of the amendments in the name of the right hon. and learned Member for Camberwell and Peckham, but the Scottish National party will support any other amendments that would ameliorate the Bill.
Chris Stephens (Glasgow South West) (SNP)
On human rights, there is a very real concern about the practice of blacklisting. Obviously the construction industry found its blacklist, but other sectors of the economy have still to find theirs. Is my hon. and learned Friend concerned, as I am, that in years to come someone will find themselves on a blacklist because of this legislation, and because there is no legal protection in this legislation?
Joanna Cherry
I do share that concern. I really do not understand—others have eloquently made this point—why organisations indulging in lawful activity, such as trade unions and, indeed, other green activists, are required to be infiltrated by these sorts of covert human intelligence sources.
It is all very well to say that there is guidance. I listened carefully and with respect to those who are members of the Intelligence and Security Committee, because I know that they have information that the rest of us do not, but guidance is not good enough; it needs to be in the Bill. We are dealing with a Government who recently made commitments in an international agreement that they now evince the intention to break, so I will not apologise for saying that I do not have much trust in them. I want to see proper protections for civil liberties in the Bill. Without them, the Scottish National party will vote against it.
Conor McGinn (St Helens North) (Lab)
It is a pleasure, as always, to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry), and to speak with you in the Chair, Dame Rosie. I rise to speak to the amendments in my name and that of my right hon. and learned Friend the Leader of the Opposition and other honourable colleagues.
As I said on Second Reading, my right hon. and learned Friend has made it clear that security is a top priority for the Labour party under his leadership. We will be robust in supporting the fight against terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our communities safe, and we are grateful to those in the police, the security services, the National Crime Agency and wider law enforcement. They put their own safety and lives at risk to protect us, and we will meet our duty to support them.
It is worth noting that, since 2017, 27 terror plots have been uncovered and attacks foiled, and last year covert human intelligence sources helped to disrupt 30 threats to life. That is the sobering context of the debate, so we acknowledge and understand the Bill’s purpose, and recognise the need to put on a statutory footing the activity of those working to disrupt some of the most vile crimes imaginable, including terrorism, the activities of violent drug gangs, serious and organised crime, and child sexual exploitation.
It cannot be right, for those we ask to undertake that work, for those who might be affected by it or indeed for society as a whole, that that work continues in the shadows, and without boundaries and safeguards. In that vein, our amendment 7 seeks to ensure that the granting of criminal conduct authorisations may not take place until a warrant has been issued by a judge. We believe that it would provide reassurance to have independent judicial oversight of that process.
Lloyd Russell-Moyle
Whatever we think of the progress later on of the Bill, we have to agree that judicial oversight is really important. When a Labour Government get in, we will hopefully move towards that, but does my hon. Friend agree that the cases that he has just outlined are serious and severe, so these powers should be for agencies that are investigating them, not every Tom, Dick and Harry of the Food Safety Agency?
Conor McGinn
I am sorry that, having been present for the whole debate, my hon. Friend did not get to make a full speech, so I am happy to take his intervention. I hope that the Minister will reply to the valid and valuable point that he makes.
We understand that in a fast-changing intelligence landscape, a degree of operational flexibility is right and necessary, but I urge the Minister to provide some clarity and assurances that the requirements for certification will not simply become catch-all terms, and that there are clear and robust limits to their applicability.
The Bill already states that authorisation may not be granted unless the person believes that the conduct is proportionate to what is sought, but our amendment 11 intends to create a proper framework for that assessment. It ensures that the person must take into account several important questions before being granted any criminal conduct authorisation and provides rigorous assessment to ensure that such decisions are not taken lightly. Similarly, our amendment 10 is specifically about ensuring that the circumstances in which a criminal conduct authorisation is necessary must not include the activities of trade unions.
Barry Gardiner (Brent North) (Lab)
May I caution my hon. Friend? The excellence of his speech and the amendments should be an argument that says, “Without these, this Bill cannot be supported.” If he is not careful, his argument will encourage Labour Members to go through the No Lobby and vote against the Bill, should the Government not relent and accept these excellent amendments.
Conor McGinn
I always take seriously the advice of a senior and distinguished Member of the House. I am confident that, given the amendments that we have tabled today, as the Bill makes further progress through the House, our colleagues in the other place will be cognisant and take note of that. That is why we are asking the Government to listen carefully to what we propose in our amendments.
In that vein, I give my strong support to new clause 5, tabled by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy). It seeks to ensure that a CCA cannot be applied to a trade union and, specifically, to blacklisted workers. Of course, it was the previous Labour Government who made blacklisting illegal in 2010.
On the issue of oversight and accountability, I wish briefly to mention new clause 3, which was tabled by the right hon. Member for New Forest East (Dr Lewis) and members of the Intelligence and Security Committee. With the additional scrutiny, oversight and accountability that are at the heart of the right hon. Gentleman’s sensible proposal, the Secretary of State would be compelled, at the end of each relevant 12-month period, to make a report to the ISC that contains key information on both the number of CCAs authorised and the categories of the conduct authorised. That seems to me to be an eminently reasonable and sensible proposal.
On new clause 2, given the nature of some of the networks that the Bill looks to disrupt, there are clear concerns about its impact on communities and vulnerable individuals throughout our country. One important example is the gendered impact of actions taken by covert human intelligence sources. The Minister must commit, today, that the Government will seek to uphold the highest possible standards on gender impact.
New clause 8 was tabled by my hon. Friend the Member for Walthamstow (Stella Creasy). I have some experience of campaigning with her and know how formidable she can be on these issues. Her new clause raises another crucial point, which is the need to safeguard the welfare of children, vulnerable individuals and victims of modern slavery and trafficking. It would achieve that by ensuring that a CCA is authorised for a child or vulnerable adult only in certain exceptional circumstances, and by ensuring that an appropriate adult is present at meetings between the source and those representing the investigating authority.
As outlined in new clause 2, we propose to compel the Secretary of State to prepare and publish an annual equality impact assessment on the use of criminal conduct authorisations in covert operations involving women, children and black, Asian and minority ethnic communities. A motion should then be put to the House within three months of the assessment being published.
In conclusion, the Opposition are committed to working in the national interest to keep people, their families, our communities and the country safe. I entirely understand that some colleagues on both sides of the Chamber have an interpretation of what the Bill does that is different from mine and have arrived at a different view. I think they are wrong, but that does not mean that I do not respect the arguments they put forward. That is particularly the case in relation to my hon. Friend—and my actual friend—the Member for Liverpool, Walton (Dan Carden). He will know that I once resigned on a point of principle. I hold him and his family in high esteem. The decision he took today to make the points he made was a difficult one. He has my respect, continuing friendship and affection.
This is uncomfortable territory for the whole House. Many of the issues raised by the Bill are felt deeply personally. All I would say, gently, is that those who oppose the Bill in its entirety do not have the monopoly on principles, nor are they the sole moral arbiters when it comes to forming a view on the measures in the Bill. The position reached by the Leader of the Opposition—who literally wrote the book on human rights—and me is a principled one and comes after careful consideration and detailed discussion of the Bill.
It is also our view that we have a duty, as legislators, to meet our responsibility and acknowledge that it is not just the Government who have to make difficult decisions. We want to be in government so we have to take difficult decisions, too. When we are in government, we will return to the Bill based on the principles that I have outlined. That is why we have taken the approach that we have taken: to acknowledge the importance of putting CHIS activities on a statutory footing; to robustly and responsibly scrutinise the way in which that is done; and to place national security, human rights and support for victims at the centre of our attempts to improve the safeguards in the Bill. We will continue to do that as it progresses through Parliament and are confident that the other place will assist us in that task if our amendments are not made today.
James Brokenshire
This has been a very informed, considered and thoughtful debate on the various amendments to the Bill that have been tabled for consideration. As right hon. and hon. Members will know, covert human intelligence sources play a crucial part in preventing, and safeguarding the public from, many very serious crimes, including terrorism, drugs and firearms offences, and child sexual exploitation and abuse. In performing that role, it is essential that they can build credibility and gain the trust of those under investigation. At times, that may mean they have to commit criminality in order to maintain that cover.
I hear very clearly the points that have been made about needing to see those powers put on an express legal basis. Indeed, that is the essence of what this Bill is all about. It puts that on a clear statutory footing, putting beyond doubt Parliament’s intentions on the matter. From the contributions we have heard on all sides of the House, I think that that point is recognised—the seriousness of that and its implications for our own security in ensuring that the capability is maintained in order to keep us safe in the future, as it has done in the past, but also recognising the need for confidence in and assurance about how those agencies that act to protect us do so in an appropriate way.
Let me deal with the various amendments, because I do want to make as much progress on that as possible, and where I can I will give way to right hon. and hon. Members in doing so. First, in that context, there is the issue of oversight. The Government’s priority is to provide these public authorities with the powers they need to keep the public safe, while also ensuring that there are appropriate safeguards. This is the balance that the Bill seeks to provide. We do not believe that prior judicial approval, as proposed in amendment 7 and new clause 7, strikes that balance, as it risks the effective operation of the capability. This is a point we discussed at length on Second Reading. There are ways in which we can provide that safeguard and assurance, and prior judicial approval is not the only way to provide effective oversight of investigatory powers.
Members may find it helpful if I set out in more detail why this capability is different from other powers, such as interception or equipment interference. Put simply, human beings are more complex. Any decision on how to use a CHIS has immediate real-world consequences for that covert human intelligence source and the people around them. This requires deep expertise and close consideration of the personal strengths and weaknesses of the individual, which then enables very precise and safe tasking. These are not decisions that have the luxury of being remade. It is even more critical than for other powers that these decisions are right and are made at the right time.
Sir John Hayes
Is not the plain truth of the matter that if we define the role and method of those whose mission is to keep us safe who are covertly operating on our behalf, we will, among those they have infiltrated, make known what they are doing and possibly who they are, putting their lives at risk? Is not the principal power and the pivotal power of Government to protect their people? Indeed, it is the defining power of the state.
James Brokenshire
My right hon. Friend makes a very powerful and important point about the issues at stake here. That is why we judge that there is, of course, a need for robust oversight to give confidence and to ensure that the powers available here are done in the right way, and we judge that the proposals in the amendments do not achieve that and actually have an impact on the operational effectiveness of what is needed.
Barry Gardiner
The Minister will know that many of us are concerned about new section 29B(5)(b) and (c) in clause 1(5). He has rightly stressed the importance of clarity, but it seems to many of us that the clarity around the words “preventing disorder” and around what constitutes “the economic well-being of the United Kingdom”, such that a criminal conduct authorisation can be given, is very vague indeed. He rightly insists on clarity, so could we have it here, please?
James Brokenshire
The language that is used in what would become new subsection 5 of section 29B is reflective of existing provisions within the Investigatory Powers Act. I will go into more detail on the hon. Gentleman’s point about disorder and economic wellbeing.
Joanna Cherry
The point made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) was dealt with very ably earlier in the debate by the right hon. Member for Haltemprice and Howden (Mr Davis) under reference to the letter from the previous DPP, when he said that this was a bit of a Sopranos argument. Our Five Eyes partners manage to delineate the crimes that a CHIS can commit without having these worries, so isn’t this really a false worry?
James Brokenshire
I know that the hon. and learned Lady was unable to partake in the Second Reading debate, but I will repeat what I said there. We are not suggesting that there is routine testing of suspected CHIS in all criminal gangs, but there is evidence that it does occur more than infrequently, so this is not a fanciful argument. This is a matter that we take very seriously and one that I think is relevant. I would just pick up on the constructive discussions that we have had with the Scottish Government and I can say to her that it still remains my firm intention that we should reach a position where a legislative consent motion can be achieved. I can certainly assure her and her colleagues in the Scottish Government that we will continue with our discussions in order to reach that conclusion.
Colum Eastwood (Foyle) (SDLP)
I know that the Minister has a lot of faith in the security services, but some of us know too much about them to have any faith in them. If this Government have so much faith in the behaviour of the security services, why will they not announce a full public inquiry into the murder of Pat Finucane?
James Brokenshire
I appreciate the seriousness of the point that the hon. Gentleman has made, and he will know more than anyone in this Chamber about the huge issues involved and, equally, about the statements that have been made by the Government in relation to that appalling murder. I am sure there will be other opportunities to debate that matter further, but I hear the point that he makes. Obviously, this has been considered at length before, but that does not in any way cut across the statements that the Government have made in condemning, underlining and apologising for what happened.
The use of the CHIS—the covert human intelligence source—does, as I say, underline the need for this oversight to be provided by an experienced and highly trained authorising officer, but it is about more than that. It is about the Investigatory Powers Commissioner, who already has wide-ranging powers to support him to carry out his oversight functions, and about the real role that he has. This is why we judge that deep and retrospective oversight is the most appropriate way to provide oversight of this power. This includes regular and thorough inspections of all public authorities that use the power, to ensure that they are complying with the law and following good practice. The frequency of these inspections is decided by the commissioner, and inspectors must have unfettered access to documents and information to support those functions.
Amendment 12 from the Opposition would require a judicial commissioner to be notified of an authorisation within seven days of its being granted. I have underlined the role of the commissioner, which means that we will not support the amendment today. We also believe that amendment 7 and new clause 6 would impact on the operability of the regime. However, I can say to all hon. and right hon. Members that I am giving careful consideration to how this retrospective oversight could be strengthened further, and to how this might be addressed in the Bill’s passage in the other place.
Amendments 18 and 19 relate to oversight by prosecutors. A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed. There is therefore no need to introduce a requirement for prosecuting authorities to play a role in the authorisation process. However, the IPC, supported by judicial commissioners and inspectors, ensures public authorities’ compliance with the law through inspections and investigations. That could lead to information being passed to prosecutors if they felt that that was necessary. I would also highlight that where a CHIS commits criminality outside the tight parameters granted by the authorisation, prosecutors can consider a prosecution in the normal way.
Mr Carmichael
Will the Minister be addressing the point that I put to him about operations overseas and the application of the Human Rights Act? That is important.
James Brokenshire
The UK will comply with obligations under the Human Rights Act, including when they arise extraterritorially. The UK is also bound by obligations under international human rights law.
I wanted to speak to the new clause tabled by the Intelligence and Security Committee and I thank its members for their support for the Bill. I think that underlines the role for the ISC in the scrutiny that they apply. Indeed, as the Minister who took the Justice and Security Act 2013 through Parliament, I recognised, in the creation of that Committee, its role in providing that rightful scrutiny and confidence in relation to this matter. I welcome the spirit with which new clause 3 has been tabled to emphasise the important role of the Committee, which I respect and appreciate.
I have written to the Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), to underline ways in which I believe we can provide the information that has been sought by the Committee, and I will place the letter in the Library to provide that certainty and clarity. I would say to my right hon. Friend that operational agencies will consider requests and specifics in the usual way, and I can commit to them considering that through the 2013 Act. The fact that it may relate to a live operation should not preclude that information’s being shared. I hope that that will be helpful to him in underlining the importance of the information’s being forthcoming.
Dr Lewis
I accept that assurance in good heart. In the letter, the Minister said, “Such information as is requested in order for the ISC to provide effective oversight of these policies relating to these authorisations shall be provided to the Committee,” so I take it he is saying that we will not get refused those statistics when we want them.
James Brokenshire
I take in equally good faith the way in which my right hon. Friend and the Committee have approached this, and it is firmly my intent that information will be provided. He knows the debate and discussion over live operations and being bounded in that way, but I would want to ensure that information is given to his Committee, so that they can fulfil their oversight function and also, I think, give confidence to the House. He and his Committee have raised an important point, and I recognise the contribution that they make.
I turn to the issues of redress in relation to the amendments tabled by the hon. Member for Streatham (Bell Ribeiro-Addy), in amendment 2, the Leader of the Opposition, in new clause 1, and the right hon. Member for Orkney and Shetland in amendments 20 and 21. Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.
I shall now discuss the amendments that seek to place further limits on what can be authorised. The limits that other countries have chosen to place on the face of their legislation have featured prominently in this debate, as they did at Second Reading. Further to the Second Reading debate we have continued, for example, to engage with our Canadian friends with regard to their limits on the conduct of their covert human intelligence sources. The Solicitor General and I agree that it is correct to say that limits are found on the face of their legislation, but it is not straightforward to make comparisons between what we are proposing here and what might exist for other countries. We have our own legal systems; our operational partners each have their own practices and functions; and—perhaps most importantly—we have a very different threat picture.
For example, our friends and partners, such as Canada and the US, are not signatories to the European convention on human rights. We are the only members of Five Eyes that are bound by the convention and the obligations that it comes with. Again, I reference clause 1(7)—it has been focused on quite a lot during today’s debate—which makes specific reference to the requirements of the Human Rights Act 1998 being taken into consideration. Placing explicit limits on the face of the Bill risks creating a specific list of prohibited activity that would place into the hands of criminals, terrorists and hostile states a means of creating a checklist, as I have explained and as I think my hon. Friend the Member for Bracknell (James Sunderland) set out so clearly in his contribution. Therefore we cannot accept amendments 8, 13 or 22.
Several hon. Members rose—
James Brokenshire
I will give way to the hon. Member for Brighton, Kemptown, just to be fair.
Lloyd Russell-Moyle
Is the Minister saying that criminals will not be able to read the Human Rights Act 1998 to realise that these crimes are not permitted to be authorised, or is he saying that actually those serious crimes will be permitted to be authorised? I am confused about this contradiction that he presents us with.
James Brokenshire
I reiterate again that a covert human intelligence source is not able to commit any and all criminality. I made that point on Second Reading. There are limits to the activity that can be authorised under the Bill and they are contained within the Human Rights Act 1998. The covert human intelligence sources code of practice also sits under this legislation and provides additional guidance and safeguards that apply to the authorisation of such activity.
James Brokenshire
I have two minutes left and I still have a few more amendments I would like to discuss.
On the issue of the economic wellbeing of the United Kingdom, it is an established statutory purpose for investigatory powers. It recognises that threats to the economic wellbeing of the UK could be immensely damaging. It might include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government. Similarly, preventing disorder is an important and legitimate law enforcement function found in all investigatory powers legislation. Where illegal activity takes place, public authorities listed on the Bill have responsibility to take action that is necessary and proportionate.
Turning to new clause 8, I do not underestimate the concerns expressed about the use of juvenile or vulnerable individuals as covert human intelligence sources. There are provisions contained within the code and the guidance, as the hon. Member for Walthamstow (Stella Creasy) knows, and I have sought to discuss those issues with her outside of this place. The provisions also highlight the role of an appropriate adult, but I will continue discussions, because I recognise that there are concerns across the House. In good faith I would be pleased to continue those discussions to see whether there are other issues there.
On the issue of undercover officers and the authorisation of sexual relations, I will reiterate what police leaders have already said publicly: it is never acceptable for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of deployment.
Equally, we discussed trade unions on Second Reading, and I re-emphasise that the Bill does not prevent legitimate and lawful activity, which is precisely what trade unionism is all about. That is why the code of practice is explicit on that. Indeed, section 20 of the Investigatory Powers Act 2016 in another context also highlights that.
We must not forget the human element of this capability. We are not talking about machines and equipment, which is why the Bill is framed in this way. They are real people who are making significant personal sacrifices, and they must be able to continue living their lives safely and securely. That is what this Bill is about. Through the information they provide, lives are saved, which is why the measures in this Bill matter so much.
Mr Carmichael
The House has had a debate this afternoon that has been both good and frustrating at the same time: good because of the quality of speeches and the thoughtfulness of those who have made them; frustrating because it needed so much more time. As the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the Chairman of the Home Affairs Committee and the right hon. Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee said, this is really no way to go about this sort of business. The difficulty for the Minister is that it is counterproductive, because all he has done in railroading our proceedings today is give a green light to those at the other end of the building, who lack our democratic mandate, to crawl all over this and fillet his Bill, which they most assuredly will do. I will seek to divide the Committee and test its opinion on amendment 16, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Wednesday 11th November 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 October 2020 - (15 Oct 2020)
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) (Maiden Speech)
My Lords, it is a pleasure to open this debate. I am struck by the importance of the legislation on which I will make my first contribution to the House.
Before commencing, I wish to express my thanks to the House for the warm welcome I have received since taking up my appointment. I owe particular debts to my supporters, my noble friends Lady Goldie and Lord McInnes, for their good humour and encouragement; to Black Rod, Garter and the clerks of Parliament for their patience and tolerance; and to my noble friend Lord Courtown for his wise guidance in the customs and practices of this place. Your Lordships will, I hope, realise that, should I offend against these, the cause lies in my obtuseness rather than in my noble friend’s instruction.
I recognise that I am filling the place of my noble and learned friend Lord Keen of Elie. I am too new in this place to speak of his reputation here, but I can say that his high standing in our profession is a consequence not only of his matchless forensic skills but of the kindness and courtesy that he shows to all and the care with which he led the Scottish Bar as Dean of the Faculty of Advocates.
I hope I will not trespass further on the patience of the House if I take the opportunity given by my maiden speech to make some reference to myself and to the place from which I have taken my title: the village of Dirleton, in East Lothian. It is a place of great beauty. Moreover, there are aspects of its history and geography which may provide your Lordships with matter for reflection.
I know that many of your Lordships are familiar with the area. Some of your Lordships may have tested your skills against the famous golf courses which lie round about. There are other diversions too: yachting and skiff rowing from North Berwick around the islands just off the coast, which fired the imagination of the young Robert Louis Stevenson. The islands may be viewed from the fine beaches, looking across to the Kingdom of Fife at magnificent and ever-changing vistas of sea and sky.
All sorts of sporting clubs and associations of other sorts flourish. At the recreation ground and elsewhere in North Berwick, I played bowls, hockey, football, rugby, highland games, tennis and, not least, cricket—a sport which suffers in East Lothian not so much from want of enthusiasm among its players but from the shortness of the season and the unpredictability of the weather.
Dirleton lies in an area of rich, fertile soil, and we can anticipate that our farmers may soon be able to take advantage of new opportunities arising out of the implementation by this Government of their popular mandate. We can anticipate, too, that more boats may set out along the waters of the Firth of Forth to work fisheries which will be richer, better managed and replenished by the more directed and more sustainable management policies which the policy of this Government will allow to be established.
The village of Dirleton features the castle—set in beautifully landscaped grounds—a village green, a primary school and two hotels, where visitors may regain their strength ahead of more sightseeing. The parish church in Dirleton dates from the 17th century. Inside is a list of the names of those of the parish who fell in two world wars. The church is set in surroundings of especial beauty, north of the village green and north of another smaller green, on which stands the war memorial where, again, the names of those who fell are inscribed.
This 11th day of the 11th month brings to mind those names on the war memorial, so familiar to me from their being called over at Remembrance Sundays. Some are the names of families who flourish in East Lothian to this day. But today calls to mind also those others who lie in the churchyard and the cemetery on the way out of the village—names from the rest of the United Kingdom, the Commonwealth and allied countries. Those graves remind us of service and sacrifice in a common cause to preserve our institutions and to keep alive our common hope for a brighter future. We will remember that the sacrifice in that common cause continued after those great wars were brought to an end, and continues today—sacrifice of life, of mental health and of emotional well-being.
Watching the business of the House and the range of expertise and experience your Lordships bring to the scrutiny of that business, I am conscious of the honour done to me by admission to your number. I am conscious, too, that I have no family history of service in this place, as do some of your Lordships, and that I have been appointed to my place, whereas many of your Lordships come here after having sought and won popular mandates from electors, whether in local or devolved government or in the other place. But I seek to assure your Lordships that in my role as law officer, I will seek not only to uphold the law but to try to maintain the spirit and traditions of your Lordships’ House.
The legislation we bring forward is a necessary piece of legislation; it will ensure that our intelligence agencies, law enforcement bodies and those public authorities that also have vital investigative functions are able to continue to deploy tools they need to keep us safe from harm and to prevent serious crime. The recent incidents in Nice and Vienna, and the increase in the threat level here in the UK, show that the need for robust tools with which to tackle terrorism remains as important as ever.
Covert human intelligence sources—I will use the convenient, if inelegant, acronym, CHIS—are agents: undercover officers who help to secure prosecutions by infiltrating criminal and terrorist groups. This technique has been used to disrupt terrorist plots, including one by Zakariyah Rahman against the then Prime Minister in 2017; drugs offences, including enabling the largest ever seizure of heroin destined for the United Kingdom in 2019; and child sexual exploitation and abuse, including attempts by individuals to take indecent images of children.
It is appropriate to reflect today on the role that our intelligence agencies play in war and conflict. A notable success of the intelligence agencies was the discovery and arrest of German spies in the United Kingdom at the outbreak of hostilities in 1914—a success built on the effective use of what we now call CHIS, alongside other techniques. The courage and ingenuity of the double-cross network, a CHIS network which did much to protect allied lives in the Second World War, often at grave cost, comes to mind also as we pause to remember today.
In order to build credibility and the trust of those under investigation, there are occasions where CHIS may need to participate in criminality themselves. This is an inescapable feature of CHIS use. Without this, it would not be possible to utilise CHIS as an intelligence tactic. The Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to ensure that there is a clear and consistent statutory basis to authorise participation in conduct which could otherwise be criminal, where this is necessary and proportionate to what is sought to be achieved. Let me say at the outset that the purpose of this Bill is not to extend the range of activity which public authorities are able to authorise—the Bill does not do this.
The Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes. I recognise that this is a departure from the existing approach, whereby authorised criminality can still be considered for prosecution by the prosecution services. This approach is a deliberate policy decision. It aligns with other investigatory powers and the approach taken elsewhere in RIPA, including other CHIS authorisations. It also provides greater certainty for CHIS that they will not be prosecuted for activity the state has asked them to commit. We think it is right and fair to provide this certainty, and it may also help to recruit and retain CHIS in the future and maximise the intelligence we can gather through this technique.
Of course, this is not a blanket immunity from any criminal prosecution. Criminal conduct authorisations are tightly bound with strict parameters which are clearly communicated to the CHIS. A CHIS will never be given authority to participate in all or any criminality and were they to engage in criminality beyond their authorisation they could be prosecuted in the usual way.
While it is right to provide this certainty to CHIS and to their handlers, it is of course important—vital—that this is subject to robust and independent safeguards. Let me briefly set out how the Bill ensures this.
All authorisations are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. Authorising officers have clear and detailed guidance that they must follow in deciding whether to grant an authorisation. We have published draft updates to the code of practice alongside this Bill that sets out some of that detail. I encourage all noble Lords to read that. The updates to the code will be subject to a full consultation and debate in both Houses in due course.
Authorisations are then subject to robust, independent oversight by the Investigatory Powers Commissioner—the IPC—who conducts regular and thorough inspections of all public authorities and published an annual report of his findings. The IPC sets the frequency of these inspections himself, and public authorities must provide unfettered access to documents and information. The IPC will report on the use of criminal conduct authorisations in his annual report, and this will identify any errors, provide statistics on the use of the tactic and may identify whether there are any training needs. Public authorities must take steps to implement recommendations given by the Investigatory Powers Commissioner’s Office—IPCO—with progress assessed at the next inspection. The IPC also has powers to provide independent remedy; for instance, to inform a person if they have been the subject of a serious error, or to refer a matter to the independent Investigatory Powers Tribunal.
I know that some will think that we need to enhance the role of the IPC in this process. The Government are committed to ensuring that there is robust oversight of criminal conduct authorisations, but that this is not at the expense of ensuring that the tactic remains operationally workable and reflects the live and complex human elements of CHIS, which we do not see in our other investigatory powers. For this reason, we do not think that prior judicial approval is appropriate for this tactic and believe that the authorising role best sits with the highly trained authorising officer within the public authority, as it does at present. The authorising officer will be able to consider the necessity and proportionality of the conduct, but will also consider the safety of the CHIS and the human element of the specific situation. The IPC then provides an important retrospective oversight function, which I have set out.
I want also to draw attention to the additional safeguards in place for vulnerable individuals and juveniles. These safeguards are clearly set out in the CHIS code of practice. It makes clear, for example, that juveniles or those who are vulnerable are authorised as CHIS only in exceptional circumstances. However, there may be occasions when these individuals are able to provide intelligence to disrupt criminal groups. I know that might sound uncomfortable, but it might be necessary to stop criminal groups continuing to exploit those individuals and prevent anyone else being drawn into them. In these instances, significant additional safeguards are in place to ensure that the best interests of the juvenile are a primary consideration in all operations. Those are set out in detail in the code of practice, which has legal force and includes a requirement for an appropriate adult to be present at all meetings where a CHIS is under the age of 16 and to be considered for 16 and 17 year-olds, and the rationale documented if an appropriate adult is not present.
I turn briefly to the upper limits of conduct that can be authorised. These are contained in the Human Rights Act 1998. It is unlawful for any public authority to act in a way incompatible with the European Convention on Human Rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. We have not drawn up a list of specific crimes that may be authorised or prohibited as to do so would place into the hands of criminals, terrorists and hostile states a means of identifying a CHIS, creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public. We have taken this approach in response to a detailed assessment of the specific threats we face in this country. No two countries face the same threat picture or, indeed, have identical legal systems. In particular, we must consider the specific counterterrorist effort in Northern Ireland. However, through the safeguards and the independent oversight that sits alongside an authorisation, there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations or, indeed, activity that is not necessary or proportionate.
Let me, finally, just pause on the list public authorities that can authorise this activity. The number of public authorities able to authorise this conduct has been restricted from those that can authorise the use and conduct of CHIS generally. We expect wider public authorities to be low-volume users of this power because an authorisation can be granted only where it is necessary and proportionate to what is sought to be achieved. However, there will be occasions where CHIS play a critical role in providing the intelligence needed for these wider public authorities to identify and prevent criminal activity. These authorisations will be subject to the same safeguards and independent oversight I have already outlined, including by the Investigatory Powers Commissioner. We have published case studies that give examples of the use of this tactic by wider public authorities. I give the example of where the Food Standards Agency may authorise a CHIS to participate in criminal conduct. This may relate to the relabelling of produce to misrepresent its quality and fitness for consumption. Those are criminal offences, but by authorising a CHIS to participate in this activity the Food Standards Agency might be able to gather intelligence to seize unfit produce and identify those responsible for the fraudulent activity.
It has been a pleasure to make my maiden remarks on this issue. I am of the strong view that this Bill is both necessary to ensure that our operational agencies are able to keep us safe, and welcome in that it provides legal clarity through an express power and sets out the robust safeguards to ensure that an authorisation is tightly bound, necessary and proportionate. CHIS do a difficult and important job in providing intelligence that other investigatory tools cannot access. This Bill provides certainty that operational agencies can continue to utilise this tactic and that they are able to best ensure that they keep us all safe. I beg to move.
Lord Rosser (Lab) [V]
I thank the noble and learned Lord, Lord Stewart of Dirleton, for his clear explanation of the content and purpose of the Bill. I congratulate him on this, in his fine maiden speech, which I know the House will have appreciated and enjoyed. The noble and learned Lord specialises in criminal law and has already had a distinguished legal career, being called to the Bar in 1993, appointed Queen’s Counsel in 2011 and, last month, being appointed Advocate-General for Scotland, succeeding the noble and learned Lord, Lord Keen of Elie.
The noble and learned Lord’s title is, as I said, Lord Stewart of Dirleton. Dirleton, near North Berwick, is, as he said, in one of the many beautiful and scenic parts of Scotland, by the coast and adjacent to one of the best-known golf courses in the world: Muirfield. I found his references to the village of Dirleton both interesting and moving.
The noble and learned Lord has joined the relatively small group who have made their maiden speech as a Minister at the Dispatch Box. We welcome him most warmly to this House and look forward to what I am sure will be many further thoughtful and compelling contributions from the Dispatch Box.
Security is a top priority for us. Our first responsibility is to keep this country and our citizens safe. We recognise the importance of our police and security services, including the National Crime Agency, and thank them for the vital work they undertake on our behalf. We also recognise the importance of covert human intelligence sources and the results they achieve. The director-general of MI5 has said:
“Since March 2017, MI5 and Counter-Terrorism Police have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.
In other words, this kind of activity and operation is saving lives by stopping terrorist attacks on our citizens.
The data available also indicates that in 2018, for example, covert human intelligence operations disrupted threats to life, led to the seizure of thousands of kilograms of class A drugs, safeguarded more than 200 vulnerable people, and took firearms and rounds of ammunition off the streets. Covert human intelligence operations also play a significant role in stemming and preventing vile crimes such as child sexual exploitation, and organised black markets in, for example, vital medicine.
The activity the Bill deals with is not new: it has been taking place under existing practices for years. The Bill provides the statutory footing and increased oversight that have so far been missing.
It is well understood that in order to achieve their objective of protecting our citizens from acts of terrorism and vulnerable people from other awful crimes, covert human intelligence sources may need to commit criminal conduct. Being embedded in a proscribed organisation is, of course, an offence in itself. Such activity must be tightly controlled, but it is necessary to achieve the successful infiltration of the activities of criminal and terrorist organisations and networks to gather intelligence and to thwart or bring an end to their activities.
This vital and necessary activity cannot continue in the shadows without boundaries and safeguards. We acknowledge the importance and necessity of putting covert human intelligence sources activity on a proper statutory footing, and we strongly support that aim. This is not the first piece of legislation that brings activities that have been going on in the shadows into a statutory and regulated framework. The Investigatory Powers Act 2016 had a similar purpose in relation to surveillance and phone tapping, and the Bribery Act 2010 also provided for the authorisation of criminal acts in pursuit of those involved in crimes covered by the terms of that Act.
The crucial issues for this Bill are those of safeguards and oversight. We will be pushing to introduce proper oversight, increased scrutiny and further legal protections into the Bill. The question of safeguards and checks on activity of this kind is a serious issue for any democratic society. It is vital, too, that there is public confidence in how our security services and other agencies that use covert human intelligence sources are exercising the power of authorised criminal conduct.
We also have to be clear about what we expect of those engaged in covert human intelligence activity, the standards we should set and how we expect them to be implemented. We recognise that the Human Rights Act is mentioned on the face of the Bill, and that no authorisation should be made in contravention of the European Convention on Human Rights. The accompanying memorandum to the Bill states:
“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”
We will, however, be pressing the Government to go further and will be tabling an amendment, based on the Canada model, to put explicit limits on what can be authorised by placing protections against the most serious crimes, including murder, torture, and sexual violence, in the Bill.
The Government need to make it clear beyond any doubt that the activities of covert human intelligence sources under this Bill are not, and will not ever be, free from Human Rights Act considerations and that there will not be any deliberate attempts to prevent the Human Rights Act from coming into play.
We will be seeking to strengthen both prior and post-authorisation oversight. As it stands, the Bill provides for self-authorisation by an agency of criminal conduct. There is no need to obtain a warrant, for example, beforehand. I am conscious of what the noble and learned Lord said, but we have areas of law at present where judges are available 24 hours a day, and we will pursue the issue of prior judicial oversight in respect of this Bill.
As drafted, the Bill requires the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in the annual report, including statistics on the use of the power, the operation of safeguards and errors.
It is not sufficient for this somewhat vague requirement to be on an annual basis. Every authorisation should be notified to the commissioner within a few days, and the Intelligence and Security Committee should have more detail about the use of the powers under the Bill, and in what context, if there is to be meaningful reassurance to the public on the operation of safeguards and the use of the powers. We will be tabling amendments on these issues.
The Bill provides that authorisations for participation in criminal conduct may be granted only if it is necessary in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom. We need to have clarity about what is within the scope of that framework of the necessity criteria, which cannot and should not encompass any lawful activity, including legitimate trade union activity. We will be pursuing this issue in Committee.
There is also a proportionality test in respect of authorisations for participation in criminal conduct. What must be considered before deciding if an authorisation would be proportionate is covered in the code of practice. There is a question, however, of whether those required considerations should not be strengthened by being written into the Bill—a point that might be relevant to other parts of the code of practice.
On the impact of the Bill on those affected by it, we will be pursuing the issue of the safety of juveniles and vulnerable people acting as covert human intelligence sources. We will also want to be satisfied that there are measures in place to prevent a disproportionate gendered impact, or impact on black, Asian and ethnic-minority communities, of the use of the powers under the Bill.
The issue of a route for redress and civil claims for wholly innocent victims is one we will also be raising in Committee. While those most likely to be affected by the criminal conduct of a covert human intelligence source are those with whom an agent is engaging in order to thwart criminality, there will inevitably be occasions when a wholly innocent person ends up with a material loss as a consequence of the actions of a covert human intelligence source. In addition, we will also want to be satisfied of the necessity for the non-security agencies covered by the Bill to have the power to authorise criminal conduct by covert human intelligence sources.
This is not a retrospective Bill but it has to be made clear that those seeking justice for what has happened in the past can still do so. There is an ongoing inquiry into undercover policing chaired by Sir John Mitting. Its recommendations should be implemented and victims should not be denied access to justice. Likewise, we are committed to a full independent public inquiry into the events at the Orgreave coking plant in June 1984. There are also outstanding issues in relation to the unlawful blacklisting scandal and the finding of the Metropolitan Police’s internal investigation that,
“on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven’.”
The kind of powers that the Bill covers and their use need to be on the statute book and not, as now, be powers in the shadows.
We are committed to keeping our people and our country safe. To deliver that, law enforcement bodies and our security services have to be able to carry out their vital and necessary work, which includes the activities of covert human intelligence sources and the authorisation of criminal conduct to which the Bill relates. We are mindful that public confidence in our law enforcement and security agencies is dependent on their proven ability to protect us from acts of terrorism and other vile crimes
We will be seeking to improve the Bill, particularly on the vital issue of strengthening safeguards and oversight so that the public can also have full confidence in the covert human intelligence process and how it is being implemented, including the manner and purpose for which the powers are being used on behalf of all of us.
Lord Paddick (LD) [V]
My Lords, I too welcome the noble and learned Lord to this House and congratulate him on his maiden speech and appointment as Advocate-General for Scotland. If noble Lords think that he has been put into bat a little early, I can reassure him that I made my maiden speech the day after my introduction; needs must when the devil drives.
First, I should perhaps explain my experience on these issues. When I was in the police, we used to call most covert human intelligence sources “informants”, who were mainly criminals recruited and run by “handlers”. The way in which handlers used, rewarded and authorised informants to participate in crime was controlled by “controllers”. I used to be a controller. I also had the enormous privilege of visiting MI6 and GCHQ to be briefed on the work of all the security services as part of this House’s consideration of the then Investigatory Powers Bill, including examples of who their CHIS were and how they were recruited and used.
Secondly, I came to my own conclusions about this Bill, having read the Investigatory Powers Tribunal judgment dated 20 December 2019 that prompted it. I am grateful for the briefings from Justice, Reprieve and the NUJ, among others, some of which I agree with and other aspects I do not.
There are two fundamental issues in the Bill on which the Government have, to date, not been as clear as they could be. The first is that it is not just about one issue, and it certainly does not simply maintain the status quo, as the Government have suggested. The reason for the Bill is to give absolute legal clarity that handlers can authorise their covert human intelligence sources to participate in crime. They have been doing that with little difficulty for decades but the Investigatory Powers Tribunal’s split decision called into question whether there was any legal authority for the police and the security services to authorise CHIS to commit crime. If providing that legal authority was all that the Bill did, it would maintain the status quo and I would have no argument with it.
Of course there are peripheral issues that the Bill provides an opportunity for us to address, but on providing legal authority for participating informants, as we used to call them, or criminal conduct authorities as they are now called, there is no argument and I will support the Bill in that respect.
The Bill, however, goes much further—unacceptably far—and makes everything that the covert human intelligence source is authorised to do by the criminal conduct authority “lawful for all purposes”, including immunity from civil liability, and including any conduct that is incidental to what CHIS are authorised to do. For example, had the Bill been in force at the time, the undercover police officer who was authorised to form a relationship with an environmental activist could have argued that sleeping with her was “incidental to” what he had been authorised to do, and that he therefore could not be sued.
The status quo is the following: the Crown Prosecution Service examines what happens in such cases after the event, and independently decides whether a crime has been committed, whether there is a 51% or more chance of conviction, and whether prosecution is in the public interest. Rarely—the Government’s position is never—does the Director of Public Prosecutions grant immunity to a CHIS prior to the event. To date, the status quo has rarely, if ever, caused any problems. It has been put to me that the status quo does cause problems, in that sometimes, when a handler asks an informant to participate in crime, the criminal concerned backs away because they want a promise of immunity in writing, and the handler cannot give it. We need to examine carefully and in detail whether such a cast-iron guarantee is necessary or desirable.
This Bill as drafted would allow a police officer or member of the security services, with no independent judicial oversight, to grant total immunity to a criminal to participate in an armed robbery, for example. Rarely, if ever, would immunity not be given prior to the CHIS being asked to participate in crime—a complete reversal of the status quo. At the moment, the CPS almost always decides that it is not in the public interest to prosecute in such cases, but the Bill makes anything done in accordance with a criminal conduct authority not a crime. What is in law a criminal act becomes a lawful act for the person authorised that would no longer rest on the public interest test. This is not preserving the status quo by any stretch of the imagination.
The Government will tell us that that is akin to granting immunity to those involved in the interception of communications and, indeed, immunity is to be provided by the same section of the same Act that makes properly authorised communications interception “legal for all purposes”. However, interception of communications has to be authorised by a Minister of State in advance, having already been approved by an Investigatory Powers Commissioner against someone suspected of the most serious criminality.
However, under this Act, authorising a criminal to take part in an armed robbery, in which innocent people could be seriously injured, will not be done in advance by anyone outside the police. Even officials in the Home Office, potentially on instruction from government Ministers, could otherwise grant immunity to someone to commit crime, with no prior judicial oversight and little post-event scrutiny. Is that what we want?
The second major issue about which the Government have not been clear is who these covert human intelligence sources are. In their briefings, the Government have placed the emphasis on CHIS being undercover police officers or officers of the security services working undercover. The majority of covert human intelligence sources are criminals, members of terrorist organisations and drug gangs, or those inside other organisations that the police or security services have a legitimate interest in. This legislation, as drafted, will predominantly protect criminals, not undercover cops.
Other safeguards are needed, such as to prevent CHIS from acting as agent provocateurs and to protect child CHIS. We must carefully scrutinise which authorities can grant immunity. Other matters, considered in the other place and recommended by NGOs, such as prior authorisation and limitations on what crimes can be authorised, would be necessary only if the immunity provision remains part of the Bill. It should not remain part of the Bill. This is not a party-political issue; this is a rule of law issue. We have a lot of work to do.
Lord Carlile of Berriew (CB) [V]
My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.
The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.
As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.
No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.
Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,
“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”
I agree.
I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.
I look forward to Committee, which promises improvement of an already very welcome Bill.
Lord Mackay of Clashfern (Con) [V]
My Lords, I warmly welcome the noble and learned Lord, Lord Stewart of Dirleton, to his office and to his place in this House. We are both members of the Faculty of Advocates, and I am delighted by his present appointment. I am unable to comment on the full state of his speech because I gather that some parts of it were constrained, but I congratulate him warmly on that passage which was his own, and which, as has been said, contained some very moving matters relating to the village of Dirleton, which I know well. I look forward to many contributions from him in this House, and hope and pray that he enjoys his tenure here.
It is with a certain amount of nostalgia that I take part in this Second Reading. In 1992, I was responsible for the first reference in Parliament to a Bill concerning the security and intelligence services, on the invitation of my good friend Lord Hurd of Westwell. I am very sorry that for a long time he has been unable to participate in the business of this House.
I have tried to look at this matter in a somewhat theoretical way, and I entirely accept that much must be discussed in Committee, but it is clear that criminal organisations depend for their success on elaborate machinations, which they strongly endeavour to keep secret. To overcome this secrecy, the forces of law and order have found it necessary to enable covert human representatives to infiltrate these machinations, or to participate in them, thus appearing to breach criminal law.
Apart from a few statutory offences, our criminal law requires, as an essential to conviction, that the accused is motivated by a criminal intention. It is clear that a covert representative of law and order has no such motivation and, therefore, is not guilty of a criminal offence when he or she infiltrates or participates in a criminal operation for the pure purpose of investigating or bringing it to conclusion. Again, it is clear that such an activity may involve danger, and it is obviously right that he or she should not face, as an additional danger, a risk of prosecution. This Bill is a clear and systematic way of obviating that risk—even in a case where the statute which is relevant to the operation does not require a criminal intention for its breach. I support this Bill wholeheartedly, subject to the many detailed considerations already mentioned by your Lordships, which I certainly agree should be thoroughly considered. My point is that, if the real intention of the convert human intelligence is for the purpose of investigating and stopping the criminal activity concerned, they do not have a criminal intention.
The Lord Bishop of Durham [V]
My Lords, I too would like to welcome the noble and learned Minister to the House and to his new role. Not many find their maiden speech to be that of introducing a Bill to the House, and I congratulate him on the necessarily blended speech.
I welcome the Government’s move to provide a statutory basis for covert human intelligence sources to participate in criminal conduct, where it is necessary and proportionate to do so for a limited set of specified purposes. We recognise the heavy duty placed on government to protect its citizens, and this Bill is a necessary step so that those undertaking these activities with a view to protecting the public can be clear in their status and duties.
However, while welcoming the intent behind this Bill, I am concerned that safeguards should be properly scrutinised, in particular when they concern the treatment of children. Sadly, we know that children are used and abused in evils such as county lines, child sexual abuse and other serious crimes. In facing these, there is an understandable temptation, however small, to make use of children as assets for the forces of law and order. We should never lose sight of the fact this places and keeps children in situations of harm and of increased risk. The primary concern must always be that, when children find themselves in vulnerable situations, we look after them as children first and foremost rather than assets for fighting organised crime. We must guard against the temptation to undermine that essential principle in the pursuit of security. Regardless of the children’s age—I note that they are usually 15, 16 and 17 and few in number—we must still treat them as legally children. They are not to be used and must be protected.
Therefore, how can using a child as a CHIS and in doing so placing them at greater risk of harm ever be in their best interest? Allowing these children to act illegally only worsens this. It is preferable for children never to be used. I am confident that the majority of noble Lords would agree, including the Minister. However, I recognise that there may be rare instances in which children are being used. If this is to be the case, then fixed protections need to be put in place. Although there are guidelines in the code of practice for children used as CHIS, this requirement should be made statutory so that there is sufficient legal weight. Vague phrases like “exceptional circumstances” must be met with explanation and guidance rather than leaving it open for interpretation and even manipulation.
We trust our law enforcement agencies to act within the law, but we must protect them from themselves when the temptation arises to use children for what appears a greater good. It is unfair on those agencies not to provide clear legal parameters by which they must operate. Let us not settle for compromising the safety of children for the pursuit of a safer nation, for is it not for those very vulnerable children for whom we seek to create this safer nation? If on rare occasions children are to be used as covert human intelligence sources, there must be clear and meaningful safeguards set out in statute. I will be looking in Committee to support amendments in this space.
Lord Hain (Lab) [V]
My Lords, I too welcome the Minister to this House. To declare an interest, I am what is described as a “non-police, non-state core participant” in the Undercover Policing Inquiry, and I am due to give evidence early next year. I was targeted by undercover officers for some 30 years, including when I was an MP. But what troubles me most are the clear abuses practised by undercover officers involving people I know well.
Ecological activist Kate Wilson is not a criminal. She is a principled radical activist. She was at primary school in London with my two sons. Our families shared holidays and often visited each other’s homes. She was targeted by undercover officer Mark Kennedy, who formed an intimate and what she described afterwards as abusive relationship with her over seven years. He even reported back to his superiors on contacts with my family when I was a Cabinet Minister. Why were police targeting Kate instead of drug barons, human traffickers, criminals and terrorists?
Doreen Lawrence, now my noble friend Lady Lawrence, was a law-abiding citizen when her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder?
Undercover officers attended anti-apartheid meetings in my parents’ living room from 1969 through the early 1970s and reported back that I was a speaker at anti-racist meetings when I was an MP in the early 1990s. Why were they not targeting those responsible for, among other things, crimes in London of fire bombing and murder by the oppressive actions of the apartheid state? Why did they show no interest whatsoever in discovering who in South Africa’s Bureau of State Security was responsible for sending me a letter bomb in June 1972 capable of blowing my family and our south-west London home to smithereens were it not for a technical fault in the trigger mechanism?
In each of these cases, the police were on the wrong side of justice, on the wrong side of the law and on the wrong side of history: infiltrating the family of a climate change activist instead of helping combat climate change; covering up for a racist murder instead of catching the murderers; harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom instead of pursuing crimes by the apartheid state.
Fortunately, Kate Wilson’s early eco-activism helped make climate change an international treaty. We stopped the 1970 all-white South African cricket tour; we helped bring down apartheid; and Nelson Mandela went on to be elected President. The Anti-Nazi League, of which I was a founding national officer, succeeded in destroying the fascist, racist National Front. But why were undercover police officers trying to disrupt us, diverting precious police resources away from catching real criminals?
However, perhaps I differ from other core participants in the inquiry because I do believe there can be a need for undercover officers. When I was Secretary of State for Northern Ireland from 2005 to 2007, I met undercover officers doing brave work trying to prevent dissident IRA splinter groups from killing and bombing. I also signed surveillance warrants to prevent Islamist terrorists bombing London and was aware of vital undercover work around their cells.
But where to draw the line—if indeed, it is possible to do so? How do you stop that sort of legitimate undercover police or intelligence work sliding over into the illegitimate? Counterterrorism police recently putting non-violent Extinction Rebellion on their list of terrorist groups hardly inspires confidence. Why does this Bill not even begin to answer any of these key questions?
Lord Beith (LD) [V]
My Lords, speaking from Berwick-upon-Tweed, it is a pleasure to welcome the noble and learned Lord, Lord Stewart, from just up the road in Dirleton. I wish him well in the House.
My interest in this Bill is as a former member of the Intelligence and Security Committee. I am in no doubt at all that human intelligence continues to be essential in preventing terrorist attacks, disrupting violent criminal gangs and tracking down prolific sex offenders. I also accept that law-breaking is inevitably a feature of some of those from whom we get human intelligence. In my mind, there is a distinction to be drawn—the noble Lord, Lord Hain, touched on this—between two different kinds of sources. One is described by intelligence services as an “agent” but, as my noble friend pointed out, by police as an “informant”. This is usually a person already involved in a terrorist, criminal or hostile state activity who has turned, induced to give information that may save lives, but they cannot retain their cover among people involved in that activity if they refuse to participate in anything that is against the law.
The other scenario is the undercover police officer who is sent to infiltrate an organisation but is still accountable to the police force for his or her actions. The noble Lord, Lord Hain, pointed to some of the dangers that arise from the misuse of that sometimes necessary process. However, all these activities require some legislative basis. A nod and a wink that, if the intelligence is good, they might not be prosecuted is not adequate, but a general immunity also presents problems, as my noble friend Lord Paddick made clear. Therefore, the Bill is necessary, but it requires further scrutiny and amendment to deal with some of the issues in it, and I want to pick out some of the main concerns.
First, there is a strong case for prior authorisation by a judge of all but the most urgent cases. If it is needed for interception or for a simple search warrant, how much more is it needed for a criminal act—perhaps a serious criminal act?
Secondly, I am unhappy with the range of organisations in the list. If we have to include bodies such as the Food Standards Agency, which sometimes has a need for human intelligence, then ought they not to have to refer to the police and get authorisation from them or from some other external body? The authorising process is so far from the central nature of their activities that it does not seem to me a satisfactory basis for their inclusion.
Thirdly, I have long had concerns about the term “economic well-being”, which features in the Bill. It is very familiar in intelligence legislation but I do not know of a case in which a court has had to define it. It could include so many things: it can include a systemic threat to our banking and financial system but it can also include a major industrial contract that could account for a lot of jobs in Britain, even perhaps a bid for a major international event to be held here. Where do we draw the line? There is too much uncertainty around that.
My fourth point is that, as well as the Investigatory Powers Commissioner, I would want the Intelligence and Security Committee of Parliament to review on a continuing basis the ways in which these powers are used. It should not be prevented from doing so by an insistence that the issues raised by this work are strictly operational. They are not; they include moral and ethical issues that require parliamentary scrutiny in a secure form, which is what the ISC is for.
I have one final plea. This Bill is a rewrite of RIPA 2000 and the Scottish equivalent legislation. You cannot understand it without a copy of RIPA beside you, so it makes an obvious claim for consolidation as soon as possible. The law really has to be readable and intelligible to those who have to enforce and live by it.
Baroness Bull (CB)
My Lords, I join others in welcoming the noble and learned Lord, Lord Stewart of Dirleton, and congratulating him on an excellent maiden speech. In a crystal clear exposition of the Bill, he reminded us that the use in exceptional circumstances of children as covert sources, including those as young as 15, is already covered by law. This Bill would allow for them to be authorised, in exceptional circumstances that continue to be undefined, to commit criminal offences in order to integrate themselves into groups under investigation and provide intelligence that would not otherwise be available.
I am not the first today, nor will I be the last, to express concerns about the use of children as mechanisms for intelligence gathering, however valuable that intelligence might be. It stands in direct contradiction to what should always be our intention, which is to remove children from situations and relationships that promote criminality, and it almost certainly involves children from already disadvantaged backgrounds, further widening the inequalities between the lives and long-term outcomes of those who have and those who have not. We know that criminals prey upon vulnerable individuals, including children, using their vulnerability as a shield against law enforcement. It seems extraordinary that, rather than ending this exploitation, the law itself would become the next perpetrator of continued abuse through the recruitment of children and vulnerable individuals as CHIS. I argue that they should never be used in this way but, if they are, as the law already allows, every possible safeguard needs to be in place.
The revised code of practice includes several welcome improvements, but there are areas that still need to be strengthened. Clarity is needed on what constitutes an “exceptional circumstance”, and the code should be clear that the protection of an appropriate adult must be available to all children under 18, rather than on a case-by-case basis, as is proposed. This appropriate adult provision is standard practice for police interviews, even for the most minor transgressions. It cannot be right to fail to provide this support when children are taking the serious decision on whether to place themselves in harm’s way.
The revisions to the code add considerably to the section on juvenile sources but not to that relating to vulnerable individuals. The definition of a vulnerable adult fails to include victims of slavery or trafficking. Although paragraph 4.6 of the code stipulates that there must be an assessment of the juvenile’s ability to give informed consent, there is no such stipulation when it comes to vulnerable adults. Anti-Slavery International has questioned the extent to which someone who has been trafficked or exploited is able to give this informed consent, given their traumatic experiences of manipulation and control, and the long-term impact that this can have on their ability to make independent decisions.
There is also no reference in the code of practice to mental capacity and the ability of someone with impaired mental capacity to consent to acting as a CHIS. As mental capacity is not universal but specific to a given decision, and as it can change over time, it presents particular challenges and needs to be specifically covered. This omission is yet another example of legislation and statutory guidance failing to make provision in relation to mental capacity. I would be grateful if, in responding, the Minister could confirm that this omission will be reviewed.
I know that there will be some who argue that these safeguards are best placed in the code of practice rather than on the face of the Bill, but putting them on a statutory footing would send out a clear and unequivocal message about the importance that we place on our responsibility to protect children and the most vulnerable in our society. They are already a target for exploitation by criminals and they should be able to rely on the state, not only for protection but to help break a cycle of abuse that will otherwise echo on through the course of their lives.
Lord McLoughlin (Con) (Maiden Speech)
My Lords, first, I too congratulate my noble and learned friend the Minister on his maiden speech and welcome him to the House and, indeed, to the Dispatch Box.
It is just over a year since I made my valedictory speech in the House of Commons, on 5 November. I was first elected to the House of Commons in 1986 with a majority of 100. I particularly want to bring that out today because, of course, it is 100 years ago today that the Cenotaph was unveiled and King George V was present in the laying to rest at the Tomb of the Unknown Soldier in Westminster Abbey. We must always think of the sacrifices that those people made to enable us to be here today—to debate in this Chamber and in the other place.
I say a very special thanks to all those who have welcomed me to the House of Lords and made my transition here so very easy. I particularly thank Black Rod, the doorkeepers and all the staff of the House in what are very difficult times.
I thank my two sponsors as well; it is easy for me to do so. I first came across my noble friend Lord Cormack some 50 years ago. He had the biggest swing in the country and won a seat called Cannock, where I was at Cardinal Griffin school. He visited all the schools and invited them to the Houses of Parliament. It was on that trip that I thought to myself, “One day, I’d really like to come back as a Member of Parliament”, never expecting really to be able to do so. I am grateful to him for that. It was not something I thought I would achieve. My father died the day after my seventh birthday, on 1 December 1964, and my mother worked in a factory in Wolverhampton and brought the family up as a single mother from then on. I went to work at Littleton colliery, where my father and grandfather had worked before me. Becoming an MP was a dream that I did not expect I would be able to fulfil.
I very much regret the current situation we find ourselves in. One thing I really miss is seeing people visiting both Houses of Parliament and I look forward to the time when that can be restored.
My other sponsor was my noble friend Lord Randall. We do not go back quite so far as those 50 years, but we have been working in Parliament for more than 20 years from when he first joined the Whips’ Office. He eventually became Deputy Chief Whip when I was Chief Whip in the coalition. He would always speak very truthfully to me about what he thought we should be doing. It was a great pleasure for me to ask him to be one of my sponsors when I came into the House. We worked consistently together during that period, although he was for a short time not in the Whips’ Office having voted against the Iraq war.
I loved my time in the Whips’ Office; it was a great pleasure to be there. I did it for some 17 years. David Cameron then asked me to go back to the Department for Transport, in which I started as a junior Minister in 1989. To go back there as the Secretary of State in 2012 was a great honour. I had four years there and it was a tremendous privilege. When I first got there, I was in favour of HS2; I became more strongly in favour of it the more I went into the detail about the need to increase capacity in this country.
In January this year, I applied to become chairman of the British Tourist Authority; it was an appointment I took up. The scene was very different then. Tourism is a very important industry in our country. I look forward to us being able to restore it to its rightful place with the very difficult challenges that it has to face.
I will deal with the Bill. One body I met when I was Secretary of State for Transport was the armed unit of the British Transport Police. The pressure that we put on our police services and our officers in the front line is immense. It is our duty to do everything we can to help them. I too have some slight concerns about the number of bodies covered by the Bill, which seem to go a bit wider, but I am sure that will be addressed in Committee.
For somebody from my background to join your Lordships’ House is an immense privilege. I look at the House, listen to the wide variety of views and see the diversity of where its Members come from. I realise that the experience and knowledge in the House add greatly to our national debate. I hope that in the years to come I can continue adding to that debate as well, always appreciating that we are an appointed House and that the House of Commons is an elected one.
Lord Young of Cookham (Con)
My Lords, it is a real pleasure to be the first to commend my noble friend on his maiden speech. For much of his parliamentary career in the other place, he was in the Whips’ Office, notching up a record 17 Trappist years. That meant that we were deprived of his views in the Chamber on public affairs, although he could be more forthcoming in private. Happily, he faces no similar vow of silence in your Lordships’ House, and we look forward to him catching up on those lost 17 years. How appropriate that, as a former Government Chief Whip and master of the dark arts, he should make his maiden speech on a Bill dealing with covert intelligence and the infiltration by agents of the Executive of political activists seeking to do harm to the Government—though I doubt whether in furtherance of that cause he entered into any long-term relationships with Christopher Chope or Philip Davies.
My noble friend was Chief Whip during the coalition, which was probably at its strongest in the Whips’ Office, due not least to his capacity to develop good relationships with those from other parties, a talent particularly welcome in the less partisan atmosphere of your Lordships’ House. He brings to the House a deep affection for Parliament, as we have just heard. He is also chairman of the British Tourist Authority and a former Transport Secretary and will bring an informed view to our debates on those matters, among many others. We look forward to his future contributions.
I do not have any fundamental objections to the Bill but, along with the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Bull, I have reservations about its impact on children. Along with other noble Lords, I am grateful to Jennifer Twite and Just for Kids Law for their briefing on the Bill last Friday. I was struck particularly by the evidence of Neil Woods, a former undercover police officer with experience of being a CHIS and handling them. He made two points: first, that 95% of the use of CHIS in his experience was targeted on the drugs trade and, secondly, because county lines were using children as a means of distribution, there was growing pressure to use children to infiltrate the gangs and bring those responsible to justice. I note that none of the case studies which the Minister gave us yesterday involved children. However, as gangs use younger and younger children in county lines so there is a risk of a race to the bottom if younger and younger CHIS are then used to inform on them.
That brings me to the only point I want to make in this debate. We need to get the balance right between, on the one hand, the imperatives of enforcing the law and, on the other, protecting children from danger. I am not sure that the Bill and the undefined “exceptional circumstances” in the code take the trick. We heard for example from Neil Woods about the strain on an adult of maintaining deception. What must it be like for a child? Chapter 4 of the draft code is certainly an improvement, but there is no lower limit on the use of children for entrapment. I wonder whether either the Bill or the code will make it clear that there is a lower age limit beyond which children should never be used for CHIS. For example, I find it indefensible that the social worker of a child in care is not told when that child is recruited. How can a local authority discharge its responsibility to a child already failed by its parents if it does not know that the child has been recruited for dangerous activities? I therefore join other noble Lords in hoping that during Committee we can rebalance the Bill and build in better protection for the country’s children.
Baroness Kennedy of The Shaws (Lab) [V]
I join others in welcoming the noble Lord, Lord McLoughlin, and the noble and learned Lord, Lord Stewart, to this House and commend them on their maiden speeches. I want to say particularly to the noble and learned Lord, who like me is a Scot but also a criminal lawyer, that I hope he will bring his experience of human rights and civil liberties to bear on his work in this House, because we confront that regularly as criminal lawyers and know the importance of those aspects of our work.
I accept that the practice of our intelligence services and police in covert intelligence gathering has to be placed on a clear and consistent statutory footing. Covert agents may need to commit crimes in the course of what they do—I know that from my own work—but I want to reinforce what was said by my noble friend Lord Hain: the agencies involved should stop this business of spying on legitimate protest and lawful political activity, the stuff of which is so vital to a vibrant democracy. It is not the right use of our policing or of our security services.
As I said, agents may need to commit crime, but it cannot be acceptable or right to authorise the gravest of crimes—murder, torture, sexual transgression. Our security partners in the United States and Canada already place limits on the nature of the crimes that agents can commit. Canada recently passed legislation in this area which is worth looking at because it prohibits those serious offences quite clearly. It looked at what had been happening recently here in Britain with the “spy cops” case, which has been referred to a number of times. Women were lured into relationships in order to provide cover for agents joining political movements. Those women were involved in serious relationships over years and then felt abandoned, abused and ill-used because they loved the men who lived with them; one had fathered a woman’s child. This conduct has long-term, damaging effects on people and should be absolutely impermissible. The FBI in the United States learned from bitter experience that being involved in serious criminality had a cost, and it too has introduced clear guidelines.
The Government argue that there is no need for the Bill to include explicit limits on crimes, set out in any sort of list, because the Human Rights Act is a sufficient safeguard. This argument is a bit rich when Her Majesty’s Government have separately stated, in legal court arguments, and to Parliament, that they do not accept that the Human Rights Act applies to abuses committed by their agents.
The Government should not authorise grave crime. Without limits, the Bill may damage the integrity of the criminal law and suggest to the public that the state may tolerate or encourage such abuse. I am afraid that I see this as another display of the Government’s rather casual and light-touch commitment to the rule of law. We should be setting the gold standard for oversight and accountability and I hope that we do. There have to be clear limits on the permissible crimes, a right to redress for those who are abused or harmed in the course of crimes, and real-time oversight by a judicial commissioner or judge. This is serious, it matters, and I hope that the Government will listen.
Baroness Doocey (LD) [V]
My Lords, there are times when breaches of the law by agents of the state should be allowed, in order to avoid some horrific harm to society as a whole, but there are some lines which should never be crossed. One such line is the assumption that children, who are often extremely vulnerable, can be used as agents of the state. Children are not pawns on a chessboard to be sacrificed for the greater good of some checkmate against organised criminals.
This country has a shameful record on vulnerable children. I witnessed this at first hand when I spent eight years as a member of the Metropolitan Police Authority. It is shameful that, in 2020, children in care are six times more likely to be sexually exploited, and 12 times more likely to be victims of trafficking, than other children. During the passage of the Modern Slavery Act, I sought a separate section specifically to protect children. The committee on the draft Bill had recommended a specific offence that it be illegal to exploit a child, or to obtain benefit from the use of a child for the purpose of exploitation. For reasons which I still fail to comprehend, the Government disagreed. I will, therefore, be seeking to secure specific protections for children on the face of the Bill. As Just for Kids Law, an excellent charity, puts it,
“it is deeply worrying that children are being asked to participate in covert activity associated with serious criminals without fully considering their welfare and best interests. Not only are the authorities using children—some of them under the age of 16—in covert investigations, but oversight in this area is so inadequate that the government isn’t even aware how many children are affected.”
That is, frankly, shocking.
There are girls left in gangs to act as informants who could be subject to all sorts of abuse, and boys left in drug rings who may be compelled to commit crimes which will haunt them for years to come, if not for the rest of their lives. There is also the temptation for police to avoid doing a trafficking referral if they think that the child is of more use as an informant in a gang or extremist environment. The Government say that children are used only if they are already involved in criminal activity. However, this is a classic two-wrongs-make-a-right argument and completely misses the point that many of these children have not chosen a lifestyle of criminality but have been trafficked into the gangs or will have found security in a gang that their home situation does not provide.
The fact that children are already involved in criminal activity is not, and never can be, an excuse for putting them in a position where they may be the victims of violence or asked to engage in it. This House should make that clear. In addition, where children have any involvement in undercover operations, they must benefit from representation by an appropriate adult, right up to the age of 18. It is quite incomprehensible that a 16 or 17 year-old is entitled to have an appropriate adult with them if they are arrested for some relatively minor crime, but not entitled to the same support if they are helping the state in an investigation. This should be guaranteed.
The way we treat children defines us as a society. This Bill can and must be amended to give them better protection.
Lord Anderson of Ipswich (CB)
I join other noble Lords in welcoming the Minister and the noble Lord, Lord McLoughlin, to their place. I do so with open arms, if the Minister will forgive a reference to that delightful Dirleton hostelry.
The Bill, like the litigation which forced it into being, is welcome. I have a wish list, but time requires me to come straight to the nub: the linked questions of immunity, authorisation and oversight. The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious. There are three central ways in which that potential might be mitigated. The first way is to remove the immunity and retain the existing discretion of the CPS to prosecute for a criminal offence within the scope of the authorisation. I have two questions for those who promote this option. Is it fair for a CHIS who does no more than he is asked by the police to be at risk of prosecution? With that in mind, how often has the CPS considered it to be in the public interest to prosecute a CHIS who has not exceeded his authority? The noble Lord, Lord Paddick, with all his experience, suggested seldom or never. I keep an open mind but wonder whether removing immunity would be a safeguard more apparent than real.
The second way is to provide for prior approval of authorisations by the judicial commissioners of IPCO. I recommended this approach for some other covert powers in my report A Question of Trust, and was glad to see it followed in the Investigatory Powers Act 2016. However, context is everything and I will make three comments. Deciding how to task a CHIS, against a nuanced and rapidly changing background of personal relationships and group dynamics, is less obviously within the competence of a judge, or indeed any external person, than a decision to intercept a line or hack a device. Internal, not external, authorisation is provided for by Section 20.1(12) of Canada’s CSIS Act, of which the House has heard mention today, although it is fair to say that some form of external approval for CHIS criminality, whether by judges or lawyers, is required in some circumstances in Australia and the US. Finally, and without being defeatist, it is right to acknowledge that an amendment to require prior judicial approval was heavily defeated in the other place.
That leaves the third way: beefing up oversight by requiring a judicial commissioner to be informed every time a CCA is issued. That solution was adopted in SI 2013/2788, when the spycops revelations first surfaced, to deal with undercover police deployments of less than 12 months.
Having worked intensively with IPCO’s chief inspector for CHIS in the Channel Islands, where I was Investigatory Powers Commissioner until this summer, I have the highest praise for IPCO’s inspection work. Much of it is below the waterline in the form of inspections, oral feedback, classified detailed reports, observations and recommendations requiring speedy action. A sense of it is given publicly at paragraph 5.19 and onwards of IPCO’s March 2020 annual report.
The real-time notification of CCAs to a judicial commissioner would have three further advantages. First, the knowledge that their decision would go straight to the desk of a High Court judge or equivalent would concentrate the minds of authorising officers. Secondly, it would eliminate the gap of up to a year between authorisation and annual inspection, potentially assisting in the termination of any ill-advised authorisations, difficult though that will always be. Thirdly, it would help to promote a culture in which informal advice is sought before an authorisation was issued—something that happens a good deal in practice and is particularly valuable for authorities that do not make much use of CHIS. This third approach is no panacea and will not be strong enough for some, but it deserves at least to be debated and I will table an amendment for that purpose.
Lord Cormack (Con)
My Lords, there are few moments of unalloyed joy in politics but being able to endorse the splendid remarks of my noble friend Lord Young of Cookham in congratulating my noble friend Lord McLoughlin is one of them. I, too, remember that visit to Cardinal Griffin school in May 1970, over 50 years ago. I, too, remember the schoolboy coming to the Palace of Westminster. I remember him becoming a splendid local Conservative, having a poster with a miner’s hat when he fought his first constituency. I am always amazed that, when I left the House of Commons 10 years ago, he was my Chief Whip. I bid him welcome with all the warmth at my disposal.
It was very splendid also to have a maiden speech from the Front Bench. My noble and learned friend Lord Stewart of Dirleton spoke with an elegiac love of his constituency. As my noble and learned friend Lord Mackay indicated, the rest of the speech was not entirely at his disposal; nevertheless, he delivered it with a calm rationality that made me feel that we have a true learned friend in our midst.
Having said all that, while putting on record that I believe that the Bill is necessary and support it, I am troubled. We have to look at this in the context of the times. We are, through no desire of anyone, living at the moment in a benign police state. I cannot go out this evening with my son for dinner; I cannot ask him round to my flat nor go to his home with his wife and children. We are in a very difficult situation. We have the Law Commission proposing that remarks made at the dinner table should perhaps be admissible in a court of law in the prosecution of a hate crime. We therefore have to be careful how far we go. That is why I am troubled, as others have said, about the number of agencies that are allowed to have, as it were, crimes committed in their name. I shall want to look at that very carefully in Committee.
I share the concerns of many colleagues about the position of children. Although it may be tempting to use children in dealing with ghastly county lines, we have to be careful about our overall responsibility for our children.
As we go through the Bill, which lends itself to the forensic examination that it needs and deserves in your Lordships’ House, we must be extremely careful. First, how many agencies can take advantage of it? I think that it is too many. Secondly, how is the regulation on the use of children controlled? Thirdly, we have to look carefully at whether there should be specific limits—as there are in Canada, as we have heard from the noble Baroness, Lady Kennedy of The Shaws—on the type of crimes that we can see committed in the interests of the greater good. That we need to protect our people from terrorism and terrible crimes is self-evident, but we have to be careful how we go.
Lord Whitty (Lab) [V]
My Lords, the noble Lord, Lord Young, makes it easy for me to refer to his protégé, the noble Lord, Lord McLoughlin. I welcome him to this House and welcome his maiden speech.
I also welcome the Minister. I listened carefully to his speech, and indeed to the speech from my own Front Bench, on why the Bill is needed. I am afraid that I am not as yet convinced. On Monday, this House overwhelmingly expressed its outrage at the Government trying to give themselves statutory immunity from breaching international and national law in, as they call it, a limited and specific sense. Today, the Government now propose giving equivalent protection in criminal law to our own security services and a dozen other state agencies to commit unspecified criminal acts.
Obviously, I appreciate that this is not a new issue; I was a member of the Government when the Regulation of Investigatory Powers Act 2000 was passed. I remember feeling uneasy about it at the time—I generally did with Home Office initiatives in that era—but I recognised the need for an authorisation framework. Still, this Bill goes much further than that. My noble friend Lord Rosser proposes significant amendments that might make it more palatable to me, but even then I am not yet convinced.
I am not an automatic knee-jerk opponent of the security services and state agencies. I recall many occasions in my life when I have told keen young political activists who complain that the deep state is monitoring them, “Of course they are! That is their job.” I have always felt that society is safer as a result of those agencies; I am glad that they are there. However, the Bill goes beyond the monitoring, surveillance and simple embedding in, and infiltration of, dangerous organisations.
There are issues with the authorisation process itself but I have two main objections. First, the Bill renders such criminal acts legal for all purposes. That appears to mean that victims could not claim compensation in any respect. If, in order to gain trust in an organised crime syndicate by proving himself, a CHIS undertakes a robbery, does that mean that the victim of that robbery is denied not only a criminal process but any compensation or recourse to the criminal compensation scheme because, under this Bill, the action was deemed not criminal? At a minimum, we need to retain or at least describe the right to compensation for victims.
My second main objection relates to the infiltration into political campaigns, particularly trade union ones. As my noble friend Lord Hain said, we know from very recent history that phrases such as “danger to the economic well-being of the UK” or “preventing disorder” can be used to target otherwise legitimate trade union industrial action or political or environmental campaign demonstrations. Such infiltration by police agents has been identified in the past. On occasion, it has been aggravated by agents of the state authorities acting in effect as agents provocateurs—that is, a supposed member persuading his colleagues in the organisation to go further than they would have done previously. Here, we are treating political campaigns on anti-racism, the environment and trade unions in an equivalent way to terrorist organisations. There must be some distinction and some limit to the degree to which we can grant immunity under the Bill.
Unless there are drastic, explicit changes on access to the civil courts, compensation and agents provocateurs, I will not support the Bill.
Lord Thomas of Gresford (LD) [V]
I congratulate the noble and learned Lord, Lord Stewart of Dirleton, on his excellent maiden speech. He referred to many sports in Dirleton, and I was hoping that he might mention the excellent North Berwick Rowing Club. I think he should have a word with his noble friend— I refer to the noble Earl, Lord Courtown—or with my noble friend Lord Paddick, who spoke third in the debate. I promise that, if he joins us in the House of Lords eight, we will overlook his youth. I also welcome the noble Lord, Lord McLoughlin, to the House, but he should be aware that the West Derbyshire by-election of 1986, where he narrowly but fairly defeated that outstanding Liberal Chris Walmsley, has not faded from memory in some quarters.
This Bill has some extraordinary features. Suppose an official from the Gambling Commission believes, quite unreasonably and without any basis, that, in his view, it is necessary, in the interests of the economic well-being of the United Kingdom, to infiltrate a perfectly lawful organisation—say, a trade association or, as the noble Lord, Lord Whitty, mentioned a moment ago, a trade union. Under this Bill, he may authorise a 16 year-old to commit a criminal act and give him full immunity against criminal prosecution or civil liability, removing any consideration as to whether, even in part, he himself had a criminal intent or was incited to the sort of abuses to which the noble Lord, Lord Hain, referred.
It is obviously right that there should be a framework that is open and transparent to control the exercise of state power to authorise the commission of criminal offences, but it must be a tight framework. The noble and learned Lord, Lord Stewart, referred to authorisations that will have strict parameters and be tightly bound—but only by the word of the authoriser of the CHIS, his immediate controller.
I will analyse the scenario I set out. What is the rationale for putting into the hands of an official of the Food Standards Agency, or similar organisations, the extraordinary power to authorise criminal acts? Is it for labelling or pursuing dodgy hamburger vendors? This power should be used in the public interest and only in the pursuit of serious crime by professional criminal investigation agencies.
As for immunities, should not the decision as to what is in the public interest remain with the CPS or the Director of Public Prosecutions and not with the initial authoriser? Why should that official, unchecked, exercise this power on his own subjective belief as to its necessity and proportionality? Surely his belief should be, and be seen to be, reasonable? I agree with my noble friend Lord Beith that, as with ordinary warrants, he should be required to obtain the prior consent of a judge or, as in other covert operations, judicial commissioners. A judge would have the power to interrogate the authoriser to establish that he has a rational base in law for issuing an authorisation. As the noble Lord, Lord Rosser, pointed out, there is a duty High Court judge on hand 24 hours a day.
The Bill permits the commission of crime by an agent or CHIS infiltrating a perfectly lawful organisation —for example, a protest group. If such lawful groups need to be infiltrated to ensure public order, it is curious that this Bill should permit the infiltrator to commit crime. I would like to know from the Minister whether an authorisation issued under the Bill could permit a CHIS to act as an agent provocateur, stirring up crime where none exists. This Bill should be limited to national security and the detection and prevention of crime.
However, the most glaring anomaly is that the Bill would permit authorising the CHIS to commit murder, rape or robbery anywhere in the world without any of the limitations set out in other similar jurisdictions—Canada, the US or Australia—and with immunity from prosecution or civil liability, rather than prosecutorial discretion. Is the European Convention on Human Rights a sufficient safeguard? The Minister will find that his colleagues want to scrap it.
This is a very specific question and I would like the Minister to answer it: do the Government concede at last that convention rights bind an agent of the Crown acting outside the jurisdiction in, for example, Europe, the USA or the Republic of Ireland? The Bill should be clear as to what is or is not within its scope, territorially and in substance. In Committee, I hope to pursue safeguards for children, which other noble Lords have addressed, and redress for victims. I am sure there will be many other issues.
Lord Parkinson of Whitley Bay (Con)
My noble and learned friend Lord Garnier will speak next, but this pause gives me the opportunity to remind noble Lords about the advisory four-minute time limit for Back-Bench contributions. This is only advisory, but it would be a courtesy to the large number of Peers who want to contribute. I hope that my noble and learned friend Lord Garnier will set a fine example.
Lord Garnier (Con) [V]
My Lords, my noble and learned friend Lord Stewart has made both his first appearance at the Dispatch Box and his maiden speech. He spoke kindly and accurately of our noble and learned friend Lord Keen and modestly of himself, but we have already benefited from his being here with us. He is most welcome, and I look forward to meeting him in person before too long. I also congratulate my noble friend Lord McLoughlin on his maiden speech. His work in the other place in government and in opposition over many years, the way he performed it and the content and manner of his speech today suggest to me that we will have much to gain from his arrival here.
This Bill is being debated after the decision of the Investigatory Powers Tribunal last December in the third direction case but before its consideration by the Court of Appeal. Although it has no retrospective effect, it will clear up some of the questions left hanging by that case, which concerned the lawfulness of a secret national security policy apparently authorising Security Service agents to engage in criminal activity, including, according to the claimants, torture and murder.
The facts of any particular operation involving the use of covert human intelligence sources are necessarily kept from the public and even from Parliament. That mystery creates mystique for some and suspicion in others. While the security services can cope with the mystique, some suspicions are better allayed than fomented. I used to think that there was an advantage in keeping things vague so that the Foreign Secretary or Home Secretary and their security advisers could pragmatically, but legitimately, apply their discretion and common sense to the difficult legal and operational problems that come with deploying agents at home or abroad.
In my experience of the senior officers of the security and armed services when I was Solicitor-General, they never wanted to bend or break the law, be it the criminal law, the law governing military action or the laws concerning surveillance and counterterrorism. Indeed, they were meticulous about staying within it, and I really do not think they were just telling me things they thought I wanted or ought to hear. Putting the law into statute would, I once believed, inhibit their ability to take quick decisions and create sclerosis within the chain of command. No one needed reminding not to murder or torture people because it would be in breach of the European Convention on Human Rights. Intercepting suspected terrorists’ electronic communications was clearly a proportionate interference with their convention rights.
Part of me still thinks that keeping things pragmatically vague is sensible, but I am now persuaded that, even if the operations themselves and the identities of those providing vital information to the security or other services may often have to remain confidential for ever, the law governing their work should not be hidden, largely within the common law, to be revealed only when a judge’s interpretation of the law, often arrived at by necessary implication, is made public, as in the third direction case. It is also right that the government agencies to be covered by this Bill, and some other important questions, are thoroughly scrutinised in Committee.
The security services were put on a statutory footing in the 1990s, and other statutes have followed, but we now need to know what the rules are and to be able to say whether, in a democratic society, we approve of them. Some things must be kept secret, so we need to have confidence in the people who do this work in order that we can trust them, even if we do not know exactly what they are doing. Knowing what is permitted by statute, even if distasteful to some, helps to enhance that confidence. There are some things that, when known to the public, remove suspicion, even if they do not always lead to universal approval, but, in saying that, I do not expect the state to be absolved of all responsibility for its actions. The innocent bystander and his dependants, whose life, limb or livelihood are taken or damaged by someone whom this Bill absolves of particular criminal conduct, should not be left helpless and without remedy.
The preservation of our national well-being sometimes requires us to permit good people to do bad things. Today, especially, we remember that, in war, we justify the doing of terrible things by and to our Armed Forces to protect our freedoms and recognise that, in other fields of national conflict, we must permit that which, on other occasions, we would abhor.
Baroness Chakrabarti (Lab) [V]
My Lords, I welcome the noble and learned Lord the Minister and congratulate him on his new role, and indeed I welcome the noble Lord, Lord McLoughlin.
Many things are said about your Lordships’ House and about what it is to be a patriot today of all days. I cannot imagine the purpose of either if not to defend the rule of law. It is not a question of left-wing or right-wing, or leave or remain. There can be no freedom, security or even democracy without it, and one of its most fundamental principles is that the law of the land must apply to everyone equally.
If we were to introduce one law for agents of the state and another for everyone else, surely lawlessness and tyranny would not be far behind, and I know that no one in your Lordships’ House would wish for that outcome. Yet the gravest dangers to the rule of law do not politely announce themselves. More often than not, they come under cover and with the best of intentions, not least preserving security and even the law itself.
It is said that this Bill seeks to put criminal conduct by covert human intelligence sources on a statutory footing, but in truth—and as the Minister has today acknowledged—it goes a great deal further than that. It replaces our legal status quo, whereby criminal acts in the course of undercover intelligence work are nearly always and rightly forgiven in the public interest, with a complete and advance immunity or licence or golden ticket for a raft of agents against prosecution and civil suit, regardless of the harm caused to our people—including completely innocent people—in the process.
It is important to remember that the overwhelming majority of these agents are not trained officers of our security agencies or police. They necessarily come from the community, including the criminal community. They include extremely troubled, volatile and vulnerable people, including, as we have heard so many times, even children. A public inquiry that has only just begun is hearing how the agents are capable of abuse and even of inciting crime, rather than preventing and detecting it, even under the present arrangements.
We are told not to worry because those issuing these criminal conduct licences, from inside the relevant agencies themselves, must take into account the requirements of the Human Rights Act. I must point out that such an obligation is weaker than the normal obligation on public authorities to comply with them. Further, while human rights bind states and public bodies, they are no substitute for effective criminal law in both protecting and binding individual people by deterring violence—and sexual violence in particular. There is a wealth of case law to that effect.
Some argue that the great dangers in this legislation might be remedied by external or judicial authorisation of criminal conduct, or by limiting the list of agencies or types of crimes. I am far from convinced that anything other than removing the immunity from these authorisations and restoring them to the appropriate position of public interest guidance to agents, prosecutors and courts will suffice. Once more, in the words of former officer Neil Woods:
“As a former ruthless undercover cop, I see many possibilities of this going wrong. This immunity truly changes everything. It invites criminality into a realm uniquely susceptible to it. Once we go down this route, it will be very difficult ever to return.”
I urge your Lordships to heed that stark warning.
Baroness Young of Hornsey (CB) [V]
My Lords, I, too, welcome--albeit remotely—the noble and learned Lord, Lord Stewart of Dirleton, and wish him luck in his new role, and I also welcome the noble Lord, Lord McLoughlin.
I am sure that many people accept that the police and security services need to deploy undercover operatives to disrupt terrorist and criminal activity, and we recognise that difficult decisions have to be made regarding operational effectiveness. There is no need for me to elaborate on the observations made by the noble Lord, Lord Hain, except to say that the subject matter and nature of the Undercover Policing Inquiry is relevant not least because it reminds us of some of the critical issues raised by the scope, character and potential for harm of inappropriate and inadequately regulated undercover operations.
In the Bill, one area that causes me and many other noble Lords the most concern is the deployment of those under 18 years old—children of 15, 16 or 17—with no stated lower age limit. As the Minister will be aware from the Young review, which I chaired, from the Lammy review, led by the honourable Member for Tottenham, and from all the reports that preceded them, young black men are overrepresented in the criminal justice system and experience disproportionately poor outcomes throughout the system. I fear that racial disparities elsewhere in the CJS will be amplified in respect of the use of covert operatives. Will the noble Baroness the Minister, when she comes to respond to this debate, inform the House of the Home Office’s assessment of the equality impact reviews of the proposed legislation?
As has been pointed out by the noble Lord, Lord Young, and others, drugs shifted around the country via county lines wreak havoc and violence in our communities. Younger and younger children are recruited and of course we long for effective strategies to mitigate the impact of these activities. Gangs groom young children into becoming drug mules, terrifying and traumatising them in the process, turning often vulnerable young people into criminals. Determined youth and social workers do their best, but it is incredibly hard and getting increasingly so to help out here. It appears that the juveniles recruited as intelligence sources are most often 16 or 17, but we have been informed of at least one 15 year-old being used in this way. I find this shocking. Will the Minister accept that not to have a lower age limit for recruiting children carries substantial risks to those already in harmful situations? In any other circumstances, we would be taking steps to protect such children and remove them from such harms.
My own view is similar to that of the right reverend Prelate the Bishop of Durham and of my noble friend Lady Bull: under-18s should never be used as undercover operatives. I find the whole idea absolutely repugnant rather than uncomfortable. I cannot see how it is legitimate to recruit juveniles as informers and spies in dangerous, violent situations but not to allow 16 year-olds to vote.
Ideally, CCAs for children should be prohibited altogether to limit the risk of serious violations of the rights of the child. At the very least, the Bill should contain an explanation of the exceptional circumstances where it would be appropriate for a child to be given a CCA and of how their welfare would be protected. Appropriate adults should be mandatory, rather than discretionary, for 16 year-olds and 17 year-olds, and a lower age limit should be set.
I have many concerns similar to those of many colleagues who spoke earlier in this debate. Two further concerns are that of immunity from prosecution for those perpetrating criminal acts and the lack of explicit limits on the nature of any criminal act committed; those two are linked, I think. As others have noted, the USA, Canada and Australia place limits on the acts that agents can commit.
The case studies circulated by the Minister yesterday have been referred to. It is interesting that they fall into two categories: hypothetical and real-life. The hypothetical ones are all about the public bodies and do not reveal the extent to which CHIS work with police and are trained. The real-life cases seem straightforward, but can the Minister tell us how the results of those significant prosecutions would be undermined in some way by current legislation and how they would be improved by this piece of legislation? I look forward to debates in Committee.
Lord Walney (Non-Afl) (Maiden Speech)
My Lords, it is an incredible honour to address your Lordships’ House for the first time. I have been touched by the kindness and support of the many dedicated staff in this place: Black Rod, the amazing doorkeepers and Garter, not least for his agreement to my title. I am deeply indebted to my two supporters, the noble Lords, Lord Robertson of Port Ellen and Lord Hennessy of Nympsfield, one a former NATO Secretary-General and esteemed former Labour Defence Secretary in the other place, the other the fabled analyst and chronicler of the inner workings of the British state. They were always so generous with their wisdom on the UK’s nuclear deterrent when I was the MP for Barrow-in-Furness. Today, I am honoured and still a little starstruck to count them as my friends.
I also want to mention two friends from opposite sides of the House with overlapping territorial designations to mine. The noble Lord, Lord Hutton of Furness, was my predecessor as MP for Barrow and my former boss in Whitehall. The noble Lord, Lord Cavendish of Furness, has shown me such kindness since I became a Member of Parliament. They are both beacons to me and many others in different ways. The noble Lord, Lord Cavendish, will be greatly missed by this House as he announces his retirement.
To my neighbours on Walney Island, which I am proud to take as my territorial designation, I just say this: you kindly took in this off-comer; you elected me three times, and now I will give you a lifetime of service, raising the particular concerns of the island and the wider area. I will remain a firm advocate of the submarines constructed with your expertise, and I hope to make a contribution in due course on the issue of coastal erosion, which could literally split our wonderful island in two in future decades if left unchecked. That would be unconscionable to the near-11,000 residents of the island and would decimate its unique, cherished natural resources.
I have been determined to use my maiden speech to highlight the need for the UK to do more in defending the rules-based order that underpins the freedoms and values embodied in this Chamber and the other place. Much has already been said on that subject this week, but the threat is far deeper than a particular part of a particular Bill. Our international adversaries are intent, with a whole spectrum of means, on unravelling the system of international order that protects our liberty and our interests abroad. As we remember today the struggle and sacrifice of previous generations so that we can live free, let us recognise that this battle will be our generation’s struggle.
I therefore wondered whether it was right to make my maiden speech in this debate on a Bill whose purposes, as we have heard, are to sanction certain individuals to commit what would otherwise be criminal acts. However, the fact that this process of scrutiny is happening at all, and that a legal framework is being constructed, should be seen as demonstrating the strength of Britain’s commitment to the rule of law as a means of upholding our security.
I was pleased to be asked by the Prime Minister, on standing down from the House of Commons, to advise the Government on aspects of counterterrorism. I listened carefully today to the excellent maiden speech by the Minister, whom I congratulate, and to many others. I have seen the strong backing that this Bill has received from the security services and from the Intelligence and Security Minister. I am happy, therefore, to vote to support it tonight in the knowledge that the many pressing issues that have been raised will see further scrutiny in Committee.
I end by briefly addressing the political journey that has brought me to this place, in this House on these non-affiliated Benches. I am proud of the small contribution that I made to stopping what would otherwise have been inflicted on the British people had the general election last year gone the other way. That has strained some lifelong friendships; indeed, it has led to one or two frosty encounters in the corridors of this place. I am happy now, however, to be given the opportunity to put party politics behind me and start a new chapter. Much of the past few years has been difficult, but it has underlined a central tenet of my faith: no one party and no one group within a party holds a monopoly of wisdom. We are all flawed human beings mostly trying to do our best in a complex and conflicted world. I will always endeavour to do my best in this place and it is deeply humbling to be given that chance.
Lord West of Spithead (Lab)
My Lords, I am honoured to follow that excellent and very moving maiden speech by the noble Lord, Lord Walney. He talked of Walney Island, and I know that area. What he did not mention was that it has an airport built at right angles to the prevailing wind and about as long as this Chamber, so if any noble Lords are thinking of visiting there, they will have a very fun arrival if they go by air.
I have known John, the noble Lord, Lord Walney, for more than 10 years. He is a highly principled man, and I was particularly impressed, first, by his confrontation of anti-Semitism within the Labour Party, which he drove through with great vigour; and secondly by his passionate support for an issue very close to my heart and those of his ex-constituents, which noble Lords heard him mention—the UK’s independent deterrent and nuclear submarines. Neither issue made him popular with the last leader of the Labour Party, but he refused to compromise his beliefs. Rather like his namesake in the 17th century, he was martyred, although I doubt that—unlike his predecessor—he will be beatified by the Pope. The noble Lord, Lord Walney, will be of great value to this House. We already got that from what he said, and I look forward very much to working with him.
The Intelligence and Security Committee of Parliament, of which I am currently a member, welcomes this Bill. Agents provide invaluable information and play a vital role in identifying and disrupting terrorist plots. Basically, they save the lives of our people. However, can the Minister assure the House that, in putting the existing powers on a statutory basis—which needs to be done because of the legal shenanigans going on at the moment—the Bill does not extend them in any way at all? It is essential that these powers are properly circumscribed and used only where necessary: they have to be proportionate. They should be compatible with the Human Rights Act—let us face it, we are all responsible for ensuring that—and subject to proper oversight.
The Minister will be aware that the Intelligence and Security Committee proposed an amendment to the Bill in the other place relating to parliamentary oversight. I have lost sight of where that has gone; perhaps the Minister will let us know where that proposal stands. The committee clearly knows the agencies very well, but it has also taken evidence—very sensitive evidence—from the police in a number of its inquiries, and from that knowledge would support their use of these powers. I would, however, need convincing that a number of the other authorities really do need these powers.
The Intelligence and Security Committee strongly supports the Government’s decision not to place limits on criminal conduct in the Bill itself. My own operational experience would reinforce that because of the risks it would place on our agents. Clearly, that means even greater emphasis on the need for robust safeguards. I can offer reassurance to the House that the Intelligence and Security Committee has had comprehensive briefings on how these authorisations are used, and we are reassured and satisfied that they are used appropriately by MI5. Will the Minister say, however, what percentage of criminal conduct authorisations—they have been mentioned already—the Investigatory Powers Commissioner will actually examine?
I reiterate that I strongly support this Bill, subject to the caveats I touched on. I have not had time to go into other areas, such as the use of children, but I hope that these things will be investigated in Committee. There is no doubt that these agents save lives and are at great risk themselves. We must be careful not to pass legislation that, with amendments, leads to agents being killed.
Lord Randall of Uxbridge (Con) [V]
My Lords, I congratulate all three noble Lords who made their maiden speeches earlier. We will benefit greatly from their experience and expertise. My noble and learned friend Lord Stewart of Dirleton made a dignified and personal speech as well as an accomplished Front-Bench contribution. We are fortunate indeed to have him here; his probity will be an asset, not least in the Bill we are discussing today. His opening speech exemplified that.
I know the noble Lord, Lord Walney, from his time in the House of Commons, where he showed himself to be principled and courageous while serving his constituents well. We saw that in his speech just now. Anyone who takes a geographical designation of a place so ornithologically blessed as Walney Island is off to a good start with me; I know that he and his partner greatly appreciate the benefits of nature there.
I was honoured to be a supporter of my noble friend Lord McLoughlin on his introduction to this place. I can honestly say that it was very much a privilege and a pleasure to act as his deputy in the Chief Whip’s Office in the other place. I endorse entirely the words of my noble friend Lord Young of Cookham, who is another of the best people in this House. My noble friend Lord McLoughlin made a moving speech; one of the few advantages for speaking remotely, for me, is that no one saw me wipe away a tear at his speech. His sage advice and knowledge of parliamentary procedures are exceeded only by his all-round modesty, affability and decency. He was, and is still, held in high regard by all who know him. If some of his advice had been taken by some whom he offered it to, I am sure that recent history might have taken a slightly different course.
My only regret is that I have never succeeded in persuading him about the joys of cricket. I remember him asking me, early on the first day of a five-day test match, who was winning. His response to my reply that it was far too early to know should not be repeated before the watershed, but his love for Derby County Football Club shows that he has a love of sport. I am sure that he will become as popular in your Lordships’ House as he was down the other end of the building.
This Bill is something that we would perhaps rather not have in law, but the world we live in today sadly necessitates these measures. I pay tribute to the courageous men and women who served this country in an unspoken, unseen way in the intelligence services. We owe it to them to give them the necessary powers to undertake that dangerous work. I share concerns about some of the agencies that have been given these powers, although my noble friend’s opening remarks gave me some confidence in those measures—but that is for the other stages of the Bill.
The strength of this Chamber is that it can be relied on ensure that we will give appropriate and proportional authorisation only to those who need it. Therefore, I am happy to allow this Bill to advance in its parliamentary journey and I look forward to further debate on this important measure.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I, too, warmly welcome the Lord Advocate and congratulate him on his first speech. It is good to have another Lord Advocate from Scotland, with its own distinct legal system. I also congratulate the other two noble Lords on their excellent speeches.
I warmly support the idea of putting the power of these matters on a statutory basis. I wish to raise three points: first, the role of the Investigatory Powers Commissioner; secondly, the process for immunity; thirdly, the position of bodies other than the security services and the police. The observations that I wish to make on those three points have been drawn from my own experience of sitting on a large number of cases involving CHIS, the setting up of what is now the Mitting inquiry—formerly conducted by Sir Christopher Pitchford—and the setting up of the Investigatory Powers Commissioner’s Office. One of the difficulties in making observations is that, in all the hearings on which I sat and when setting up the Mitting inquiry, either the information provided to me was in circumstances of the strictest confidence or the hearings were closed.
It seems to me that three issues require further detailed consideration by this House. First, I would like to understand the reasons why we cannot follow the interception regime, with the IPC having a clear role in approving in advance except when urgency prevents. Obviously, it would have been of great advantage to know what had happened in the many years being investigated by the Mitting inquiry, but I can bring some of my own experience to bear and say that there are strong reasons for a very tight regime, particularly where the authorisation would go hand in hand with immunity. A regime for reporting a few days thereafter, put forward in the excellent speech by my noble friend Lord Anderson, would obviously need detailed consideration but, before we get to that stage, it is necessary to see whether there is justification for moving from a pre-authorisation system. There are real difficulties if the IPC says that the authorisation was wrong.
The second point can be put more briefly: I would like to see the justification for the change from the position where the CPS makes its decision on immunity. There are strong constitutional reasons for the CPS, an entirely independent prosecutor, making decisions on whether someone should be prosecuted. That is the proper constitutional route and entirely consistent with the rule of law. It would be inimical to the rule of law for immunity to be granted by an agency of the Executive, and it would be a bad example to other states.
Finally, if powers are to be granted in broad terms to the police and security services, I would like to understand the justification for granting these powers to the other bodies. It is important that these issues are examined carefully to protect confidence in the security services. We too easily forget the damage that can be done when officers, even fairly senior ones, do not do things properly. The damage, from my own experience in such cases, can be considerable indeed.
Lord Dodds of Duncairn (DUP) [V]
My Lords, I congratulate the three noble Lords who made excellent, eloquent maiden speeches today in the House. I look forward to working with them in the period ahead. I pay tribute to the security forces, members of the Security Service and all those involved in counterterrorism for the great sacrifices that they make in defence of our country—acts of heroism that will never be told and suffering for the greater good of society that will never see the light of day. I am grateful for the briefing that I received in the other place in the run-up to the Investigatory Powers Tribunal case, which brought home to me just how important their work is.
As has been said, this Bill is about keeping the country secure and saving lives. It puts on to the statute book what already happens and has been happening for a long time. Lest anyone should doubt the need for CHIS—or agents, as they are better known—we only have to look at some of the statistics outlined by the Minister in the other place about the number of arrests, of firearms, class A drugs and illicit cash recovered, and of potential terrorist attacks thwarted by MI5 and counterterrorism in recent years—27 between March 2017 and today, which is nine each year. Those are staggering figures.
While there have been incredible advances in electronic and digital surveillance, we know that in many cases, such methods of intelligence-gathering are simply not enough in themselves. The Bill addresses participation in criminal activity of agents and legislates for robust, independent safeguards and oversight. The Government have set out clearly why this legislation is necessary to lift and remove any legal uncertainty. There must be no doubt in the mind of a handler, the agent themselves or the organisation responsible about the legal status of what an agent has been ordered to do.
Being from Northern Ireland, my experience as a Member of Parliament for Belfast North for more than 18 years has brought home to me the importance of the proper use of agents in combating terrorism. The recent report of the Intelligence and Security Committee illustrates the very serious threat of terrorism that still pertains in Northern Ireland, where the threat level is set at “severe”. Without covert agents, the safety and security of citizens in that part of the United Kingdom, as well as elsewhere, would be gravely impaired. Often agents in Northern Ireland have had to join an illegal paramilitary organisation, or people within those organisations have had to undertake, at great risk, activities which have been of enormous benefit to the state. These acts are, of course, illegal under normal circumstances, but it is a clear example of what would warrant a criminal conduct authorisation.
Of course, such authorisations must always be for precise and specific purposes, and the Bill sets out very clearly three such purposes. I welcome the fact that the Bill states that at all times there must be compliance with the Human Rights Act. The role of the Investigatory Powers Commissioner is also set out. Robust oversight is crucial, and I welcome the unfettered access that is permitted under the Bill to all documents and information. However, we need to examine carefully in Committee the organisations that are covered in the Bill, and I look forward to discussion in Committee on that. This is about saving lives. It is a sad fact of life that agents are necessary, and I fully support the Government at Second Reading.
Lord Rooker (Lab) [V]
My Lords, I welcome the three maiden speeches. In particular, as a fellow member of the club of those who made their maiden speech at the Dispatch Box, I can imagine what the Minister was feeling when he made his maiden speech. I wish him well. The noble Lord, Lord McLoughlin, a friend from the Commons, treated me really well when he was the most junior of Ministers in the 1990s and I went to him with constituency cases. As for my noble friend Lord Walney, I sat out the last election—I was on the dark side, in hospital—but I understand he performed a national service, and I welcome him to the Lords.
I am neither a lawyer nor a crime expert: I leave that to others. During my time as a Minister at MAFF and Defra, and as chair of the Food Standards Agency, I was from time to time informed of criminal issues relating to activity undermining food supply and food safety. One thing I can say for certain is that the police were never interested. Yet food is our largest manufacturing sector, we import 50% of what we eat and we have large exporting companies. The scope for criminal activity is very substantial. In a multi-billion-pound food industry, the risk of damage, serious illness and death is very clear. The simplistic view that economic well-being is not connected to serious crime or protection of national security is not one I accept. I therefore do not support the view of the Joint Committee on Human Rights in this respect; so, in general, I support the Bill.
I do not think I was aware of the term “CHIS” until I served on a RUSI panel in 2014-15, the Panel of the Independent Surveillance Review. I have now read several briefings and, in the main, think of a CHIS as someone who is not an employee of the police or security services, but an outside, undercover informer or agent. They may be motivated by a mixture of reasons, not all of which show them to be the nicest of people, but they offer a service that can be valuable and impossible to obtain elsewhere. I sat in on a briefing a few days ago, and I can see there are differences between those who seek prior judicial approval of actions authorised under the Bill and others, “the CHIS runners”, who see very practical issues, including issues of timing, as a key element in ruling this out. I shall be very keen to see the amendment from the noble Lord, Lord Anderson of Ipswich.
I do not see the benefit, by the way, of listing crimes which should not be authorised; in fact, I see it as quite negative. It would, of course, help the Government’s case if it were made crystal clear that the UK Government are not abolishing our Human Rights Act, nor leaving the European Convention on Human Rights. The Minister needs to address this, as it will influence decisions on amendments, and nobody trusts the Government at the present time. Our position on the Human Rights Act and the Convention has to be made absolutely clear.
The letter from the Minister on 27 October and the Explanatory Notes say and imply that the Bill simply puts onto a statutory basis that which happens now, and no more. The message is that this is not new activity but a continuation of existing practice, but is that correct? The note from the Bar Council questions that claim, as have some speeches this afternoon. Is there a widening of the separation of powers that exists at present with regard to prosecutions? We need answers to these points in Committee.
I started by saying that I support the wide view of potential damage to the nation. This means that I can support the list of relevant authorities set out in Clause 2. I believe that those people who, for some decades now, have operated a system on the dark side of openness, will see the Bill as a better way of operating in the 21st century. It is our role to see that Parliament likewise sees it as a better system that remains workable and keeps the public safe.
Lord Hodgson of Astley Abbotts (Con) [V]
We have had three distinguished maiden speeches this afternoon. First, I welcome my noble friend Lord McLoughlin. The Cardinal Griffin School in Cannock has had a lot of airtime today, but I can tell him that when I visited the school as part of the Peers in Schools programme, there was a large photograph—one might almost say a dominating photograph—in the entrance hall of the school, a fitting tribute to his long and distinguished career in public life. I also congratulate my noble and learned friend on his distinguished opening speech. He reminded us that the underlying purpose of the Bill is to assist in maintaining and building the safety of the citizens of this country: as such, it has my in-principle support. However, it is a support that comes not without limitation: the use of the words “necessary and proportionate” remind us of those limitations.
What are my concerns, which I hope we can explore in Committee? The first is the list of relevant authorities. I share the remarks of several noble Lords about this. I would only add to what has already been said by saying that the greater the number of authorised bodies, some of which may use these powers only rarely, the greater the risk must be of misuse. The second is the extent to which the provisions of the Bill extend outside the United Kingdom. Geographical distance carries its own temptations and dangers, not least in the inevitable limitations on the ability to investigate and follow up fully where matters may have gone astray. My third point concerns what I can best describe as mission creep. I currently chair the Secondary Legislation Scrutiny Committee of your Lordships’ House. Our committee has been increasingly concerned about the use of skeleton Bills, where most of the legislative impact will be achieved through regulation. This is undesirable on many levels, not least because regulations have a lower level of scrutiny because, as is well known in the House, they are unamendable. Parliament is left with the nuclear option of complete rejection, a course which the House is often, understandably, reluctant to take.
As I read the Bill, there are at least three areas where mission creep could take place, but there may well be others. However, as I see it, by regulation the Secretary of State, first, may change the list of the bodies that can give CCAs; secondly, change the basis on which those authorisations can be granted; and, thirdly, change the individuals within the relevant authorities that can give CCAs. All of that is done by regulation. It seems that, taken together, these powers could quite radically shift the basis on which the Bill is constructed and on which it will operate.
My final point concerns the investigation of cases where matters have not developed as hoped and expected, and here I take up the points raised by the noble Lords, Lord Carlile of Berriew and Lord Anderson. I note the additional remit of the Investigatory Powers Commissioner, and of course those powers are welcome, but I see nothing about urgency. Speed of innovation is critical to achieving a proper outcome before waters, which may well sometimes be deliberately muddied, close over the case. I have been an officer of the All-Party Group on Extraordinary Rendition for many years, and the group has watched as successive Governments—no party has clean hands on this—have ducked and dived. We have to make sure that these sorts of cases cannot arise with this Bill, although it has my in-principle support.
Lord Russell of Liverpool (CB)
My Lords, I declare my interest as a governor of Coram, part of which includes the Coram Children’s Legal Centre. When I saw that there were going to be three maiden speeches today, my thoughts wandered to whether there is a collective noun for maidens, and the answer is yes: it is a rage of maidens. I am glad to say that we saw none of that today. I think that everyone is saving it for the United Kingdom Internal Market Bill.
My remarks will concentrate on the use of children and vulnerable juveniles under the age of 18 as CHIS—a subject that many other noble Lords have referred to. Understandably, this is a highly sensitive area. I suspect the Government may say that since the number of children and young people used for this purpose is extremely small, since existing safeguards are being reinforced in this Bill and in the revised code of practice, which is going through a consultation process, and since the level of criminal activity in areas such as child sexual exploitation and county lines drug activities continues to rise, the use of juvenile CHIS must be a necessary evil and is, in fact, a public duty. However, if one follows that line of argument, one can see that the temptation for legal authorities to expand their use would be quite strong.
As I considered what I was going to say today, I was struck by an uncomfortable parallel as I thought of the faded black-and-white photographs and flickering cine film of German boys in 1945 being pressed into military service as a hopeless last attempt to resist the allied forces. The use of juvenile CHIS could be seen as evidence of the failure of our state to prevent the criminal activities into which they have been drawn. The evidence strongly suggests that those individuals who are candidates to be juvenile CHIS are often vulnerable, traumatised and acclimatised to a world in which their own freedom of choice and inability to tell right from wrong leave them open to influencing and manipulation. If we reluctantly accept that using a small number of these children in this way is a necessary evil, what can we do to put in the most comprehensive safeguards possible?
First, we are dealing, and will continue to deal, with a very small number of cases. This would make treating them in a particularly comprehensive way much more achievable than with a larger number. Secondly, please could the Government consider very seriously the eminently sensible suggestion of the noble and learned lord, Lord Judge—who, unfortunately, is not able to speak today—for a dual-lock approach such that in addition to the assistant chief constable who must currently authorise a deployment, we add a judicial commissioner with specialist knowledge and training who must also always be involved? Thirdly, could we in addition mandate a procedure such that, at the end of each deployment, the assistant chief constable and judicial commissioner undertake a comprehensive audit to assess the history of the deployment, its outcomes in all areas with a particular focus on the juvenile involved, and an assessment of any and all the lessons learned?
The Minister will be aware that she may be faced with a range of amendments in Committee dealing with child and juvenile CHIS deployments. With her usual courtesy and patience, I know she will be open to working with your Lordships to try to see how we can authorise such deployments with forensic care and an overriding focus on the best interests of the child.
Baroness Bryan of Partick (Lab) [V]
My Lords, in the short time available I will concentrate on Clause 2, which details the authorities able to authorise criminal conduct. The list of bodies included will probably surprise many people, as the justification for the Bill is usually given in terms of serious organised crime and terrorism, and the reason given for why there is no prior authorisation is the imminent danger and urgency of the potential crime. As we have heard, however, the Bill will apply to many bodies. I shall refer to just two of those agencies—the Food Standards Agency and the Environment Agency—and ask whether they need the power to authorise CHIS activity without prior judicial approval and why they need the level of immunity for their actions granted in the Bill.
The Food Crime Strategic Assessment 2020 states:
“There is minimal evidence of any significant involvement of more broadly active Organised Crime Groups … being involved in food crime taking place in the UK”.
The agency’s Manual for Official Controls on enforcement states that authorised officers,
“must not try to get someone to act as an informer or obtain information in an undercover way”.
It therefore seems that the FSA does not want or need these powers.
The Environment Agency says that it would authorise the use of the powers in the Bill only,
“when it is absolutely necessary, proportionate and with great care and scrutiny”.
That surely would give time for judicial approval. However, what the waste disposal industry in general wants is for the agency’s current powers to be used effectively. A lawyer in the field said that the Environment Agency already has the legislative arsenal to hit these criminals, it just needs to use them.
Can the Minister justify why the agencies should be able to grant immunity to members of the public to act illegally without any judicial oversight, but merely on the subjective assertion that they believe it to be necessary? Can she give an example of when a CHIS has been prosecuted after being authorised by one of these agencies? My understanding is that the current test of public interest has protected such activity. So why do they need specific immunity?
Secondly, will the Minister clarify whether members of the public who are damaged during the course of activities covered by immunity will be entitled to compensation? There is genuine concern that immunity will prevent citizens from holding these agencies to account, not because they are fighting terrorism or serious organised crime, but because they have unnecessarily been included in the Bill.
When civil liberties are put in jeopardy there must be a very clear case for it. Many other speakers have expressed their doubts that the Bill can be accepted as its stands. Certainly, the inclusion of the long list of agencies is an additional cause for concern which must be addressed in Committee.
Lord Davies of Gower (Con)
My Lords, I too congratulate the noble and learned Lord, Lord Stewart of Dirleton, for his presentation of the Bill this afternoon, while being in at the deep end, as it were, at the Dispatch Box. I also congratulate my noble friend Lord McLoughlin, who I have worked with outside of Westminster on other issues and for whom I have great respect. I congratulate the noble Lord, Lord Walney, for a very passionate speech—as passionate a speech as we will probably ever hear in this House.
I am delighted to have the opportunity to speak at the Second Reading of the Bill, which I strongly support. I am afraid that we live in a very real world of terrorism and organised crime. It is, sadly, omnipresent. Criminals deal in any commodity that will give them a financial return. It can be fraud, drugs, people trafficking—whatever. They have no qualms as to where they make their money so we need to be ahead of the game. It is therefore the duty of Parliament to give our security services and law enforcement agencies as many tools as we can to counter terrorism and organised crime.
I believe that this Bill, which provides an express power to authorise covert human intelligence sources to participate in conduct that would otherwise constitute a criminal offence, is long overdue. I say this as someone who has been a member of the Counter Terrorism Command at the Metropolitan Police. I was also a member of the National Crime Squad, the forerunner of today’s National Crime Agency, where I ran a number of such operations. Some aspects of the Bill are clearly unpalatable to Members of your Lordships’ House but it is a Bill that, at long last, recognises the need to provide a statutory power to authorise CHIS to participate in criminal conduct when it is deemed necessary and proportionate to do so.
Although I support the Bill, I want to highlight a couple of issues that are clearly of concern. Human rights issues are paramount but so is our duty of care to all the actors in any CHIS operation. Any authority in its breadth needs to take notice of the practical issues in order to protect the agent. During an operation, a suggestion by the targets to the operative to commit an offence will come in real time and, in all probability, when he or she is out of contact with their handler. The operative needs to know exactly what the limitations of his or her criminal conduct are. There is no provision for retrospective authority, and that creates real difficulty in that the type of conduct suggested may differ from or exceed what has been authorised. For the operative to maintain his or her cover, authority may therefore need couching in terms that allow some discretion as to the precise scope of the remit. This is not to say that an agent has carte blanche to do whatever he or she wishes but there must, for practical reasons, be a level of flexibility built into the system. At present, I am unable to detect that in the Bill or, indeed, the codes of practice. Any illegal conduct will, of course, require justification at a later criminal trial, and it goes without saying that any breach of the absolute rights contained in the ECHR can never be permitted.
The use of children has been much exercised today. It is unpleasant—there is no doubt about that—but at times, in this very real world, I contend that it is necessary, particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary. Also much exercised today is the level of authority and why members of the judiciary should not be involved in the process. Some might say that it introduces a new level of unwanted bureaucracy. I agree with that. The Investigatory Powers Commissioner’s Office provides comprehensive independent oversight of the use of investigatory powers as outlined in the Investigatory Powers Act 2016. That oversight includes the inspection and authorisation of the use of these powers.
In conclusion, I have some reservations on the public bodies issue. I agree that police could fulfil some of those actions when required. I very much look forward to Committee and further consideration of the Bill.
Lord Hope of Craighead (CB) [V]
My Lords, I congratulate the noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord McLoughlin and Lord Walney, on their excellent maiden speeches. I had the pleasure of welcoming the noble and learned Lord, Lord Stewart, in my capacity as lord president on the very threshold of his career at the Scottish Bar when he was admitted to the Faculty of Advocates in 1993. He has come a long way since then, further than we would have dared to contemplate on that day. It is a real pleasure for me to welcome him once again and to wish him well now that he takes on his new responsibilities as Advocate-General for Scotland.
It has occurred to me, as I have been reading and thinking about the Bill and the dangerous nature of the activities that it refers to, that I have led a very sheltered life. I have not been involved in any way with supervision of the work of the intelligence services, but I have had something to do with torture. When I was working here as a Law Lord, I was a member of the Appellate Committee in two cases that raised issues about it. One was the Pinochet case, in which we had to consider the reach of the UN Convention against Torture. The other was under Article 3 of the European Convention on Human Rights. The question was whether our courts could rely in terrorism cases on information provided to us by agents from overseas that might have been obtained by torture.
As Lord Bingham said in the latter case, the fundamental nature of the prohibition against torture requires member states to do more than avoid the practice. It is not enough to say that I did not do it, I was not there, I did not see it happening or even that for some very good reason resort to it was necessary. It requires member states to do everything in their power to prevent and avoid it. The torture convention, we must remember, is breached by any act by which severe pain or suffering is inflicted to obtain information or as punishment by or at the instigation or with the consent or acquiescence of a person acting in an official capacity. Article 3 of the ECHR is at least as wide as that.
The reference in new Section 29B to the authorisation of criminal conduct by persons designated for the purposes of that section, and thus acting in an official capacity, seems to fall within the ambit of these provisions. The conditions mentioned in Section 29B(4) and the obligation merely to take account of the Human Rights Act in Section 29B(7) do not go nearly far enough with regard to this particular crime. We need to be very careful—ought it not to be made clear somewhere and somehow that participation in any way whatever in acts of torture will never be authorised? I am not suggesting this should expressly be mentioned as an exception in the statute but somehow, somewhere, a solution to this problem needs to be found.
Of course, to raise that question begs the question of whether we should go further. The right to life in Article 2 of the ECHR is also unqualified. At the very least, clear guidance needs to be read into the code as to when, if ever and for what purposes, participation in murder could be authorised. I also find the idea that children might be authorised to participate in torture or crimes of such gravity—by no means unimaginable given the way county lines operate—deeply disturbing for all the reasons mentioned a moment ago by the noble Lord, Lord Russell of Liverpool. I am sure the Minister will take his comments and his suggestions very seriously.
Lord Dubs (Lab) [V]
My Lords, I very much agree with the comments about torture that the noble and learned Lord, Lord Hope, just made. I am a member of the Joint Committee on Human Rights, which has just published its report on the Bill, and my comments are based largely on the evidence sessions and the final report.
I say at the outset that it is clearly welcome that the authorisation of criminal conduct by covert human intelligence sources should be put on a statutory footing. The justification is that through covert sources terrorist attempts have been prevented and lives have been saved, class A drugs, firearms and ammunition have been seized, and child sexual exploitation has been thwarted. All that is important, and that is the benefit of this Bill.
On the other hand, there have been some shocking instances of undercover activity in the past which should never be allowed to happen again. For example, there was the murder of Pat Finucane in Northern Ireland with the apparent complicity of undercover agents and, more recently, the surveillance of the Lawrence family after the racist murder of their son Stephen. It is quite unacceptable that a family such as that, victims of a most horrible crime, should be put under police surveillance. There are other incidents in the past, such as during the miners’ strike at the Orgreave coking plant.
As it stands, the Bill leaves open the possibility of serious crimes being committed through the granting of powers to authorise crimes more widely. That risks violating human rights, which surely means we have a responsibility to add many safeguards to the Bill. It should indicate a list of certain types of offences that should simply not be authorised. I am told that, if we had that list—as the Minister said at the outset—it would alert criminals to the way in which they can identify whether there is an undercover person working in their organisation. I think the safeguards can be built in; it has been done elsewhere, such as in the Canadian Security Intelligence Service Act. If it can be done there, we can surely adopt it as well.
I share the concerns about children. Children must surely be part of this covert process only in exceptional circumstances.
Extending authorisations to situations where there are no criminal threats risks unjustified interference in the activities of trade unions and other legitimate activists, and can affect the right to free expression and free assembly. In passing, I mention the criticism that senior members of the Government have made of “activist lawyers”; are they to be put under this sort of surveillance? I hope not.
The Bill will go way beyond the authorisation of criminal conduct by the security and intelligence services and the police. The power to authorise conduct should be restricted to public authorities whose core function is protecting national security and fighting serious crime. That should not include the Environment Agency, HMRC, the DHSC, the FSA, the Gambling Commission and others. It is also unacceptable for the Bill to provide authorisation of crime with fewer safeguards than exist at the moment for phone-tapping or the authorisation of search warrants. Those require a preliminary process, which is surely a safeguard which should be applied to the authorisation of crime. There should be prior judicial approval, except for urgent cases.
Finally, I am concerned about the victims and civil liability. I appreciate why this is a difficult area, but we should at least include provision for the indemnification of victims, who should be able to obtain compensation for losses suffered as a result of authorised crime.
Baroness Warsi (Con) [V]
My Lords, I congratulate my noble and learned friend on his clear and comprehensive maiden speech. He opened today’s debate on a crucial issue of national interest, but also gave the first of three excellent maiden speeches. The others were from my noble friend Lord McLoughlin, who, like me, had the pleasure of serving as chairman of the Conservative Party, and the noble Lord, Lord Walney, whose moving and emotional speech I fully understand and resonate with. It is not easy taking on your own party, colleagues and friends on an issue of principle.
Turning to the Bill, no one can reject the importance of CHIS or the need to protect them. No one can doubt the importance of putting existing practices, the status quo, on a statutory footing. As the noble Lord, Lord Paddick, said, based on his real experience in this area, the status quo has rarely caused issues. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position.
I agree that we need to place a shield in front of CHIS, but we must be careful not to place a sword of blanket immunity in their hands or the hands of those who authorise, especially when the scope of those who can authorise is so widely drafted in this Bill. I ask my noble and learned friend to hear and heed the very personal and powerful contribution of the noble Lord, Lord Hain. Accountability tempers excess, and in this case appropriate authorisation and oversight provide the necessary accountability.
I note what the Bill—and my noble and learned friend in opening the debate—said about our commitment to the Human Rights Act and the European Convention on Human Rights, but I am sure that he too, in the back of his mind, has concerns about much of the political debate around the Government’s commitment to both. We heard today from noble Lords on torture, murder and sexual offences. If we are clear which activities cannot and must not in any circumstances be authorised because doing so would put us in breach of convention obligations and rights, surely that must be in the Bill. I cannot accept that to do so would simply tip off criminals, terrorists or others, as my noble and learned friend said; as he and other noble Lords will know, those who operate in these gangs and terrorist organisations are far more sophisticated and already prepared for what they may see as potential CHIS activity. To this end I endorse the concerns raised by the noble Baroness, Lady Kennedy of The Shaws.
I look forward to supporting the principle of this Bill and the Government, but will make sure that I work with noble Lords across the House to ensure that this Bill protects covert human intelligence sources in a manner consistent with hard-fought human rights and the rule of law.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I welcome the three new Peers and congratulate them on their maiden speeches. I look forward to meeting them in future, perhaps bumping into them in corridors some time and setting them straight on a few of the issues in this Bill. The Bill is about granting immunity for crimes to criminals whom the Government employ. I will raise five issues today, though I am sure there will be more in future.
I start by highlighting that many victims of undercover policing are currently, finally, giving evidence to the Undercover Policing Inquiry, which is exploring systematic abuses by undercover policing units over a period of 40 years. It is therefore regrettable that the Government are bringing this piece of legislation forward before any lessons have been learned. More can be learned from the public inquiry, so will the Minister undertake to bring forward further legislation in future to deal with any recommendations coming out of it?
Secondly, I want to dispel any notion that this legislation is simply regularising and codifying the status quo. This is simply not true. Most significantly, there is currently no blanket immunity granted to undercover state operatives. There are legal defences which can be relied on, and prosecutors can and do decide that it is not in the public interest to prosecute undercover operatives. However, this legislation seeks to replace that with a blanket system of legal immunity which would be self-administered by the agencies themselves. This undermines victims’ rights and gives them no legal redress when they are harmed by undercover operatives.
Thirdly, there are no limits in the Bill to the criminality that can be authorised. The Government’s response is that the Human Rights Act would prevent these types of crime; even if that is true, it remains this Government’s stated intention to repeal the Human Rights Act. Can the Minister make very clear what the Government’s proposals to change the Human Rights Act are and how they will interact with the Bill? The Bill allows the Secretary of State to place limits, by regulation, on what conduct can be authorised, so the Government have already explicitly conceded in the drafting of this legislation that there is a need for restrictions on what can be authorised. The Joint Committee on Human Rights said it best in paragraph 42 of its report on this Bill:
“The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm.”
Noble Lords can see that we have a problem here.
One does not have to be a human rights lawyer to realise that the Government are not allowed to authorise people to commit such grievous crimes. Parliament should place limits on the face of the Bill. In particular, we must prohibit the use of government agents as agents provocateurs who infiltrate legitimate political campaigns or trade union groups and disrupt their activities or cause them to commit criminal acts.
Fourthly, on the issue of child spies, which I have spoken on many times, I think it is dangerous, unethical and cruel, and I would prohibit it.
Fifthly, I am very concerned about the overlaps of this Bill with already existing legal processes: for example, the risk that authorisation under this Bill could bypass some of the legal safeguards, like search warrants or phone-tapping authorisation, or authorise conduct that interferes with legal processes, such as tampering with evidence, contempt of court or perjury, which could all be argued to be necessary and proportionate.
I look forward to working with other noble Lords across the House to significantly amend this legislation. I believe that if we cannot amend it significantly, then it must be voted against in its entirety.
Baroness Blower (Lab) [V]
My Lords, the Bill before your Lordships today has a great many flaws. A case could be made that the Government should simply look at it again and think again. It has been said that the Bill is merely, but importantly, to put on a statutory footing practice which has hitherto operated in the shadows. Alas, as currently framed, the Bill does not fulfil that function, as the Minister himself said. Rather, it seeks to confer immunity from prosecution for criminal conduct. Other noble Lords have argued this point with distinction, in particular the noble Lord, Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lady Chakrabarti.
I preface my remarks today by stating that I do, of course, wish to live in a well-regulated society. I therefore accept the need for elements of covert activity in some well-defined circumstances. However, I also want to live in a society in which a high priority is placed on concern for people who are vulnerable, possibly due to a range of circumstances, one of which is the simple fact of being a child.
The UK Government signed the UN Convention on the Rights of the Child in April 1990, and it came into force in January 1992. In 2010, the then Government published a report on how legislation underpins the implementation of the UN convention, given that all policy and practice must comply with it.
Children are not the only vulnerable people who may become CHIS, as outlined by the noble Baroness, Lady Bull. However, I propose to confine myself simply to remarks about children. Such children as are recruited will have engaged in risky and quite possibly illegal behaviours, and will therefore be in need of help, support and protection. On this, I agree with the right reverend Prelate the Bishop of Durham. I am aware that the High Court has determined that it may be appropriate to use children where the welfare of the child could be protected, though it is hard for me to see how putting children in harm’s way could be considered to comply with Article 3 of the UNCRC, which provides that
“In all actions concerning children, whether undertaken by public or private … welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
It is indeed extremely difficult to see how authorities as listed would be able to fulfil the obvious duty of care owed to children if authorities themselves are authorising, or perhaps thereby encouraging, children to commit criminal offences, notwithstanding the reference by the Minister to the safeguards in the uprated guidance. I concur entirely with the briefing from Justice in the view that CCAs for children should be explicitly and expressly excluded. Unless such exclusions are in place, there is the risk of violating both domestic and international law.
CHIS will continue to be necessary in well-defined circumstances. However, this Bill does not put on a statutory footing existing practice, and it does allow for the continuing use of children. The Bill is in serious need of amendment. It should also be the opportunity to put beyond doubt that children should not be used as CHIS, and in this I agree with the noble Baroness, Lady Young.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, the noble and learned Lord, Lord Judge, has withdrawn from this debate, so I call the noble Baroness, Lady McIntosh of Pickering.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I would like to add my congratulations to our three new noble Lords who have made their maiden speeches. I warmly welcome the noble Lord, Lord Walney, to the House and congratulate him on his maiden speech today, which was very heartfelt and personal. He will be a very welcome addition, having served with such distinction in the other place. My noble friend Lord McLoughlin will remember that he was my first Whip when I was first elected to the other place in 1997. I set particular challenges, as I think I was the last MP to serve as a dual mandate MEP at the same time, so I am grateful to him for his kindnesses to me at that time.
I would like to pay a particular welcome to—
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry to interrupt my noble friend, but we are struggling to hear her in the Chamber. If she could perhaps speak a bit closer to the microphone, that might help.
Baroness McIntosh of Pickering (Con) [V]
Thank you.
I would like to pay a particular warm welcome to my noble and learned friend Lord Stewart of Dirleton, and say what a lovely part of the world he lives in. My father partly grew up in North Berwick, and my grandfather had a pharmacy there, so it is an area with which I am extremely familiar. I would like to join him in paying tribute to his predecessor. I am sure he will serve the House with distinction in his new office, and I look forward to working with him on this Bill.
I have a number of questions that I would like to explore both today and, more particularly, in Committee. In particular, I would like to explore a point raised by my right honourable friend Dr Julian Lewis, who of course is chairman of the Intelligence and Security Committee at the moment. He said:
“What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute.”
And, he asks:
“Why the reason for that change?”—[Official Report, Commons, 5/10/20; col. 655.]
I would like to preface all my remarks with that question, because it would help me understand, in particular, the need for the Bill and why the Bill is coming forward at this time.
I would also like to particularly press my noble friend the Minister, when she sums up the debate, on the inclusion of new agencies. I have some sympathy with the background to this: I served as chairman of the Environment, Food and Rural Affairs Committee in 2012-13, at the time of the “horsegate” scandal. This was a fraud, passing off horsemeat as beef; it was a multi-million pound criminal scam. So I can understand why the Government are seeking to empower the Food Standards Agency to do more investigations than previously, as it really was better done by the FSA than perhaps the City of London Police at that time.
Equally, the Environment Agency has been given a further power, and I would like to understand, in particular, how that will be used and to ensure that it will not be used beyond the remit set out in the Bill today, particularly for the purposes for which it is necessary. Fly-tipping and other offences are obviously on the increase, and we perhaps do need these powers, but I would like to understand them.
I would also like to understand what the role of the local authorities will be, presumably in working closely with the Food Standards Agency and the Environment Agency and their CHIS agents in performance of the duties under this Bill, and to what extent they might be covered by the Bill.
I also share the concern expressed by others on the better protection for children acting as CHIS under the Bill, and I look forward to exploring these issues during the passage of the Bill.
Lord Hendy (Lab) [V]
My Lords, I add my congratulations to the three noble Lords who made their maiden Speeches today and add my welcome to them. I cannot agree to a Bill which authorises the state to grant unlimited immunity for future crimes yet to be committed by its agents. That is not consistent with the rule of law. I have no problem with the CPS discretion to excuse crimes after the event, subject to clear criteria, but today I wish to make four other points.
I begin by declaring an interest. I represent a number of trade unions in the undercover police inquiry. Evidence began yesterday. The inquiry will investigate the practice of undercover policing since 1968. My first point is to ask why the Government cannot wait even for the evidence to be given, let alone for the inquiry to report its conclusions, before introducing this Bill. By failing to wait, they choose to dismiss the obvious contribution the inquiry could make to shaping the Bill.
Secondly, under proposed new subsection (5)(c), a crime can be authorised by a CHIS if it is deemed necessary
“in the interests of the economic well-being of the United Kingdom.”
As my noble friends Lord Rosser and Lord Whitty have observed, this undefined and ominous phrase is clearly capable of being interpreted as encompassing lawful industrial action which, as most industrial action does, has adverse economic consequences. Agents can be authorised to commit crimes to “prevent, minimise or disrupt” legitimate trade union activity. That is totally unacceptable. Trade unions and industrial action ceased to be criminal in this country 150 years ago. Trade unions and their activities are also protected by international law, not least by Article 11 of the European convention.
Thirdly, one justification for the Bill is said to be that it will only regularise present practice. If so, the material so far made public by the inquiry provides no comfort as to such practices. I say no more of the practice by which 30—yes, 30—women were groomed into largely long-term, intimate relationships with undercover police for the purposes of providing them with cover than that those who have so far sued have obtained the admission from the Metropolitan Police that those relationships were
“abusive, deceitful, manipulative and wrong”.
In relation to trade unions, we have learned that Special Branch had an industrial intelligence unit which maintained, for no apparent lawful purpose, files which contained information gathered by undercover officers with the special demonstration squad who penetrated both unions and rank and file campaigners. Some of the information in the unit’s files was then supplied by police to the blacklist maintained by the Economic League, so barring trade unionists from obtaining jobs.
My final point is that, currently, an undercover officer could not be instructed by superiors to commit a crime. If the Bill becomes law, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained authorisation. That will be a disciplinary offence, potentially justifying dismissal. That is a powerful argument against prior authorisation.
Lord Jay of Ewelme (CB) [V]
Let me start by congratulating our three maiden speakers on their excellent speeches. Like others who have spoken today, I welcome the intention behind the Bill. Putting on to a statutory basis the authorisation of otherwise criminal acts committed by covert human intelligence sources is now clearly necessary. It is in the interests of both the agents themselves and of those authorising them to engage in what would otherwise be criminal conduct. However, as the report of the Joint Committee on Human Rights says, it is essential that such authorisation is
“subjected to careful constraints, exacting scrutiny and effective oversight”,
and those are the areas on which I wish to focus today.
First, there is the scope of the criminal conduct authorisation. Authorising a CHIS to commit murder, torture or sexual violence is pretty hard to swallow. I recognise the difficulties and potential dangers in trying to draw the line between, as it were, crime and abhorrent crime, and I recognise that in difficult and dangerous circumstances, lines can be crossed, but I remain to be convinced that drawing such a line and excluding the gravest crimes from blanket authorisation cannot and should not be attempted. The arguments of my noble and learned friend Lord Hope were highly relevant here.
I raise one specific point. The Government have argued that there is no need to include explicit limits on, for example, murder and torture, because these are prohibited anyway under the Human Rights Act. As I understand it, and as the noble Baroness, Lady Kennedy of The Shaws, has argued—perhaps I am wrong here—the Government have argued separately that the Human Rights Act should not apply to abuses committed by their agents. I look forward to the Minister’s comments on that point.
I make one final point. If I were an authorising officer, however highly I had been trained and however carefully I had absorbed the code of conduct—which I have indeed read—I would want as much cover and protection as I could get. The arguments for and against prior authorisation clearly need to be examined in Committee, and I certainly see merit in the proposal of my noble friend Lord Anderson of Ipswich that an authorisation should be reported in real time to the Investigatory Powers Commissioner.
Lord Haskel (Lab) [V]
My Lords, just over two years ago, it fell to me to voice the concerns of your Lordships’ Secondary Legislation Scrutiny Committee about extending the authorised time for which juveniles—young people—could be used for covert human intelligence work. Yes, this extension had been authorised in the form of an SI. Fortunately, your Lordships’ committee picked it up and the outcome was that the Minister provided a number of additional safeguards relating to the welfare, well-being and protection of those young people. Here we go again.
I congratulate the Minister on his maiden Speech and the other main speakers. As the Minister said, the Bill will allow young people to conduct criminal activity in pursuit of their intelligence work. As many noble Lords have said, once again, there is a need for better protection. I am grateful to Just For Kids Law, a charity that campaigns strongly for the rights of juveniles caught up in covert activities. It fought for amendments to the code of practice and is active again in preparing amendments to the Bill. Those amendments would ensure that better protection, such as providing for an independent individual who will ensure that the safeguards in the Bill work in practice, and seeking to address the inevitable power imbalance that exists between a juvenile and the police, and the 13—yes, 13—other public authorities who have demonstrated an operational need for this activity.
In her letters of 27 October and 11 November, the Minister justifies this criminal conduct in carefully managed circumstances. She says that the Bill provides additional safeguards for juveniles and strengthens the code of practice. However, it is a code. Does it really have the force of law? She says that juveniles will be authorised to act in only the most exceptional circumstances, with their consent. Is it really informed consent, not just pressure? She assures us that safeguards are in place to promote the best interests of the juvenile. I put it to her that the best interests of the juvenile is not to be involved in criminal activities in the first place. Other noble Lords have reminded us that Article 3 of the UN Convention on the Rights of the Child, to which we are a signatory, states that the best interests of the child shall be a primary consideration. It seems to me that the primary consideration here is security and catching the criminal, even if the child risks being corrupted.
Therefore, before we start debating amendments in Committee, I ask the Minister, do we really want juveniles to be authorised to carry out this criminal activity, even under the strictest supervision? As the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Bull, and others have suggested, are we not making a victim of the juvenile, bearing in mind the risk of violence and sexual assault, the emotional and associated mental, physical and psychological damage, and the risk of corruption, which will damage them well into their adult lives. To some, it would appear that these young people are being exploited by our public authorities, leaving it to the rest of us to clear up the mess.
This is not a party-political matter. As many noble Lords have said, it is a human rights matter and a rights of the child issue. In view of all those concerns and in spite of the need, will the Minister consider stopping the use of children in this criminal activity? Then we will not have to argue over safeguards for them.
Lord Mann (Non-Afl)
My Lords, I join the welcome and congratulations to the Lord Advocate for Scotland and the noble Lords, Lord McLoughlin and Lord Walney. I thank the noble Lord, Lord McLoughlin, for the way in which he gave me and others support when we were under pressure at the height of the issues of anti-Semitism in the Labour Party. I acknowledge that what he said in private was far more significant than what he said in public. The noble Lord, Lord Walney, stood on the right side when he did not have to, and took a brave stance. He supported Jewish members of the Parliamentary Labour Party and Jewish Members of the Labour Party. That will not be forgotten, and I thank him.
There have been a number of changes since the 1970s and 1980s. We are no longer fighting countries and armies under rules of engagement in war. We have human rights legislation that we did not have before. Those are significant changes. Since 1997, the strongest trade union organisation in the country is at GCHQ. Being a trade unionist and being loyal to one’s country are not contradictions. The density of membership there is a sign of that. It is part of the checks and balances in the system that makes it work.
We are now in a digital era, which changes many things. In many of the issues that we are talking about today, we are missing the mundanity of the actions that will be required outside the law. Some of the models are rather old-fashioned in terms of approach to what is going on. The mundanity is important to the effectiveness of the powers required.
I particularly want to talk about what happens if we do not do this, as the noble and learned Lord, Lord Garnier, eloquently pointed out. We go back to the grey area that existed in the 1970s, 1980s and 1990s —the shadows, as it was described. What characterised that more than anything was the incompetence of the actions taking place. Nothing could illustrate that better than putting people inside the International Marxist Group or, as we used to call them, the sons and daughters of the bourgeoisie. The only revolutionary thing that that organisation ever did was when some of its members accepted a peerage to come into this place.
The incompetence of the grey area was not in the national interest. There is a worse example. The Economic League sums up the grey area, the shadows and the incompetence. I should know: I was on the Economic League blacklist. When I went to work for the Ciba-Geigy chemical company in Manchester, I got given a job that was then withdrawn because I was on the list. I managed to get hold of the list and found my name on it. That is what happens with a grey area.
The Bill does more than codify; it allows accountability. It does not mean that things will not go wrong and there will not be big issues—there could well be—but it gives us, the people and the victims, the power to do something about it. The grey area is not an option. I want to see the Bill go through.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The noble Lord, Lord Green of Deddington, will not be speaking in the debate so we will move straight on to the noble Baroness, Lady Whitaker.
Baroness Whitaker (Lab) [V]
My Lords, I concur that the Bill is necessary, but it is too loose—[Inaudible.]
Lord Parkinson of Whitley Bay (Con)
I am sorry to interrupt the noble Baroness, but we are struggling to hear her. Is it possible for her to speak closer to the microphone?
Baroness Whitaker (Lab) [V]
Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I offer my congratulations to the three noble Lords, including the Minister, on making their maiden speeches today.
I am afraid I cannot give the Bill approval because it provides people employed by the Government with immunity for carrying out murder and heinous crimes. In fact, it would give statutory effect to legalised criminal offences committed by informants, provided that MI5, the Police Service of Northern Ireland or other UK law enforcement bodies have authorised the informant to commit the crime in advance. I understand that this is known as criminal conduct authorisation.
There are also no express limits set out in the Bill to prohibit informants’ participation in particular crimes that would constitute human rights violations such as murder, torture including punishment beatings, punishment shootings and kidnapping, or acting as agents provocateurs. I think back to the use of agents in paramilitary murders in Northern Ireland. This goes to the very heart of the legacy issues that the Government are currently considering and their very unhelpful Statement of 18 March.
There is a concern that, in addition to criminal conduct authorisations making criminal acts by informants “lawful for all purposes”, the extraterritorial provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply, namely that:
“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”
This would mean, for example, that MI5 could authorise from its Belfast base a serious criminal offence to be conducted by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but, clearly, this would not change an act being a criminal offence—[Inaudible.] The noble Lord, Lord Dubs, referred to the murder of Mr Finucane in all these regards. I must ask the Minister some questions. Were the Irish Government consulted on the content of this legislation and on the fact that this proposed activity could take place in their jurisdiction? Were they asked if this would impact on their own police service—the Garda Síochána? Did the Prime Minister discuss this with An Taoiseach when he met him in Hillsborough earlier this year?
It is important that significant amendments are made to this Bill to ensure that the UK’s prosecuting authorities can independently review crimes—[Inaudible.] —and remove the power for MI5 and other public authorities to brand crime “lawful for all purposes”. I cannot accept the extraterritorial nature of this because it places an impact on the bipartisan rule of Britain and Ireland in terms of Northern Ireland.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I understand that we are still not able to return to the noble Baroness, Lady Whitaker; once her microphone is corrected, we will attempt to do so. We will move straight on to the noble Lord, Lord Sikka.
Lord Sikka (Lab) [V]
My Lords, I welcome the noble and learned Lord, Lord Stewart, and the noble Lords, Lord McLoughlin and Lord Walney, to the House. I look forward to meeting them face to face in the not too distant future and working with them.
I have a number of questions. First, the Minister and the Government have told us that we can rely on the Human Rights Act as a way of curbing any excesses of the CHIS Bill, but the difficulty is that the Government have already committed to repealing and revising that Act. We do not know what will be taken out or left in. Surely it would be more prudent for the Government to introduce the revised human rights legislation first and bring the CHIS Bill later? But that is not what they are doing.
Subsection (5)(c) of new Clause 29B, as proposed by Clause 1(5), permits authorised criminal acts
“in the interests of the economic well-being of the United Kingdom.”
As the noble Lord, Lord Hendy, indicated, the Bill does not say what that actually means. How do we know what is in the long-term economic interest of the United Kingdom? Was deregulation of the financial sector really in the economic interest of the UK? Is anybody calling for deregulation now because it clashes with the government ideology of the day, perhaps? Are they really to be infiltrated by undercover agents and the organisation subverted? It is hard to know.
Some in authority will have argued—they certainly did in their day—that the general march against unemployment and poverty, the miners’ strike, the Dagenham women’s quest for equal pay or the Grunwick workers’ quest for better pay and working conditions were somehow a threat to the economic well-being of the UK. However, with hindsight, we know that they enabled many people to live a fulfilling life. They brought in an era of possible gender equality, at least over pay. Much of our social awareness is due to social organisations such as environmental activists, Greenpeace, Friends of the Earth, anti-apartheid movements and Extinction Rebellion, which may well operate in the margins of the law from time to time. However, these organisations can easily be classified by the Government as damaging the economic interests of society and thereby perhaps become subject to infiltration by undercover agents.
Prime Minister Margaret Thatcher referred to the African National Congress as a “typical terrorist organisation”; by definition, she labelled Nelson Mandela a terrorist. Whether the Government sent in any undercover agents to undermine the ANC, we do not know. Nevertheless, the idea that somehow you are going to safeguard national security and economic interests poses particular problems, because the issues tend to be seen through the lenses of the ideology of the Government of the day.
The Bill defines “relevant authorities” but omits an important fact: all the relevant authorities have been outsourcing some of their activities to private corporations. That means that other corporations would also be authorised to commit criminal acts. Where does that leave us in terms of corporate responsibility and the responsibility of corporations under international law to uphold human rights? Who will oversee these corporations? In this country, we do not even have a central regulator to oversee the enforcement of the Companies Act. What happens to the employees of these organisations if they say that they cannot go along with instructions from their employers? What happens to those conscientious objectors? The Bill provides absolutely no guide whatever.
For those reasons, it is impossible for me to support the Bill. I look forward to a number of amendments and a further debate.
Baroness O’Loan (CB) [V]
The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to
“pay … attention to public authorities’… power to grant … authorisations.”
It does not provide proper authorisation or audit.
The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:
“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”
I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.
The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.
As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.
The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.
As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.
Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness has gone well over the advisory limit of four minutes. Perhaps she will conclude her remarks there.
Baroness O’Loan (CB) [V]
The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.
Baroness Whitaker (Lab) [V]
My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but there are other rights which could be breached as the Bill stands. There are considerations relating to public morality and the exercise of democracy—[Inaudible.]
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I am sorry, Lady Whitaker. We will try and return to you if we can find a microphone that works. We will go straight on to the noble Lord, Lord Judd.
Lord Judd (Lab) [V]
My Lords, I do hope that we will hear from my noble friend Lady Whitaker; she always has highly relevant things to say. We have heard interesting maiden speeches today. The Minister combined, in a rather attractive way, heart, soul and pretty businesslike and effective professionalism. It will be interesting to see him playing his part in our proceedings.
We need security services and I join with noble Lords who pay tribute to what they do on our behalf. However, we are in a world in which there is a battle for hearts and minds. We must not lose sight of this when considering this legislation. We talk about British values and what matters to the British way of life. We must make this Bill clearly consistent with that. That is why it is so important to get certain principles on the face of the Bill.
We should be strengthening those within the security services, who are determined to operate by the highest standards and who very much have a conviction about what British values are. We must be very careful not to inadvertently play into the hands of the manipulators, who prey on people and build up an area of ambivalence and greyness around what is being done. There must be demonstrable, maximum united public support for what is being done. That is why what is on the face of the Bill is so important. Murder, torture, sexual violence and manipulation are simply not consistent with what we like to proclaim are British values. It is inconceivable not to somehow put on the face of the Bill our total unacceptance of these in any circumstances whatever. Canada has done so; why can we not follow its lead?
My other area of concern is the extent of the agencies covered by the Bill. It is ugly to see vital parts of the social well-being of our society—the Department of Health and Social Care, the Food Standards Agency and others—which are nothing to do with this Bill, being drawn into its orbit. The Minister must give more convincing arguments for why, when this is about national security. We must also hear more convincing arguments about how we can avoid agents provocateurs. My noble friend Lord Hendy spoke very convincingly indeed about the dangers to the trade union movement. Regarding children, where is our imagination and our heart? Most of the children to whom we are referring are deeply troubled, having been through difficult circumstances. We would be very unwise to compound their mental anguish, their difficulties or their instability for the future at goodness knows what social cost.
Justice has put its case very well. We should have prior judicial authorisation. The judicial commissioners are well practiced in making complex assessments of sensitive material in an independent, detached manner, and, where necessary, at speed. Why on earth can we not have prior judicial authorisation, with a role for the judicial commissioners?
Lord Janvrin (CB) [V]
I too congratulate the noble and learned Lord, Lord Stewart, and the noble Lords, Lord McLoughlin and Lord Walney, for three memorable maiden speeches, and welcome them to this House.
I join this debate having served in the last two parliamentary Sessions on the Intelligence and Security Committee. I welcome this Bill, and the need to give a legal basis to an activity which, as I frequently heard in evidence to the ISC, plays a key role in many operations of the intelligence services and the police.
As with other legislation putting the secret activities of the agencies on a statutory basis, there is a balance to be struck between, on the one hand, constructing a clear and robust statutory framework with effective oversight and, on the other, giving the agencies the ability and flexibility to act very quickly, if necessary, and in difficult and changing circumstances to achieve their objectives.
I will confine my comments to three areas: the gravity of the crimes to be authorised, the public bodies and oversight. On the first point, I certainly understand the argument against spelling out a carefully defined list of serious crimes, but, as others have mentioned—most recently, the noble Lord, Lord Judd—some of our Five Eyes partners apparently do have explicit limits. Do they not have the same concerns about the risks of a checklist? To say that they are not subject to the European Convention on Human Rights does not really answer that question. Like others, I am troubled by the Five Eyes comparison.
Secondly, I join with others to question the public authorities able to grant authorisations. I know that a wide range of public authorities carry out criminal investigations but, if they are running an investigation of sufficient gravity to consider the use of a CHIS with authority to commit crime, surely, the police ought to be aware? If they are, is there not a strong case for them to be responsible for authorising the criminal activity?
Thirdly, I support the view that these criminal activity authorisations should be effectively scrutinised not only by the Investigatory Powers Commissioner and IPCO but also by the Intelligence and Security Committee of Parliament. It is for the IPCO to examine the detail of individual authorisations, and I look forward to examining what the noble Lord, Lord Anderson, said about oversight on a more immediate basis. In addition, surely, it is right in principle that the ISC, on behalf of Parliament, should have wider oversight of the use of these authorisations now that they are the subject of legislation? I look forward to a full discussion of these and the many other issues raised in Committee. I take this opportunity to thank the noble Baroness, Lady Williams, and her department for the excellent briefings we have had on this Bill. I look forward to her reply.
Baroness Uddin (Non-Afl) [V]
I take this opportunity to welcome the Minister and congratulate him on his thoughtful contribution and a loving tribute to Dirleton. I also extend my warm welcome to the noble Lord, Lord McLoughlin, and my noble friend Lord Walney. I was deeply moved by his plain speaking, share his pain at the hands of the party we love and assure him that there are merits in being able to reach out to create new political alliances in this House.
The Bill proposes statutory protection for public institutions to authorise informants and undercover officers to engage in criminal conduct. It does not specify limits or types of crime that may be authorised. I come to this Bill as a rights activist and would like government assurance that obstructing civil disobedience will be excluded. New clauses would enable RIPA power necessary and proportionate for criminal conduct authorisation subject to meeting three tests on grounds of “national security”, “preventing or detecting … disorder” and
“the economic well-being of the United Kingdom.”
It is worth reminding ourselves that RIPA came into being in order to improve oversight of intelligence work, and this Bill must not assume implicit immunity, breaking laws that all other citizens are expected to comply with.
Like many noble Lords, I acknowledge with thanks briefings from rights organisations, which have grave concerns. I am grateful to Reprieve, Just for Kids Law, the Pat Finucane Centre, Justice and WAR. While I do not agree with every single aspect of their views, there is consensus among them that the Bill is regressively flawed. Some go further to suggest that it is a state licence for agents and informants on the public payroll to commit crimes, which may include murder, sexual violence and torture, with impunity and without adequate redress for the victims—the core principle of our criminal justice system. I fear we may be sleepwalking once again into what the former Prime Minister, the right honourable David Cameron, referred to as the unacceptable extent of state collusion in the case of Patrick Finucane. I am troubled by the idea of the state allowing individuals to partake in criminal acts and providing them with immunity from the due process of law. By passing this Bill, I fear that we would be approving serious violations of international human rights norms and obligations. No matter how limited my voice or reach in this Chamber or beyond, I stand against everything that the Bill proposes.
We cannot overlook the lessons of survivors of sexual transgressions by officers, or so-called spy cops, currently subject of the undercover policing inquiry. Paid officers entrusted to uphold laws transcended all moral decency, shattering the lives of their victims. It is a prevalent reminder, if any were needed, of the potential consequences of unregulated individuals interpreting for themselves what their institutions required of them. This Bill seeks merely to legitimise more such acts. Regrettably, we cannot lose sight of the unlawful attempt to discredit my noble friend Lady Lawrence’s family and the families of Hillsborough victims, infiltrated in their campaign for justice for their loved ones.
My most grievous concerns are about the potential use of CCAs for children. While I note cautiously the Minister’s assurances, as a child protection officer of long standing I find objectionable the notion of legally sanctioning the exploitation of children, inciting them to commit criminal offences and placing them in harm’s way for potential abuse and long-term harm to their mental well-being. I seriously question “informed consent” in these contexts, even in exceptional circumstances.
Noble Lords will be aware that Just for Kids Law has issued legal proceedings against the Home Office concerning the use of children as spies by the police and other investigative agencies. Justice and other NGOs are asking for CCAs for children to be prohibited. Will the Government listen to their call and exclude children from the purview of the Bill?
My final point is about the potential influence of the embedded disparities of structural racism, sexism and Islamophobia—
Lord Parkinson of Whitley Bay (Con)
The noble Baroness is already over her four minutes.
Baroness Uddin (Non-Afl) [V]
I am finishing, my Lords.
My final point is about the potential influence of the embedded disparities of structural racism, sexism and Islamophobia when CCAs are issued with a view to targeting specific communities and groups in the shadow or clandestine decision-making. I agree with the noble Lord, Lord Sikka, whose excellent analysis highlighted these sentiments. Given the countless individual experiences of discrimination beyond management’s eyes, there remains a lack of trust and confidence among black and minority communities in the police and intelligence services. Therefore, I do not support any government measures which infringe civil liberties, citizen rights and public trust at the peril of our democratic values and justice. I thank noble Lords for their lenience.
Baroness Massey of Darwen (Lab) [V]
My Lords, I apologise to the House for having to be absent for much of the debate due to a clash with a meeting of our Joint Committee on Human Rights. I regret missing the maiden speeches apart from that of the Minister, whom I congratulate on his aplomb during it.
I shall therefore be brief. I am sure that noble Lords will have covered wisely and in detail the points of contention. I want to state what the chair of the Joint Committee on Human Rights, Harriet Harman MP, said in a press release to its recent report:
“This Bill raises major human rights concerns … There should be added to the Bill clear limits on the scale and type of criminality which can be authorised. We cannot pass a law that leaves open the possibility of state-sanctioned rape, murder or torture … The power to authorise crime should be restricted to the public authorities whose role it is to combat serious crime and protect national security and not include bodies such as the Food Standards Agency or the Gambling Commission.”
I just want to emphasise a few points that concern me. First, the Joint Committee on Human Rights report points out that the authorised criminal offences have the potential to interfere with several qualified and absolute rights, including those guaranteed by the European Convention on Human Rights and the Human Rights Act 1998. Secondly, the Bill contains no specific limits on the criminal conduct that can be authorised. Thirdly, and very importantly, no distinction is made between adults and children for the purposes of CCAs within the revised CHIS code of practice. This would be a serious breach of the UN Convention on the Rights of the Child, an international treaty and therefore legally binding on ratifying countries—the UK ratified the UNCRC in 1990. My noble friend Lord Haskel and others have spoken about this intolerable situation. The rights of the child are paramount, as reflected in the UNCRC. There must be no compromise on this, and the age of a child is 18 and under, not 16 as the Government seem to think.
The Bill does not include provisions for victims of authorised criminal conduct. The Bill needs additional safeguards to ensure that there can be no authorisation for serious criminality. Many agencies, including Reprieve and Justice, and the Bar Council have suggested changes that could be introduced to the Bill. They and the Joint Committee on Human Rights have similar concerns. I therefore hope the Government will take note. I look forward to hearing the Minister.
Baroness D’Souza (CB) [V]
Most of what I wanted to say has been said, and eloquently said. I will merely emphasise two points before I metaphorically sit down. The Government justify the absence of limits on the potential criminal activity that the Bill enables by saying that to do so might serve to expose active agents. Furthermore, HMG argue that there is no need to include such limitations in the Bill, as has been the case in similar legislation in Canada and the USA, on the basis that the UK is party to the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, and is therefore bound by the terms of the convention. However, at the same time and in almost the same breath, the Government said, in legal filings, that they do not believe that covert agents should be bound by the terms of the Human Rights Act. Additionally, since the Human Rights Act specifically precludes murder, torture or other degrading behaviour, which surely covers sexual violence, the argument that naming limits might endanger agents rather falls to the ground. Will the Minister clear up these ambiguities?
Secondly, the Bill relies heavily on oversight by the Investigatory Powers Commissioner, the right to lodge any complaint with the tribunal and additional oversight —oh, I fear I have lost my text. Forgive me. What I was going to say is basically that dependence on the Investigatory Powers Commissioner, when there are no fewer than 14 authorising authorities bound to ensure that any criminal activity undertaken must be proportionate, necessary and at the lowest level possible to achieve the aims of the particular operation, is surely too much to ask. One could rely on the ISC, but we all know that too often the ISC has not received full or timely information to fulfil its function, and the tribunal itself will obviously take place after the criminal act has been committed. For that reason, I ask the Minister to clear up what seem to me to be ambiguities.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We are going to make a final attempt to return to the noble Baroness, Lady Whitaker. We hope that, on this occasion, the gremlins have finally been removed from the system.
Baroness Whitaker (Lab) [V]
Thank you. As I am on the phone, it probably will work.
My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but other rights could be breached as the Bill stands, and there are considerations relating to public morality and the exercise of democracy that lie behind the Human Rights Act which need addressing. It is not satisfactory that the crimes that may be committed are not specified, as they are in Canada and the USA. We need an assurance that the Government will retain the Human Rights Act. Will the Minister please provide that? Following the noble and learned Lord, Lord Hope of Craighead, can she confirm that the UN convention against torture could be engaged when any authorisation is made? How will crimes not specified in the Human Rights Act, such as rape or sexual exploitation, be prohibited? This is particularly disturbing when those making the authorisations will be not independent or judicial but members of the very organisation which wants the authorisation.
I will make four specific points. First, allowing any crime in the interests of economic well-being and preventing disorder allows for undemocratic and oppressive activities. How will the cited brake of the Human Rights Act constrain these? Secondly, why is it appropriate for the Competition and Markets Authority to commit crimes? This is intrusive. How will it be accountable? Thirdly, leave to compel access to journalistic sources is a very serious step and should be granted by a judicial figure, not the recipient authority. Fourthly—here I echo very many other noble Lords—is the very disturbing element, not new to this Bill, that children can be invited to cultivate deception and entrapment. How does that accord with the rights of the child and the paramount importance of their welfare, as my noble friend Lady Massey asked? The draft code helpfully provided by the noble Baroness is explicit about the use of so-called juveniles—that is, children—as covert sources. Surely this is justified only when their own safety is at risk from the activities that they are asked to spy on. The draft code says that such authorisations must be given taking account of the best interests of the child. Does fostering morality have no place in welfare or in best interests?
In her helpful meeting on the Bill, the Minister said that we must live in the real world. I hope that one of the differences between these Benches and those of the Government is not trying to make a better world rather than accepting a world where crime reduction depends on the exploitation and debasement of children. I look forward to the noble Baroness’s answers.
Baroness Hamwee (LD) [V]
My Lords, I join others in welcoming the noble and learned Lord, Lord Stewart, and I say to him that every follower of Lancashire knows the joys of the damp cricket match. I also welcome the noble Lords, Lord McLoughlin and Lord Walney, who bring valuable—if very different—experience to this House.
The Bill is short but raises big issues. Some of them are not new, and we will use the opportunity of the next stage to address whether we are in danger of consolidating provisions that should be reviewed. Some of the issues are new, and my noble friend Lord Paddick has carefully and thoughtfully unpacked the status quo. It has been quite some years since the de Silva review, itself many years after Pat Finucane’s death. Since the announcement of the judge-led inquiry, the Bill is concurrent with the hearings of evidence of that inquiry. I do not need to stress our concern for the rule of law, as the noble Baroness, Lady Chakrabarti, has put it so clearly, and seeking to outflank a forthcoming judgment is, in my view, at best unseemly.
A statutory framework is welcome, but we already have a framework—more than a framework—in prosecutorial independence and the discretion applied. The public interest test serves us well, as noble Lords have said. The Minister said that “lawful for all purposes” is deliberate, and the House will note the authority with which the noble and learned Lord, Lord Thomas of Cwmgiedd, speaks.
I assume that the test will be used in the case of the handlers of CHIS and their controllers. Or does the immunity extend to inciting crime or being an accessory? Presumably, one cannot authorise oneself.
Perhaps, this is the point at which to ask about territoriality. The Armed Forces are mentioned. Inevitably, I started to think about how one would police, and indeed define, criminal conduct overseas. I thought about rendition, but I assume that this legislation does not, and cannot, authorise criminal conduct outside the UK.
Oversight and independent scrutiny are needed, and investigation and accountability before and after—everything that adds up to transparency to the greatest possible extent. I am tempted to say, “so far as is proportionate and necessary,” but like the noble and learned Lord, Lord Garnier, we regard the greatest possible transparency as necessary. These will clearly feature at later stages, and the noble Lord, Lord Rosser, has promised us amendments on this. I dare say he will not be alone. This is all part of the nub mentioned by the noble Lord, Lord Anderson, and I look forward to the amendments he will present to the House.
We must not lose sight of reviews and renewals of authorisations—I am not sure I have heard anyone mention them—or the governance, if you like, of the process. My noble friend Lord Beith made the point about the moral dimension.
Of course, we will consider who are the relevant authorities. My noble friends and I have often made the point about police officers having immigration enforcement added to their role. Today, I say we regard it as the police’s role to enforce the law, whether it is about gambling, food standards or whatever. My noble friend Lord Thomas was clear about that and much else. We are particularly interested in how it is envisaged that a government department should act as a relevant authority. Who within the Home Office will give authorisations? What position does this put the Home Secretary in?
The what as well as the who will certainly feature. On the issue of not providing criminal with a checklist against which a suspected CHIS can be tested, I today ask the Minister: what is envisaged by enabling the Home Secretary, by order, to prohibit the authorisation of, and impose requirements in connection with, conduct? That order will be a public document publicly debated, so its contents will be public. In any event, surely the European Convention on Human Rights and the Human Rights Act provide a checklist. Like the noble Lord, Lord Janvrin, I am troubled by some of the Government’s comments.
It would be helpful if the Minister could explain the Government’s view of the application of the Human Rights Act, as the noble Baroness, Lady Kennedy, has asked. Are CHIS agents of the state, or are they independent of the state? Like the noble Baroness, Lady D’Souza, I find it difficult to reconcile some of the Government’s statements.
As the JCHR points out, authorising criminal conduct has clear potential for engaging human rights, so the Bill must contain effective protections against their violations, including stringent safeguards against unnecessary or abusive authorisations. I look forward to hearing further ideas from the noble and learned Lord, Lord Hope, who rightly raised the issue of torture.
Many noble Lords, including from our Benches my noble friend Lady Doocey, have spoken forcefully of the use or, as the right reverend Prelate said, the abuse, of children—because juveniles are children—and vulnerable adults as CHIS. What does it say about us, as a society, that we contemplate exploiting children—often, as the noble Baroness, Lady Bull, says, disadvantaged children—in this way?
In a debate a few years ago, I recounted an example of the abuse of a child, and I have periodically been asked for more details. Let me say now that I have no more details, so could journalists please stop asking me. Whether that is out of abhorrence or concern or through some enjoyment of sensationalism, I do not know, but I have been asking myself whether recruiting and directing a child as a covert intelligence source is not itself a type of grooming, with all its predictable outcomes for mental health, development and life choices. I think that the same thought has occurred to the noble Baroness, Lady Young. She and the noble Lord, Lord Russell, made very powerful points, and I look forward to working with all noble Lords who share these concerns.
How can acting as a spy, let alone undertaking criminal conduct, ever be in a child’s best interests? I appreciate that the code deals with appropriate adults in some cases, but can a child give informed consent to these activities? Every child is by definition vulnerable, and a child who is in a position to be used and targeted in this way is by definition very vulnerable. We have progressed in our thinking and views on other vulnerabilities, and we will be discussing the issue of mental capacity and the position of, among others, the victims of trafficking, modern slavery and exploitation whom we should primarily protect.
We recognise—as I think the noble Lord, Lord Haskel, pointed out—that in many contexts, perpetrators are victims too. There are also victims who are not perpetrators. The Joint Committee on Human Rights, among the many issues it has raised, has reported its concerns about conduct being “lawful for all purposes” and victims being deprived of civil remedies. In its report, it referred to the Minister for Security, who said that any authorisation found to have been made in breach of Section 6 of the Human Rights Act, which requires public authorities to act compatibly with convention rights,
“would be invalid and the conduct of the CHIS would not be rendered lawful.”
However, the report goes on to say,
“it is not plain on the face of the Bill that this would be the consequence of an authorisation that was inconsistent with human rights. Nor is it clear what would be the consequence of a CHIS carrying out a validly authorised offence in an excessive or disproportionate manner.”
We are grateful to the Minister for circulating the revised code of practice, but—and she will know that this is not a reflection on her personally—how far should we rely on a code? It is not legislation. We have had 54 speakers today and a thoughtful debate on the Bill’s seven pages and two schedules and considerable back- ground. I do not expect subsequent stages to be brief.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, from the Opposition Front Bench I put on record my thanks to the police, the security services, the National Crime Agency and the wider law enforcement agencies for the work they do to keep us safe. They often put themselves in harm’s way and at real risk. It is important that they know they have our support and our thanks for the work they do every day to protect us and to prevent crime and loss of life.
The work of covert human intelligence sources is vital to fighting crime and thwarting acts of terrorism. The noble and learned Lord, Lord Mackay of Clashfern, referred to the necessity of having CHIS operatives to fight crime. However, the existence of such operatives is not on a statutory footing, but it should be. By putting this work on a statutory basis, we will provide for the necessarily robust safeguards and proper protections to be put in place. Both I and my noble friend Lord Rosser will argue those points consistently from the Opposition Front Bench as the Bill progresses through your Lordships’ House.
As my noble friend said, the activity that the Bill deals with is not new but has been going on for many years. My noble friend Lord West of Spithead made the important point that we need to be careful in the legislation we pass and should never pass anything that puts an agent’s life at risk.
This is a relatively short Bill, with seven clauses and two schedules, but it is of the utmost importance. It is a Bill where the House of Lords has an important role in providing the scrutiny enabling the Government to provide the necessary assurances. Where they are unable to do so to our satisfaction, we will seek to amend the Bill, return it to the other place in a much-improved state and ask them to think again.
There is considerable interest in the Bill. Over 50 noble Lords have spoken in this Second Reading debate. I congratulate the three noble Lords who have given their maiden speeches today. The noble Lord, Lord McLoughlin, had an impressive career in the other place, holding senior positions in both government and opposition, and representing the beautiful constituencies of West Derbyshire and Derbyshire Dales. I had the pleasure of spending much time there and regularly drove through to get to County Hall at Matlock to attend a meeting of the Derbyshire County Council Labour group, which was always a great pleasure. He must be the only member of the National Union of Mineworkers to have served in a Conservative Government and Cabinet.
The noble and learned Lord, Lord Stewart of Dirleton, has had an impressive legal career to date and takes on the position of Advocate-General for Scotland. I wish him well in his new responsibilities. I have not had a chance yet to speak to him outside the House and I look forward to doing that. He will be fully aware that there are many impressive legal minds on all Benches, and his skill as an advocate will be much in use in this House to support the Government. I can advise him that that is not an easy job at the moment with some of the legislation coming forward.
I have known my noble friend Lord Walney for many years. I think it is nearly a quarter of a century, which makes me feel very old. We were both working to elect and support the Labour Governments of Tony Blair and Gordon Brown. He was subsequently elected the Member for Barrow and Furness in 2010, the same time I was nominated to serve in this House. He was much more successful than me outside Parliament: he got to work in No. 10 Downing Street, while I never got out of Labour Party headquarters. I am conscious that I have never been to Walney Island. I am sure it is a beautiful place—nearly as beautiful as the London Borough of Southwark that I take my title from. The noble Lord is my noble friend and always will be. He is also a dear friend and I look forward to working with him many times in this House.
All three speeches were excellent. I look forward to hearing many more contributions from each of the noble Lords, as they will undoubtedly bring knowledge, skill and experience that will be of much benefit to us all.
I return to the Bill before the House today. It is right that we are very clear on what is and is not authorised by this legislation—what is legitimate, lawful activity, such as the activity of trade unions. They play an important role in the United Kingdom, standing up for people’s rights, campaigning for changes to legislation and changes in working practices and playing their rightful role in our democratic, free society. I have been a member of a trade union since I was 16—first USDAW and, for the last 31 years, the GMB.
My noble friend Lord Whitty raised a number of concerns about the Bill such as compensation for victims of crime and the issue of the legitimate activities of trade unions and other campaigning organisations. We will want to probe these fully in Committee. My noble friends Lord Rosser and Lord Dubs raised the important issue of the call for an inquiry into what happened at Orgreave on 18 June 1984. This again is something I am sure we will come back to during the course of the Bill. My noble friend Lord Hendy raised the issues of the undercover police inquiry and trade union activity. It needs to be clear that nothing in the Bill puts the lawful needs of unions into question. My noble friend Lord Mann made the important point about the restoration of trade union rights in 1997 at GCHQ. People there do work of the utmost importance to the security of our country. You can be both a proud, loyal trade union member and a proud citizen of your country and do work of the utmost importance to national security. There is nothing contradictory there whatever.
It is also important for the House to probe the number and range of organisations that are covered by this legislation and which would take powers from it. A number of noble Lords raised the issue of the Food Standards Agency and other bodies; I am sure that we will come back to that many times during consideration of the Bill.
Human rights protections have always been made; the Government are relying on the Human Rights Act, which is printed on the front page of the Bill. The noble Baroness, Lady Williams of Trafford, uses Section 19(1)(a) and says that the Bill is compatible with the convention rights, which is very important. The noble and learned Lord, Lord Hope of Craighead, raised that issue in his contribution to the debate. It is also clear, however, that many in the Minister’s party have voiced opposition to the Human Rights Act and to the convention itself. I would therefore appreciate a clear and unambiguous statement from the Government on where they stand on this. Many senior members of the Government, such as Mr Gove and perhaps even the Prime Minister himself, have raised concerns about this Act, so we need to be clear what we are doing if the Government are relying on this at the moment.
We also need to be absolutely clear that the most heinous crimes cannot ever be carried out or authorised in the name of the Government. As my noble friend Lord Rosser said, we will table an amendment seeking changes similar to those of the Canada model. The Government need to be clear on the limits of criminal activity to be authorised. The Ministers leading on this Bill will have heard the concern expressed across the House, and we will come back to that in the course of our debates.
What we have been talking about here is the type of crime that the police and other agencies are seeking to disrupt. It could indeed involve, as the noble Lord, Lord Stewart, said, outlining what needs to be done for organisations such as the Food Standards Agency. Crimes such as murder, rape and sexual violence are commonplace in the organisations they would be seeking to disrupt, and we have to have in place appropriate legal safeguards to get closer to what offences would and would not be allowed under this legislation. I know that the area where CHIS work is very difficult, but these are important points.
The right reverend Prelate the Bishop of Durham, my noble friend Lord Haskel, the noble Baroness, Lady Bull, the noble Lord, Lord Young of Cookham, the noble Lord, Lord Russell of Liverpool, and many others raised the question of child CHIS. The important thing to recognise is that they are children—just that. On the rare occasions that they have to be used to combat crime—if there is no alternative—we have to be absolutely clear that proper and meaningful safeguards are in place. Every possible safeguard must be there, as the noble Baroness, Lady Bull, said. I pay particular tribute to my noble friend Lord Haskel for first raising this issue in the previous Parliament.
The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing. However, my noble friend Lord Hain highlighted serious matters—serious breaches—that should concern all noble Lords in this House. He also outlined the authorisations that he approved as a Minister to use CHIS and said that we need to debate and explore carefully where we draw the line on this issue. Security is absolutely right, and we all support that, but we do not support the abuse of power, and getting the balance right is, of course, a matter that we will come back to again and again. We need clear accountability—the issue of self-authorisation in the Bill needs to be discussed—and we will press the issue of prior judicial oversight, because it is vital that we get the safeguards, processes and structures right. As my noble friend Lord Rosser said, there are procedures for judicial approval 24 hours a day. I listened carefully to the contribution of the noble Lord, Lord Anderson of Ipswich. I agreed that his points and suggested solutions to the concerns need to be debated fully by the House, so I look forward to those amendments being tabled and to debating those issues. We believe in accountability, and authorisation needs to be in as real time as is possible and notified to the Investigatory Powers Commissioner on an ongoing basis.
My noble friend Lady Ritchie of Downpatrick raised points about the activities of paramilitaries and agencies of the state and raised the issue of the murder of Pat Finucane. My friends in the other place—the Members for Sheffield Heeley and St Helens North—have spoken about that and called on the Government to hold an inquiry into his murder in 1989, and I fully support that.
In conclusion, the Opposition understands the importance of the Bill; we have set out the areas on which we have concerns and we will seek to make improvements to the Bill in those areas. We will work constructively with the Government, making our points clearly, and if we think it necessary, we will divide the House on issues to enable the other place to think again. However, we remain hopeful that if we consider these things carefully, considerable progress and improvements can be made by agreement with the Government as the Bill makes its progress through the House.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank noble Lords not only for speaking in this debate but for some of the discussions that we had prior to the debate. They were very thoughtful and constructive. I look forward to exploring some of the issues that were raised today in further detail in Committee.
I have the very nice job of starting by thanking all three speakers who made their maiden speeches today. They were all excellent and quite different. All three noble Lords will be a great asset to this House. I start with my noble and learned friend Lord Stewart of Dirleton. It was an absolutely superb speech—almost poetic. It transported us for a brief moment into the beautiful area where he lives, and I am sure that in future he will regale us further with some of his words. He has clearly had a glittering career and it seems that he has another one to come. If he is from the same faculty of advocates as my noble and learned friend Lord Mackay of Clashfern, I know that he will be an excellent asset to your Lordships’ House.
My noble friend Lord McLoughlin has spent 33 years in Parliament, 30 of which have been on the Front Bench. I must confess that he looks very good on it. If I had to do another 23 years, I think that I would have to be carried out. He has had a great career, having spent 17 years as a Whip, and also as Transport Secretary and chairman of the Conservative Party. One of my favourite things that I have at home is a little postcard of his election where he is wearing his miner’s hat. I know that he will be a great contributor to your Lordships’ House. I am delighted to hear that he is a fan of HS2; he knows my views as a fellow fan.
Finally, the speech of the noble Lord, Lord Walney, was absolutely wonderful. I want to put on the record that I think he is a brave and principled man. As the noble Lord, Lord Mann, said, he stood up for his colleagues when others did not, and that is a great accolade. He has shown independence of character, spirit and strength through what he has suffered for probably far too long, but I think that he knows that in this House he is surrounded by friends on all sides. I look forward to hearing some of his views on nuclear submarines, coastal erosion and other things.
I thank all three noble Lords, who made great speeches today. They have set the tone for the debate in many ways.
I think that we are all in agreement—bar perhaps the noble Baroness, Lady Uddin, who I do not think will support anything that we put forward—that we need to ensure that our intelligence agencies, police and public authorities have access to the correct tools to allow them successfully to safeguard the public from criminal and terrorist groups that would seek to do us harm and undermine our way of life here in the United Kingdom. The raising of the UK’s threat level to severe last week reminds us all of the threats that we continue to face as a nation. I give my thanks to those in the public authorities, who work so hard and often put their lives on the line on behalf of us all to keep us all safe.
The noble Lord, Lord Rosser, started his speech by outlining the number of terrorist attacks that have been thwarted since 2017. As he said, there have been 27, nine every year. This activity saves lives. He also pointed out CHIS activity in the NCA disruptions that we have seen in the last year, as well as proscribed organisation infiltration—as he said, the Bill brings into law things that have been going on for years—and we thank all those concerned.
One of the major topics of discussion has been on safeguards and oversight of activity. They have rightly been a recurring topic. I pay tribute to the Investigatory Powers Commissioner and his team of judicial commissioners. They provide rigorous oversight of all our investigatory powers, including covert human intelligence sources, and will continue to play an important role under the Bill. On the percentage of authorisations currently overseen by the IPC—a point raised by the noble Lord, Lord West of Spithead—the IPC is able to examine any authorisation, and he sets the frequency of those inspections.
There have been calls for prior judicial approval by commissioners, including from the noble Lords, Lord Rosser and Lord Beith. The Bill currently replicates the existing model, whereby any criminal activity undertaken by a CHIS, as I will now call them, is signed off by an authorising officer, who is highly trained and experienced. They will know the CHIS, not just as anonymous assets but human beings with unique strengths and, of course, weaknesses. The officer will know the context in which the CHIS are operating, including the risk to the CHIS themselves and the public. Authorising officers are best placed to make that judgment on whether the proposed criminality will meet the necessity and proportionality threshold, while considering the specific duty of care for the CHIS and the specific live environment. However, we have been clear that if there are ways in which to provide greater reassurance on the safeguards and independent oversight of the regime, while ensuring that it does not affect the operational workability of the tactic, the Government are willing to consider that issue. I listened very carefully to the remarks of the noble Lords, Lord Anderson and Lord Carlile, and would welcome a further opportunity to discuss the matter with them.
The noble Lord, Lord West of Spithead, also asked about oversight by the Intelligence and Security Committee. It might be helpful for me to repeat the commitment made by the Security Minister in the other place in a letter lodged in the Library, which he stated that, in line with its remit and the provisions of the Justice and Security Act, such information as is requested in order for the ISC to provide effective oversight of these policies shall be provided to the committee.
Virtually every noble Lord who spoke raised the subject of the use of children and vulnerable people as CHIS. It is an uncomfortable area, and I agree that it is imperative that we ensure that appropriate safeguards are in place for the rare occasions—I repeat they are rare—where there is a need to authorise young or vulnerable people to participate in criminality. This may be necessary to stop criminal gangs from continuing to exploit those individuals and prevent others from being drawn into them. Noble Lords mentioned county lines gangs.
The then Investigatory Powers Commissioner previously confirmed that, in practice, juveniles are not tasked to participate in criminality in which they are not already involved, and that decisions to authorise are made only where that is the best option for breaking the cycle of crime and the danger for the young person.
The use of juvenile CHIS and additional safeguards have been debated previously in this House and the courts. We will extend those safeguards to ensure that they also apply in any proposed authorisation of criminal conduct. Juveniles and vulnerable individuals will be authorised to act as CHIS only in exceptional circumstances. This is emphasised in changes to the CHIS code of practice, a draft of which has been published alongside the Bill. As the noble Lord, Lord Carlile, said, please read it because not only is it a good document but it will be subject to full consultation and debate in both Houses. The safeguards are also set out in statute in the Regulation of Investigatory Powers (Juveniles) Order 2000, which was debated by this House in 2018 and subsequently updated.
Let me be clear in response to the point raised by the noble Lord, Lord Haskel: the code has legal force, so any authorisation must legally comply with the safeguards in it. The circumstances under which juveniles and vulnerable persons are asked to undertake criminal activity will be tightly controlled and subject to stringent risk assessments that will account for and seek to mitigate the risks of physical and psychological harm to them. All individuals will be risk-assessed, and their individual circumstances considered, before being tasked as a CHIS. Victims of crime will never be coerced into becoming a CHIS, but in some cases they may decide that they wish to play a role in bringing perpetrators to justice.
Any authorisation of juveniles requires a more senior level of authorising officer and a shorter authorising period, with reviews of the authorisation taking place at least monthly. For any juvenile CHIS under the age of 16, an appropriate adult must attend all meetings with the handlers. These safeguards seek to ensure that juveniles are appropriately protected when they play a vital role in undermining and disrupting the criminal or terrorist groups that seek to exploit them. I recognise that it is very important that noble Lords and the wider public have confidence that we have the right safeguards in place. I am very happy to discuss this further.
Many noble Lords talked about the limits. An authorisation will be tightly bound and specific. In response to the noble Lord, Lord West, I can confirm that this Bill will not widen the scope of activity which can be authorised. However, I appreciate why some noble Lords, including the noble Baroness, Lady Kennedy of The Shaws, and the noble Lords, Lord Judd and Lord Rosser, question why we cannot clearly write in the Bill the crimes that CHIS will never be authorised to commit, as is the case in Canada.
Every country has its own unique circumstances, be they in legal systems, public bodies or threat picture. The United Kingdom is the only Five Eyes country that is a signatory to the European Convention on Human Rights. We also have our own threat picture; the unique challenges we face in Northern Ireland in particular mean that our operational partners advise that CHIS testing is a very real possibility. However, there are limits to the conduct which can be authorised under this Bill, and they can be found in the Human Rights Act. This is set out explicitly in the Bill.
The requirement for conduct to be necessary and proportionate also places limits on what can be authorised. I emphasise the point on necessity and proportionality: an authorisation can be granted only if it is considered necessary for one of three statutory purposes and proportionate to prevent more serious criminality. Within this framework, I assure noble Lords—particularly the noble Lord, Lord Hain—that nothing in the Bill will prevent or limit legitimate and lawful activity, including activity by political groups or trade unions. The noble Lords, Lord Kennedy and Lord Mann, pointed that out very well.
I also stress that our operational partners have publicly stated—I reiterated this the other day—that it is never acceptable for an undercover operative to form an intimate sexual relationship with anyone they are tasked to investigate or may encounter during their deployment. The conduct will never be authorised; nor must it ever be used as a tactic of deployment.
I reassure the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Hodgson of Astley Abbotts that while the activity that will be authorised under the Bill is UK-focused, the same safeguards will apply for authorisations for both UK and overseas activity. A CHIS will never be given authority to commit any and all crimes. The UK complies with all obligations under the Human Rights Act and is also bound by obligations under international human rights law.
I turn briefly to the points made by the noble Lord, Lord Rosser, and the noble Baroness, Lady Young, about the potential for the Bill to have a disproportionate impact on women or members of BME communities. These characteristics will never be a consideration in why a person is under investigation.
I turn to the issue of redress. Authorisations are very tightly bound and, as part of the necessity and proportionality test, collateral damage will be considered. This minimises the risk of those who are not the intended subject of the operation being impacted. In the rare case that an individual is unintentionally impacted, there are number of routes for redress available to them to challenge the validity or lawfulness of the authorisation and seek appropriate remedy. An affected person could seek a judicial review of a public authority’s decision to authorise criminal conduct. The Investigatory Powers Tribunal also has jurisdiction to investigate and determine complaints against a public authority’s use of this power, and any person or organisation is able to make a complaint to the IPT. The Investigatory Powers Commission also has an obligation to inform a person of a serious error that relates to them, where it is in the public interest. This would include situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned.
Moving to the range of public authorities, there were diametrically opposed views—that there were too many and not enough—but all those included in the Bill already have the power to authorise the use and conduct of CHIS, and we have restricted the number of public authorities able to then authorise participation in criminal conduct based on operational need. I welcome, in particular, the remarks of the noble Lord, Lord Rooker, on this issue. I urge noble Lords to read the case studies that I think I provided yesterday to explain why these public authorities require the use of this power. All public authorities will receive appropriate training to ensure that authorising officers understand the strict necessity and proportionality parameters that must be met before authorising a CCA, and will be subject to independent oversight provided by IPCO.
On immunity, and the point raised by several noble Lords that we should simply continue to leave decisions on the prosecution of CHIS to the CPS or other prosecuting bodies, it seems unfair and unreasonable for the state to ask an individual to engage in difficult and potentially dangerous work while leaving open the possibility of the state prosecuting them for the exact same conduct. That tension has existed for many years and it is right that we use the Bill to resolve it. It is also undesirable to create an express power for public authorities to authorise activity that remains criminal. I refer noble Lords to the remarks of the noble Lord, Lord Anderson, on this point, but I reassure noble Lords that if a CHIS were to undertake criminal activity that fell outside the strict parameters of a CCA, that will have been clearly explained to the CHIS by their handlers. The prosecuting authorities are in a position to consider whether to bring a prosecution. This has been done before and will be done again if required.
I am committed to ensure that Members of this House and the wider public can have confidence that there is not an unfettered and unlimited power for public authorities to authorise criminality. The legislation certainly does not do that, but it is right that we debate and consider the safeguards and the oversight in place. We must ensure that we do not pass legislation that unnecessarily restricts our operational agencies from utilising the tactics they need to keep us safe. That is the balance that this Bill seeks to strike, and the key principle that we should be operating to. This is important and necessary legislation and I look forward to debating and considering it further.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Tuesday 24th November 2020
(4 years ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-I(Corr)(a) Amendments for Committee (for Second Marshalled List) - (24 Nov 2020)
Baroness Hamwee
Member’s explanatory statement
This amendment is to probe why the criminal conduct cannot be described more simply; and how close must the connection be in order to fall within section 26.
Baroness Hamwee (LD) [V]
My Lords, this may look like a very long group, but it almost entirely concerns a couple of points, so I hope it need not detain your Lordships too long. Amendments 1, 2, 4, 10, 13 and 38 are probing. I appreciate the need for precision in legislation, which—I hope the drafters will not take this amiss—often means the wording can be a bit clunky. I would therefore be grateful for a detailed unpacking of two points on the wording.
First, I wondered whether
“criminal conduct in the course of … conduct”
is something to do with how Section 26 of the Regulation of Investigatory Powers Act 2000 is constructed. Section 26(1) applies to
“the conduct and use of covert human intelligence sources.”
Is there a concern that there is a need to provide for something different to that? Is there a concern that what is to be covered cannot be separated from that? For instance, there might be a need for separate authorisations. In other words, why not have a straight- forward authorisation of criminal conduct by a CHIS? It may be because it needs to be made clear that there is no wholesale authorisation of criminal conduct by a CHIS, but surely that would be only when they are acting as a CHIS. Would not the authorisation cover that? I would be grateful if the Minister could unpack that phrase for the Committee.
The second phrase is conduct “in connection with” the conduct of a CHIS. How closely connected must the second category be? I am particularly concerned to be clear whether this is to catch, or ensure that it does not catch—it occurs to me that “catch” may not be the best term here—the person giving an authorisation, the person to whom he reports and anyone overseeing that authorisation. I would be concerned if it applied to that person inciting or being an accessory to a crime, or conspiring. Would this not mean that someone is authorising himself? What is intended by this? I have omitted to welcome the Minister to what I assume is his first outing in a Committee; can he be clear about the position of those who in other situations—ordinary criminals, if you like—would be an accessory to, inciting or conspiring in a crime? Amendment 40 addresses the same point, although the phrase is conduct “in relation to” a CHIS.
Amendment 37 has been tabled to probe whether the authorisation can be retrospective, relating to past conduct. I note that Amendment 50 from the noble Lord, Lord Davies of Gower, which we will come to next week, would allow for retrospective authorisation, subject to criteria. I do not want to steal his thunder; no doubt he will talk about the operational realities which will sometimes make it very difficult to anticipate what will happen on the ground. If there is to be immunity for conduct which has been authorised ex post facto, the criteria and limitations will be very important. I beg to move Amendment 1.
Lord Anderson of Ipswich (CB) [V]
My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for each of the probing amendments in this group. Most of them, as the noble Baroness has said, are directed at essentially the same point: the intended scope of criminal conduct authorisations. I echo her remarks in finding the phrases she identified less than clear.
For me, the underlying question is whether it is intended that the conduct of any person other than a CHIS should be entitled to the protection of a criminal conduct authorisation, and if so in what circumstances. Are we talking about protections from criminal and civil recourse for the CHIS handler, controller or authorising officer, or more generally for the public authority that employs them, or are we talking about the protection of other people who are neither a CHIS nor employed by the authorising authority? I hope the Minister will make the position clear and, if he does not favour the simpler formulations in these amendments, explain why.
Amendment 37 raises a slightly different issue. It suggests that an authorisation cannot be retrospective, which is surely right and was confirmed by the Solicitor-General at Second Reading in the other place when he said:
“The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation”.— [Official Report, Commons, 5/10/20; col. 707.]
A close reading of the Bill confirms that, on balance, it does not provide for retrospective authorisations: the new Section 29B(6), for example, refers to what
“could reasonably be achieved by other conduct”,
not to what could reasonably have been achieved. However, this is indirect and intricate stuff; clarification in the Bill would be welcome, and this amendment provides it.
Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble Lord. I would like to speak briefly to Amendments 1, 2, 4, 10, 13 and 38, just to make these brief comments. I share the concern of, among others, the Law Society of Scotland that what the Bill proposes here in its original form, without these amendments, does not provide the necessary clarity. Indeed, if anything it seems to increase the uncertainty between national security law and the way that criminal law operates in practice.
The question I would like to put to my noble and learned friend the Minister is: does he share my concern that there may be a flood of cases in the courts to clarify the original wording without these amendments? It appears in the original wording of the Bill that there are no limits on the types of criminal conduct which could be permitted under this authorisation. Is my understanding in that regard correct?
I should perhaps state that when I was calling to the Faculty of Advocates, there were a number of courses that I had not taken as an undergraduate, because my first love being Scots law, then Roman law, I wanted to go off and practise European law—which I did, in a very modest way. I remember the sheriff who marked my criminal law paper actually wrote on it, “This candidate does not have a criminal mind”. I have always taken that as a compliment, but I am not quite sure it was entirely meant like that.
With those brief remarks, I will be very grateful if my noble and learned friend could clarify if my concern is well meant, or if he could put my mind at rest in this regard.
Baroness Whitaker (Lab) [V]
My Lords, I would just add, in respect of Amendment 37, that we are rightly chary of imposing retrospective guilt, so how can it be right to impose retrospective immunity for something that was accepted at the time of perpetration as a crime not conferring immunity? When it was committed, the perpetrator therefore could be said to have had criminal intent.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am going to speak quite a lot of times today. I do not really want to apologise for that, but I do want to explain it: I have been interested in this particular area of policing for more than a decade, ever since I found out that the Metropolitan Police was actually spying on me, tracking my movements and reporting back on what I was doing. At the time, I was an elected councillor in Southwark, an elected assembly member and, for a year of that time, I was Deputy Mayor of London—when there was only one Deputy Mayor of London, not all these other deputy mayors. At the time, I think I was quite naive about the fact that the police did this sort of thing. When I got into it, of course, it became obvious that they do quite a lot of it.
The spy cops inquiry that is happening at this moment—actually, it is not happening at this moment, it is taking a break, but it will be happening again in 2021—has made it obvious that there are huge problems with this area of policing. This Bill does not solve them, and in fact it goes further—it makes more problems than it might be said to solve. I did try to be a core participant in the spy cops inquiry, but the judge at the time ruled that, because I had been spied on by the ordinary police, not by undercover police, I did not qualify. That was obviously a matter of huge sadness to me.
I congratulate the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for tabling these amendments, because they are, I would say, quite necessary. For example, the language is quite confusing. I am going to say it in my own words, because we have had some very good lawyerly comments on this, but I thought I should say it in the way that I see it. These amendments would replace
“in the course of, or otherwise in connection with, the conduct of”
a covert human intelligence source, or a police spy, with the word “by” a police spy. These are important amendments to probe how tightly or loosely criminal conduct can be authorised. The Minister needs to give a clear and thorough explanation of the intention behind the words
“in the course of, or otherwise in connection with, the conduct of”.
What does “otherwise in connection with” mean? What do the Government say would be the effect of removing those words, and having the much simpler word “by”?
It is important to recognise that many police spies are recruited from the ranks of criminals. To what extent can their existing or ongoing criminal conduct be authorised? I know that the noble Baroness or the noble and learned Lord will explain that it is only future conduct, but at the same time, of course, when they are doing future conduct, they will also be doing the past conduct continually. Amendment 37 probes this issue further, making it clear that only future conduct can be authorised. Without this, there is a risk that past criminal conduct can be authorised, so that criminals would essentially be let off the hook in exchange for future co-operation with the police.
Then there is the question of how all this interacts with the Proceeds of Crime Act. If criminal conduct is authorised under this Bill, does that shield any criminal profits from being recovered under the Proceeds of Crime Act? For example, can a drug dealer or human trafficker rake in huge amounts of cash while working on the side for the police as a spy, or would this money be confiscated by the state? This legislation must not create legalised criminal enterprises—state-endorsed mafias—where the profits are irrecoverable by the state. That would be a very dangerous situation. So I am hoping that the two Ministers we have with us today will tell me that that is a ridiculous suggestion and it could never happen, because the Government will make sure that it never happens.
Lord Cormack (Con)
My Lords, I rather wish this Bill were called the “Authorised Criminal Conduct Bill”. I find it very difficult to get my mouth around this very cumbersome title, and I utterly loathe the term “CHIS”. I wonder if my noble and learned friend who will reply could earn himself undying gratitude from those of us who care about the English language by coming up with something else.
These are probing amendments, and they seek essentially one thing: clarity. The noble Baroness, Lady Hamwee, made that very plain in her admirably brief introduction to this short debate. Clarity is of such importance when we are swimming in such murky waters and dealing with such very questionable matters.
The noble Lord, Lord Anderson of Ipswich, said that he felt the matter of retrospection had probably been dealt with by the remarks of, I think, the Solicitor-General in another place. But there is still a certain lurking doubt, and it would therefore be good to put something on the face of the Bill while it is in your Lordships’ House to make it plain beyond any peradventure that retrospective authorisation is not possible.
I do not want to detain the House any longer, but clarity, I would emphasise, is what we are after here.
Baroness Chakrabarti (Lab) [V]
My Lords, I can be very brief, because others have put the point so well and also because of the next debate to follow. I would simply say that this degree of micro-precision becomes particularly important because the Bill goes further than the status quo and creates these advanced criminal and civil immunities. I will leave it at that, because I think we are all really quite keen to hear the Minister’s response.
Lord Rosser (Lab) [V]
As drafted, the Bill refers to criminal conduct as conduct
“in the course of, or otherwise in connection with”
the conduct of a covert human intelligence source, and as
“conduct by or in relation to the person”
who is specified as the covert human intelligence source. As has been said, the amendments would establish that criminal conduct is conduct by the covert human intelligence source in the absence of any explanation as to why the additional words to which I have referred are needed, and what the consequences would be, and for whom, if they were not in the Bill. A further amendment in this group also puts on the face of the Bill that a criminal conduct authorisation cannot retrospectively give clearance for behaviour that has already happened before the date the authorisation is given.
The Joint Committee on Human Rights also raised these issues in its report on the Bill when it said that the definition of what amounts to “criminal conduct” for the purpose of an authorisation is wider than simply criminal activity by a covert human intelligence source, and referred to the wording which the amendments in this group would delete. The only explanation for this which the Joint Committee on Human Rights could find was in the draft code of practice, which states that
“a criminal conduct authorisation may authorise conduct by someone else ‘in relation to’ a
covert human intelligence source,
“namely those within a public authority that are involved in or affected by the authorisation.”
No doubt the Government will wish to respond in some detail setting out why the words “in connection with” and “in relation to” are essential, what exactly they mean and, giving examples, explaining why it is considered necessary to enable a public authority to authorise criminal conduct by someone other than the covert human intelligence source, which some might feel is rather at odds with the title of the Bill.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, having made my maiden remarks at Second Reading, it is a pleasure now to assist the House in scrutinising the detail of this legislation. I hope to reassure noble Lords with regard to the scope, safeguards and limits to conduct that can be authorised under a criminal conduct authorisation. I recognise the feeling of the House on the last appearance of the Bill as a recognition of the complexities and difficulties which attach to this field of criminal investigation.
With regard to the remarks by my noble friend Lord Cormack, he will perhaps recollect that when I spoke at Second Reading I recognised the inelegance of the expression “CHIS”, and I fully share his concerns about it. However, until such time as we have evolved a suitable replacement, if that is possible, I trust I will not trespass on his patience if I continue to use the expression.
The Bill is drafted to allow things to be authorised which are certainly connected to the conduct of the CHIS but not the same thing as it: actions which are connected to the activities of the CHIS but which are not the CHIS activities themselves. This is deliberate and it is to allow for activity which facilitates and supports the core conduct of the CHIS, most obviously to allow the CHIS to avoid detection in order to remain in place and to provide the intelligence needed. The purpose of the expressions “in connection with” and “in relation to” is to ensure that such activity may be authorised. This language also serves the function of ensuring that the scope of a criminal conduct authorisation is properly limited. It helps to make it clear that it is not the case that any and all criminality by a CHIS may be authorised. It cannot be some private venture that the CHIS has involved himself or herself in. The criminal conduct to be authorised must be connected to the conduct of a CHIS and to the criminal conduct authority.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
I have received no requests to speak after the Minister, so I now call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I start by apologising to the noble Lord, Lord Cormack: I do not like the term CHIS either—and I find it even more difficult when I try to render it in the plural, which I think lengthens the “i” in the middle.
The noble Lord, Lord Anderson, and other noble Lords made my points much more crisply than I did. On the point about retrospection, I certainly do not want to rely on an imbalanced interpretation—albeit accompanied by what I would have to describe as an assertion rather than an explanation from the Dispatch Box. Of course, after this debate, I will read Hansard to see whether I have missed something, and my apologies if I have.
To take up the point made by the noble Baroness, Lady Jones, we should be able to express issues such as this in our own words, and I am still having difficulty doing that, but I am most alarmed that my points raised wider issues than I had anticipated: in particular, who is covered by the authorisation. I have not heard any argument that a person who gives the authorisation must not authorise what he himself does. I think I am right to be concerned about this rendering lawful incitement, being an accessory and conspiring—it can go much wider than membership of an organisation. Understandably, the example which the Government have chosen to put forward is something that sounds relatively mild.
I am glad that we have brought these issues out. Clearly, we will have to consider what we do at the next stage, which is not how I would have hoped to start remarks in Committee, but there we are. For now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
We now come to the group beginning with Amendment 3. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or any other amendment in the group to a Division should make that clear in debate.
Amendment 3
Baroness Chakrabarti
Member’s explanatory statement
This amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.
Baroness Chakrabarti (Lab) [V]
My Lords, Amendment 3 is linked to Amendment 5, which is at the nub of all this. I am supported in that amendment by the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Warsi.
Over many years, including in recent days, when the devil is in the detail in general and when the rule of law is in jeopardy in particular, your Lordships’ House really comes into its own. This is necessarily the case when, as with this Bill, the proceedings in the other place were so truncated and when such a complex but vital area of policy was not foreshadowed in an election manifesto. I say that to emphasise the importance of your Lordships’ consideration of the detail of the Bill.
I will begin with two preliminary points that are vital background to Amendment 5, in particular. To head off the noble Lord, Lord Cormack, at the pass, I will try to use the phrase “undercover operative” instead of “covert human intelligence source”, or CHIS. I cannot say “undercover officer”, because of course, so many of the people involved in this activity are not officers of any state agency. They are not James Bond or even Constable Bond, they are members of the community, including the criminal community, as we know.
First, I accept that undercover operatives must sometimes commit crimes in the public interest. It is unsavoury, but it is vital sometimes to keeping their cover or just operating. As we heard from the Minister a few moments ago, that includes the offence of being a member of a banned organisation, but might also include being in possession of banned items in such an organisation or in a criminal fraternity of some kind, and the crimes might go further still into minor property offences, and, who knows—subject to the public interest, in a particular, very dangerous but potentially life-saving operation. I want to put that on the record at the outset.
Secondly, I must accept that current litigation still before the courts that challenges the legal foundation of present arrangements whereby undercover operatives will sometimes be authorised and guided in crimes connected with their work potentially risks the viability of current arrangements in a way that would not be satisfactory to me or anyone trying to discharge the burden of government.
This amendment has been drafted with the acceptance that the Bill is necessary to create a clearer statutory foundation than is currently the case, but there is a very important difference between regularising current arrangements—necessary and even vital evils in the public interest—and, on the other hand, violation of the rule of law. It can be a very fine line, and it is that line that I attempt to correct and safeguard with Amendment 5.
Amendment 5 removes the current “lawful for all purposes” civil and criminal immunity used in the Regulation of Investigatory Powers Act and is completely appropriate in that place for the purposes of surveillance; in other words, a necessary and proportionate interference with people’s privacy. It may be perfectly appropriate for surveillance, subject to appropriate checks and balances, but not, I would argue, for other criminal offences. They may be significant property offences or even offences against the person, or other serious interferences with, if not violations of, people’s rights and freedoms. That is why “lawful for all purposes” is not appropriate. We could even be getting into physical harm to people, which does not happen in the case of privacy intrusion or surveillance by themselves.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and support the amendments in her name and the names of the noble Lord, Lord Paddick, the noble Baroness, Lady Warsi, and myself.
I want to emphasise the point made quite rightly by the noble Baroness, Lady Chakrabarti: the rule of law should never be placed in jeopardy. I shall concentrate on the position of immunity from civil redress and give examples from the Northern Ireland perspective, where we have had widespread experience.
Baroness Warsi (Con) [V]
My Lords, I will speak to Amendments 3 and 5, to which I have added my name alongside those of the noble Baronesses, Lady Chakrabarti and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. As I said at Second Reading, no one can reject the importance of covert human intelligence sources or the need to protect them, and no one can doubt the importance of putting existing practices, the status quo, on a statutory footing. Existing practices, as far as they relate to the security services, have been part of security services guidelines for nearly a decade; they have served and continue to serve us well. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position. These amendments seek to do that without making all conduct lawful for all purposes and without granting absolute immunity, ensuring that victims, often innocent bystanders, are not left without any form of redress.
The amendments would preserve the current legal status quo. Those who are authorised to engage in criminal acts would not be rendered immune from either civil or criminal liability. Instead, the current public interest consideration not to prosecute, existing legal defences and any court considerations as to civil liability will remain. At Second Reading, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and other noble Lords reminded the House of a fact that I hope my noble and learned friend the Minister will acknowledge, because it has been repeated in today’s debate; namely, that large numbers of individuals for whom this immunity and lack of appropriate safe- guards in legislation would operate as a carte blanche to commit offences—these covert human intelligence sources, these agents—are not in fact all trained security agency officers or undercover police, as the Bill has presented them. Many are criminals who are still engaged in criminality, because that is what allows them to inhabit the spaces where they can go unnoticed. They include, as was said at Second Reading,
“extremely troubled, volatile and vulnerable people, including children.”—[Official Report, 11/11/20; col. 1071.]
Even professional agents are not and should not be above scrutiny. They should remain, as they are now, incentivised to exercise their necessary criminal conduct responsibly. We are of course still in the midst of a public inquiry that is hearing how even professional covert human intelligence sources have succumbed to the abuse of authority and have even fallen into inciting rather than preventing crime. This Bill in its current format would have far-reaching consequences far beyond professional security services agents and trained undercover police officers. It therefore must not be presented by the Government in narrow terms, even if that is simply to win support for the Bill.
Examples have been given during the passage of the Bill that include criminal damage to premises and the personal property of innocent bystanders by those working, for example, for the Food Standards Agency at the less severe end, through to sexual offences by criminals posing as gang members at the other. Surely we cannot be comfortable about creating a culture of absolute immunity in this space, nor should we easily sweep away the protection currently afforded to victims of crime who currently have access to redress via criminal proceedings brought either through state or private prosecutions and civil action in the civil courts or an application for compensation through the Criminal Injuries Compensation Authority. An absolute immunity would sweep away all these protections, which I believe would leave us in breach of the European convention, which at Second Reading my noble friend said the Government were seeking not to do.
The four people who have put their name to these amendments are very different people, from very different parts of the United Kingdom, and indeed from different communities, different backgrounds and different political parties. This is not a party-political issue but a national interest issue. At any one time we are the custodians of the core values of our country, one of which is that the rule of law is essential. So I encourage my noble friends and colleagues to think again to ensure that the Bill seeks to put the current position on a statutory footing but does not extend ways which the Government have stated in the past are not their intent and would cut across the very British and indeed deeply conservative principle of our commitment to the rule of law.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always a pleasure to follow the noble Baroness, Lady Warsi, and I share her abhorrence of the idea of absolute immunity, to which she spoke so eloquently. Over 800 years, we have evolved a system of dealing with crime in this country where the guilt or innocence of an individual is established by a tribunal of ordinary citizens. In serious crime we rely on a jury, and in lesser, summary offences on a magistracy drawn from the community. The standard of proof is high. So the outstanding feature of the British approach to criminal activity is that the ultimate decision on guilt and on punishment is not in the hands of an agent of a government department. The judge who presides over a trial in a serious case is fiercely independent. The prosecutor, as exemplified by the CPS and the Director of Public Prosecutions, is also independent of government. It is necessary to restate these principles when faced with a Bill such as this, where the proposition is that an agency of the state, whether the security services, the police or a gaggle of government agencies, should authorise criminal activity and can do so without any independent check.
We have to this point had such a check. Authorisation of criminal activity for the purposes of covert intelligence does not of itself relieve the individual of criminal liability. Whether an individual is prosecuted is a matter for the discretion of the CPS and ultimately the Director of Public Prosecutions. There is a further procedure where a covert intelligence gatherer is protected from the results of his criminality. Your Lordships may not be aware of the role of the brown envelope. Very often, when a person is an informer or is otherwise acting on behalf of the security services or the police, it is deemed necessary that he should stand his trial along with the people against whom he has informed, for the obvious reason of protecting his role and his safety. In such circumstances, a brown envelope will be handed to the judge out of court to inform him of the true position of the defendant and his motivation. Sometimes that will result in a reduced penalty and sometimes it results merely in the early release of the individual from whatever sentence of imprisonment is passed on him. To my mind, the system we operate at the moment gives greater protection to the individual and to the public while preserving a proper measure of control.
As for civil liabilities, it is clearly highly undesirable that a victim, whether direct or indirect, of the covert agent should have no remedy. Obviously, where an individual is authorised to engage in certain conduct that causes harm, he does not pay any damages himself; it is the state that stands behind him and pays the price. If this Bill means that no civil liability at all accrues to the covert agent, or to the state behind the covert agent, it is not the agent who will gain anything but the state. We will see when the overseas operations Bill comes before the House that the abolition of civil liability for the individual soldier’s acts benefits not him but the state, which pays the damages.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Gresford. I love these two amendments because they get to the heart of one of the two biggest problems with the Bill, which is immunity. I take the point from the noble Baroness, Lady Chakrabarti, about using the phrase “undercover operatives”. I have personally been saying “police spies”, which is a more generally understood concept for people outside the Chamber.
The Minister did not answer my questions in the previous debate. He did not address the proceeds of crime or the concept of ongoing crime that is not specifically given immunity but will happen anyway. Is that given immunity as well?
The Government are claiming that the Bill just puts everything on a regular footing and that we can all relax because we know exactly what will happen, but it is in fact nothing to do with that. It is about heading off all the legal uncertainty caused by the current legal challenge—the spy cops inquiry. It is nothing to do with protecting the general public. I find it infuriating that the two groups that are constantly referred to as being vulnerable to this legislation are paedophiles and terrorist organisations when we all know perfectly well that other organisations will be contaminated by this system and have undercover operatives and police spies. It will be unions and political groups, such as campaign groups, as we are seeing at the moment with the spy cops inquiry.
It is obvious that the Bill hugely expands the state’s ability to authorise criminal conduct and grant legal immunity to criminals. It is worrying that criminal conduct will go unpunished because of the Bill, but also, as several noble Peers have already mentioned, that the victims of these crimes will have no legal rights. They are left by the Government as collateral damage, which we have again seen in the spy cops inquiry. We have seen just how badly people have been harmed by undercover policing: innocent women’s lives ruined, children fathered by police officers using fake identities who then run off and avoid all their parental responsibilities because they have another family elsewhere who they want to go back to, and people betrayed by state agents.
The Bill’s provisions will prevent any entitlement to compensation for the damage caused by a police spy. You were tricked into a sexual relationship with a police officer? Too bad. Your house was burgled by a police spy? Too bad. You were beaten up by a gang acting as informants for the police? Too bad. Innocent people will be hit by the Bill. It is so obviously wrong. Innocent lives will be ruined. Surely the Government understand this and can see that it is wrong to try to legislate like this.
Baroness Bryan of Partick (Lab) [V]
My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions.
Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state.
At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity?
The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that
“nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act”
and that
“there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations”—[Official Report, 11/11/20; cols. 1046-47.]
but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy.
In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities
“clear and detailed guidance that they must follow in deciding whether to grant an authorisation.”—[Official Report, 11/11/20; col. 1045.]
The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed “serious errors”. It says:
“In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services.”
These were the very criteria used to issue the erroneous CCA in the first place.
I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, on the evidence I see great merit in these amendments. Our history of criminal law shows that the state has always gone to considerable lengths to protect those who assist it in the detection of crime. The prosecution service and judiciary have ensured that that works. I echo what the noble Lord, Lord Thomas of Gresford, said a few moments ago—that the system works well. My experience from a different perspective is that is so.
The question for this House is what is wrong with the current law and why it needs to be changed, because it has worked well. [Inaudible.] Of course, if one is going to a system where the authorisation authorises the commission of a crime, it is very important that we know how precisely that authorisation will be drafted. Precision was unnecessary under the present law, but it will be in future, bearing in mind the civil and criminal immunity that it grants. Therefore, I asked whether I could be shown examples of what it was intended to do. I wanted that in particular in areas of substantial difficulty relating to drugs and youth gangs, and I ran into a difficulty.
I understand the position of the officers with whom the noble Baroness put me in touch, who take the view, with which I profoundly disagree, that providing examples, even hypothetical ones, might endanger future operations of the police. That presents us with a difficulty, because we can neither look at what is wrong with the current system nor properly examine the future system.
Of course, we could take matters on trust, but I would be very reluctant to do so. I do not wish in any way to cast any doubt on the good faith, hard work or enormous risks that people take, but errors of judgment and maybe more have been traversed in the past. I need not set out the details of those, although I will if necessary at a later stage in Committee.
Therefore, I have given some thought to how the House deals with a very difficult problem—being satisfied that changes are needed and that the changes will work better. I ran into that insuperable problem on evidence only yesterday and so have not had the opportunity to discuss this more widely with the Minister. But under Standing Order 8.118, a public Bill can be committed to a committee, either in its entirety or in an issue, so that the committee can examine the Bill. This happens rarely; it happened with the Constitutional Reform Act, which is why I happen to know of this process. I have also inquired whether such a committee could take evidence in private, and it can; it can operate without transcripts being taken and, of course, what it publishes will be private. We can see whether this is necessary in the course of examining the Bill, but we ought not to make changes to the law and impose a new regime without proper evidence—and that is the responsibility of the legislature.
What we should consider, which I do not want to propose now but want to raise as an idea, is that at the conclusion of the Committee it may well be desirable, because the evidence cannot be given in public, for a small committee of the House, which can look at the matter, representing all the different interests, to take evidence and report. Immediate objection would be made that it is very difficult to report, but I do not agree. There was a case that concerned a real threat to life, with which I was involved, known as WV. We were able to report in detail the circumstances of that case without in any way compromising the life of the person involved. There are techniques for doing that.
I hope that the Minister will either come to a view that more evidence can be provided openly or, if that is not possible, consider the alternative of having a committee that can look at this and report to the House that, for reasons that cannot be set out, there are deficiencies in the law, and the new system will work well. At the moment, I regret to say that I cannot see this change to the law being necessary, and I foresee tremendous difficulties with going to the new system, particularly bearing in mind the way in which the police have discharged so badly in many cases the crafting of search warrants. That can obviously be put right, but commission of crimes cannot.
Lord Hendy (Lab) [V]
My Lords, it is a particular pleasure for me to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, and support the amendment moved by my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie and Lady Warsi. Without that amendment or another to the same effect, I shall have no alternative but to vote against this Bill. As a matter of conscience, I cannot support a Bill that gives the state the power to grant immunity for future crimes committed by agents on its behalf. This is contrary to the rule of law, as so many noble Lords have said.
The rule of law prescribes that all are bound equally to observe the law, not least the criminal law. Giving the state the power to exempt prospectively its agents from criminal law is the contrary of that principle. The rule of law is an easy phrase; it has a particular poignancy to someone like me, who has 48 years of practice at the Bar. But the fact is that it is a foundation stone of democracy, a point made so eloquently by the noble and learned Lord, Lord Judge, in the debate on the internal market Bill. Without respect for the rule of law, we face the dark prospect of anarchy or, worse, fascism.
Let me make my position clear through a number of propositions. First, I accept that every state necessarily deploys undercover agents to protect itself and the rule of law. Secondly, I accept that in the course of their work, on occasion, it will be found necessary to break the law, including the criminal law. Thirdly, I have no problem with the state, through the Director of Public Prosecutions or the CPS, considering after the event whether a prosecution is warranted by applying, as they do, and should do, the public interest, the objective and the proportionality of the crime committed, the possible defences to a prosecution, to the European Convention on Human Rights and their experience and discretion.
The evil here is the prospective immunity to be granted based only on an assessment of the possible situation. A decision to prosecute or not should be granted only retrospectively when the facts and circumstances of the alleged crime are known. This is the status quo. As far as is known, it has worked satisfactorily for the last 200 years. I have enormous sympathy and support wholly what the noble and learned Lord, Lord Thomas, said a moment ago and reiterate the question that he posed. What evidence justifies changing this system? Of course, we should bear in mind the point made by the noble and learned Lord, Lord Mackay, at Second Reading—if I do him justice—that if the object of conduct that would otherwise be a crime is to prevent a crime, the conduct will not in any event amount to a crime or be susceptible to prosecution. The noble Lord, Lord Thomas of Gresford, made that point a moment ago more eloquently than me.
My noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi, have reminded us that this Bill does not confine CCAs to professional undercover officers of the state, responsible, trained and alive to the requirements of the rule of law. CCAs are proposed by the Bill to be granted to lay persons, often or usually criminals, deficient in civic responsibility and careless of the demands of the rule of law. Many will have only the weakest grasp of the limits of the criminal conduct authorised by their CCA. They should not be given carte blanche; it is right that they should be in fear of retrospective review and the possibility that the CPS might charge them.
I find myself unable to trust prospectively either the officer granting the CCA or the agent to whom it is given. Only a retrospective review, by a professional prosecutor when all the circumstances are known, is tolerable. A particular source of my lack of trust is the evidence presented to the undercover police inquiry chaired by Sir John Mitting, in which I represent a number of trade unions. The conduct of those who directed the undercover officers was not such as to encourage trust. One thousand groups, campaigns and unions were spied on. So far, it is not evident that any useful information was gleaned to prevent crime. As one undercover officer put it, the only useful information revealed by her infiltration of a women’s liberation group was that it was not likely to be violent, cause disorder or commit a crime.
As has been mentioned by the noble Baroness, Lady Jones, what of the systematic abuse of women, over 30 of whom were groomed into having sexual and intimate relationships with men with fake identities—often those of dead children—fake beliefs and fake personalities? This was not a tactic devised by a couple of rotten apples; it was conduct reported to those in charge and clearly authorised by them. Whether or not this was a crime I leave to the criminal lawyers, but it inspires no trust in the issue of CCAs by such senior officers. The inquiry has revealed that undercover police committed crimes. One, for example, is said to have acted as an agent provocateur in planning to firebomb a well-known store.
I have one final point in support of Amendments 3 and 5. Currently, as I understand it, an undercover officer may not be instructed by superiors to commit a crime. If the Bill becomes law, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained a CCA. That will be a disciplinary offence, potentially justifying dismissal. It is a powerful argument against prior authorisation. I do not think that many rank-and-file officers would wish to be put in that position.
Baroness Blower (Lab) [V]
My Lords, it is a great pleasure to follow my noble friend Lord Hendy and the noble and learned Lord, Lord Thomas of Cwmgiedd, who spoke before him, and to support the amendments in the names of my noble friend Lady Chakrabarti, the noble Baronesses, Lady Warsi and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. It is a great pleasure to be in the House and listen to such eloquent speeches on a very significant matter.
The Bill before your Lordships is flawed. It is indeed so flawed that, without Amendments 3 and 5 being accepted, it will find it difficult to see how I will ever vote for it. As I said at Second Reading, of course I want to live in a well-regulated society. I therefore recognise, as I am sure all your Lordships do, that covert operations or information from covert human intelligence sources is sometimes necessary and that it may involve criminal activity.
Having accepted that, I also want to live in a society—in a state—that observes the rule of law, with a legal system in which there is one law for all. At the outset of the passage of the Bill, there were attempts to make the case that the Bill would merely, but importantly, put on a statutory footing practice that had been in place over the years. Such attempts are no longer in play, because the Bill plainly does something entirely other: it creates immunity for CHIS. As we have already heard, immunity is serious: it creates a situation in which criminal conduct is no longer a crime and in which acts, elsewhere considered criminal, are lawful for all purposes. I cannot sign up to this proposition.
An argument may be advanced that, without such complete and blanket immunity, CHIS might be deterred from fulfilling the covert function. I cannot accept that as reasonable, in a state that accepts the necessity of the rule of law. Surely the present status quo, in which the authorisation can be advanced in defence, is sufficient. If CHIS are to be granted immunity without let, hindrance or potential consequences, the notion of safeguards is absent. We have to be mindful that many CHIS are from the criminal community. The status quo provides that necessary and proportionate acts can be carried out to prevent further crime. “Necessary and proportionate”, in conjunction with the CHIS being aware of the potential consequences of their actions, should be the safeguard to ensure that conduct is with due caution, rather than abandon. I am grateful to Justice for its briefing on this and other points.
If the Minister for Security in the other place was correct in saying:
“A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed”,—[Official Report, Commons, 15/10/20; col. 611.]
where is the rule of law and the equality before the law, so that there is one law for all? This proposition is excessive when considered in conjunction with the equivalent legislation in Canada, for example, which affords a defence to prosecution, rather than complete immunity.
There is also the matter of victims. If, legally, no crime has been committed, given the CCA, access to redress is removed, whether through criminal or civil proceedings or by recourse to the Criminal Injuries Compensation Authority, as alluded to by my noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi. Victims must have their rights protected, as they are by Article 13 of the ECHR. If domestic legislation fails to provide an effective remedy, the UK will be in violation of Article 13. I do not believe that noble Lords and noble and learned Lords would find that an acceptable proposition.
Prior to having read the Justice briefing, I was unaware of this from the former Supreme Court Judge Lord Bingham:
“the purpose of the criminal law”
is
“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.
This amendment would provide that, although CHIS may engage in criminal conduct to prevent further crime, it cannot be without caveats. Such criminal conduct must comply with an existing authorisation and that will be relevant to any public interest consideration as regards prosecutions. The safeguard is needed to ensure that the rule of law obtains. As the noble Lord, Lord Thomas of Gresford, said, 800 years of principles of law are potentially at stake.
In conclusion, to ensure that it has been heard by the Minister, I repeat the question posed by my noble friend Lady Bryan: can the noble Lord respond on criminal proceedings taken against CHIS in the past, under the current arrangements—the status quo? The amendments can save us from a Bill that would do immense damage to the rule of law in the UK and I am therefore happy to support them.
Lord Paddick (LD) [V]
My Lords, as the noble Baroness, Lady Chakrabarti, said in her opening remarks, these amendments are about maintaining the status quo—the public interest defence. She described additional safeguards against a rogue prosecutor—potentially of self-defence, necessity and duress—but of course these mechanisms are already in place, and they are put into the amendment to provide clarity.
I am very glad to have heard from the noble Baroness, Lady Richie of Downpatrick, with her valuable experience in Northern Ireland. As the noble Baroness, Lady Warsi, said in her very powerful remarks, the co-signatories to the amendment are from very different backgrounds. I remind the Committee that I was a police officer for over 30 years and was at one time a controller of informants—covert human intelligence sources, as we now call them.
As I said, these amendments, to which I have added my name, are about keeping the status quo by ensuring that there is a legal power that allows public authorities to authorise CHIS to participate in crime but leaving the question of immunity from prosecution to prosecutors, looking at all the circumstances after the fact.
At Second Reading, the Government made two arguments against maintaining the status quo: first, that it is “undesirable” for the police, for example, to authorise people to commit crime, and, secondly, that it is “unfair and unreasonable” for CHIS to operate under the possibility that they might be prosecuted. In other words, the status quo is not desirable, not fair and not reasonable.
Let me deal, first, with the argument that it is “undesirable”. Can the Minister please explain to the Committee the difference between it being undesirable to create an express power for public authorities to authorise activity that remains criminal and it being undesirable to create an express power for public authorities to make criminal activity legal? Or, to put it another way, what is more or less desirable—a public authority telling someone to commit crime or giving a public authority the power to say something that is a crime is not a crime?
Is it not fundamental to the rule of law that the law applies to everyone equally and that it is clear what is and is not a crime? The Government propose to make legal an act that would otherwise be a crime, and to make the criminal law apply to everyone, except CHIS, who are authorised under CCAs. For example, Section 11 of the Terrorism Act 2000 would in effect change to “a person commits an offence if he belongs or professes to belong to a proscribed organisation, unless he is authorised to belong to it by a criminal conduct authority, in which case he does not commit an offence”. The law, in effect, becomes “it is an offence/it is not an offence, and it applies to some people but not all”.
The effect of accepting these amendments is to say that, of course, belonging to a terrorist group is an offence, but it is clearly not in the public interest to prosecute this person because he was asked to belong to, or to continue to belong to, a proscribed organisation by an agent of the state, and that was necessary and proportionate. Immunity from prosecution should be based on an independent prosecutor deciding whether it is in the public interest to prosecute, not on an agent of the state saying that this crime is not a crime, as many noble Lords have said.
At Second Reading, the Minister—the noble Baroness, Lady Williams—said:
“It is also undesirable to create an express power for public authorities to authorise activity that remains criminal.”—[Official Report, 11/11/20; col. 1115.]
Paying criminals to pass information to the police is undesirable, and paying terrorists to pass information to the security services is undesirable, as is paying those employed by hostile foreign powers to commit treason by passing information to the UK—it is all undesirable, or murky waters, as the noble Lord, Lord Cormack, said on the last group—but, however undesirable those things are, they are necessary. Although it may be undesirable to create an express power for public authorities to authorise activity that remains criminal, it is necessary, and it is not as undesirable as the alternative. To quote the noble Lord, Lord Anderson of Ipswich, for whom I know the whole House, including the noble Baroness the Minister, has the highest regard:
“The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious.”—[Official Report, 11/11/20; col. 1064.]
I shall now deal with the “unfair and unreasonable” argument. At Second Reading, the noble Baroness the Minister said that
“it seems unfair and unreasonable for the state to ask an individual to engage in difficult and potentially dangerous work while leaving open the possibility of the state prosecuting them for the exact same conduct. That tension has existed for many years.”
It has, but we need a reality check here. What might seem unfair and unreasonable to the Government, and indeed to some noble Lords, is not the same as what might seem unfair and unreasonable to undercover operatives, who, whether they be criminals or undercover cops, have willingly volunteered to do this work not for years or for decades but, I am sure, for well over 100 years.
If a handler thought that it was unfair and unreasonable, he would not authorise a CHIS to participate in crime; if a CHIS thought it was unfair and unreasonable, he would not participate in crime. What the noble Baroness the Minister seems to want to address is a sense of unfairness and unreasonableness which the Government have but which is not shared by the overwhelming majority of those who are directly affected—the handlers and the undercover agents.
The second question that has to be asked is: what is the possibility of the state prosecuting them, and is the status quo a real deterrent? The noble Baroness the Minister—again, at Second Reading—talked about what would happen if a CHIS were to undertake criminal activity that fell outside the strict parameters of a CCA:
“The prosecuting authorities are in a position to consider whether to bring a prosecution. This has been done before and will be done again if required.”—[Official Report, 11/11/20; col. 1115.]
So the answer is, “It has been done before and will be done again if necessary”, but it has not been done so often as to put off either undercover police officers or criminals from participating in criminal activity at the request of their handlers, who have willingly engaged on the understanding that, provided you stick to what you have been authorised to do, the CPS is unlikely to prosecute.
There have, no doubt, been rare occasions when a criminal has asked for a written guarantee of immunity and has backed away when it could not be given, but the system has clearly not been seen by the overwhelming majority of those involved—neither the handlers nor the undercover operatives—as unfair or unreasonable, no matter what we might think, otherwise they simply would not do it. In any event, any guarantee of immunity would be conditional only on the CHIS doing precisely what he is authorised to do, which in itself presents problems, as we will see in future groups.
I argue that the potential unintended consequences of what is proposed in the Bill on the question of immunity, as the noble Lord, Lord Anderson of Ipswich, pointed out, are too high a price to pay just to make us feel better, because we feel it is unfair and unreasonable not to give immunity up front. CHIS engage willingly in criminal activity at the request of their handlers, despite the possibility of prosecution. The proposed solution, to a problem that does not exist, is startling and the potential for abuse obvious, which is why I support the amendments.
Lord Falconer of Thoroton (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, who brings experience that none of the rest of us who have spoken in the debate have. It has been a powerful and significant debate. It arises because, under the Bill, a consequence of authorising criminal conduct is that it is rendered “lawful for all purposes”, which creates an immunity both from criminal prosecution and from civil liability for the person carrying out the authorised crime.
As this debate has identified, that gives rise, in effect, to two issues. First, it is a departure from the existing arrangement whereby the effect of the Upper Tribunal’s decision in the third direction case was that the relevant authorities had the power to authorise the criminal conduct, but the power to authorise it did not render it immune from prosecution. In consequence, it was a matter for the relevant prosecutor to determine whether or not the fact that the CHIS was acting in accordance with the authority given to him meant that the CHIS—I apologise to the noble Lord, Lord Cormack —should not be prosecuted.
From the point of view of the Government—and very much of this debate—reasons have to be given why that principle is being departed from. The arguments fluctuate between, “It’s a useful power to have, for the prosecutor to determine”, to, “Actually, it makes no difference”. Can the Minister give an authoritative answer to the question why it is immunity now, rather than depending on prosecutorial discretion? In particular, is it because it makes no difference? Has it made a difference in the past and, if so, why is the principle being departed from?
Noble Lords speaking in this debate have asked penetrating questions. The noble and learned Lord, Lord Thomas of Cwmgiedd, said, in effect, “Tell us why the policy is being changed.” We on this side of the House want to hear answers to those questions before we make up our minds on this issue. The second and separate issue—here, we believe there is definitely a defect in the Bill—is that the consequence of the “lawful for all purposes” approach is that there is plainly no remedy for the victims of the conduct authorised by the criminal conduct authorisation. That is fundamentally wrong.
Lord Stewart of Dirleton (Con)
My Lords, Amendments 3 and 5 from the noble Baroness, Lady Chakrabarti, seek, as she said, to maintain the status quo but on a statutory footing. They would maintain the existing legal position whereby an undercover operative, a CHIS— I demur from the noble Baroness’s use of the phrase “police spy”, which, in addition to pejorative overtones, carries an undercurrent of the 19th-century Russian novel—could still be prosecuted for the activity that the state had tasked them to do.
In answer, first, to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, it has been a deliberate decision to draft the legislation in a way which renders correctly authorised conduct lawful in order to provide greater certainty and protection to undercover operatives—CHIS—where they are carrying out activity that they may have been authorised to undertake. To expand that in answer to the matters raised by the noble Baroness, Lady Chakrabarti, this approach is in keeping with other powers in relation to the investigation of crime, such as interference with equipment, interference with property, and the Regulation of Investigatory Powers Act, including an underlying Section 29 covert human intelligence source use and conduct authorisation.
As noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct. That answers a point raised by the noble Lord, Lord Hendy, in his contribution to the debate.
The noble Baroness, Lady Chakrabarti, has framed her argument in terms of an illustration: a passer-by breaking into a house to save a neighbour. The analogy is that, in that position, the passer-by would have had available to them legal defences, and that the undercover operative—the CHIS—should simply rely upon the discretion of prosecutors rather than enjoy at the outset the full protection of the law for activities carried out within the narrow and tightly constrained boundaries of the criminal conduct authorisation.
We consider the analogy drawn by the noble Baronesses inapposite. The CHIS is not a mere passer-by stumbling across wrong-doing, but rather is placed deliberately in the company of wrong-doers by the state to help the state, or is someone who may have come into contact with wrong-doers and gone on to offer assistance to the police or investigating authorities. In so doing, such a person will often be asked to go along with the criminal activity of those people to earn their trust, so that their criminal activity may be frustrated. They do so in the public interest and often at risk of harm. Our position is that if the state thinks that it is right to ask them to act in this way and can consider the matter in advance, it is not comparable to the situation of a member of the public acting as a good citizen, responding to an unexpected event and going to the assistance of a fellow citizen in danger.
It is a credit to the skill of the handlers, and to the commitment and trust of covert human intelligence sources, that they have been prepared to continue with the prospect of prosecution always alive. However, as we understand the situation, we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do. This tension has existed for many years and it is right that we use the Bill to resolve it. In fact, making this legal position clear is likely to help with the recruitment and retention of human intelligence sources.
It would also be undesirable from a legal perspective to create an express power for public authorities to authorise activity which remained criminal. However, I reassure the noble Baroness that where a CHIS, or an undercover operative, commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can of course consider it in the normal way. The Bill does not prevent those impacted by an authorisation seeking redress. I include in that the matter raised by noble Lords in relation to civil redress. The Investigatory Powers Tribunal has the same powers to grant remedy as other courts.
The noble Baroness, Lady Warsi, and the noble Lord, Lord Hendy, were concerned that the Bill may be seen as something which allows a CHIS carte blanche to commit criminal activities. That is not the case. Criminal conduct authorisations are tightly drawn. Persons acting undercover will be working within a relationship with their handler, who is trained and experienced in conducting such work, and subject to a powerful oversight regime. A CHIS will never be granted carte blanche to commit any or all crimes. This is communicated clearly to people finding themselves in that situation, appointed to that position or recruited to that position. Where a covert human intelligence source commits criminality outside the tight provisions of the authorisation, the prosecuting authorities will consider the matter in the usual way.
In response to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Blower, and the noble Lord, Lord Paddick, it is the case—as I think the noble Lord acknowledged, albeit with substantial caveat—that covert human intelligence sources acting outside authorised conduct have been prosecuted in the past. The Bill ensures that that can happen in future if the boundaries of the authority under which they work are transgressed. It is precisely to combat the sort of outrages identified by the noble Baroness, Lady Jones of Moulsecoomb, that the Bill is framed. That is why it seeks to build on the oversight of the commissioner and the Investigatory Powers Tribunal.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about the visibility of authorisation forms and the effectiveness of the regime. I assure him and others in the Committee that there will be oversight of the new regime. That is the role the Investigatory Powers Commissioner’s Office plays in overseeing all authorisations. That body will provide public commentary on the effectiveness of the regime as part of the reports which it prepares. It has access to all documents and all information bearing upon the CCAs about which we were speaking.
The noble Baroness, Lady Blower, spoke about the situation applying according to the law of Canada. We have looked carefully at the provisions applying in countries with legal systems similar to ours. However, similar though the legal system of Canada is, none the less there is a different regime of control, as the security imperatives in Canada are different from ours.
Finally, I shall comment on the observations by the noble Lord, Lord Paddick. We consider that the status quo is not desirable in the current situation. We acknowledge the decisions in the Third Direction case. We look to place the activities of people fulfilling these necessary functions on a statutory basis. I think—if I have gauged correctly the views of the Committee—that placing these powers on a statutory footing is more or less universally considered desirable. Clearly where we will potentially be at odds is in the framing of the terms of the statute. However, my respectful conclusion is to say that the continuation of the status quo is not desirable.
For the reasons that I have identified, we consider it desirable—in spite of the qualifications and concerns raised by the noble Lord, Lord Hendy, and others—to render the situation whereby criminal conduct, tightly defined in individual circumstances, will be identified in advance rather than excused retrospectively.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
My Lords, I thank the noble and learned Lord for his remarks. He is right that there is widespread support for placing the involvement of covert human intelligence sources in crime on a statutory footing. The issue is immunity, to which these amendments are directed. Will the Minister clarify? He says that the change that this Bill brings about around immunity is to provide greater certainty and protection. It is an assertion, but the noble and learned Lord has not produced any evidence about why greater certainty and protection are needed.
The Minister went on to say that noble Lords have accepted that leaving a CHIS under the threat of prosecution is unfair and unreasonable. I do not know whether he was temporarily distracted, or whether he did not understand what I said, at length: while we and the Government may think that it is unfair and unreasonable, clearly CHIS and their handlers, in the overwhelming majority of cases in the past, have not felt that it is unfair and unreasonable, because they have carried out this activity without a promise upfront of immunity from prosecution.
Lord Stewart of Dirleton (Con)
My Lords, the noble Lord clearly heard what I said about the view that we have lost intelligence and failed to recruit CHIS, and that failing to introduce a power in these terms is likely to impair the recruitment and retention of CHIS. I do not have to hand the figures that he seeks, but I undertake to write to him.
On the “brown envelope” scenario, when it is drawn to the attention of a presiding judge passing sentence that a member of a criminal organisation—a gang, a conspiracy or whatever—has actively assisted the police and the investigating authorities in bringing the prosecution, it is important that we maintain a proper boundary. A person becoming aware that the police are aware of criminal activity, who elects to go to the police in their own interests in order to assist them, and by so doing earns a degree of mitigation, is very different from a person becoming a CHIS in the course of criminal activity, or one who is associated with criminal organisations for that direct and specific purpose. The noble Lord shakes his head, but I insist that we must maintain boundaries. A person who, during or prior to a prosecution, assists the prosecution and the police, is different from a person inserted into an organisation with the purpose of deriving intelligence about its activities.
The noble Lord, Lord Thomas of Gresford, spoke about the appointment of a committee to look into these matters; as he said himself, this was a matter which occurred to him shortly before this debate. I will look into the implications and communicate further with him.
Baroness Chakrabarti (Lab) [V]
This Committee has made it a privilege to be a Member of your Lordships’ House, which today I have heard at its best, expressing with great care and detail the sheer strength, depth and wisdom of noble Lords’ concerns about the Bill in its current form. Many other noble Lords have similar concerns, but for various reasons were unable to participate. The noble Baroness, Lady Ritchie, rightly pointed up the Northern Ireland experience, and with all matters of human rights and the rule of law, we ignore that voice and that particular experience at our peril.
The noble Baroness, Lady Warsi, rightly pointed out that supporters of these amendments come from all sides of the House. That should give the Minister pause for thought. So much has been said in these polarised times in our nations about extremism versus moderation. Sometimes I do not even know what these words mean any more, save that the ultimate moderation that holds our nations together is the rule of law. My friend—if not my noble friend—the noble Baroness, Lady Warsi, rightly describes this as a very conservative principle and tradition. However, equally for liberals and progressives, there can be no human rights or even democracy without the preservation of the rule of law.
The noble Lord, Lord Thomas of Gresford, pointed to our legal traditions, but also made a particular point about successful work of his own at the Bar deconstructing the mens rea of someone who had no criminal intent because they were acting in the public interest; that ties in with my amendment very well indeed. The noble Baroness, Lady Jones of Moulsecoomb, may have used colourful language which offended the Minister, but it is how many members of the public will feel about what is being provided for here without the safeguard of the amendments that I have put forward.
My noble friend Lady Bryan was right to point up the excellent briefing from Justice. I neglected to declare an interest as a member of Justice, but I hope that noble Lords will forgive me, because I suspect that many of them, particularly noble and learned Lords, are members of that wonderful law reform organisation. My noble friend Lady Bryan made the crucial point: where are the hard cases of undercover operatives who are just doing their work and doing no more than necessary being prosecuted by rogue prosecutors against the public interest and common sense, because we have not seen them?
Of course, there is only one thing better than one Lord Thomas, and that is two Lords Thomas contributing so eloquently to a debate, particularly when one of them is the former Lord Chief Justice of England and Wales. I will let that hang in the air for a moment, because I know that the Minister will not have ignored that very powerful intervention from the noble and learned Lord, Lord Thomas of Cwmgiedd. What is wrong with the current law? Where is the evidence? How can we do our duty without the ability to examine the case for moving from the status quo that has served our nations so well in this difficult and grey area and held the ring for so long?
My noble friend Lord Hendy was absolutely right to bring up the ongoing Mitting inquiry, in which he represents some of those who have been subject to abuse of power. There have been abuses under the current law; how much greater will the possibility of abuse be if we cross this Rubicon into granting blanket advance immunities to so many agents of the state, including from the criminal fraternity?
What of the victims, as my noble friend Lady Blower so rightly pointed out? She reminded us of perhaps the greatest jurist of my lifetime: Lord Bingham, who articulated equality before the law as a vital rule of law principle. She also reminded us that Article 13 of the ECHR requires an “effective remedy” for victims of crime. I know that the Minister attempted to address this, but how can “lawful for all purposes” possibly square with giving an appropriate remedy to a victim of a crime that is suddenly rendered no longer a crime?
The noble Lord, Lord Paddick, has been a police officer for 30 years, and, as my noble and learned friend Lord Falconer suggested, that gives his practical experience in the field particular weight. I imagine that noble Lords listening and those who will read his intervention tomorrow will be very careful to consider his wholesale dismantling of the argument against maintaining the so-called tension, which operates as a safeguard against the abuse of power. It is good for operating on the mind and ethical framework of any CHIS or undercover operative, particularly one who is not even an officer of the state but is a mere agent and, I repeat, quite possibly from the criminal fraternity.
My noble and learned friend Lord Falconer also rightly took us to the very powerful report from the Joint Committee on Human Rights, which expresses so many concerns about the Bill in its current form. There is so much potential for violations of human rights and abuse if the Bill is unamended. I have tried to engage constructively by way of this amendment, which does minimal violation to the scheme of the Bill and addresses the problem posed by the ongoing litigation but, none the less, preserves the status quo that has served us so well and is about preserving the rule of law.
It is said to be a breach of the rules of theatre to break the fourth wall, but, for all its beauty and glory, your Lordships’ House is not a theatre; it is a legislature. I want to be fair to the Minister, who is new to your Lordships’ House and to this Bill and who cannot possibly have been involved in the earlier stages of the policy formulation that led to its precise drafting. It is very difficult to be in the Chamber for one of these Committees, to listen to all the arguments—particularly when they are so powerful and come from all sides—and to respond on the spot, on your feet and immediately, as he has had to do. None the less, I hope that he will listen to the sheer breadth and depth of concern, which might well be addressed by way of my amendments or something like them.
The noble and learned Lord takes issue with my analogy about other citizens and passers-by. He says that these agents of the state are not mere passers-by, but that argument cuts both ways. The mere passer-by is mostly not from the criminal fraternity and normally does not have a vested interest, of whatever kind, in getting a particular outcome, quite possibly, even as an agent provocateur, as we have seen in the past. Why should an undercover operative, a CHIS, quite possibly a civilian or even someone from the criminal fraternity, have a protection in law that even a uniformed police officer does not have when he or she puts themselves in harm’s way on a daily basis? The so-called tension is a healthy one, and it should not be resolved by way of the absolute immunity that is the ultimate evil in this Bill.
Finally, I am beginning to suspect that the “lawful for all purposes” formulation was not adopted with a great deal of deliberation. I am beginning to suspect that it was used because it was used before and is in the framework of RIPA, where it is, pretty much, appropriate because that is about surveillance. As the Minister has said, it has been used in certain narrow confines before, but this Bill authorises unlimited criminal conduct and, potentially, very serious crimes, as the Joint Committee on Human Rights has pointed out. Therefore, a “lawful for all purposes” advance immunity that is appropriate for bugging, surveillance and minor criminal damage is simply not acceptable or conscionable in this case.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 6. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.
Amendment 6
Lord Paddick
“(3A) In section 27(2) of that Act insert—“(c) is not criminal conduct authorised in accordance with the Covert Human Intelligence Sources (Criminal Conduct) Act 2020.””Member’s explanatory statement
This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.
Lord Paddick (LD) [V]
My Lords, in moving Amendment 6, in my name and that of my noble friend Lady Hamwee, I will speak also to the other amendments in this group.
Section 27(2) of the Regulation of Investigatory Powers Act 2000 states:
“A person shall not be subject to any civil liability in respect of any conduct of his which … is incidental to any conduct”
that, for the purposes of this Bill, is authorised by a criminal conduct authority. Our Amendment 6 removes this immunity from civil liability. My support in the last group should make it absolutely clear to the Committee that I feel that that is the solution to this problem. It would be only in the very unfortunate circumstance that those amendments are not incorporated into the Bill that I would revert to this amendment.
This part of RIPA was intended to deal with the interception of communications. This might involve placing a listening device in a car or a room or intercepting phone calls, text messages or emails. This could be done only if it was authorised in advance by an Investigatory Powers Commissioner and by the relevant Secretary of State, and against only the most serious criminals, such as terrorists. While intercepting communications is a serious matter, the physical or financial harm to the—suspected—very bad person targeted is likely to be minimal.
The criminal conduct authorities—CCAs—under this Bill authorise undercover operatives to commit crimes in which innocent members of the public could be involved and seriously harmed. A frequent scenario in the past would have been recruiting a member of a gang of armed robbers, who was allowed to participate in an armed robbery during which, by either accident or design, the undercover operative working for the police may have harmed the security guard, potentially very seriously.
Noble Lords will also be familiar with—and other noble Lords have already mentioned—undercover police officers befriending and entering into sexual relationships with environmental activists. Despite the Government’s implied promise at Second Reading that such things would never happen again, in fact, what the Government have said is that an undercover operative would never be “authorised” to have sex with someone they were tasked to enter into a relationship with, not that it would never happen again.
There are two clear and distinct issues here, where someone may seek civil damages. One is where the handler authorises a CHIS to engage in a crime in a way that is not lawful, necessary or proportionate. The other is where the CHIS, whether an undercover officer or, potentially, a member of a terrorist group who passes information back to the police, goes beyond the authority of a CCA. This could be something
“incidental to any criminal conduct”
they have been authorised to do.
An undercover police officer could argue that he had no choice but to become intimately involved with the activist he was tasked to befriend, and that even if the sexual activity was not specifically authorised, it was “incidental to” the conduct that he was authorised to engage in. To grant him, and potentially the police force concerned, immunity from being sued for damages in such circumstances is repugnant. This illustrates that RIPA was never intended for, and is ill suited to, granting immunity under criminal conduct authorities.
The Government will say that, even if the CHIS evades civil action, the police force that tasked him, for example, will not. However, that seems to be cast into doubt by what the Minister said in the first group about the extent of the immunity granted, in that that immunity would extend also to the person tasking the CHIS. Again, there are two distinct issues with this. The first is that if the conduct authorised under a CCA is “lawful for all purposes”, it seems to me that the police force, too, is immune from civil action. The second is that—I speak from personal experience in the police service, as others have—racist and sexist behaviour in police forces reduced only when police officers and their police chief found themselves personally liable for their behaviour. If they had not acted in the course of their duties as a constable, the chief constable could deny vicarious liability, and the officer would be personally liable for any damages. It is the threat of legal action, whether criminal or civil, that ensures that handlers and CHISs keep within the law. Removing civil liability from a CHIS would remove another important check on their behaviour.
We cannot support Amendment 8, for a number of reasons. First, it says that criminal conduct under the authority of a CCA is lawful for the purpose of the criminal law. Clearly, we do not agree with that. As I have argued in the previous group, we do not believe that that should be the case. Secondly, it requires the authorising body to indemnify the CHIS against having civil action taken against him. For the reasons I have just explained, the personal liability of the CHIS in such circumstances is an important check on their behaviour.
Amendment 71 would allow a complaint to be brought before an Investigatory Powers Tribunal, which may award compensation. But there is normally a time limit of one year after the taking place of the conduct to which the complaint relates, which seriously reduces the scope for compensation to be applied for, compared with the normal seven-year limit for other civil actions. I do, however, believe that the proposal has some merit, and perhaps with further adjustment it may be more acceptable. I beg to move.
Baroness Massey of Darwen (Lab) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, with his eloquence and experience. I shall speak to Amendment 8.
I am a member of the Joint Committee on Human Rights. This committee scrutinised the Bill, received expert opinion on it and made the report referred to earlier, most recently by my noble and learned friend Lord Falconer of Thoroton. This report raises many issues of human rights that will need to be teased out and possibly resolved as we go through this Bill.
Amendment 8 is there so that victims of criminal conduct carried out under criminal conduct authorisation can access compensation. This is from paragraphs 104 to 110 in chapter 8 of the report. The report notes that the Bill as introduced is potentially incompatible with human rights legislation. Article 1 of the European Convention on Human Rights requires the UK to secure the rights of all those within its jurisdiction, including victims of crime. Where crime also amounts to a human rights violation, the victim has a right to an “effective remedy” under Article 13, mentioned earlier. A victim also has a right, under Article 6, to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.
Since the Bill would render all authorised criminal conduct “lawful for all purposes”, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. It would seemingly also prevent a claim for compensation under the criminal injuries compensation scheme.
My amendment mirrors the regime in Australia, which, as the report states,
“provides indemnification for any participant who incurs civil liability in the course of an undercover operation.”
In other words, a civil claim can be brought against the perpetrator by the victim, and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The effect of this provision would be to ensure that the person authorised to carry out criminal conduct
“would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”
This Bill has been described as promoting the concept of “one size fits all”, framed more eloquently by my noble friend Lady Chakrabarti. It is simply not acceptable or possible to do that. In relation to my Amendment 8, I have mentioned specific issues on human rights legislation, which is the core of the report I have quoted today. I look forward to the Minister’s response.
Lord Dubs (Lab) [V]
My Lords, I am also a member of the Joint Committee on Human Rights, along with my noble friend Lady Massey, and I am speaking in support of Amendment 8. My noble friend has put the case so well that I am just going to add one or two very minor comments. I am going to do so by quoting from the recommendations in the report that the Joint Committee put forward—a report that has set the tone for much of the debate and many of the amendments that we are discussing today. To quote from the recommendations:
“By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.”
I will go on very briefly to the next recommendation in the Joint Committee’s report, which is:
“The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability.”
This is a very clear proposal, and this is a very clear amendment that would safeguard the rights of individuals who will otherwise have no rights left if the Bill goes through unamended.
Lord Cormack (Con)
My Lords, I have considerable sympathy with the remarks of the noble Lord, Lord Paddick, in moving his amendment. It has been a very instructive afternoon, sitting here and listening to the previous, very long but extremely enlightening debate. The more I listened and the more I reflect on what we are discussing, the more uneasy I am about the Bill. I do not dispute the need—any more than the noble Lord, Lord Paddick, the noble Lord, Lord Thomas, or the noble and learned Lord, Lord Thomas, or anybody else has disputed it—to recognise that for the greater safety of the nation, we have to allow some of these things to happen. However, the noble and learned Lord, Lord Thomas of Cwmgiedd, made a very sober and sensible suggestion about perhaps having some special committee to look at this.
The Bill has far-reaching tentacles, because we are not just talking about the security services. We are talking about a whole range of agencies; we will come to that next week and I have tabled some amendments to delete most of those agencies. But we are discussing a really serious Bill, with far-reaching and unknowable implications. I am bound to say that I very much warmed to the suggestion of the noble Baroness, Lady Chakrabarti, that we refer to “undercover operatives” rather than CHISs. I was delighted when my noble friend took that up in his speech. I urge him to use that term henceforth, not something that the world outside will not understand if they turn on “Yesterday in Parliament” in a fit of insomnia.
Given the extraordinary wealth of legal experience that we have in this House—we have a former Lord Chancellor answering from the Opposition Front Bench —and that we have people who have experience in the police, and all the rest of it, we really are equipped to give this the most careful scrutiny, and we should. It deserves no less and demands no less. I hope that as we go through Committee and prepare for Report, where there will be some serious issues to debate and possibly to divide on, we will have at the back of our minds the suggestion of the noble and learned Lord, Lord Thomas of Cwmgiedd.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Lord, Lord Paddick, and the others who have tabled amendments in this group. I pay huge respect to him for his experience in this field. In the words of the noble Lord opposite, the noble Lord, Lord Paddick, stands out as one of the few who have personal experience of this. One listens with great respect to him when he shares his views with the House on occasions such as this.
All three amendments in this group seek to achieve the same thing: to enable those who have been victims of the crimes authorised under the Bill to seek civil redress. I congratulate my noble and learned friend Lord Stewart of Dirleton, the Minister, on his sterling debut performance and his manner in approaching the Bill. I think we are all extremely grateful to him. I listened carefully to the words he used in summing up on the previous group of amendments. Following on from the third direction case, I heard him refer to placing responsibilities on a statutory basis and I think he has the support of all the House in this. That is the whole purpose of the Bill and I lend him my personal support in that regard.
I also heard my noble and learned friend say, and I hope I heard correctly, that civil redress is not excluded. In regard to this small group of amendments, is it the case that civil redress is not excluded? Are there any limitations, either under the Bill or the current law as he understands it, on civil redress being so required? If that is the case, I am sure he will be able to tell us that these amendments, albeit well-intentioned, may not be needed. Personally, I would obviously welcome civil redress in that regard and these amendments are very helpful in enabling us to probe him on that.
Lord Judd (Lab) [V]
My Lords, we are indeed fortunate to have working for us, in both Houses, the Joint Committee on Human Rights. I find its reports invariably well argued and well researched. The arguments and logic of those reports are not to be easily dismissed. We have been fortunate this afternoon to hear the noble Baroness, Lady Massey, and my noble friend Lord Dubs putting their experience on the committee at our disposal. They have argued the case very well.
It is unthinkable that innocent members of the public who are adversely, and perhaps grievously, affected by covert action have no clear means of recourse. That needs to be clarified and written into the Bill. It is also important that those involved in all such covert action, which must be authorised by people with judicial authority and experience—the will of the House has come across clearly in all the debate—have limits on what can and cannot be done, and who is to be held responsible and in what way. These amendments help to clarify that situation. In that sense, they should be taken extremely seriously. I am grateful to have heard the experience of those who have worked on this so thoroughly in the Joint Committee on Human Rights being shared with us this afternoon.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn so I call the noble Lord, Lord Anderson of Ipswich.
Lord Anderson of Ipswich (CB) [V]
My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.
First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.
Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?
The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?
The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.
The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).
How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.
In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.
Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.
Baroness Chakrabarti (Lab) [V]
My Lords, I can be brief on this group—because I gave my views on the importance of removing both civil and criminal immunity in the earlier discussion—save to take the opportunity to wholly welcome the cogent, powerful and accessible report of the Joint Committee on Human Rights, and to congratulate my noble friends Lady Massey and Lord Dubs, as well as all the other members of that committee. The committee has been one of the greatest success stories coming from the Human Rights Act. Some once thought the Act would be just a recipe for litigation, and human rights would be just a box of lawyers’ tricks to wield in court, but the Joint Committee on Human Rights has been the missing ingredient that allows for human rights principles to be included in the consideration of legislation before it is even passed. I say this knowing that that the Minister will take that report incredibly seriously when he considers his approach to the next stage of the Bill.
On civil immunity, it is worth saying that, for a lot of victims, this is as important as criminal immunity. For a lot of innocent third parties, who may have lost property or even suffered grave injuries through no fault of their own, it is very important that there is the possibility of compensation. It may not be enough for it to be left to the CICA, although I will be interested in what the Minister advises. It would seem completely unconscionable for a state agent to be authorised to commit a crime, for an innocent citizen to suffer grave damage to property or person and for there to be no mechanism for them to have compensation. Further, the civil courts, when combined with investigative journalism, have been a place where a great many scandals and human rights violations of recent decades have been exposed, so “lawful for all purposes” is just as potentially worrying in the civil context as it is in relation to the criminal law.
Lord Falconer of Thoroton (Lab)
I am delighted to follow my noble friend Lady Chakrabarti, who has made a real contribution to the quality of the debate in this Committee and will make a real contribution to the changes necessary to the Bill. I shall speak particularly to Amendment 71, in the name of my noble friends Lord Rosser and Lord Kennedy. As the noble Lord, Lord Anderson of Ipswich, previewed, it seeks to make it clear that there is a jurisdiction in the Investigatory Powers Tribunal to give compensation to people.
This group concerns compensation for innocent victims. It seems to me that innocent victims can take two forms. One is somebody who is completely innocent and, pursuant to a crime authorised by a CHIS, gets beaten up, for example, by the CHIS. What remedy does that person have? Secondly and separately, there is the person who is a target of CHIS activity; for example, somebody who, it is thought, might be about to commit a crime and their premises might be burgled, pursuant to an authorisation under the Bill. What remedy does that person have? Let us assume, particularly, that the whole authorisation was wrongheaded from the start because, as everybody accepts in this process, errors get made. So, there is the innocent victim of crime on one hand and, on the other, the target of CHISery who is the wrong target and a judicial review would be allowed in relation to that.
On the face of the Bill, if it is all lawful, then there is no remedy at all. Will the Minister please explain what remedy there is? The noble Lord, Lord Anderson of Ipswich, made it clear that he thinks activities under Part II of the Regulation of Investigatory Powers Act 2000, which this is amending, already provide a remedy. Indeed, in the Commons in answer to this amendment, the Security Minister replied:
“Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.”—[Official Report, Commons, 15/10/20; col. 613.]
It would be helpful to have, first, a repetition of the assurance that the IPT covers judicial review-type relief—on the basis, presumably, that the original authorisation is unlawful—and therefore the reference to the fact that whatever is done under the authority is lawful does not apply to the original grant of the authority.
Secondly, will the noble and learned Lord deal with the issue of the innocent victim of the crime when there is a lawfully authorised criminal conduct authorisation, and the consequence of that is that somebody is, for example, severely beaten up? What remedy does that totally innocent victim have in such circumstances? The effect of the Bill is to say that the conduct is rendered “lawful for all purposes”. It cannot mean that. It cannot mean that the totally innocent victim, who has other remedies, is deprived of all those remedies because it is authorised under a criminal conduct authorisation: it cannot have intended that.
As the noble Lord, Lord Anderson of Ipswich, said, it may be key that we focus on the public authority which provided the authorisation and do not lose sight of the person giving the authority by focusing on the liability of the CHIS themselves. This point was clearly considered by the Joint Committee on Human Rights in suggesting its amendment to try to deal with this.
People are very concerned about the innocent victims. I strongly invite the noble and learned Lord to deal also with the practical issues referred to by the noble Lord, Lord Anderson of Ipswich. For all the remedies in the world you create, if you can never tell the victim what has happened, how does that person get a remedy? That is an important point.
Lord Stewart of Dirleton (Con)
My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.
I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.
I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.
The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.
I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.
A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.
Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.
These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.
The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.
On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received a request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.
Lord Falconer of Thoroton (Lab)
It is new, because CHIS conduct under the existing Bill significantly did not include criminal conduct. There was a little bit that was included, but this is a wholly different regime and I do not think it is right to say there is no change there. However, I did not rise to say that; I wanted to raise the point about being lawful for all purposes. If it is lawful for all purposes, tortious claims cannot be brought by the totally innocent victim—the person beaten up pursuant to the authority, assuming the person beaten up is not the subject of the CHIS but is just somebody caught up in it. Putting aside the Criminal Injuries Compensation Authority, which the noble and learned Lord will come back to us on, why should that person—singularly, throughout the whole of English civil law—not have a remedy? Is he saying that person does not have a remedy? If he is saying that they do, what is that remedy? Everyone else beaten up in the course of a crime has a tortious remedy.
Lord Stewart of Dirleton (Con)
The remedy lies in the approach to the tribunal and the obligation on the commissioner to notify a person who is wronged of their right.
Lord Falconer of Thoroton (Lab)
Can the Minister confirm that the totally innocent victim can go to the Investigatory Powers Tribunal and make a claim for damages for assault and battery?
Lord Paddick (LD) [V]
My Lords, I am grateful to all noble Lords who have spoken in this debate. In speaking to the comments of the noble Lord, Lord Anderson of Ipswich, I do not want to get into an argument over who has more respect for whom, but I have the utmost respect for him and his experience as a former Independent Reviewer of Terrorism Legislation. There is a fundamental disagreement he has surfaced with the noble Baroness, Lady Chakrabarti, and me over what was described in a previous group as the tension in the fact that a CHIS committing a crime is potentially subject to criminal prosecution and being sued for civil damages. I note that the noble Lord does not believe that is right, whereas the noble Baroness and I think it is.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
Amendment 7
“(3A) In section 27(3) of that Act (lawful surveillance etc.), after “Part” insert “(other than conduct authorised under section 29B)”.”Member’s explanatory statement
The effect of this amendment is that criminal conduct authorisations would not be encompassed by the provisions of section 27(3) RIPA which expressly provides that “The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I support both amendments in this group; obviously, I particularly support Amendment 7, which is in my name. The effect of my amendment is that
“criminal conduct authorisations would not be encompassed by the provisions of section 27(3)”
of RIPA 2000, concerning conduct outside the UK.
Again, I come to this issue with experience from Northern Ireland. Human rights organisations, including the Committee on the Administration of Justice in Northern Ireland, are concerned about the extraterritorial reach of this Bill in terms of committing offences. There is a deep concern that, in addition to criminal conduct authorisations making criminal acts by an informant “lawful for all purposes”, the extraterritorial provision of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply—namely:
“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”
I urge the Minister to outline from the Dispatch Box whether this is the case.
If it is, MI5 could, for example, authorise from its Belfast base the conducting of a serious criminal offence by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but clearly this would not change an act being a criminal offence under Irish law. In a recent parliamentary answer to a Member of the Dáil, the Irish Parliament, the relevant Justice Minister said that all persons in the jurisdiction—the Republic of Ireland—are fully subject to its laws and any evidence of a breach of criminal law will be fully pursued in the normal way by the relevant authorities. My amendment therefore seeks to disapply the provisions of Section 27(3) of RIPA, which expressly provides that conduct can be authorised outside the UK.
This raises a number of questions, which I asked at Second Reading but did not receive answers from the Minister. Perhaps she can provide them this evening. Will the UK authorities inform their Irish counterparts if they authorise a crime in their jurisdiction? If not, the UK will be secretly authorising criminal activity in the Irish jurisdiction. If the UK intends to notify the Irish authorities, will the Gardai—the Irish police—enforce Irish law and arrest the informant for the crime in question? If not, in essence, would the Irish authorities also be de facto legalising crimes authorised by the UK in the Irish jurisdiction?
Also, can the Minister confirm whether the UK consulted the Irish Government, and other Governments with whom it maintains diplomatic relations, on the content and implications of this Bill, including its direct association with other legislation? Were the Bill and its implications the subject of discussions at the last meeting between the Prime Minister and Taoiseach Micheál Martin earlier this year at Hillsborough?
I realise that Amendment 9, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, is similar to mine. I support them on that because we cannot tolerate crimes outside the UK or the extraterritorial reach of such provisions. I therefore beg to move Amendment 7.
Lord Thomas of Gresford (LD) [V]
My Lords, obviously, a government agency cannot grant to an individual immunity from prosecution by a foreign power for offences committed on its soil—a point made strongly a moment ago by the noble Baroness, Lady Ritchie, who referred to the comments of a Minister in the Dáil. One understands the particular sensitivities in Ireland.
We are dealing with offences for which this country has extraterritorial jurisdiction, of which there are not many. At the moment, these offences consist of murder, manslaughter, crimes against humanity, torture and sexual offences where the victim of the crime is under 18. Under the Council of Europe’s Convention on preventing and combating violence against women and domestic violence—the Istanbul Convention—the Government, in a paper published on 17 August 2020, indicated that they will extend the jurisdiction of the courts of this country to sexual offences committed against persons over the age of 18 and to domestic abuse.
Given that that is the current extension of extraterritorial offences, I would like the Minister to outline which of them any government agency would authorise. A current highly offensive issue that has been referred to many times this afternoon is that of covert policemen entering into relationships with individuals from whom they seek to extract information or to ingratiate themselves with a group under surveillance. That amounts to the offence of sexual intercourse without consent—another definition of rape. Is there a licence to kill, effectively to rape or to torture in overseas jurisdictions? Should there be? Would we be happy to see such immunities enjoyed by agents of a foreign power in this country? I suspect not.
As for the protection of the European Convention on Human Rights, I recall from my experience in the Baha Mousa case the vociferous complaints made by Lieutenant-Colonel Nicholas Mercer, the senior legal adviser in Iraq in 2003, all the way to the top of the Ministry of Defence, against the torture of prisoners by hooding and the use of stress positions against prisoners. These matters had been outlawed in Ireland. He said such conduct was against the European convention and was told that the Attorney-General of the day had advised otherwise, and if he were right, the senior civil servant told him, he should be Attorney-General himself. Of course, the Supreme Court later held that Lieutenant-Colonel Mercer was right that the convention did apply. Right-wing elements on the Government Benches have grumbled ever since about “lawfare”. That is a fight for another day. Their argument that squaddies should be allowed to torture without risk of prosecution or civil liability is for a Bill which will soon be heading towards us. But does this Bill permit such conduct to be authorised for covert agents? I ask the Minister specifically to reply to that point.
Baroness McIntosh of Pickering (Con)
My Lords, I lend my support to Amendment 7 as a probing amendment, which was so eloquently moved by the noble Baroness, Lady Ritchie of Downpatrick. I have a very simple question for my noble friend Lady Williams. Is it an unintended consequence of the Bill that it may inadvertently have extraterritorial effects reaching beyond its original intention? That possibly goes to the heart of one of the conclusions of the legislative scrutiny performed by the Joint Committee on Human Rights, which says at paragraph 52:
“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”
I therefore believe that the noble Baroness, Lady Ritchie of Downpatrick, has raised genuine issues of concern, as there are in Amendment 9, and I am sure that my noble friend will wish to put their minds at rest.
Baroness Jones of Moulsecoomb (GP)
My Lords, this is an interesting pair of amendments, because they go to the territorial extent of the Bill. Does the Bill seek to authorise state agents to commit crimes in foreign countries? That opens a whole legal and diplomatic mess. What happens if somebody is given permission to commit crimes abroad but is then caught and prosecuted in that foreign jurisdiction? Can the UK Government really seek some sort of immunity for their agents in that sort of situation? It raises the further question: to what extent do the Government think this recreates the status quo under the current system? Do they claim to have the ability to authorise crimes by their agents in other countries at the moment?
Baroness Chakrabarti (Lab) [V]
The noble Baroness, Lady Ritchie, points out an enormous sensitivity, in relation not just to extraterritoriality but to immunity, in the context of Northern Ireland in particular. Noble Lords are particularly jealous in their protection of the Good Friday agreement, as we have seen in other debates, and they should be no less jealous of that precious peace in their consideration of this Bill. As we have just heard from the noble Baroness, Lady Jones, it will not just be a problem in relation to the peace in Northern Ireland but will be a significant issue for our diplomatic relations with all sorts of countries and our status in the world, at a particularly sensitive moment for that status, if the Minister is not able to give some reassurance in her reply.
I have no doubt that for ever, a tight group of agents of the state probably have been informally or rather more formally authorised in the context of espionage work—perhaps vital espionage work—to sometimes commit criminal offences. But again, it creates a much bigger problem, including for diplomatic relations, if we are purporting to give immunity not just to direct officers, employees or trained personnel but to “civilians” around the world of necessarily dubious genesis. So I look forward to the reply from the noble Baroness, Lady Williams.
Baroness Hamwee (LD) [V]
My Lords, Amendment 6 in the name of the noble Baroness, Lady Ritchie, and our amendment, are directed to the same issue; I can only think that I may have drafted ours before I had seen hers. RIPA allows for the use of CHIS outside the UK, and the noble Baroness, with her very particular perspective, must not be ignored. As has been said, that experience should inform all of what we are discussing.
Quite apart from the propriety and ethics, how would extraterritorial jurisdiction work in this case? We cannot legislate for what other countries regard as a crime or how decisions about whether to prosecute are taken. My noble friend Lord Thomas listed the offences where there is extraterritorial jurisdiction and where prosecutions can take place here. It struck me as I was listening to him reading them that they are very close to the crimes that noble Lords are seeking to take out of the scope of criminal authorisations, which we will come to later—except that I was interested to hear the reference to domestic abuse.
I had wondered whether minds in the Government had been directed to the military and intelligence services outside the UK on this issue; my noble friend also mentioned the Baha Mousa case. But this is not the Bill for that. As he said, we have other legislation that we will come to soon, when we will also no doubt be considering the issue of rendition. But to leave open any suggestion that anyone should have free rein anywhere in the world because they are acting on behalf of the state is certainly something we want to see quashed.
Lord Rosser (Lab) [V]
Amendment 7 in this group would ensure that criminal conduct authorisations are not covered by the provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000, which provides that:
“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”
Amendment 9 in this group specifies that conduct outside of the United Kingdom may not be authorised under this Act and amends the Regulation of Investigatory Powers Act 2000 to similar effect as Amendment 7.
As far as I can see, the code of—[Inaudible]—covert operations occurring in UK embassies, military bases and detention facilities where the subject of investigation is a UK national or is likely to become the subject of criminal or civil proceedings in the UK, or if the operation is likely to affect a UK national or give rise to material likely to be used in evidence before a UK court.
The noble—[Inaudible.]
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
Lord Rosser, we are losing you—we cannot hear you.
Lord Parkinson of Whitley Bay (Con)
I think we might have lost connection with the noble Lord, Lord Rosser. If he can hear us and forgives us, I think we should move on to hear from the Minister.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
I now call the Minister, the noble Baroness, Lady Williams of Trafford.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank all noble Lords who have taken part in this debate. I am sorry not to have heard the end portion of the comments of the noble Lord, Lord Rosser, but I am sure he will come back once his wi-fi is restored and I have responded.
Amendments 7 and 9 seek to remove the provision that allows for a criminal conduct authorisation to be granted in relation to conduct that takes place outside of the UK. The activity that will be authorised under the Bill is UK focused, but of course there will be times when the activity begins in the UK and progresses overseas. It does not remove the possibility of criminal prosecutions overseas, but an authorisation will only, and can only, take effect under UK law.
The noble Baroness, Lady Ritchie of Downpatrick, asked if the UK will inform the Irish authorities. I can tell her that, although the content of the Bill is reserved in Wales and Northern Ireland, we have consulted with the devolved Administrations and their respective devolved agencies about their inclusion in the Bill. It is up to the respective devolved agencies to determine whether there is an operational need to be included.
It is important that we do not restrict the ability of our public authorities to tackle what are often international crimes. If we removed this provision, it would hinder our public authorities’ ability to tackle what are often very serious crimes, including drug transportation, human trafficking, et cetera. Noble Lords do not need to be told that crimes do not respect borders.
The noble Lord, Lord Thomas of Gresford, asked if this is a “licence to kill” Bill. The Bill is constrained by both the ECHR and the Human Rights Act, so these are the two constraints on activity. We have heard quite a lot today from noble Lords about undercover police making people pregnant, et cetera. This was never lawful; the sort of activity the noble Lord talked about is not lawful and would not be lawful in the future.
To go back to the case studies that I produced to accompany the Bill, one of them relates to the important overseas work by HMRC to tackle the illegal importation of goods from abroad. In this scenario, an HMRC covert human intelligence source is engaged with an organised crime group to import counterfeit tobacco from overseas. They might be required to travel abroad to meet with members of the group, undertake other preparatory work or even transport the goods to the UK. Without that ability to authorise criminal conduct authorisations for the full scope of the activity, the effectiveness of this and similar operations would be undermined.
Authorising the activity not only ensures that those involved are protected as a matter of UK law but, importantly, means that the safeguards contained in the regime apply consistently and in relation to all CHIS criminal conduct, both in the UK and overseas. If we prohibit the authorisation of activity overseas, we risk displacing activity to these jurisdictions. Criminals might then seek increasingly to conduct part of their activity in other countries, and our ability to tackle it would be constrained.
The amendments risk having serious unintended consequences, including impacting on our public authorities’ ability to keep the public safe from harm, and it is for that reason that we cannot accept them. I forgot to mention: the noble Lord, Lord Thomas of Gresford, talked about the extraterritorial jurisdiction on things like domestic violence; we do exercise that jurisdiction. With that, I ask noble Lords not to press their amendments.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, I think we have managed to re-establish connection with the noble Lord, Lord Rosser.
Lord Rosser (Lab) [V]
Yes—I am in some difficulty, because I do not know how much of what I said was heard. I think the best thing I can do is to read the Minister’s response and see the extent to which it actually replied to the issues I raised. I think I had best leave it in that context.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
I have received no requests to speak after the Minister, so I now call the noble Baroness, Lady Ritchie.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
This has been a very interesting, albeit short, debate. My anxieties have not necessarily been dissipated by the Minister’s answer. I would like to examine Hansard before deciding whether to bring the amendment back on Report, because there are issues around human rights provisions and European human rights provisions as well.
The noble Lord, Lord Thomas of Gresford, outlined the various types of offences that can occur, and asked if the Government were sanctioning those activities outside the UK. The noble Baroness, Lady McIntosh of Pickering, asked about the unintended consequences and if there were extraterritorial consequences. The noble Baroness, Lady Jones of Moulsecoomb, talked about state agents being used outside the territorial remit of the UK and the impact on diplomatic relations. The noble Baroness, Lady Chakrabarti, talked about the sensitivities associated with this legislation and the use of RIPA, particularly in the context of extraterritorial initiatives. In Northern Ireland and Ireland, the Good Friday agreement and human rights and equalities provisions have to be respected.
This is a significant issue for diplomatic relations. I am afraid that the Minister answered the question solely in terms of the devolved Administrations; I was asking about consultations with the Republic of Ireland and, therefore, acts of criminality that could be sanctioned by the Government outside the UK territory in Ireland itself. I did not get a satisfactory answer to that.
The amendment in the name of the noble Baroness, Lady Hamwee, is similar to mine and is directed to the same issue—how RIPA allows extraterritorial offences, how that presents issues of ethics and how these extraterritorial provisions will be exercised. Both the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, referred to rendition, which obviously will be subject to other legislative provision and is not covered by this legislation. The noble Lord, Lord Rosser, dealt with overseas criminality and authorisations for that.
I will withdraw the amendment but, on reading Hansard, I may come back on Report to explore this matter further because I am not satisfied with the answers that I have received. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 11. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and that anyone wishing to press this or anything else in this group to a Division should make that clear in the debate.
Amendment 11
“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statement
This amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.
Lord Dubs (Lab) [V]
My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.
There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.
The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:
“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”
That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.
I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:
“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”
He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:
“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”
The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,
“extremely limited in its oversight mechanisms”
and summarised its safeguards as “woefully inadequate”.
We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.
The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.
Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.
It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.
Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.
We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.
For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.
The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:
“The use of CHIS requires deep expertise and close consideration of the personal qualities”
of that particular undercover operation,
“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]
I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.
Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:
“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other”
judicial “authority”.
The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,
“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.
The quote concludes that
“it is in principle desirable to entrust supervisory control to a judge”.
Such scrutiny could be highly compelling for the potential use of CCAs.
Lord Anderson of Ipswich (CB) [V]
My Lords, I shall speak to Amendment 46 and its Scottish equivalent, Amendment 73, which I trailed briefly at Second Reading. I do so with the support of the noble Lords, Lord Butler and Lord Carlile, and the noble Baroness, Lady Manningham-Buller.
My report A Question of Trust, published in 2015, recommended a new authorisation and oversight structure in relation not to undercover operatives but to other covert powers exercised by intelligence agencies and the police, including the interception of communications and equipment interference. Its most radical recommendation was to introduce a requirement of prior approval by judicial commissioners—the senior judges in what is now known as IPCO, whose functions were so well described just now by the noble Baroness, Lady Kennedy —before warrants for the exercise of such powers could enter into force. That principle was given effect in the Investigatory Powers Act 2016.
I was converted to the idea of prior judicial approval by detailed observation of the practice in the United States and Canada, both of which introduced such systems many years ago after well-publicised abuses of executive power. Their systems work well and so, I believe, does ours. I have great respect for the formidable array of noble Lords, led by the noble Lord, Lord Dubs, who, by signing some of the amendments in the group, have proposed extending that system to the authorisation of CHIS criminality. However, an amendment to that effect was heavily defeated in the Commons. Where an alternative presents itself that offers adequate protection and a realistic chance of making its way into the Bill, I am concerned that we should not miss the chance to consider it. That alternative, as set out in my amendments, is notification of criminal conduct authorisations to judicial commissioners in real time, or as close to real time as is reasonably practicable. I will try to explain it.
The person who approves the interception by a public authority of telephone communications must assess the likely operational dividend against the likely intrusive effects—a task that judges are abundantly suited to perform, usually on the basis of a careful written assessment. Whether to use and how to task a CHIS requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship.
It may sometimes be decided at very short notice to authorise participation in criminality to preserve a CHIS’s cover and his or her safety. The person who tasks a CHIS, including by authorising criminality, thus takes on a weighty duty of care towards not only any potential victims of that crime but an often unpredictable human being for whom exposure could mean injury and even death. Where non-police CHIS are concerned, that person is also licensing a private individual, rather than an agent of the state, to commit crime.
As someone who until this year was an investigatory powers commissioner himself in Guernsey and Jersey, I frankly admit that this is not a function I would have felt well equipped for. Some judges, I am sure, are made of sterner stuff: with a great deal of training, I accept that prior judicial authorisation might well be made to work. My points are simply that this is a long way from the classic realm of prior judicial approval; that it is an uncomfortable solution, a feeling that I was interested to hear is shared by the noble Baroness, Lady Chakrabarti; and that there is an alternative which has not already been rejected.
The distinction between the tasking of CHIS and the operation of other forms of covert surveillance is recognised in other jurisdictions. It was North American traditions of judicial authorisation, as I have mentioned, that inspired A Question of Trust and the Investigatory Powers Act 2016. But the Canadian CSIS Act, much praised for its other qualities in previous debates on the Bill, does not, so far as I can see, provide for independent authorisation of CHIS criminal conduct. Nor are judges involved in the tasking of undercover operatives by the FBI. Otherwise, illegal activity requires approval by, at most, a senior field agent or, for more serious crimes, the US Attorney’s Office. Nor, if I recall rightly, was the Strasbourg case cited by the noble Baroness, Lady Kennedy—Szabó and Vissy—one that concerned the tasking of undercover operatives.
There is also precedent in our own law for a system of real-time notification to judicial commissioners, such as I propose in these amendments. It is the system introduced in 2013, when the “spy cops” scandal first broke, to monitor undercover police deployments of less than 12 months’ duration. It has operated satisfactorily since then, judging by the annual published reports of IPCO and its predecessor body. Indeed, the wording of my amendment is taken with little alteration from the relevant statutory instrument of 2013/2788. I add that any reservations I have about involving judges in the highly sensitive and fact-dependent decision to authorise criminal conduct are multiplied severalfold by the proposal that a hard-pressed Secretary of State should be given this responsibility. Accordingly, with respect to the very distinguished names that it has attracted, I am not at all convinced by Amendment 15.
Real-time notification would bring real advantages. It concentrates the minds of authorising officers to know that their authorisation will soon be on the desk of a High Court judge, sometimes before any criminality has taken place. Some officers will seek preliminary advice or guidance before acting, a course that it is open to IPCO to encourage, and that is of particular value for those authorities that make only occasional use of a power. Notification may prompt questions, observations or recommendations for that case or for the future. This is the core of IPCO’s demanding oversight work, much of which is implemented by its highly skilled inspectorate and whose detail is only hinted at in IPCO’s annual reports. A serious error report under Section 231 of the Investigatory Powers Act 2016, as we have discussed previously, may be accompanied by a notification of affected persons that they have a right to apply to the Investigatory Powers Tribunal, at least in any case where the judicial commissioner judges that to be in the public interest.
Accordingly, I commend Amendments 46 and 73 to the House as a workable alternative, given the stance of the Government, and one that is perhaps more suited to the particular skills of our judges in the very particular circumstances in which CHIS handling takes place.
Lord Hunt of Kings Heath (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Anderson, in speaking to my Amendment 76. I must apologise because I was not able to be present for Second Reading; it clashed with the Medicines and Medical Devices Bill, to which I had tabled several amendments. If I had been able to speak, I would have supported the intention to place on a statutory basis the covert activity covered by the Bill. Equally, I would have sought that that should have taken place within appropriate boundaries and safeguards. Rather, as the noble Lord, Lord Cormack, said earlier, the debate this afternoon has reinforced in me the need for this Bill to be seriously amended to make sure that those safeguards are in place. It also underpins the importance of the amendments in this group and the role of the independent Investigatory Powers Commissioner, who monitors the use of these powers through inspections, as we have heard, and publishes an annual report.
Amendment 76 is very much probing in nature to ask the Minister about the role of police and crime commissioners. It follows from discussions with the West Midlands PCC, David Jamieson, and has the support of my noble friend Lord Bach, the PCC for Leicestershire, who will speak later to this group of amendments.
As we have heard, police forces are subject to IPCO inspections, yet as I understand it, under current legislation, there is no role for PCCs in relation to covert intelligence. The argument made by PCCs is that as they are responsible for holding the chief constable to account, they should at least have some strategic oversight into the inspection process. Locally, my own force, the West Midlands Police, has previously arranged for briefings from the IPCO in the inspection outcome, and those engagements have been extremely useful in understanding how the force is complying with RIPA and providing reassurance in respect of the powers used. The PCC holds the chief constable to account in a number of ways, but partly through an annual report to the strategic policing and crime board on the use of RIPA. This is presented and discussed in private session in recognition of the highly sensitive nature of the activity.
Looking to the IPCO report of 2018, which is the latest I could find published on the web, there is a specific and lengthy section on law enforcement agencies. It looks at how it has used powers under the Investigatory Powers Act, including covert intelligence sources and surveillance activities under RIPA. The IPCO noted in general that the existence of experienced and specialist teams was important to establishing and maintaining a good level of compliance. It concluded that, although standards vary across law enforcement agencies, the appropriate processes are in place and cases are handled in compliance with the code of practice. This is good to hear, but what if a police force was found to be performing inadequately? What intervention, for instance, would take place with the chief constable and how could that happen without the involvement of the PCC? I would be grateful if the Minister could respond to the question.
The advent of this Bill provides an opportunity to address the issue and formally add a provision that gives PCCs a strategic oversight role in IPCO inspections of local police forces. Of course that has to be strategic, recognising the sensitivity of the work. I am not proposing an exact mirror of the role that PCCs have, for example, in relation to Her Majesty’s Inspectorate of Constabulary and fire and rescue service inspections. As a minimum, I ask that PCCs should be engaged in a debrief following the inspection in order to understand any urgent issues and how the force needs to address them. This is not a major amendment, but it is important that we understand how the accountability of chief constables operates in the process. If the IPCO finds that a police force is not acting satisfactorily, it is important that appropriate action is taken.
Baroness Clark of Kilwinning (Lab)
I wish to speak to Amendment 77, which has been put down in my name and that of my noble friend Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb. It has been drafted by the National Union of Journalists. The amendment seeks to ensure that any new powers enshrined in the Bill do not override existing legal protections on press freedom.
The amendment requires a judicial commissioner to give approval for authorisations to identify or confirm journalistic sources, and would require the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the current law.
The Investigatory Powers Act 2016 introduced a requirement that when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. The amendment simply seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to carry out their role. These protections are enshrined in the Investigatory Powers Act 2016, and I understand that they honour a manifesto commitment in the Conservative Party manifesto for the 2015 general election. This followed on from detailed and sustained representations by the National Union of Journalists and others outlining serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, therefore rendering journalists unable to uphold their own ethical commitments to professional privacy.
Baroness Massey of Darwen (Lab) [V]
My Lords, I, too, remind colleagues that I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs. I will be brief in supporting my noble friend’s excellent contribution on Amendments 11 and 59 concerning the requirement for prior judicial approval of criminal conduct authorisations, also mentioned by my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Anderson of Ipswich.
The amendments are based on the JCHR’s examination of the Bill and refer to chapter 7 of its report. Paragraph 94 refers to lack of prior independent scrutiny or approval of CCAs, and paragraph 95 gives examples where the Bill is in contrast to other investigative procedures, highlighted by my noble friend.
Retention of data is also an issue. Privacy is a vital right protected under Article 8 of the European Convention on Human Rights, but the authorisation of criminal conduct risks more damaging human rights violations, including physical violence. Paragraph 97 of the report states that
“the Bill as it stands imposes no requirement that the belief of the individual making the CCA that it is necessary must be a reasonable belief”.
The report concludes that:
“Bringing CCAs within the review function of the IPC provides some reassurance of independent scrutiny of their use after the event. However, this is insufficient protection for human rights”,
and the Bill must be amended accordingly.
Lord Hain (Lab) [V]
My Lords, I shall speak to my Amendment 15, and I am grateful to my noble friend Lady Kennedy of The Shaws, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, for having added their names. I am also grateful to my noble friend Lord Blunkett, a former Home Secretary, who would also have added his name had not the list been full.
This amendment is very straightforward. It ensures that:
“The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by the Secretary of State.”
My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000—RIPA—which was updated by the Investigatory Powers Act 2016. When I was Secretary of State for Northern Ireland in 2005-07, I regularly signed warrants to place under surveillance dissident IRA splinter groups planning to kill, bomb and fundraise through drug and other crimes, and I signed warrants for surveillance on loyalist paramilitaries and hardcore criminals. If the Home Secretary was not available, I also signed warrants that he would normally have signed, sometimes with very short notice, in real time—on one occasion, to prevent Islamist terrorists in a south London house unleashing a bomb in London.
The point that I wish to underline is that these were absolutely essential security and policing operations, yet they required ministerial authorisation at a high level. Why was that so? Because ultimately that brings ministerial responsibility and therefore direct accountability. The operational decision was for the police or intelligence services, but the accountability was ultimately governmental and political. The time has come to bring that principle into the sphere of undercover policing, because it has involved far too many abuses for decades and, if there is not the same kind of accountability as for surveillance, there will inevitably be even more abuse.
I met undercover officers doing brave work trying to prevent dissident IRA splinter groups and loyalist groups killing and bombing. I was also briefed about vital undercover work around Islamist terrorist cells to prevent terrorist bombing and killing. In other words, I have direct experience of how undercover officers can perform vital functions to save lives and prevent crimes or terrorist attacks. But I am also due to give evidence early next year in what is described as a non-police, non-state core participant role to the official inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because undercover policing has got out of control and needs to be made accountable. That is important.
From 1969-70, undercover officers spied on me at anti-apartheid and anti-racist meetings, including when I was an MP in the early 1990s. As confirmed by evidence given to the Mitting inquiry, a British police or security service officer was in almost every political meeting that I attended, private or public, innocuous and routine, or serious and strategic, like stopping all white apartheid sports tours and combating pro-Nazi activity. Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London office of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose apartheid security service operations in the UK? Why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb in June 1972? It was so powerful that it could have blown up me, my family and our south-west London home were it not for a technical fault in the trigger mechanism. Scotland Yard’s bomb squad, then chasing down the IRA, took it away and made it safe, but I heard nothing more.
Another victim was ecological activist Kate Wilson, whom I mentioned at Second Reading. Agree or disagree with her views and actions, she is not a criminal. Kate was at primary school with my two sons in the 1980s, and our families remain friends. Undercover officer Mark Kennedy formed an intimate and what she described afterwards as an abusive relationship with her for over seven years, even reporting back to his superiors on contacts with my family when I was a Cabinet Minister. I would like to think that a Home Secretary presented with a warrant to assign Kennedy to target Kate Wilson would at least have asked, “Why are our police wasting their time targeting her, an environmental activist, instead of drug barons, human traffickers, criminals and terrorists?” A warrant procedure would force police chiefs to stop and ask that question too, instead of morphing policing from the overtly criminal into the covertly political sphere.
Another widely reported example was referred to by my noble friend Lord Dubs. Doreen Lawrence, now my noble friend Lady Lawrence, is a law-abiding citizen, yet her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder? A warrant procedure would have forced police chiefs to stop and ask that question, too, instead of morphing policing from the overtly criminal into the covertly political sphere.
Why did an undercover officer going under the name of Sandra infiltrate the north London branch of the Women’s Liberation Front between 1971 and 1973? She conceded to the Mitting inquiry that she failed to discover any useful intelligence whatever. Some of the meetings were attended by just two activists, she reported. She told the inquiry on Wednesday 18 November, last week:
“I could have been doing much more worthwhile things with my time.”
She worked for the Met’s special demonstration squad. She went on:
“Women’s liberation was viewed as a worrying trend … There was a very different view towards the women’s movement then as compared to today.”
Sandra told the inquiry that she did not think that her work
“really yielded any good intelligence”.
That is nice to know now, over 40 years later, but why was there no proper accountability for her deployment? I like to think that a Secretary of State might have asked a few questions if a request came to authorise her infiltration of a women’s rights group. Knowing that the Home Secretary would take a look, maybe police chiefs would never have deployed Sandra on this scandalous and wasteful mission.
In each of these cases, the police were on the wrong side of justice, the law and history: harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom, instead of pursuing crimes by the apartheid state in our country; infiltrating the family of a climate change activist, instead of combating climate change; covering up for a racist murder, instead of catching the murderers; and targeting women’s rights campaigners, instead of promoting gender equality, including within the police of that time. Why were undercover police officers trying to disrupt all of us, diverting precious police resources away from catching real criminals, such as drug traffickers, human traffickers, terrorists and criminal gangs?
When I give evidence next year to the undercover inquiry, I will also show that there was a systematic pattern of malevolence, deceit and exaggeration by undercover officers. One, named as Mike Ferguson, claimed to be my right-hand man when I chaired the campaign to stop sports apartheid tours by all-white rugby and cricket teams. It was a straight lie; I had no right-hand man. If he is the person I vaguely recollect, he was on the periphery of the central core around me. Mike Ferguson claimed our campaign intended to attack the police at Twickenham when England played the Springboks—a lie. We did not. He also claimed that we planned to sprinkle tin tacks on the pitch—another lie. We did not, and indeed were at pains to avoid personal injury to players, as we ran on to pitches in acts of nonviolent direct action, sometimes being beaten up by rugby stewards or the police. Mike Ferguson reported that we planned to put oil on Lord’s cricket pitch and dig it up—again a lie. We never did. Giving evidence only the other week, another undercover officer who had infiltrated our campaign admitted that this allegation about oil and digging up pitches was false. Undercover officers also played agent provocateur on occasion, daring militant but non-violent protesters into criminal activity.
A warrant procedure would have forced police chiefs to stop and ask serious questions about all this before seeking authorisation from the Home Secretary over Mike Ferguson’s role, instead of morphing policing from the overtly criminal into the covertly political sphere.
This is not ancient history; it has happened over recent decades and could well be happening still. There needs to be a structure of proper accountability to ensure that undercover policing or covert surveillance through embedded agents is performing a legitimate function, not an illegitimate one, as in the examples I have mentioned, including those involving me. Otherwise, how do we stop legitimate undercover police or intelligence work sliding over into the illegitimate and the blatantly political? Even in our era of modern legislatively accountable policing and intelligence work, things are still going badly wrong, such as when counterterrorism police recently put non-violent Extinction Rebellion on their list of terrorist groups, doubtless for undercover operations, which are presumably continuing now, as well.
This covert human intelligence sources Bill does not address any of the key questions that I have asked, which is why I believe that the amendment, which would ensure that a warrant was signed by a Secretary of State before undercover policing was authorised, is vital and why I hope that it will be put to a vote on Report.
Lord Thomas of Gresford (LD) [V]
My Lords, I have previously today made a case against permitting the authorisation of criminal conduct by an organ of the state without any independent check or oversight. The noble Lord, Lord Dubs, in introducing his amendment, referred to the Finucane case and the strong comments made by Desmond de Silva QC in his inquiry, calling for a strong framework of control.
This group of amendments puts forward alternative approaches. I prefer the approach of the noble Lord, Lord Dubs, which is simple and straightforward in operation. An application to a judge who is always available 24 hours a day for prior authorisation is, in my opinion, far preferable to the giving of notice after the authorisation has been made. The noble Lord, Lord Hain, strongly made that point. He pointed to the fact that the police being out of control in many ways lies behind the institution of the Mitting inquiry. He asks: who is the target, and why?
The noble Baroness, Lady Chakrabarti, referred obliquely in the debate on the second group today to concerns that this involves the judge, if he is approached, in the commission of a crime which has not yet happened. I disagree: the role of the judge—or, as the noble Lord, Lord Hain, would have it, the Secretary of State—is not to authorise the crime but to ensure that all the safeguards are in place against abuse of a necessary but dangerous tool in the detection of crime. That is an important part of the framework for which Desmond de Silva called.
After the event notice given to the Investigatory Powers Commissioner is proposed by the formidable array led by the noble Lord, Lord Anderson of Ipswich. The problem with their solution is that, in my view, it has no teeth. I listened to the noble Lord’s exposition. He thought that a decision referring to the authorisation of a CHIS depended on a close consideration of the character of the CHIS in the very difficult circumstances in which he might find himself. He said that it was too unpredictable and that he would not himself find it an easy decision to make. It would be an uncomfortable position. However, his proposal requires confidence that the security services, the police or other authorities will properly give a full explanation of what they have authorised to the IPC. This was an issue raised by my noble friend Lord Macdonald, as quoted by the noble Baroness, Lady Kennedy.
A case in 2019 showed that the intelligence services kept their errors secret. As Megan Goulding of Liberty said after the judgment,
“they’ve been trying to keep their really serious errors secret—secret from the security services watchdog, who’s supposed to know about them, secret from the Home Office, secret from the prime minister and secret from the public.”
The Investigatory Powers Commissioner, Lord Justice Adrian Fulford, a man of great integrity and experience, as I know, said that MI5 had a “historical lack of compliance” with the law. He said that the Security Service would be placed under greater scrutiny by judges when seeking warrants in future. He compared the service to a failing school which needed to be placed in “special measures”.
Amendment 47 in the names of my noble friends Lord Paddick and Lady Hamwee would indeed give teeth in that, if the commissioner is not satisfied with the authorisation, conduct will not be lawful and ultimately the Director of Public Prosecutions would become involved—that is if the model suggested by the noble Lord, Lord Anderson, received the favour of the Government. The reformulation of the Anderson amendment in Amendment 73 again has no teeth.
The refining of the amendment proposed by the noble Lord, Lord Dubs, put forward by the noble Baroness, Lady Kennedy of The Shaws, to appoint experienced judicial commissioners is preferable. Authorisation would require the approval of a judicial commissioner before it took effect. Further it ensures that the judicial commissioner has to be satisfied that there are reasonable grounds for the authorisation and it specifically contains the safeguard that conduct contrary to the European convention is not authorised. Since the Government suggest that the only control on the authorisation should simply be the convention rights granted by the ECHR, so that they are not broken, I cannot see what objection the Government could have to such a proposal. Of course, I believe it preferable to specify in the Bill the particular offences which cannot be authorised, but that is a matter for later argument.
Lord Cormack (Con)
My Lords, this is another fascinating debate. A number of your Lordships are seeking to put forward solutions to what I think is a gaping hole in the Bill. I was glad to add my name to the amendment tabled by the noble Lord, Lord Hain. We have had some powerful speeches not only from the noble Lord, Lord Hain, who speaks with truly unique personal experience as well as experience as a very accomplished Secretary of State, which I saw at first hand in Northern Ireland, but we have other suggestions put forward, most notably by the noble Lord, Lord Anderson, and the very powerful quartet of the noble Lords, Lord Anderson, Lord Butler of Brockwell and Lord Carlile, and the noble Baroness, Lady Manningham-Buller, and we heard a powerful speech a moment or two ago from the noble Lord, Lord Thomas of Gresford.
Fundamentally, what it comes down to is this: what we are doing in the Bill is giving authority for people to commit crimes. We all accept the basic necessity when it is a matter of national security. I am not convinced, and I will need a lot of convincing, that we have to give similar powers to the Environment Agency, the Competition and Markets Authority, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. There are others on this list, such as the Serious Fraud Office, the National Crime Agency and the intelligence services, that one would approve, but wherever one is approving, one is giving potentially a vast range of people the authority to authorise crimes and to launch these agents into a world where they can do great damage to individual innocent people. We touched on this earlier when we talked about compensation.
I believe it is absolutely crucial that these permissions are not granted without the authority of a senior judicial figure or a Secretary of State. The argument in favour of a Secretary of State, made very pointedly by the noble Lord, Lord Hain, is that there is a degree of public accountability to Parliament for decisions that, one would hope, have been taken in good faith, but which may go wrong in a bad way. What we need is for my noble friend the Minister, and, doubtless, some of her ministerial colleagues, to sit down with those who have proposed these various amendments and try to come to agreement on an amendment for Report stage that the Government can back.
This Bill as it stands just will not do. It could be called the “carte blanche Bill”; in this field, that is not acceptable. I urge my noble friend when she replies to share some reflection on that idea. The noble Lords, Lord Anderson, Lord Butler of Brockwell, Lord Hain—all these people and others—have experience that they can draw upon and advice that they can proffer. We cannot have this Bill giving so many bodies authority to authorise the commission of crimes. I keep coming back to that, because that is what we are talking about. This has to be handled with firmness, sensitivity and, above all, the knowledge that the last thing we want to become is a state in which the police have virtually unbridled powers.
Police are public servants. We all honour them; we believe we are extremely fortunate in the quality of our police forces even though there have been some terrible recent examples, some of them talked about in this broad context by the noble Baroness, Lady Jones, a little while ago. At the moment—I have half-joked about this in the House recently—we are living in a benign police state where we can be prevented and fined for seeking to sit down with members of our family. It is all very serious, and underlines the seriousness of what this Bill is about.
I beg my noble friend to listen to those who have spoken with great experience and authority, putting forward ideas that are practical and workable; some doubtless better than others, but we must have a system where a person of real seniority, answerable for his or her decisions, can give the authorisation before the crime is committed.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I understand that the noble Baroness, Lady Wheatcroft, has withdrawn, so I call the noble Lord, Lord Butler of Brockwell.
Lord Butler of Brockwell (CB) [V]
My Lords, I have put my name to the amendment from my noble friend Lord Anderson. Over the years of my career in government, I was involved in successive pieces of legislation governing intrusion by state institutions. They were necessitated by the European Convention on Human Rights judgments of the European Court, as well as by the growing availability of technology making such intrusion possible. It is many, many years since it could be said that the intelligence agencies could bug and burgle their way around London without let or hindrance.
This Bill deals with a specific form of intrusion—namely, infiltration into groups or activities for the purposes of gathering intelligence. That gives rise to profoundly difficult issues. The noble Lord, Lord Hain, has spoken powerfully on this issue and illustrated how things can go grievously wrong, but despite having been the victim of surveillance himself, he none the less acknowledges that such surveillance is often necessary.
Lord Carlile of Berriew (CB) [V]
My Lords, it is a privilege to follow my noble friend Lord Butler of Brockwell. His clarity and measured critical faculty provide an example to us all at all times.
I speak in support of Amendments 46 and 73, which were moved with such clarity by my noble friend Lord Anderson. I have added my name to each. Because his argument was so cogent and full, I do not need to repeat any of it, and I shall try to make a short speech. I did want to say, near the outset, that I am surprised that so few noble Lords have spoken clearly in support of MI5 and the police of today. I agree with much of the criticism of the authorities of yesteryear, but we are talking about the authorities of today. They protect our country and our citizens, and they deserve our proportionate support, which, I would suggest to your Lordships, Amendments 46 and 73 provide.
I preceded my noble friend Lord Anderson as Independent Reviewer of Terrorism Legislation. Between us, we were independent reviewer for 16 of the last 20 years. Both of us, in our different ways and in different times, have observed, in real time, the operation of CHIS in the terrorism arena. I, as a barrister who has been involved in many criminal cases, have observed the way in which CHIS have brought many serious criminals to justice. We must put aside our prejudices, often formed from anecdote, and we must aim to provide operational practicality together with rigorous scrutiny. That balance must be achieved based on current practice of those services of today to which I referred a few moments ago.
The Government are right to introduce legislation as we have before us today that seeks to set out clearly how such authorities should behave. I do not believe anyone in this debate has referred to the code of practice of the handling of CHIS, which, as I said at Second Reading, should be required reading for everybody talking on these issues. We must look at the provisions in the Bill alongside that code of practice, which, as has been said frequently, is legally enforceable. Together, they provide the proportionate support for the process that I mentioned earlier.
It was said at one point in the debate by a noble Lord for whom I have great respect that the police are being given unbridled power. With respect, that is a gross exaggeration. The whole aim behind this Bill and the code of practice has been to dilute police and MI5 powers, such as they are, by bringing them under regulatory control that is strict but proportionate. In my view, this part of the Bill sets out and distinguishes a proper role for the investigators and judges in IPCO respectively. We do not have an investigatory system of justice, with investigating magistrates, in this country. However able judges are, not one of them, as far as I am aware, has ever been an operational investigator in the difficult area we are discussing. But they have experience, often brilliant experience, in after-the-event scrutiny. That is what judges do.
I urge the Government therefore to accept the modifications in the amendments which I support, recognising that some strengthening of the Bill’s provisions as they stand is needed, but to resist a system which would cause delay and would not improve the skills applied to the kinds of operations that we are considering.
Baroness Manningham-Buller (CB) [V]
My Lords, I am delighted to speak to Amendment 46 and to say a few general words. I have heard lots of excellent speeches today. Unfortunately, I could not be at Second Reading, but I listened to the debate afterwards, and I am sure that, as with most legislation that comes before your Lordships’ House, we will improve the Bill. I welcome this legislation, for many of the reasons said by other noble Lords, most recently the noble Lord, Lord Carlile. It is long overdue, and I declare a strong interest as a former member of MI5 for 33 years. It is on that experience that many of my comments today are based.
Running agents, as we call them—I draw this to the attention of the noble Lord, Lord Cormack—is a central part of the work of MI5, and always has been. I can remember—I have checked with former colleagues, who have found paperwork going back 27 years to 1993—raising with Governments the need for legislation to cover the activities of what were then called “participating agents”. I do not apologise for reminding the House of a little history; that date was before the Intelligence Services Act, which put SIS and GCHQ on a statutory footing, and before the establishment of the Intelligence and Security Committee. My service’s request always ended up in the “too difficult” tray, but MI5 seeking legislation was part of a pattern of which I am proud. It argued for a security service Act, for a parliamentary oversight body, and for what became RIPA, long before others did.
Why did we want that legislative framework? Because a robust legislative framework provides clarity and confidence for the public, who need to help us in our work, for those members of my old service, for others doing intelligence and security work, and for our agents, our covert human intelligence sources. I do not accept the argument that they are unconcerned by this. I am afraid that it is not true. Legislation also builds in oversight and accountability. The current litigation has led to uncertainty, so there is an overwhelming operational requirement for this legislation.
So why this particular Bill? Although it is good housekeeping, it is not just that, and here I will talk about some of these covert human intelligence sources and agents. Every day, brave men and women, usually members of the public, in my experience, risk violence, and even torture and death, to obtain intelligence which may well save lives. There are extensive examples of thousands of lives that have been saved as a result of their work, although generally that cannot be made public in any detail because we have a moral obligation to look after them for the rest of their lives. I am afraid that I do not accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity. They are brave men and women, and we should all be thankful to them. They should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk. It may be proportionate and necessary for them to commit crimes in order to be trusted or to prevent more serious crime. I absolutely cannot conceive of their ever being authorised to commit the sort of crimes which it is their role to try to prevent.
I note that in its 2018 report, IPCO said that all authorisations by MI5 for its sources to commit crimes were,
“proportionate to the anticipated operational benefits”
and met the high-necessity threshold. Of course I understand the disquiet of the House about authorising crime, although this has happened for decades, and I see the attraction of extending the powers of IPCO by asking that body to give prior authority. I have no objection to that in principle, and doing so might give some comfort to the handlers and the agents. But—and it is a very big “but”—I cannot see that it is practical.
Baroness Hamwee (LD) [V]
My Lords, the House has been privileged to hear from the noble Baroness, Lady Manningham-Buller, on this subject. My noble friend Lord Paddick and I have tabled Amendment 47 as an amendment to Amendment 46, which she supports. I am a little diffident about what may appear to be a challenge to the “quartet”, as the noble Lord, Lord Cormack, called them, of four noble Lords who all have considerable experience, in their different ways, of dealing with these issues directly. I think my points are relevant to some other amendments as well.
Our Amendment 47 explores what the next steps should be after the steps set out in subsections (8A) to (8C) in Amendment 46. My noble friend Lord Paddick will deal with what I think he might describe as the operational realities that make prior authorisation impractical. Allied to that, I note the phrase of the noble Lord, Lord Anderson, “human complexities”. I take his point about aiming for what might be possible in political terms in this area.
In our view, there should be further steps after notice has been given to the commissioner. Of course, he could and should deal with notices of criminal conduct authorisations in his annual report—in addition, he can deal with them in reports to the Prime Minister—but if the notice is to have teeth, as my noble friend Lord Thomas put it, something needs to be there to follow through. Even a decision to do nothing would be an active decision.
We propose that the commissioner should consider subsection (4) of proposed new Clause 29B—one of the new provisions in the Bill—including whether the criteria of necessity and proportionality are satisfied, and any other matters introduced under subsection (4)(c) by the Secretary of State. Of course, I am aware that the question of what is believed—whether that is an objective or subjective test—is rather begged by my amendment, but we will come to that in the debate on the next group.
Perhaps noble Lords are attracted to something like our proposal. I am sure that it would need expanding—for instance, to allow inquiries by the commissioner, questioning the person giving notice and so on. If the commissioner considers that subsection (4) has not been satisfied, we suggest that two things should follow. The first should be that the conduct would be not be lawful for all purposes, which would reintroduce the question of redress, including applications to the criminal injuries compensation fund. Secondly, the matter must be reported to the head of the relevant public authority—the National Crime Agency, the Gambling Commission, whoever. In turn, the authority should refer it to the DPP, and the usual steps should then follow. For good measure, our amendment makes direct mention of the annual report.
In other words, our amendment is a development of Amendment 46, which would introduce a circle that we think needs rounding off. I hope that, to pick up on the point made by the noble Lord, Lord Carlile, this is regarded as proportionate support. My noble friend Lord Paddick will have observations on the other amendments in this group when he speaks from our Benches.
Baroness Penn (Con)
My Lords, I beg to move that the debate on this amendment be adjourned.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Tuesday 1st December 2020
(4 years ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-III(Rev) Revised third marshalled list for Committee - (1 Dec 2020)
Baroness Whitaker (Lab)
My Lords, in speaking to Amendment 77, I should first declare that my daughter wrote on this subject in a book on powers of investigation and human rights. I should also add that the noble Lord, Lord Marlesford, very much regrets that he is unable to speak to this amendment, which he warmly supports.
I do not have much to add to the expert introduction of my noble friend Lady Clark of Kilwinning. I simply emphasise, as a former member of the NUJ, that this amendment bears particularly on investigative journalism and the exposure of illegal, exploitative or anti-social activity: writing that could arguably impact on economic well-being or disorder and which we need to protect, in the public interest, as a keystone of democracy. The confidentiality of journalists’ sources is protected by Article 10 of the ECHR’s guarantee of freedom of expression, as my noble friend Lady Clark said. Further, any statutory provision allowing the circumvention of the existing legal protection of journalists’ sources is also dangerous because it will deter those sources from coming forward.
The Secretary of State for Justice, when Solicitor-General, said that the ability of sources to provide anonymous information to journalists needed to be protected and preserved. This will not happen if those sources are at the mercy of the wide range of covert intelligence agents that the Bill would casually authorise with no judicial oversight.
As my noble friend Lady Clark said, the Investigatory Powers Act requires prior judicial authorisation as essential when any application is made to identify confidential journalistic sources. When he was a Home Office Minister, Nick Hurd MP confirmed that these protections were necessary to comply with the Government’s obligations under Article 10, that the police require a production order from a circuit judge, under the Police and Criminal Evidence Act, and that they must, in addition, satisfy the conditions of confidentiality. We should not dilute this kind of obligation. I hope that the current provisions are not yet another attempt by this Government to muzzle, challenge and undermine one of the democratic pillars of freedom.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I agree with everything she said. I also have a daughter who is a journalist so, for me, this is quite personal. I also care very much about the truth, and journalists are often the people who give us the truth in any particular situation.
I have signed Amendment 77, and I thank the noble Baroness, Lady Clark of Kilwinning, for it. It is slightly awkwardly included in this group, but it addresses the specific issue of protecting journalism and journalistic sources. We need that in the Bill. We have put it into other Bills, such as counterintelligence or counterterrorism Bills, and it would easily go into this one as well. It would make sure that we have a clear commitment to journalism. I realise that this is not particularly comfortable for this Government, which have criticised a lot of lefty journalists—as well as lawyers—but it is incredibly important.
This group generally shows broad support across your Lordships’ House for the principle that judicial authorisation must be built into the Bill. It must not be arbitrary or a rubber-stamping exercise; it has to be the real stuff. In many ways, comparing it with search warrants issued by a magistrates’ court is much too weak a comparison. High-level crimes can be authorised in the Bill, with deep and lasting consequences. There must be high-tier judicial oversight and approval to match.
The question is whether we can build consensus around a way forward. Amendment 61 in the name of the noble Baroness, Lady Kennedy of The Shaws, is perhaps the easiest solution to this problem. It sets up the judicial commissioner as the proper overseer and sets out the legal test that must be met to grant an authorisation. In particular, it tests the reasonableness of granting authorisation and explicitly protects against breaches of human rights, which we will come to later. Overall, the Government are being offered a selection of solutions to a problem. I hope that they take one of them.
Baroness McIntosh of Pickering (Con)
I will speak to Amendments 12 and 61 in my name and that of the noble Baroness, Lady Kennedy of The Shaws. I am grateful to the Law Society of Scotland for its briefing. I am not particularly well qualified to speak on these issues, as many who have already spoken have direct experience in this regard, but I believe in due process and natural justice. I am concerned that we are reversing activity that was criminal and making it legal.
As the Law Society of Scotland has pointed out, scrutiny of the exercise of these powers lies with the Investigatory Powers Commissioner, who is required to produce an annual report. However, this is scrutiny after the event. It will be limited and may not provide us in Parliament with the robustness that the exercise of these powers commands. Therefore, given the nature of the policy, there should be checks and balances to ensure the effective operation of these organisations to ensure that there is public confidence in the use of these powers by providing limits on their use and adequate scrutiny.
I am attracted to Amendments 12 and 61, which the noble Baroness, Lady Jones of Moulsecoomb, referred to, as well as to Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich, which have many elements that commend themselves. Amendments 12 and 61 ensure that criminal conduct authorisations receive prior approval from a judicial commissioner. In the debate last week—which seems a long time ago— there was a great coalition of views around whether approval should be given by a judge, a judicial commissioner or a member of the Investigatory Powers Commissioner’s Office. I would be guided by those with much greater experience than I have in that regard.
However, it is important for there to be greater scrutiny before criminal conduct authorisation is granted, rather than after the event. In terms of due process, it should not be for the organisations, in the words of the noble Baroness, Lady Kennedy of the Shaws, to mark their own homework. The issue should not be simply for a senior official in the departments—I am particularly concerned about the Food Standards Agency and the Environment Agency—and we will come on to explore those in greater detail. In the words of the Law Society of Scotland,
“The Bill authorises persons within the relevant organisations to act with impunity where authorised by indicating that the criminal law will not apply to them in undertaking acts which would otherwise result in prosecution and conviction. In most circumstances, what will happen is that justification of the criminal conduct will be sought after the event”.
I put it to the House this afternoon that that is unacceptable, and authorisation should be granted—preferably judicial authorisation, in the best format possible—before the act that would otherwise deemed to be criminal actually takes place.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I understand that the noble Lord, Lord Judd, has withdrawn, so the next speaker will be the noble Lord, Lord Naseby.
Lord Naseby (Con)
My Lords, in many ways, subsection (5) of Clause 1 could well be the most important part of the Bill. I should make it clear that I support MI5. Its focus and dedication to working in the national interest is second to none.
Criminal activity has to be limited and defined, but the most difficult area is defining the methodology. Who should give clearance? I am not convinced that a judge, however senior, necessarily has the right experience. In my judgment, we need someone with specific experience in this challenging area. In reviewing this matter, we should look at what other countries do, particularly the USA and Canada, as other noble Lords have mentioned. Both appear to be pretty successful in this area. I am not qualified to make a judgment on that, but I should be interested, too, in what Australia does. Reference has been made to a close friend of mine, the late Desmond de Silva, who carried out marvellous work for the UN in Northern Ireland. In that context, he produced a framework of control, which needs to be looked at because it includes areas that merit serious consideration.
Part of what we are considering is the future security of our country, which brings me to the integrated review of foreign defence, security and development policy announced recently in the other place. I shall quote from the penultimate paragraph, which states:
“I can announce that we have established a National Cyber Force, combining our intelligence agencies and service personnel, which is already operating in cyberspace against terrorism, organised crime and hostile state activity. ”—[Official Report, Commons, 19/11/20; col. 489.]
It is clear to me and, I imagine, your Lordships that life in the 21st century will be quite different from anything we have yet experienced.
Against that background, the control proposed in Amendments 46 and 73 may be the way forward. They need refining and the contributions of my friends, the noble Lords, Lord Butler and Lord Carlile, should be considered. Noble Lords should make no mistake: this is a crucial area for the future security of our country.
Lord Blunkett (Lab)
My Lords, it is a pity, although entirely understandable, that we had to break the debate last week because not only were the contributions extremely informative and, in some cases, profound, they set the context as we continue the debate on this group.
I want to pick up a point made by the noble Baroness, Lady McIntosh, in relation to making the illegal legal. We are here because we want to provide a regulatory framework and powers to ensure that what was undertaken previously is set in the context of legal and authorised actions. Phone tapping, interception and surveillance were all illegal until they were authorised in a regulatory framework, which happened only in recent decades. What we are trying to do here is fill a hole to ensure that we have a grip on this and know what is being done on our behalf and that it is being done in an acceptable fashion.
That is why I want to speak to Amendment 15 in the name of my noble friend Lord Hain, who spoke powerfully and from the heart last week about his experience. I also support the concepts in Amendments 46 and 73, ably spoken to by the noble Lords, Lord Anderson and Lord Butler, and the noble Baroness, Lady Manningham-Buller, who I worked closely with when she was head of the Security Service. When I was Home Secretary, the noble Lord, Lord Carlile, was surprised to receive a phone call from me asking him to have oversight on terrorism, which I was pleased to do. In a non-partisan way, I say to the Minister, who does not carry responsibility for this matter, that she might take the message back to her colleagues in the Cabinet that it sometimes helps not to be seen to give your friends all the jobs. I just lay that on the table.
There is also a great deal of merit in the amendment tabled by my noble friend Lady Clark, and spoken to by my noble friend Lady Whitaker. We have seen important exposés by people embedded in homes for people with learning disabilities, children’s homes and retirement homes. We must be careful not to infringe on legitimate investigations.
However, I want to return to the debate on Amendments 15, 46 and 73. I thought that some very good points were made in relation to the proposals put forward by my noble friend Lady Kennedy. I understand why, but there is a real contradiction in putting a judge up front in charge of legalising something rather than having them act as a commissioner in reviewing a decision that has been taken. As was said last week, it misunderstands the role of the judiciary—even barristers can sometimes misunderstand the role of the judiciary—not only in terms of its profound and important role in our legal, criminal justice and constitutional life, but in terms of the skills and experience that members of the judiciary gain in building to the point where they take on the job, and the experience that they have in the job. It is worth looking at the role of the Home Secretary or, in the case of my noble friend Lord Hain, the equivalent in Northern Ireland. Their important role is legitimised by their being elected and they are accountable in the sense that they can be held to account if they report back to the two Houses of Parliament. Perhaps this proposal could be integrated with those in Amendments 46 and 73.
As the noble Lord, Lord Cormack, said last week, a behind-the-scenes, behind-the-Chair discussion before Report might be a way forward. The Minister would be able to seek agreement from her colleagues so that there was sufficient movement to enable us to agree and to provide the legitimacy and accountability that everyone is seeking in this group of amendments. If we could do that, we could move forward with some confidence that we will put right something that should have been put right. Although the issue was not prevalent at the time, I accept my part in not having filled every hole in the process of ensuring that we scrutinise and have a mechanism to review, and therefore legitimise, what has taken place. I am really pleased that we have been able to continue the debate this afternoon. I hope the Minister will be able to pick up not only on the comments this afternoon but on the very substantive issues raised last week.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, it is a great privilege to follow the noble Lord, Lord Blunkett, who has brought to bear his own experience on this issue. I would like very briefly to speak in favour of all these amendments. In essence, there are five main proposals before the House, some with variance. They are as follows: first, leave it as it is and rely on the discretion of the prosecutor; secondly, have authorisation in all cases either by the secret services or by the Competition and Markets Authority, or any of the authorities, and, in due course, review by the Investigatory Powers Commissioner; thirdly, pre-authorisation either by a judge or by the Investigatory Powers Commissioner or a Secretary of State; fourthly, pre-authorisation, except in an emergency, by the same people; and, fifthly, real-time notification.
I agree with the noble Lord, Lord Blunkett, about the comment made last week by the noble Lord, Lord Cormack—who spoke very wisely, as he often does, in saying that we should attempt to find the best solution. The difficulty is knowing how to do that without evidence as to the pros and cons. None of this is easy and getting it wrong will be very damaging to all concerned. Perhaps I may illustrate that by taking one of the alternatives and saying what it would be helpful to know. I shall take the example of real-time notification.
The first question I would like answered is: if the authorities can tell the Investigatory Powers Commissioner within seven days, why is it not possible in most cases to notify in advance? It would certainly be far safer to do that. Secondly, if this course is adopted, will each change have to be notified? Thirdly—this is the most serious question—what will happen if the Investigatory Powers Commissioner says that the authority should not have been granted? Will the authorisation cease immediately; and if it did not, what would the consequences be under the Human Rights Act, for example, for those affected? Presumably, any disallowance or contrary views by the IPC would not be retrospective. Fourthly, would not the report at the end of the year identifying that authority should not have been granted be more damaging than trying to stop that mistake in the first place by pre-authorisation?
Should this real-time notification apply to everyone? Like the noble Lord, Lord Naseby, and many others who have spoken, I have the greatest admiration for the security and secret services. But is the same true of the Competition and Markets Authority and the Food Standards Agency? We have to be careful of what can happen on people’s coat-tails.
Finally, I really do think it would be useful to have the views of the Investigatory Powers Commissioner himself on this idea. He has to operate it; does he think it practicable, and what is to happen?
I could, drawing on my own experience, try to give some more details in respect of these matters, but I fear that in doing so I might be at risk of transgressing, as would other noble Lords, by inadvertently saying something very sensitive. That is why in our previous sitting, in the debate on the second group of amendments, I suggested finding a means of ensuring that there is evidence before the House to enable it to understand the deficiencies in the present law which need to be corrected, and to scrutinise the proposals for reform and try to ensure that the proposals, if necessary as amended, will work well for the future. My general experience has been, in relation to both the police and the security services, that they are rightly reticent about putting matters into the public domain. But it is often possible to put sufficient into the public domain without damage to security and methods of operation. However, you cannot do that unless you know enough about the issues and the evidence.
It is also my experience that subjecting issues of this kind to independent scrutiny and not relying on conclusions that are put forward is in the overwhelming interest of the security services, the police and the other bodies. That is because these are difficult issues of judgment that need to be scrutinised externally and independently and then addressed so that the risk of future errors is minimised and confidence maintained. That is why I would hope that means can be found to enable the House to carry out the constitutional function I have outlined. I have suggested referring either the Bill or specific issues to a Select Committee, under Standing Order 8.118, which can take evidence in private and publish a report, or—an alternative as suggested by my noble friend Lord Anderson of Ipswich —to seek a report from an individual. I would hope that the report would enable us to do our constitutional duty, find the right answer and be able to reassure everyone that we had, on this extraordinarily difficult issue, made a decision where the safeguards were right and that was practicable. I have written to the Minister and discussed this with her. I very much hope that a way forward can be found.
Lord King of Bridgwater (Con) [V]
I am very pleased to follow the noble and learned Lord, who ended by saying that he wanted to ensure that the solution was practicable and workable. I strongly agree. This is the first time that I have had a chance to speak on the Bill. I straightaway echo very strongly the comments of the Joint Committee on Human Rights, which recognised that, in an increasingly dangerous and unstable world, covert intelligence has a vital role to play in protecting our country from terrorism, organised crime and the growing threats to our national well-being. I was very impressed by the information that James Brokenshire, the Minister for Security, gave on Second Reading in another place. In the year to November 2019, in London alone, covert intelligence led to 3,500 arrests and the recovery of 100 firearms and 400 other weapons, half a ton of drugs and £2.5 million in cash. I note also the evidence given that, in 2017, covert intelligence foiled an attack on No. 10 Downing Street. Having myself been a victim of the mortar attack 30 years ago on No. 10, I am sorry that we did not have better covert intelligence then.
I also recognise that this vital tool must be put on a proper statutory basis. I have to say again that it is not before time, because it was 26 years ago that the Secret Intelligence Service and the Intelligence and Security Committee, which I had the privilege to lead in its early years, was put on a statutory basis.
Lord Campbell-Savours (Lab) [V]
My Lords, I will confine my remarks on this Bill to the thrust of Amendment 46. I declare an interest as a former member of the ISC from 1997 to 2001, under the excellent chairmanship of the noble Lord, Lord King of Bridgwater, who has just spoken and who equally supports Amendment 46. I am not a lawyer, but I ran with the hounds in the Commons during the Peter Wright affair of the 1980s. In doing so, I developed an interest in authorisation procedures, which I followed up as a member of the ISC.
As I read it, it is uncertainty over compliance with the Human Rights Act, the ECHR and the implied powers therein that is driving legislative reform. The problem is only aggravated by the inclusion of a raft of new bodies, some presumably with marginal quasi-professional experience of covert action. My problem is the inadequacy of post-event assessment. An annual report from the Investigatory Powers Commissioner is not enough. An onerous system of prior authorisation is too much. We need a robust, uncomplicated procedure of prior scrutiny, not authorisation, where the rights of individuals and the state are fully recognised.
I place on record the statement from Andy Erlam, the principal complainant in the Tower Hamlets v Rahman case, which exposes deficiencies in the current CHIS-bases system: “An attempt was made to recruit me as a CHIS some time ago. I had taken a successful election petition against the Mayor of Tower Hamlets, Lutfur Rahman. The police officer who met me was from the Metropolitan Police. He said he was employed by the Department for Professional Standards but that he had a national role in supervising CHISs. He asked me to recruit CHISs, and documentation exists to confirm that this meeting took place. I learned that the officer who had authorised the approach to me was the same officer in charge of the two Metropolitan Police criminal inquiries into Mr Rahman, and that the commission and the City of London Police inquiry all found insufficient evidence. Yet the campaign in Tower Hamlets which I led exposed extensive corruption. I suspect that the police were compromised in some way. I experienced police harassment and an attempted arrest in the middle of the election High Court trial, an election case which I later won. If the use of undercover operations can be justified in some cases, I do not think they should ever pervert the course of justice. I believe this approach was an attempt to compromise me. Police officers who I know informally state that the use of CHISs leads to lazy policing, and it is never clear whether the police are using the CHIS or the CHIS is using the police. The current proposal to extend legal immunity to cover CHISs carrying out criminal activities is a matter of considerable concern.”
Erlam is questioning a whole CHIS-based system. I do not, but on accountability he is right. We need a far more robust system of prior evaluation and scrutiny. In this debate, we have heard demands for prior judicial authorisation, judicial commissioners, the use of prosecutors and judges, and a prosecutorial approach with warrants, and the Government are saying no—although there was a slight movement from the Government in last week’s debate, a hint at reconsideration. Anyhow, whatever the position, the Government will have their way, with their 70-seat Commons majority, so a compromise must be found, and I propose a compromise.
I have two alternatives. First, I propose that the remit of the chairman of the ISC be extended in the way that I have previously suggested during ISC debates, to give him or her prior access to intelligence-based CHIS operational activity—a prior scrutiny role, not an authorising role—in the handling of all CHIS. It would mean restoration of the prime-ministerial lock on ISC chairmanship appointments. Under this proposal, the chairman would be able to release CHIS information to the ISC only where it is agreed to do so with the agency heads, including the wider list of agencies currently being proposed.
It could be argued that to include the Food Standards Agency et al could be stretching the duties placed on the ISC chairman, and potentially in a much limited form on the committee, far too far. I say that as we simply do not know the volume of CCAs. If that was a problem, the Speakers of both Houses could be asked to nominate an agreed alterative person or persons, depending on the volume of CCAs, to carry out the function. I suggest a Member of this House, their role being prior scrutiny of CHIS operational activity, not authorisation. I believe that we have people in Parliament who, as former chairmen of the ISC or other respected Members of this House, are as worthy of access to information in the deepest recesses of the various intelligence communities et al as any agency head.
Another way forward could be to appoint a scrutiny group comprising either two or three persons as part of the same prior scrutiny process. Such a group should comprise at least one member of a legislature of high standing—again, appointed by the Prime Minister but ratified by Parliament. In my mind, a member of a legislature must—I repeat “must”—be party in one form or another to whatever process is selected. In the USA, the defense appropriations subcommittee is, by law, according to Wikipedia, “fully and currently informed” of intelligence activities. This includes being kept informed of covert actions and any significant intelligence failure. I am not even asking for that. Wikipedia goes on to say that, under certain circumstances, the President may restrict access to covert activities to only the chairman and vice-chairman of the committee. I will settle for that. I am asking, in compromise, for a lesser form of accountability under a less onerous arrangement.
Under my second way forward, the second and third persons could be judiciary-drawn and/or departmental accounting officers. To me, the appointments under both options are particularly important in this new world of heightened tension, international trafficking, greater sophistication in fraud and organised crime. We cannot underestimate these dangers.
Equally, we need a commensurate increase in accountability. After over 40 years in public life, I have learned that transparency, by its very nature, influences conduct and thereby, to some extent, control to varying degrees. I support the thrust of the amendments that extend accountability, if not the detail, as proposed in the Committee today.
Lord Bach (Lab) [V]
My Lords, it is a privilege to follow my noble friend Lord Campbell-Savours, whose expertise in this area is well known and has been for many years.
There are many profound constitutional issues in the Bill, and many of them have been debated in this long group of amendments. I speak in support of Amendment 76, in the name of my noble friend Lord Hunt of Kings Heath. My noble friend and I agree that this is not a profound constitutional amendment but we argue that it is important none the less.
Noble Lords will recall the highly effective speech of my noble friend Lord Hunt last week in which he argued that police and crime commissioners should have some standing in relation to the annual inspection of police forces by the Investigatory Powers Commissioner and not just be excluded from playing any part. Of course, I must declare my interest as the elected and full-time police and crime commissioner for Leicester, Leicestershire and Rutland. I will try not to repeat my noble friend’s arguments but will attempt to persuade the Committee to reach the conclusion that, as with all inspections of a police force, it is essential that a police and crime commissioner plays some part.
Why do I say “essential”? Many noble Lords will remember the passage through Parliament of the Police Reform and Social Responsibility Act 2011. The then coalition Government, in setting up elected police and crime commissioners in place of appointed police committees, were clear that the role of a police and crime commissioner was to represent the public and hold the force to account for its effectiveness, its efficiency and, importantly, its legitimacy.
Lord Janvrin (CB) [V]
My Lords, I support the case for strengthening oversight as put forward in Amendments 46 and 73, and I add my voice to those questioning the case for prior judicial approval of criminal conduct authorisations.
I speak not as a lawyer or practitioner but as another former member of the Intelligence and Security Committee, where we had plenty of evidence of the importance of covert human intelligence sources. I share the view that we need to get the balance right between, on the one hand, constructing a rigorous legal framework to support the activities of our intelligence and security agencies while, at the same time, still giving them the practical operational flexibility to carry out their difficult work effectively.
I have listened carefully to the strong arguments in favour of prior judicial authorisation. It is, as has been pointed out, what is required for other activities of the intelligence services and police. Should we not follow the practice of communications interception or search warrants? There are important differences. The person authorised to tap a phone or search a premises will be a public servant: an agent of the state. The person being given a criminal conduct authorisation may be a private citizen—possibly but not necessarily—from the margins of society, acting almost certainly from a complex set of motives and probably knowing that they are putting themselves in danger.
In the first case, authorisation seems to be essentially a judgment about compliance with the law. However, a criminal conduct authorisation requires, in addition, personal knowledge of the agent concerned and human relationships involved in complex circumstances. It is about making a judgment, possibly urgently, on human motivation, limitations and behaviour, and about operational context and risk. Therefore, on balance, I share the view that the handler or controller is better placed than a judicial commissioner to make that judgment call on what should and should not be authorised. Obviously, I am in no way against judicial authorisation in principle; it is about getting the best decision.
I would add a small point. For the handler to know that he or she is the authorising officer makes him or her more clearly accountable. It concentrates the mind to sign something off. As my noble friend Lord Anderson observed, it also concentrates the mind to know that your decision will be scrutinised immediately and rigorously. I therefore strongly share the view the present oversight arrangements should be significantly strengthened in the ways put forward in Amendments 46 and 73 to allow immediate scrutiny by the Investigatory Powers Commissioner. My noble friend Lord Anderson and colleagues from the Cross Benches have spoken with much greater experience than me on the need for real-time oversight. I find the arguments persuasive. Indeed, there may be a case for giving judicial oversight powers more teeth—perhaps along the lines of Amendment 47 or something similar.
Finally, I said at the outset that we are looking to get the balance right between a robust legal framework and operational flexibility. Obviously, this applies across the Bill. I ask the Minister to consider whether, by strengthening significantly the oversight arrangements, she will mitigate some of our other concerns around, for example, immunity or the serious crimes threshold in this important Bill.
Lord Morris of Aberavon (Lab) [V]
My Lords, I support Amendment 14. I was sorry that I was unable to attend Second Reading. I was sitting on a sub-committee of the EU Select Committee and was therefore unable to welcome the noble and learned Lord, Lord Stewart of Dirleton, and congratulate him on an impressive maiden speech. He gave the impression that he had been introducing Bills in your Lordships’ House all his life.
I welcome the Bill, which provides for authorising offers to be given express powers to authorise criminal conduct that would otherwise be illegal. They carry a heavy responsibility, hence the need for supervision. Given the history of direct government intervention in coal mining disputes many years ago, I look forward to debating amendments in the names of my noble friends dealing with trade unions. Powers given
“in the interests of the economic well-being”
of the state will need close scrutiny. I am proud that, in a small way, I was able to give a little legal advice to the south Wales miners during the miners’ strike—for the most part, pro bono—many years ago. During my time as a law officer for England and Wales, and separately as Attorney-General for Northern Ireland, although the Attorney-General has general oversight and appropriate clearance, I was not troubled on any issue arising from the Bill. As the House will know, law officers have general oversight and supervision of the offices of state concerning both the rule of law and other matters.
I wish to endorse and reinforce the points made by my noble friend Lord Rosser in his Second Reading speech about the need for judicial oversight prior—I emphasise “prior”—to the event. There is no argument that there should be supervision. The only issues are, first, who should supervise, and secondly, whether it should be post or prior the event. I believe that the arguments for proper prior supervision are fundamental. In our legal processes, we have judges available 24 hours a day. This particularly includes the long vacation— indeed, any time, any place, throughout the year. They can adjudicate from home if necessary; I am told that that is not unusual. Provided a judge is given the right information, a proper judgment can be given. The same applies down the line to the magistracy, which performs a very vital role. Before a warrant is issued, evidence in one form or another is given and judicial authority is given.
I was never involved as counsel on these procedures during my time as a criminal practitioner, but I can give a personal example of the availability of magistrates on family matters. My wife sat for 18 years in the London juvenile courts. Part of her duties involved the care of children who were, or might be, vulnerable. I recall many occasions when I had to leave the sitting room of our London house at the request of a welfare officer so that she could hear evidence, hear witnesses sworn in and adjudicate, pending the following morning when a proper courtroom could be convened. It was vital that there was availability. My point is that there has never been an issue with non-availability of a court sitting at any level. The Minister is not very persuasive in his brief comment in Column 1046. I need to be persuaded why you can have judicial intervention and a judicial decision in so many other fields but not in this one.
We are dealing with very serious matters. Authorising criminal conduct is important and a departure from the ordinary rules of law. If there is any problem about the security clearance of a particular judge, I would be surprised if that could not be achieved. If a High Court judge cannot be trusted, who can? It would not be beyond the administration of justice to have a panel of designated judges with experience in this field who adjudicate from time to time and can authorise the necessary activities.
This brings me back to the key question: who is to guard the guardians? This is not to denigrate the experience of the highly trained authorising officers, nor the retrospective—I emphasise “retrospective”—oversight of the Investigatory Powers Commissioner. Prior judicial authority is the best safeguard to ensure that, where there is a departure from the rule of law in ordinary circumstances, there is proper supervision of the activities.
Lord Rooker (Lab) [V]
My Lords, I too regret the split in this debate and certainly hope that it does not happen again. Members were left high and dry with no knowledge of what was happening on the evening concerned. However, that is in the past.
One minor caveat is that I served briefly as Minister of State both in the Northern Ireland Office and the Home Office, but I was involved purely in domestic matters—never in anything remotely regarding security or policing.
I applied to speak to this group of amendments only for the specific purpose of supporting Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich. I would have considerable difficulty supporting other amendments in this group, as I will if they come back on Report.
We have heard some powerful speeches about events of the past; in no way do I denigrate these, but this Bill is about the future. We have also heard much about the current inquiry into undercover policing. While I share the concern, and am quite appalled at some of the activities that have been disclosed, I do not see a massive connection with this Bill.
At Second Reading I said that, in the main, I think of a CHIS—a covert human intelligence source—as
“someone who is not an employee of the police or security services, but an outside, undercover informer or agent.”—[Official Report, 11/11/20; Col. 1079.]
No one is seeking a free-for-all. Some years ago, I spent a day in Thames House. Much to my surprise, I came away with the impression of liberal—with a small L—attitudes and, above all, a desire to serve and be accountable to Parliament and the rule of law.
The noble Lord, Lord Anderson, said at one point in his speech that, in the past, he was converted to prior judicial review. I took this to be in respect of the issues he was dealing with at that time, and that has, in the main, been accomplished on other issues. I was also struck by the point he made about the FBI and Canada not using judges for prior approval. This point does not come across in some of the briefings received on the Bill.
Handling a covert human intelligence source is real, practical, person-to-person work, and Amendment 46 is a much better alternative than the others in the current circumstances. The noble Lord, Lord King of Bridgwater, reinforced that, making the point that other alternatives do not seem practical. This was reinforced again by the noble Lord, Lord Butler of Brockwell, who spoke about the work of a CHIS as a specific form of intrusion that required a specialist overseer as it was not a specific one-off act. The work of the CHIS is different from other intrusions such as telephone intercepts or surveillance. It involves fast-changing situations and sometimes volatile, or possibly unpleasant, personalities. In such circumstances, a clear duty of care rests with the handler of the covert human intelligence source. Too little attention has been paid to this aspect.
The noble Lord, Lord Carlile of Berriew, speaking in support last week, said that, to date in the debate, there had been some gross distortions of the position of the police. I too think some of the language has been extravagant, and it does not fit the here and now.
This brings me to the speech of the noble Baroness, Lady Manningham-Buller. While earlier speeches in the debate drew on practical experience—in particular, that of the noble Lord, Lord Paddick, as a police officer—we can now draw on the personal practical experience of someone who spent 33 years inside MI5 actually running agents in the field and who accepts that there is a life-long duty of care for the agents. Quite correctly, we do not hear much about this, but it is an important point to appreciate. The noble Baroness made a rather telling point, repeated today by my noble friend Lord Campbell-Savours, about MI5 seeking such legislative accountability for running CHIS 27 years ago, before it was a statutory body. Given what I said at the start about what I consider a CHIS to be, it is clear to me that the noble Baroness made a powerful case for Amendment 46, adding to what the noble Lord, Lord Anderson, said in moving it.
Yes, of course, I accept in principle that prior judicial consent could be supported, but it is simply not practical. We need to think of the position of the agents and their handlers in the current circumstances—of those who are making such decisions today. We need to be supportive of change, accept that the situation is not comparable to telephone intercepts and other aspects of surveillance, and be wholly practical in a way that supports those doing this valuable work for the country. I support Amendment 46, unlike many of the other amendments in this group which are simply not practical.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a great pleasure to follow so many distinguished Members of your Lordships’ House—not least my noble friend Lord Rooker. The fact that this group has taken so long, has had by necessity to be split over two days and has contained so many distinguished contributions, merely highlights the gravity of the step taken in this Bill to create advanced and complete civil and criminal immunity for criminal conduct by CHIS, rather than putting CHIS itself on a statutory footing; I remind noble Lords of this. It also serves as a reminder of the care with which noble Lords approach this kind of dramatic constitutional exercise.
It would be remiss of me not to mention that this is the first sitting of this Committee since the Government announced yesterday that, once more, the Finucane family will not get the independent inquiry that they have sought for so long into the murder of the lawyer Pat Finucane. This seems highly pertinent to consideration of this Bill.
If after so long, and if after acceptance—even by a UK Prime Minister—that illegal collusion by state agents took place in that murder, and after so much criticism, including at international level, it is still not considered appropriate to have an independent judicial inquiry, that really does beg the question for the future as to whether any Government, of any stripe, at any moment in history, should be trusted with the ability to authorise a whole host of state agencies to subdelegate the power to grant immunities in relation to criminal conduct to a whole host of currently unspecified levels of authoriser or handler, and to do so without some kind of prior authorisation process. The sheer gravity of that new immunity from civil and criminal suit—which has not been the case up to now—is what I believe has caused such a plethora of alternative suggested safeguards, many of which arise in the group of amendments that we have been discussing in recent hours.
It would be invidious to cite particular interventions, because there have been so many; all have been incredibly expert and thoughtful, coming at the problem of safeguards from a great deal of alternative experience. We have heard from the retired judiciary. We have heard from the noble Baroness, Lady Manningham-Buller, a very distinguished former director of MI5, who of course famously made her maiden speech in your Lordships’ House in defence of civil liberties and against the notion of 42 days’ detention without charge or trial. We have heard from a number of noble Lords who have served at Cabinet level, including my noble friend Lord Hain, who has authorised intrusive activity—necessarily, as a Northern Ireland Secretary—but has also, as he told us quite poignantly last week, been the victim of political manipulation of intrusive power.
My noble friend’s story particularly highlights how a covert human intelligence source is different from other kinds of intrusive power, as has been put eloquently by a great number of noble Lords. A human intelligence source is different because that human is at risk and, as a human, is therefore more precious than a bugging device when at risk. A human intelligence source is also more intrusive and dangerous to those being spied on, because that human will affect behaviour, not just monitor or record it.
In this group, there is a number of alternative authorisation processes and safeguards pre- and post-criminal activity, judicial and political—which, of course, makes me wince slightly. That menu is comparable to the other powers catered for in the Regulation of Investigatory Powers Act 2000.
I remind noble Lords that the scheme of this Bill has essentially been grafted on to a pre-existing scheme in the 2000 Act. Any suggestion that there is currently no regulatory framework for CHIS is not the case—there is. Undercover operatives or agents are authorised under RIPA. However, they are not subject to external authorisation. That may be one problem at the heart of this debate—it is actually human intrusive surveillance or CHIS per se, before we even enter the territory of criminal conduct, which ought to be subject to greater safeguards. However, that is outside the scope of this Bill. It is unfortunate that, in this case, the Government have grafted something as drastic as granting advanced immunity to agents on to a pre-existing scheme without allowing legislators the opportunity to look at that wider scheme itself—because, of course, the Long Title of this Bill is so narrow in just being concerned with criminal conduct and not the authorisation of CHIS. That is unfortunate.
I hope that, in future, at the earliest possible opportunity, the Government will consider having another look at what safeguards should be applied to the authorisation or post-authorisation scrutiny of these undercover operatives and agents. That would help to deal with some of the complex arguments about whether it is appropriate for a judge or judicial commissioner to give a pre- or post- or real-time authorisation or scrutiny of actions that, ultimately, lie in the hands of the CHIS themselves. It is very difficult indeed, because of the fast-moving situations that were described by a great many noble Lords, properly to regulate such activity without regulating the operating mind, drive and ethic of the undercover person.
That brings me to my final point: it would be a great deal simpler if, ultimately, as is the status quo and the mechanism that has been so successful and has saved so many lives, we did not leave open what should be a remote possibility that an undercover operative will have their conduct examined after the fact, when it is criminal conduct, by an independent prosecutor and judge in the normal way, with all the defences that public interest will allow.
Lord Paddick (LD)
My Lords, this has been a lengthy and complex debate, and I blame the noble Lord, Lord Anderson of Ipswich, for that; we tried to split this group to make it more manageable, but his will prevailed.
As the noble and learned Lord, Lord Thomas, said, amendments in this group are on prior authorisation by a judge; by an investigatory powers commissioner; by an investigatory powers commissioner unless it is urgent; by an investigatory powers commissioner if a criminal conduct authority is to be used to identify a journalistic source; and by a Secretary of State. Another amendment requires that an investigatory powers commissioner be notified
“as soon as … practicable, and in any event within seven days”
and that the police authority be involved in holding the chief constable to account as a result of the investigatory powers commissioner’s annual report on the use of CCAs.
It is understandable that noble Lords want prior notification—and why the police should not, as the noble Baroness, Lady Kennedy of The Shaws, said, mark their own homework. On the advice of one noble Lord, I read the code of practice that goes with this Bill. I have held both ranks that could grant a criminal conduct authority under this Bill. In urgent cases, that is an inspector, who can not only grant a criminal conduct authority but also grant immunity from prosecution. I was an inspector at the age of 24. I was also, subsequently, a controller of covert human intelligence sources. I spent 18 years as a uniformed officer. On the Friday I left the office as a uniformed chief inspector and on the Monday morning I was a detective chief inspector in the role of a controller. The Government may say that all the people involved in the matters considered by this Bill will be experienced and highly trained, but that is not always the case in my experience.
We should listen very carefully to the noble Baroness, Lady Manningham-Buller, who articulated why prior authorisation is not practical, a point also made by the Minister for Security in another place and by the noble Lord, Lord Anderson of Ipswich. From my experience I agree, although the description of MI5 handlers and agents as beyond reproach is not, in my experience, universally applicable to police handlers and informants.
Any prior authorisation would instruct CHIS to operate within strict parameters, which may no longer be necessary or proportionate once they are deployed, or may not be adequate once they are deployed, because they are being deployed into rapidly changing scenarios in an uncontrolled environment, often involving chaotic individuals. The most common use of CHIS in policing, for example, is to counter drug dealing. As the noble Baroness, Lady Manningham-Buller, has said, you cannot turn an agent on and off like you can a listening device.
Even the most experienced undercover officer may have to necessarily and proportionately go beyond the strict parameters of a CCA because the situation has dramatically changed in ways unforeseen by the handler. If he were to strictly adhere precisely to a CCA, he could put himself in danger of losing his life. As we will hear in later groups, children are increasingly being used as covert human intelligence sources, some of whom have chaotic lifestyles. Sometimes they are drug users or drug dealers. To expect such people to operate within the strict and precise boundaries of a CCA in such turbulent situations is not only unfair and unreasonable but completely unrealistic. To determine the strict parameters of a CCA to cover every possible scenario, in the middle of a rapidly changing situation, and when the legal immunity of both handler and CHIS depends on it, is unfair and unreasonable to both handler and CHIS.
Those proposing prior authorisation by judges, Investigatory Powers Commissioners and government Ministers may say that any conduct outside the strict parameters of a CCA will be looked at by the prosecuting authorities and a decision made whether to prosecute using the public interest test. In that case, why can the prosecuting authorities not look at all the actions of the CHIS and the handler and decide whether to prosecute?
Amendment 46, for which there seems to be a good deal of support around the House, suggests that the Investigatory Powers Commissioner should be given notice where a person grants a criminal conduct authorisation as soon as practicable and, in any event, within seven days—but, as my noble friend Lady Hamwee and the noble and learned Lord, Lord Thomas, said, so what? What power does the Investigatory Powers Commissioner have to intervene? What happens if the handler corruptly tasks an informant to commit crime? As the authority has already been granted, both CHIS and handler have legal immunity, even if the handler informs the Investigatory Powers Commissioner six days later. A wronged party may be able to claim compensation from an Investigatory Powers Tribunal but criminal offences may have been committed for which the perpetrators should be prosecuted. That is why we have added to Amendment 46, to the effect that legal immunity is dependent on the CCA being approved by the Investigatory Powers Commissioner. If the actions of the handler or the CHIS are not within the limits set out in the Bill, neither are immune from criminal prosecution or from being sued.
I understand completely why noble Lords do not want a criminal conduct authority to be granted without prior judicial or ministerial authorisation because of the potential for abuse. However, as others have said, it is not practical. We believe there is a way to prevent abuse without prior authorisation of a CCA, including protecting journalistic sources, which we will come to in a future group. We have listened very carefully to this debate and have come up with a new amendment; because we were part way through this debate we cannot debate that amendment in this group, but we will come to it in a couple of groups’ time. What must not happen in any circumstances is the granting of legal immunity without judicial oversight. That is what our Amendment 47 attempts to do.
Lord Rosser (Lab) [V]
Amendments 14 and 75 in my name and the name of my noble friend Lord Kennedy of Southwark provide that authorisations may not be granted under this section until a warrant has been issued by a judge. An application to a judge must be made in writing and provide details, including the reasons why it is required, who it covers, the length of time it will be active for, and previous applications covering the same individual. Our amendments also provide that a person who grants a criminal conduct authorisation must inform the Investigatory Powers Commissioner within seven days of granting the authorisation. We seek to strengthen both prior and post-authorisation oversight.
Amendment 77 in the name of my noble friends Lady Clark of Kilwinning and Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb, calls for prior judicial approval before an authorisation can be granted
“for the purposes of identifying or confirming a source of journalistic information”,
and is in line with our amendment providing that authorisations may not be granted until a warrant has been issued by a judge. Amendment 46 in the names of the noble Lords, Lord Anderson of Ipswich, Lord Butler of Brockwell, Lord Carlile of Berriew, and the noble Baroness, Lady Manningham-Buller, is very similar to our Amendment 75 requiring a person who grants a criminal conduct authorisation to inform the Investigatory Powers Commissioner within seven days of granting the authorisation. However, all the amendments we have been discussing in this group reflect a strong feeling that the oversight arrangements set out in the Bill for the statutory power by public authorities to grant criminal conduct authorisations are inadequate and do not provide reassurance that the likelihood of this power being misused or exceeded is reduced to a minimum.
What exactly has been happening under the present arrangements is far from clear, although we are assured that they have enabled threatened terrorist atrocities and other serious crimes to be thwarted and our safety to be secured. We have no reason at all to doubt that. However, we do not know the extent to which powers have or have not been misused or exceeded since there is no means of that information consistently coming to light. Without proper oversight to act as a firm check there is a risk that some may become somewhat overzealous in how they exercise and interpret the powers they are given under the Bill, including what might be regarded as acceptable covert human intelligence activity, and against what and whom.
We believe there should be prior judicial authorisation, with authorisations not being granted until a warrant has been issued by a judge. Having to obtain a warrant before action can be taken is nothing new. Bearing in mind the potential gravity of the decision to authorise criminal conduct, the necessity to obtain a warrant beforehand seems even greater than it is in relation to other existing actions or activities requiring a warrant at present. It is a prior safeguard and check to minimise the likelihood, in what is self-authorisation by an agency or other body, of a potentially ill-judged or just plain wrong authorisation of criminal conduct, with all the consequences that might have.
Objections have been raised that sometimes authorisations are needed in a hurry but equally, access to a judge, as happens in some other spheres, can be arranged in a hurry—a point made by my noble friend Lady Kennedy of The Shaws. Urgency can arise because of a rapidly developing situation that could not have reasonably been foreseen, but it can also arise because a public authority has left things later than it should have done before seeking the criminal conduct authorisation. Perhaps the Government can, in their response, give some indication of roughly how many such authorisations are currently granted on average each year, how many are needed urgently and what the definition is of urgently. Can the Government also give a general indication of the extent to which authority to commit criminal conduct is given, in a typical year, to those who have been previously involved in or who are currently engaged in unauthorised—[Inaudible]—said that all authorisations
“are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the”,—[Official Report, 11/11/20; col. 1045.]
covert human intelligence source. The phrase “experienced and highly trained” sounds fine, but what do the Government intend it to mean in practice in relation to the granting of criminal conduct authorisations under the Bill? What is the definition of an
“experienced and highly trained authorising officer”,
a description the Government were happy to use at Second Reading? How much experience is meant, and in what? How much training is meant, and in what? How many experienced and highly trained authorising officers will there be in each authority that will have the power to grant criminal conduct authorisations, and how frequently are they likely to determine whether to grant such authorisations?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords for contributing to what has been quite a lengthy debate on this very important group of amendments. I agree with the noble Lord, Lord Blunkett: it is a shame that we had to break the debate last time. Of course, these things are agreed through the usual channels, and it may well be the case that we have to do so again, but it did slightly break the flow, so I will refer back to what was said at the end of last week as well. I begin by saying to the noble Lord, Lord Rosser, that I was slightly confused; it felt like the noble Baroness, Lady Chakrabarti, was making the points from the Front Bench, but I think it was the noble Lord, Lord Rosser. If one or both of them could confirm that, that would be fantastic.
I start with the comments that my noble friend Lord King started with, which were echoed by the noble Lord, Lord Rooker. Basically, they asked how covert intelligence has stopped terrorism, stopped serious and organised crime and led to thousands of people being arrested who would otherwise do this country harm. I first thank noble Lords for the debate on the role of judicial commissioners in providing that independent oversight of criminal conduct authorisations. The Government’s priority with this legislation is to provide public authorities with an operationally workable regime to help to keep the public safe. We recognise that this needs to be subject to robust—I will go on to the meaning of that word later—and appropriate safeguards, and that is the balance that the Bill seeks to provide. During this debate, I have been pleased to hear noble Lords unite in recognising the importance of this balance.
The amendments of the noble Lords, Lord Rosser and Lord Dubs, and the noble Baroness, Lady Kennedy of The Shaws, all require the prior approval of a judicial commissioner before an authorisation can be granted. We do not think—and other noble Lords have articulated why—that prior judicial approval strikes the balance between safeguards, which my noble friend Lord Naseby talked about, and an operationally workable power, as it risks the effective operation of this vital capability. My noble friend Lord King and the noble Lords, Lord Janvrin, Lord Rooker and Lord Paddick, all concurred. I do not think that any noble Lord would argue that this is not a vital capability, but prior judicial approval is not the only way to provide effective oversight of investigatory powers.
Noble Lords might find it helpful if I set out in more detail why this capability is unique. As the noble Lord, Lord Anderson, outlined, the use of a covert human intelligence source is different from other powers, such as interception or equipment interference. The noble Lord, Lord Paddick, made that point, and the noble Lord, Lord Janvrin, pointed out that human beings are more complex than phones or cameras. Any decision on how to use a covert human intelligence source has immediate real-world consequences for that CHIS, as we call them, and the people around them.
Every one of these decisions that impacts on the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice, which, as the noble Lord, Lord Carlile, keeps telling us, is very good supplementary reading to the Bill. The use of a CHIS requires deep expertise and close consideration of the personal strengths and weaknesses of that CHIS, which then enables very precise and safe tasking. These are not decisions that have the luxury of being remade; we are dealing with people’s lives, very often, and it is critical that these decisions are right and made at the right time.
The Bill’s current clarity of responsibility and resulting operational control are the best method for protecting the covert human intelligence source, officers and the public. Even with provision for urgent cases, as proposed by the noble Lord, Lord Dubs, which would reduce one operational challenge of this model, as the noble Lord, Lord Butler, has said, it is best that the authorising officer considers the necessity and proportionality of conduct alongside the operational specifics and safety of the CHIS. That is why deep and retrospective oversight is the most appropriate way to provide oversight of this power.
I have listened to remarks, including by the noble Lord, Lord Thomas of Gresford, that retrospective oversight lacks “teeth”, to use his word. I reassure him that the IPC will pay particular attention to criminal conduct authorisations, and that his oversight role includes ensuring that public authorities comply with the law and follow good practice. The Bill is clear on this, but it further underpins this in the code of practice. Public authorities must report relevant errors to the Investigatory Powers Commissioner’s Office—for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards. These will be investigated by IPCO, and rightly so.
The IPC will then make recommendations to public authorities in areas that fall short of the required standard. A public authority must take steps to implement recommendations made by the IPC. The IPC could also advise the public authority that it ought to refer matters to the appropriate authorities, or ultimately report it themselves, subject to the statutory process set out in the Regulation of Investigatory Powers Act. I hope that the noble Lord, Lord Rosser, will agree that that is a robust process.
The amendment of the noble Lord, Lord Hain, to which the noble Lord, Lord Blunkett, referred, is similar to those requiring prior approval by a judicial commissioner but requires prior approval by the Secretary of State. It creates the same challenges as prior judicial approval and, equally, cannot be accepted.
I also want to address concerns that the authorising officer cannot be trusted to undertake these duties without independent approval and the examples that noble Lords raised around the conduct subject to the Undercover Policing Inquiry and the appalling murder of Pat Finucane. We also heard reference to events at Orgreave and personal accounts from the noble Lord, Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb. I note—the noble Baroness, Lady Chakrabarti, mentioned this—the update that the Secretary of State for Northern Ireland provided in the other place yesterday on Mr Finucane’s murder. These are difficult and utterly unacceptable cases and it is right that they continue to be scrutinised. However, as the noble Lord, Lord Carlile, so clearly articulated and the noble Lord, Lord Rooker, echoed today, they are examples from the past.
The situation and framework within which CHIS operate today is not the same environment as it was then. There is stringent internal and external oversight in place and robust training to ensure that this activity is handled and managed properly. The policies and procedures used to authorise and handle covert human intelligence sources are subject to regular review and external scrutiny.
We now have the Human Rights Act 1998; authorising officers are trained in its application and how to communicate the tight limits of an authorisation to CHIS. We have also been clear that CHIS will never be authorised to form an intimate sexual relationship and the relevant sources regime places additional safeguards to protect against this in future. The Investigatory Powers Commissioner has oversight of authorisations; he will identify any misconduct by a public authority and take action accordingly.
Noble Lords have spoken about some of the horror stories from the past in the absence of a clear and robust framework. The situation is now different, and the Bill provides further clarity. As the noble Baroness, Lady Manningham-Buller, my noble friend Lord King and the noble Lord, Lord Blunkett, mentioned, this is a long-overdue piece of legislation that places this activity in a clear and consistent framework.
I understand the concerns that have been raised on judicial oversight of journalistic material and sources in Amendment 77. I reassure the noble Baronesses, Lady Jones of Moulsecoomb, Lady Clark and Lady Whitaker, that additional safeguards already exist in the CHIS code of practice for the protection of confidential journalistic material. To echo again the noble Lord, Lord Carlile, I ask noble Lords to please read the code of practice to understand the detail that sits underneath the Bill. These protections will apply to criminal conduct authorisations as well as the wider use and conduct of a CHIS.
The safeguards include a requirement for authorisation at a more senior level than that required for other CHIS activity, reflecting the sensitive nature of such information. Confidential journalistic material, or that which identifies a source of journalistic information, must also be reported to the IPC as soon as reasonably practicable, if it has been obtained or retained other than for purposes of destruction.
The amendments in the names of the noble Lords, Lord Rosser and Lord Anderson, would require an authorisation to be notified to the Investigatory Powers Commissioner within seven days. I listened very carefully to the points made on notification to the IPC. The Bill as drafted replicates the current oversight role of the IPC in ensuring that he has unfettered access to information and documents that enable him to inspect any public authority at any frequency of his choosing. However, it is clear that providing for independent oversight which is closer to real time—I think most noble Lords mentioned this—would strengthen the oversight regime for criminal conduct authorisations by providing independent review of every authorisation soon after it has taken place.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, I have had six requests to speak after the Minister, from the noble Lords, Lord Hain and Lord Blunkett, the noble Baroness, Lady Manningham-Buller, the noble Lord, Lord Marlesford, the noble Baroness, Lady Whitaker, and the noble Lord, Lord Paddick. I call the noble Lord, Lord Hain.
Lord Hain (Lab) [V]
My Lords, I thank the Minister for her typically courteous and thoughtful response, particularly her offer to talk to a number of my noble friends and other noble Lords about possible oversight that would be acceptable to the Government. Could she look again at Amendment 15? I and my noble friend Lord Blunkett worked very closely with the Security Service, in my case when I was Secretary of State for Northern Ireland—including with the noble Baroness, Lady Manningham-Buller—GCHQ, and, when I was in the Foreign Office, with MI6. I have authorised warrants, as I have explained, for vital work in surveillance and interception, and worked with undercover officers.
I appeal to the noble Baroness to meet my noble friend Lord Blunkett and myself informally to discuss the terms of Amendment 15, because it is very practical. It can happen in real time; I have been involved in authorising warrants in real time, including one on Islamist bombers planning to attack London when the operation was live. So, it does deal with her point. It is practical; in some respects, it is the most practical of all these oversight measures. It would give greater legitimacy to and authority for the deployment of undercover officers for the purposes that she is quite properly seeking. They can play vital roles in combating terrorism, for example. I ask her to look again at this and perhaps meet us to discuss it.
Baroness Williams of Trafford (Con)
The noble Lord knows how I operate, so he can be absolutely sure I would be happy to meet noble Lords to discuss some of these amendments. I was particularly attracted to the post-facto oversight, because operationally —I do not know whether the noble Baroness, Lady Manningham-Buller, is going to say something about this—prior authorisation could be very difficult. To get that notification as close to real time as possible is, I think, what we are all seeking.
Lord Blunkett (Lab)
In the light of the answer the Minister has given, including her willingness to talk with my noble friend Lord Hain, I am happy to withdraw.
Baroness Manningham-Buller (CB) [V]
My Lords, I am not going to repeat what I said in my speech, but I want to make three small points—[Inaudible.] The first is to correct an impression that the noble Lord, Lord Paddick, largely corrected: that the decision to authorise is made by a handler. It is not. In MI5, it is made by a senior manager who may be several grades above the handler, so it is a twofold process.
Secondly, there has been a certain amount of reference to training. I am out of date but the training in MI5 for someone to be permitted to run covert human intelligence sources certainly involved extensive residential courses and frequent refresher training.
Thirdly, I just hope that, as we come to look in the amendments in more detail at later stages of the Bill, noble Lords will bear in mind that the details and numbers of this activity must remain top secret and cannot be revealed, because the lives of covert intelligence sources are at risk. If sufficient information can be pieced together to point to their existence or encourage people to look for them, they will be exposed and potentially killed. I know that noble Lords understand that; I hope that they will forgive me for repeating it. I am not going to engage with other points at this stage because the Minister has summed up well and I know that there will be further discussions between her and Members of your Lordships’ House.
Baroness Williams of Trafford (Con)
Try as I might, that was very difficult to hear. I think that the noble Baroness—I know that she will intervene on me again—made the following three points. In fact, I meant to pull out from the speech of the noble Lord, Lord Paddick, her first point: that authorising is done not by the handler but by a senior authorising officer. The second point was that training for CHIS handlers is extensive. She may have said “expensive” but I think she said “extensive,” because it would have to be extensive for this serious an operation.
I think the noble Baroness’s third point was that details of numbers have to be top secret to maintain and protect the welfare of the CHIS. I referred to the IPC report because I think that the noble Lord, either last year or the year before, gave numbers on juvenile CHIS, which gave a flavour of the numbers that we were talking about.
Lord Marlesford (Con) [V]
My Lords, I want to make a point on Amendment 77 on journalistic sources, in the name of the noble Baroness, Lady Whitaker. As I mentioned to my noble friend last week, Parliament already has an effective equivalent to judicial review. I referred to the Economist case of 1975, when the House of Commons Committee of Privileges imposed a personal penalty on the editor and a journalist—who happened to be me—of the Economist due to the premature publication of the draft report of the Select Committee on a Wealth Tax and our refusal to reveal our sources. The House of Commons debated this on the Floor of the Chamber for more than two hours and voted not to impose the penalty.
Baroness Williams of Trafford (Con)
I think the only response to that is to thank my noble friend for taking the time to explain it to noble Lords.
Baroness Whitaker (Lab)
In thanking the noble Baroness for her characteristically thoughtful response and her offer to meet noble Lords, I ask her also to include a discussion of journalistic sources, because the code of practice left me with some questions. I assume that the meeting will be before Report.
Baroness Williams of Trafford (Con)
I am very happy either to write to the noble Baroness and outline what I said in more detail or meet with her before Report.
Lord Paddick (LD)
My Lords, I thank the Minister for what she has said. I accept what she and the noble Baroness, Lady Manningham-Buller, said about it being a senior officer. In urgent cases, however, the police officer who actually grants the criminal conduct authority would be only at inspector level, which is not very senior. Criminal or civil liability would probably rest with the handler because the handler is the one who made the request to the senior officer—but I am glad that that has been clarified.
The Minister dismissed our Amendment 47 on the basis that it looked like prior judicial approval. It is not prior judicial approval at all and it deserves to be looked at. The Minister said that retrospective oversight is the best solution, but once a criminal conduct authority has been granted, so has legal immunity. So what if the CHIS has been corruptly tasked to commit a crime and commits a crime that should not have been committed? With only retrospective oversight, that CHIS and that handler are still immune from prosecution. How can that be right?
Baroness Williams of Trafford (Con)
If I understand the point from the noble Lord, Lord Paddick, that the CHIS is authorised to commit something that is later deemed unlawful, my understanding of it—I will stand corrected if officials tell me differently—is that the person who authorised the unlawful conduct would themselves be liable for the deployment of the CHIS. Clearly, what the CHIS did would also be looked into post facto, but the person who authorised the deployment would be liable for that conduct in the deployment, I think.
Lord Dubs (Lab) [V]
My Lords, I am grateful for the way in which the Minister so helpfully explained the Government’s position and made a concession on one of the amendments. Like everyone else, I regret that the debate was split over two days. It gave me the slight advantage that I could read the whole transcript of the first day’s discussion on this amendment, but I am not sure that it has helped me very much in the short contribution I want to make.
We have heard some very impressive contributions indeed to this debate, and I cannot match for a second the enormous legal experience or the experience of our security services, as evidenced by my noble friend Lord Hain, former Secretary of State, and other senior Ministers. All I can do is say that my Amendment 11 stems from the Joint Committee on Human Rights report, which I still believe is a very helpful background to this debate and points the way forward, in ways that are not entirely in line with the speech that the Minister just made.
It seems to me that the nub of the issue in this group of amendments is still whether approval should be prior or after the event, or in real time, as has been said. I cannot help feeling that the argument for prior approval has not been put forward as widely as I would have hoped. We are told that prior approval would prejudice an effective operation. I am really not convinced by that argument—or at least I do not have the experience to understand it fully.
My noble friend Lord Rooker said we are not talking about history. There is a reason some of us mentioned the investigation by the police into the Lawrence family after the racist murder of their son Stephen, and why we are concerned, as my noble friend Lady Chakrabarti said, about the lack of an inquiry into the Finucane case, as announced by the Northern Ireland Secretary yesterday. The reason we cite those two is because they are the two that are in the public domain and that we know about. Other Members of this House have experience of a wider range of cases that, for obvious reasons, they cannot talk about in any detail. I make no apology for saying that, if any one of us in this House had had prior oversight of the investigation into the Lawrence family following the murder of their son, we would all have said, “No, that is unacceptable”. After all, the only point of prior oversight is that it can stop something in its tracks; otherwise, it is no better than after the event. Everybody would have said that that was wrong, and yet it happened.
We all owe a great debt to the security services—they have saved many lives—but now and again, something goes wrong and things are not right. It is because that might happen—very rarely, but it might just happen—that we are concerned about the method of approving this type of activity. That is the argument.
Similarly, with the Pat Finucane case, clearly any of us would have said no. The way that appears to have happened was wrong, and it would not have been allowed. Now we are told that there cannot even be an inquiry into it, for reasons which we will have to look into on another occasion. So I am still worried.
We are dealing with incredibly serious powers: powers to permit criminal activity, which we do not do with any other legislation, as far as I am aware. We are told that this prior approval cannot be given by judges, because judges do not have the insight into human nature that some of the more experienced people would. I do not know very much about judges, although I have had the pleasure of meeting some as colleagues in the House, but I think that, particularly those in criminal law, they have had a great deal of experience of human nature. I would have thought they would be in a good position to make the judgment, as indeed could Secretaries of State, as evidenced by the amendment put forward by my noble friend Lord Hain.
I am not convinced by the arguments against what the human rights committee proposed. I am not convinced that prior approval is not a good idea, whether it is done on the Lord Hain model, the Joint Committee’s model or the Joint Committee’s model as amended by my noble friend Lady Kennedy. All of these are ways of doing it, and I am not convinced that these are not better alternatives than having approval only retrospectively. However, we have had a long debate, and I want to reflect on what has been said before we get to Report. I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
We now come to the group beginning with Amendment 16. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in the group to a Division should make that clear in the debate. I inform the House that if Amendment 16 is agreed to, I cannot call Amendment 17.
Amendment 16
Baroness Hamwee
(a) that”Member’s explanatory statement
This amendment ensures that there is an objective test rather than a subjective test for granting a criminal conduct authorisation.
Baroness Hamwee (LD) [V]
My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.
The JCHR made the very good point in the conclusion of its report that
“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.
It also made the important point:
“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”
The Minister has just reminded us of the duty of care to a CHIS.
New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.
A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a
“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”
That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.
The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.
New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—
“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”
We would take out “reasonably”.
The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.
Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.
On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.
Lord Anderson of Ipswich (CB) [V]
My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s
“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”
In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:
“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”
Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that
“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].
Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation
“may be granted by the authorising officer where they believe that the authorisation is necessary”.
Section 6.3 states:
“The authorising officer must also believe that the authorised criminal conduct is proportionate”.
The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.
My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson. I do not have their legal expertise but even I, a civilian, can understand that the legal tests in this Bill are absolutely inadequate.
I had the pleasure of being on the Metropolitan Police Authority for 12 years when I was a member of the London Assembly. In that time, I met a large number of police officers—some of whom spied on me—so I can understand the sort of people who become police officers. They are incredibly hard-working and very brave, but they are human and make mistakes. They certainly made a mistake when they decided to report on my activities, which were all on Twitter—my own Twitter. In any case, I have no experience of the security services—that I know of—yet but I imagine that they, too, are human. We are all prone to error.
The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes—there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations. The crimes will have been committed, the damage will have been done and harm will have been caused—possibly to entirely innocent people, as has happened in the past. The reasonableness test should be included in the Bill; the Government will struggle to argue against that.
We should, however, go beyond reasonableness. That is why I have signed Amendment 19 in the name of the noble Lord, Lord Rosser. The decision-maker should consider, and show evidence, that they have thought about the alternatives to authorising criminal conduct. Where criminality can be avoided, it should be. I took the point that the noble Lord, Lord Paddick, made about the fact that, as an inspector aged 24, he was not what I would consider a necessarily appropriate person to authorise immunity from criminal conduct. I am sure that the noble Lord was an incredibly competent police officer but, even so, that is an incredibly young age to understand the impact of what you are doing.
The decision-maker should also demonstrate that they are not using this legislation to bypass other, more appropriate, legal routes to achieving their objectives. They should not be able to authorise criminal conduct where a legal route exists. For example, the legislation must not create loopholes and back doors for the authorities to conduct black ops. They must not be able to recruit a burglar where they should have used a search warrant, or a hacker where they should have obtained a RIPA authorisation. It is not sufficient for such critical issues to be left to the code of practice. It must go in the Bill. I really hope that the Government listen to the noble Lords who understand these processes and accept that we are all human and make mistakes.
Baroness McIntosh of Pickering (Con)
My Lords, I am pleased to follow the noble Baroness, Lady Jones of Moulsecoomb. I support and will speak to Amendments 17 and 72 in the name of the noble Lord, Lord Anderson of Ipswich.
I am sure that my noble and learned friend will be taken back to his law school days, as I have been, by the discussion of what is reasonable and what is the test of reasonableness in any given circumstances. I prefer Amendments 17 and 72 to Amendment 16 and others; I hope that, if they are pre-empted, this can be resolved on Report.
I entirely support what the noble Lord, Lord Anderson of Ipswich, said. He has gone through the draft code of practice, as he was invited to do by the Minister. I especially support his argument that the code is missing from the Bill. It is not sufficient as an understanding: I want to see it in the Bill in the circumstances that the noble Lord set out, in both the English and Scottish versions.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
The noble Lord, Lord Judd, has withdrawn so I call the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford (LD) [V]
My Lords, the first issue to consider is the identity of the person who grants the prior authorisation. The starting point is Section 30 of RIPA, now to be amended by Clause 2 of the Bill. It is for the Secretary of State, by regulation, to specify the persons holding such offices, ranks or position within the relevant public authority as to who will exercise the power to authorise. In addition to the police forces, the National Crime Agency and the intelligence services, the public authorities designated already include the Home Office, the Ministry of Justice and a variety of other authorities, as we have discussed.
The list of designated authorities, however, is not final since Clause 2(8) gives power to the Secretary of State to add more public authorities—subject, of course, to the approval of Parliament by the affirmative procedure. It is clear, therefore, that authorisations may be given by people with varying backgrounds and experience, with varying or no training in matters of this kind. If the subjective belief of one of a large number of unidentified people is sufficient to authorise an individual to commit crime, that places in the hands of the authorities an unusual and dangerous power.
What is it that the authoriser has to believe? They have to believe that the authorisation is necessary and proportionate in the interest of three things: national security, preventing or detecting crime or preventing disorder, or the economic well-being of the United Kingdom. There are varying views as to what is in the interests of the economic well-being of the United Kingdom. I have no doubt that the individuals who authorised events during the miners’ strike—the unions, as advised by the noble and learned Lord, Lord Morris of Aberavon, as he told us, on the one hand, and the Home Secretary on the other—had diametrically opposed opinions on where the economic well-being of the country lay and on what was necessary and proportionate. The noble and learned Lord, Lord Morris, was on one side; I myself was engaged in the prosecution of the two miners who killed a taxi driver with a concrete block.
One of the dangers we must bear in mind is that the Bill might solely conjure up a picture that it applies only where well-trained operatives are under the control of senior security officers to go out and fight the baddies. That is the picture painted by the noble Baroness, Lady Manningham-Buller. However, as my noble friend Lord Paddick made clear from his considerable experience, these authorisations are much more frequently to be given by a middle-ranked police officer—an authoriser, if you like—or perhaps an authoriser from the Inland Revenue or one of the other designated authorities. These authorisations are given to criminals with a chaotic life who are seeking for their own purposes to ingratiate themselves with authority either for personal gain or to avoid the consequences of their own criminal activity. That is why it is essential that the test of necessity and proportionality should be objective. If it is subjective, it allows an irresponsible official to follow their own course, perhaps—as my noble friend Lord Paddick suggested—corruptly or, through an excess of zeal, to chase their own hobbyhorse or their own dislike, for example, of striking miners or protestors against road or rail development, squatting up in trees. Indeed, they might dislike members of the Green Party, as the noble Baroness, Lady Jones, has reminded us. An objective test is a check that encourages systems of scrutiny, of consultation and of records—the recording of the reasons for the authorisation being given.
Amendments 17 and 71 in the name of the noble Lord, Lord Anderson, introduce the concept of reasonableness, which is certainly consonant with an objective test. Amendment 19, in the name of the noble Lord, Lord Rosser, deems the test set out in the code of practice, lauded by both my noble friend Lord Carlile and the noble Baroness, Lady Williams, to be necessary reading. Why should the public not read it in the Bill? Why should it not be in the Bill from the point of view of the courts and the juries that might try cases arising under it?
Amendments 32 and 33, in the names of my noble friends Lady Hamwee and Lord Paddick, insist that these tests should not be in any way weakened. This group of amendments conveys the same message that necessity and proportionality are not to be judged by the inclination and values of a shadowy and undefined figure. I hope that on Report, we can consolidate in order to improve this Bill.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
The noble Lord, Lord Cormack, and the noble and learned Lord, Lord Morris of Aberavon, have withdrawn, so I now call the noble Lord, Lord Rooker.
As the noble Lord is not responding, I call the noble Lord, Lord Mann.
Lord Mann (Non-Afl)
My Lords, I will speak to a number of these amendments simultaneously, using a different word to the thematics that have come through, but with the same purpose. The word that I refer to is “competence”: the competence of decision-making, and whether the legislation, in the view of the Minister as well as the Committee, is sufficiently precise in ensuring it. We have heard words such as corruption—that is very important—and concepts of reasonableness, which are also important.
I can recall when I and other trade union colleagues had suspicions about an individual who we thought was acting rather strangely over a period of time. He was observed selling Nazi memorabilia in London Bridge Station on a Saturday morning—not a normal activity for trade unionists, even in those days. We were suspicious, and he suddenly moved on. I had a sharp thought that I would handle his pension because it was an accrued pension entitlement that was to be transferred. Rather than leave it to the finance people, who would have handled it in a very financial way, I made the calls myself. I was fairly certain that he was not who he said he was, and that for some reason he decided to look into the heart of moderate trade unionism. The question that it begged to me, rather than being a question of principle, was what a waste of resources it was—what incompetence.
I found later that I was on the Economic League blacklist. I found out why by a fair amount of research. I looked into the case of the—I think it is fair to say—loud-mouthed communist, the very good actor Ricky Tomlinson, whom I got to know over the years. He was stitched up for being an industrial activist for no good democratic reason. He was a communist without any question and he was loud-mouthed, but he was participating in a perfectly normal way in our civil society, and yet he was stitched up.
Lord Thomas of Cwmgiedd (CB) [V]
I can be very brief in support of Amendment 17 and its Scottish equivalent. The intention appears to be clear: that the belief of the person has to be reasonably held on an objective basis. It would, in fact, be quite exceptional to have any other provision. It seems to me that the Bill ought to be clear and, on such an important point as this, there should be no room for ambiguity or argument if this matter ever comes before a court.
Lord Naseby (Con)
My Lords, I listened to my noble friend opposite and his detailed, and quite persuasive, contribution. I mentioned competence in the previous group. It is absolutely vital, but I do not need to say anything further on it, because the noble Lord has covered that in great depth.
The other two amendments—Amendments 16 and 17 —both claim to be more objective, and there is a powerful case for clarity. My only other comment is on Amendment 19. I do not want to be too hurtful but frankly, all it does is complicate the whole issue by a huge margin. For anybody to balance
“the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm”,
they really need to be very experienced in the whole of this market. That is not at all possible.
It is difficult for my noble friend on the Front Bench. I can see that there is a need to get more bite into it, if possible, but it is not an easy issue. The contribution on competence from the noble Lord needs to be taken very seriously.
Baroness Chakrabarti (Lab) [V]
My Lords, during this sitting of the Committee, I have just discovered about the passing of Lord Kerr of Tonaghmore, one of the first members of our Supreme Court and a former Lord Chief Justice of Northern Ireland. I am sure that all noble Lords will join me in mourning him and sending our condolences to his family. He was a great judge and human being. Being a senior judge in Northern Ireland when he was created a great deal of risk for him and his family, but I will remember him for his humanity and sense of humour just as much as for his courage and intellect.
On a small preliminary manner, the Minister made a comment on the previous group. Our hybrid proceedings are amazing in so many ways, but they may create confusion on occasion. I apologise to her if I contributed to that because, when we are on Zoom from home, there is no Dispatch Box. There is a metaphorical one but not an actual one. To be clear, in the last group my noble friend Lord Rosser spoke for the Opposition and I spoke for myself. Last time, you heard from my noble and learned friend Lord Falconer of Thoroton and my noble friend Lord Rosser for the Opposition. Shortly, you will hear from my noble friend Lord Kennedy of Southwark, who will speak for the Opposition. That may be easier, because I can see him in the distance via my Zoom; he is physically in the Chamber. I apologise for that—or if the Minister was making a joke at my expense and I have just wasted your Lordships’ time for a couple of minutes.
The amendments in this group are important, not least because of the Minister’s response to the previous group, and particularly to what I will call the Paddick question. Noble Lords will remember a hypothetical put by the noble Lord, Lord Paddick, essentially about what happens when things go wrong. The noble Baroness, Lady Hamwee, has spoken of everyone’s human frailty, and legislators need to consider, despite all the expertise, brilliance and public service principles of those operating legislation, what happens when things go wrong. The noble Lord put the hypothetical of a criminal conduct authorisation that had been corruptly given, but executed by an undercover agent in good faith. What would happen then? The Bill has a three-way relationship at its heart—a triangle, if you like—between the person who authorises criminal conduct, the person who executes it and any victim of that criminality. Your Lordships are considering a crucial legal relationship.
If I am right, the Minister responded to the noble Lord, Lord Paddick, with an answer akin to saying that the person who issued the authorisation—in this example corruptly—would be liable. I think she suggested that there would still be no liability for the undercover agent, because they had acted in good faith, be it on a corrupt authorisation. They had been used, if you like, as the tool of the corrupt authoriser. They would continue to have criminal and civil immunity, but there would be an unspecified liability for the person who issued the authorisation.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I have looked carefully at the amendments in this group. Amendment 16 moved by the noble Baroness, Lady Hamwee, and consequential Amendments 18 and 20, all seek to remove the reference to “belief” in relation to a criminal conduct authorisation to make clear that it must be necessary and proportionate. I understand the point that she is making, including on consistency in the Bill and accompanying guidance; I know what she is seeking to do and have sympathy with it. However, I looked carefully also at Amendment 17 from the noble Lord, Lord Anderson of Ipswich, which seeks to insert “reasonably”. I concluded that that is probably a better way to achieve what the noble Baroness seeks.
These are matters of judgment at the end of the day, and we have all been careful in our consideration. However, in this case, I found the amendments of the noble Lord, Lord Anderson, more persuasive and likely to find more favour with the Government, if, as they say they are—and I have no reason to doubt them—they are seeking to reach agreement with the Committee on these very difficult issues and ways in which we can all improve the Bill. For me, reasonable belief would be a belief that an ordinary and prudent person would hold in the circumstances, judging the situation in the light of the law and the information before them. That is the right way forward.
Amendment 19 in the names of my noble friend Lord Rosser, myself and the noble Baroness, Lady Jones of Moulsecoomb, simply seeks to place in the Bill the proposals advised in the code of practice, including determination of proportionality. It is important to provide that certainty in order to allay concerns raised across the Committee. I take on board the concerns of the noble Baroness, Lady Hamwee, on this matter but they are covered in the guidance, and placing those matters in the Bill is the right way to go. I hope that that provides the reassurance noble Lords are looking for. We would be interested to hear from the noble and learned Lord, Lord Stewart, where he thinks he can go on these issues if he cannot accept the amendments in their present form.
In his response, will the noble and learned Lord address the point made by the noble Lord, Lord Thomas of Gresford, on the motivation and experience of those authorising such activity? There has been some suggestion that although it may be very senior officers, in some cases, in the heat of the moment, those involved perhaps would not be so experienced. That is a fair point and we need to address who is authorising this conduct.
Amendments 32 and 33 from the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have been tabled to ensure that the necessity and proportionality tests are not weakened. I understand the points being made, and we deserve a full explanation from the noble and learned Lord, Lord Stewart.
It was good to hear from my old and dear friend, the noble Lord, Lord Mann, who made some very effective points about trade unions, following his work in the trade union movement, to which I can attest. He referred to the nonsense of infiltrating groups that are no threat to the national security of our country but are a bit of a nuisance. There are plenty of those about, but they are not a threat to national security and, frankly, are probably more a threat to themselves than anyone else. They can be a bit of a nuisance around the factory gate or power station gate, but investing time and money on these people is a complete and utter waste of time. Who would authorise activity in relation to those groups? That is worrying. Some senior people have authorised others to waste their time going into those organisations.
On the other side of the coin are the appalling and disgraceful abuses that have taken place. Equally, we need to ensure that that will never happen again. We need reassurance on those matters. The inquiry will have to consider how we deal with them in the future.
My noble friend Lady Chakrabarti asked the important question of where people go to when their rights have been abused. We of course hope that that never happens again, but where would people go if it did? We need to know that people will be protected when they find themselves in a situation that has gone wrong. If there has been proper authorisation but an offence has been carried out, how do people seek redress?
I look forward to the Minister answering those points and others raised in the debate.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one.
New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.
Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to “belief” risks introducing inconsistency and casting doubt as to how other provisions should be interpreted.
It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective “robust” has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment.
Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function.
I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.
Lord Anderson of Ipswich (CB) [V]
My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?
First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to the noble Lord for his supplementary question. I apologise for having omitted to answer specifically the detailed point that he made in the course of his submission earlier—something I have been guilty of in the past in my appearances in your Lordships’ House.
Amendments 17 and 72 would insert a requirement for the authorising officer to hold a reasonable belief that conduct is both necessary and proportionate. As the noble Lord has identified, the position is that the amendment cannot be accepted as the Bill has been drafted in line with the requirements of the rest of RIPA, including that for the underlying Section 29 use and conduct authorisation. The noble Lord, Lord Anderson, identifies a conflict between the terms of the code of practice that I quoted, at 3.10, and the terms of the Bill, and, more to the point, I think, identifies a potential conflict in what was said in the other place in debating these subjects. In those circumstances, I would be very happy to engage with the noble Lord and write to him on the matter.
I am being reminded just now that we have already included wording in the updated code of practice to set out that it is expected that the belief should be a reasonable one, and that the Security Minister confirmed this during the debate in the Commons.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I am not sure we want exchanges in this manner. Minister, are you complete or are you continuing?
Lord Stewart of Dirleton (Con)
With your leave, I was about to indicate that I think it better in the circumstances—and where there has been an exchange across the floor of the House—if I were to clarify my remarks in writing to the noble Lord
Lord Kennedy of Southwark (Lab Co-op)
I want to make just a couple of points. I do not accept the noble and learned Lord’s point that, if you put things in the Bill, you risk leaving things out. It is possible to craft an amendment, to go on the face of the Bill, that covers those eventualities. There is always a concern that, when things are left to guidance and codes, sometimes they do not have the certainty and force of legislation. I think that an amendment can be crafted that covers both: you get the certainty of the main things but leave the door open, accepting that things can change. Both can be done, and that is a better way forward rather than leaving it all to guidance.
The noble and learned Lord also made the point that we should be looking forward and not back. I get the point of looking forward, and I accept it, but, equally, in looking forward, we are informed by what has happened previously. It is important that we take that on board as well. We need to ensure that the Bill is doing the job it needs to do, and that is addressing issues that happened in the past; not just the issues mentioned by the noble Lord, Lord Mann—which were, frankly, ridiculous—but, more importantly, the real issues of wrong-doing, abuse and great hurt that have taken place. We need to ensure that the Bill stops that in the future.
The other point that we will keep coming back to is the whole issue of what will happen if the CHIS has immunity and someone has something wrong done to them. Where do they get redress? That is a fundamental issue: how do they get redress if the person who has done something wrong has immunity? That is a question we need to answer in the next few days.
Lord Stewart of Dirleton (Con)
I am obliged to the noble Lord for that final submission. We do, I acknowledge, need to address these matters over the next period of time, as the Bill moves forward. I acknowledge to the noble Lord, and others who have contributed, that mistakes were made in the past around blacklisting and the penetration of bodies that need never have been penetrated, or of bodies that were engaging in legitimate activities. Acceptance of that will inform the manner in which we proceed further.
Baroness Hamwee (LD) [V]
My noble friend Lord Paddick has been using his experience of the past—experience is, by definition, the past—to inform and improve the future. That was rather what my noble friend Lord Thomas of Gresford was talking about, with his reference to the range of organisations from which authorisations for criminal conduct may come. He mentioned people entitled to give authorisations who will not have the same experience as those in the police and intelligence services.
I hope noble Lords will forgive me if I do not refer to every contribution that has been made, though I am grateful for all of them. However, I want to pick up the point about considering the position if things go wrong. That is a very large part of our task in this House, in scrutinising legislation, and it will necessarily mean positing hypotheticals. I will certainly want to pick up the points made by the noble Lord, Lord Mann, when we come to consider the term “economic well-being”.
I remain concerned about Section 29B(6). We have the test of necessity; you cannot really strengthen necessity but you could weaken it. If subsection (6) is to have any meaning, then I am worried that it must weaken it.
To go to the heart of all this, the argument from the noble and learned Lord is that we should be consistent with Section 29 of RIPA, which is about the authorisation of covert human intelligence sources. New Section 29B is about criminal conduct authorisations. I would regard that, as other noble Lords have said during the Bill’s passage, as much more serious than what is covered by the current provisions of RIPA in terms of covert intelligence and intrusive investigation as well. Yes, it will be a fast-moving, live environment, but I do not think that that is an excuse not to act reasonably. I really feel that we have to get the Bill right, and that means importing objectivity.
I have still not understood the points made in response to the noble Lord, Lord Anderson, about why we should not have the term on the face of the Bill. I think that the noble and learned Lord said that it would not be appropriate, but I might not have noted that down correctly. He did say that it would not be efficient. I hoped that he might develop that point, but we will have to pursue that after this afternoon’s debate. We are clearly gathering round Amendment 17 in the name of the noble Lord, Lord Anderson, and I think that Amendment 72 is its Scottish equivalent. My noble friend and I are very happy to cede the ground to those amendments; we went a bit far, but I cannot conceive of an answer to the points made by the noble Lord, Lord Anderson. We have not heard one so far, so would be delighted to support him if he pursues the matter at the next stage of the Bill, which we very much hope that he will. It will soon be 5 pm, so I beg leave to withdraw Amendment 16.
Lord Parkinson of Whitley Bay (Con)
My Lords, we need to halt our proceedings before too long so that we can move on to the coronavirus regulations, but the next group of amendments is very small with only a small number of speakers. If noble Lords are willing to keep their contributions as brief as possible, that would assist us in finishing this group before we break for the coronavirus regulations.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 19A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate. I should inform the House that if Amendment 19A is agreed to, I cannot call Amendments 20 and 21 by reason of pre-emption.
Amendment 19A
Baroness Jones of Moulsecoomb (GP)
My Lords, I have written a very long speech, so I hope I will not hold people up for too long.
There are a lot of things in this Bill that I absolutely loathe. In fact, I probably loathe it in its entirety and I wish the Government had never brought it forward. However, my Amendment 19A is about changing the rules for criminal conduct authorisation by statutory instruments. What we have seen again and again with this Government is little power grabs—little bits of erosion of our democracy—through various statutory instruments that they have consistently brought over the past few months. Their majority of 80-plus in the Commons has simply gone to their heads and they feel that they can run the country without your Lordships’ House, which is absolutely ridiculous.
It is a pleasure to introduce the amendments in this group, and I look forward to all the important points that other noble Lords are going to put. The amendment is quite simple—just that the Government should not be able to change the rules without proper parliamentary scrutiny; and let us face it, statutory instruments are not proper scrutiny. We are talking here about the state being able to authorise people, quite possibly criminals, to commit crimes. Even I will accept that that sometimes has legitimate applications, such as taking down terrorist cells or breaking up organised crime. But let us face it, that will not be all that this is about. It creates a set of extreme ethical, moral and legal dilemmas, so much so that it must be Parliament—not the Government, whom I do not trust anyway—that makes the decisions on when and why this is allowed.
I think that proposed new clause 29B(4)(c) in Clause 1(5) is a tacit admission by the Government that there are insufficient safeguards built into the Bill and that they want to backfill that with secondary legislation and a code of practice. That just is not good enough for something of this magnitude. I want a clear confirmation from the Minister that that is not what is intended and that the Government will in some way accept that and make it clear.
When speaking to an earlier group of amendments, the Minister talked about not dwelling on the failures of the past. That is all well and good, but if you do not dwell a little on the failures of the past you are doomed to repeat them. That is exactly what I have been saying all through our consideration. We have seen repetitions of failures and somehow the police, the Government and the security services do not learn fast enough. I am hoping for a very positive response from the Minister, please. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I understand that the noble Baroness, Lady McIntosh, has withdrawn, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con)
I have two short comments. First, Amendment 21 sounds wonderful on the surface, but who will determine who is appropriate, or is it just the Secretary of State? Would it not have happened in any case? Secondly, on Amendment 81, I share the view of the noble Lord, Lord Paddick. There is nothing worse than having a situation where the rules of the game—or the provisions or the instructions—are changed in one area without understanding that it has a knock-on effect in another area. As I understand this amendment, it is basically saying that they must all take place at the same time and not at different times. If that is so then I am totally in support of it.
Baroness Chakrabarti (Lab) [V]
To be short, my Lords, I agree with the noble Baroness, Lady Jones. Matters as grave as criminal conduct authorisations for state agents should be regulated in primary legislation and not be subject to delegated powers thereafter.
Baroness Hamwee (LD)
My Lords, I am afraid that we have a number of amendments in this group. I have quite a lot of sympathy with Amendment 19A, tabled by the noble Baroness, Lady Jones, but it seems to me that proposed new subsection (4)(c) is not anything like of the same order as proposed new subsection (4)(a) and (b). I read it as being procedural and think that it would not make it more difficult to satisfy the necessity and proportionality requirements. I hope the Minister can confirm that.
Amendment 21 deals with proposed new Clause 29B(4)(c), which provides that the Secretary of State can make an order imposing requirements for the CCA to be authorised, and the person authorising it must believe that there are arrangements which satisfy those requirements. If the Secretary of State believes—if that is an appropriate use of the word, given our last discussion—that further requirements are necessary and would be of wide interest, in the fullest sense of that word, consultation ought to play a part.
Lord Rosser (Lab) [V]
My Lords, the amendments in this group would variously remove the power for the Secretary of State to impose requirements restricting when a criminal conduct authorisation can be granted, require the Secretary of State to consult with such persons as are appropriate before imposing requirements, and require regulations in which the Secretary of State imposes additional requirements that must be satisfied before a criminal conduct authorisation is granted to be subject to the affirmative procedure. There is also an amendment in this group which would restrict the power of the Secretary of State to bring different provisions of the Bill into force at different times and in different areas, to ensure that all the safeguards provided in the Bill always apply.
We will await with interest more detail from the Government in their response as to the nature, extent, purpose, reasons for and frequency of the requirements that the Secretary of State might wish to impose by order before a criminal conduct authorisation can be granted, and why it would not have been possible to include this greater detail on the face of the Bill to reduce the possibility of this power being exercised at any time in the future in an inappropriate manner. We also want to hear the Government’s response to the concern about safeguards always being applicable, which has led to the amendment restricting the power to bring different provisions into force at different times.
Lord Stewart of Dirleton (Con)
My Lords, turning first to the order-making powers, addressed first by the noble Baroness, Lady Jones of Moulsecoomb, the ability of Parliament to scrutinise statutory instruments is a broader topic than this debate permits me to go into. As to the order-making powers in this Bill, these powers allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited. I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards. I particularly seek to assure the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Rosser, on that point. The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they be contained in secondary legislation.
The noble Baroness, Lady Hamwee, asked whether there was a precedent for such powers to be subject to the negative procedure. The equivalent powers in Section 29 of RIPA are both subject to the negative procedure. Taking similar powers in respect of criminal conduct authorisations to those already contained in Section 29 will allow the Secretary of State to make equivalent provision for Section 29 authorisations and criminal conduct authorisations, where appropriate, so that similar arrangements are in place for both. There is a high degree of interrelationship between the two provisions. While the Government do not have any particular safeguards or limits in mind, such requirements may arise in the future that will need to be legislated for.
An example of the past use of the Section 29 powers is the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010, which imposes specific additional requirements that must be met regarding the authorisation of a CHIS in connection with material subject to legal professional privilege. Were any changes proposed in the future, the relevant persons would of course be consulted prior to those changes being made. Amendments 21 and 58 are therefore not considered necessary.
Turning to Amendment 81, the Bill contains provision to commence the Act for different areas on different days, to allow time to make any necessary secondary legislation, issue guidance, undertake appropriate training and put the necessary systems and procedures in place, as appropriate. I assure the Committee that this power will not be used to delay commencing those sections relating to safeguards. The power could not lawfully be used to frustrate the will of Parliament in this way.
Baroness Jones of Moulsecoomb (GP)
My Lords, I thank all noble Lords who have contributed to this debate, even those who did not agree with me. It was lovely and very heart-warming to hear the noble Lord, Lord Naseby, agree with a Lib Dem Peer, the noble Lord, Lord Paddick. I thank the noble Baroness, Lady Chakrabarti, for her support, and the noble Baroness, Lady Hamwee, for her sympathy and exposition of the whole group, which I perhaps should have done myself. I felt that the noble Lord, Lord Rosser, made an extremely good point in asking why there should not be greater detail in the Bill now.
The Minister made a very nice and emollient response, but there is always the problem, not in distrusting the Ministers we have here, in your Lordships’ House—we trust them to have good will and be ethical—but in distrusting the Government, as many of us do. I imagine that possibly a majority in the country distrust the Government at the moment. So I do not feel completely reassured, and will think about bringing this back on Report. In the meantime, I beg leave to withdraw the amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful to noble Lords for their assistance.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Thursday 3rd December 2020
(4 years ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-III(Rev) Revised third marshalled list for Committee - (1 Dec 2020)
The Deputy Chairman of Committees (Lord Lexden) (Con)
We proceed to the group beginning with Amendment 22. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in debate. I should inform the Committee that if Amendment 22 is agreed to, I cannot call Amendments 23 to 30.
Amendment 22
Baroness Chakrabarti
“(b) for the purposes of preventing or detecting serious crime.(5A) In subsection (5), “serious crime” means a crime triable only on indictment.”Member’s explanatory statement
The amendment is intended to constrain the use of criminal conduct authorisations by precluding their use for the purpose of preventing or deterring minor criminal activities, non-serious disorder, or non-criminal damage to economic interests.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.
Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.
Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.
My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.
These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.
Amendment 22 is designed also to remove from the Bill use of a CCA purportedly
“in the interests of the economic well-being of the United Kingdom”.
This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.
Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted
“in the interests of the economic well-being of the United Kingdom”
should be removed.
At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.
The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:
“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”
The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.
If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.
Baroness Hamwee (LD) [V]
My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.
To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.
Amendment 22, in the name of the noble Lords, Lord Hendy and Lord Hain, has chosen
“crime triable only on indictment,”
which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.
Baroness Jones of Moulsecoomb (GP)
My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.
Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.
If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?
Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.
Baroness Massey of Darwen (Lab) [V]
My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.
The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,
“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”
These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:
“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”
The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to
“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”
The report concludes:
“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”
and that
“the power to authorise criminal conduct as contained in the Bill is far too extensive”.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.
Baroness Bryan of Partick (Lab) [V]
My Lords, it is a real pleasure to take part in this debate. I am sorry that my noble friend Lord Dubs will not be joining us, but I am speaking before my noble friend Lord Judd—they have both spent many decades of their lives fighting for civil liberties. They will remember, I am sure, Maria Fyfe, who entered Parliament in 1987 and did so much over the years to champion women’s representation, but who sadly died this morning. I am sure that they and others will join me in sending condolences to her family and comrades in Scotland.
I shall speak specifically to Amendment 22 in the names of my noble friends Lord Hendy and Lord Hain, and moved very able by my noble friend Lady Chakrabarti, but I also support the other amendments in this group which argue that, should this Bill become law, CCAs could be used only to prevent or deter serious crime. The terms “preventing disorder” and being
“in the interests of the economic well-being of the United Kingdom”
are so imprecise that almost any campaigning group or trade union could be included. These criteria are potentially political and could be used simply to defend the status quo against anyone who challenges it.
It seems quite odd that this legislation could not wait until the findings of the Undercover Police Inquiry. As the inquiry progresses, it is hearing that police have been used to spy on any number of groups that were deemed to be “anti-establishment”, even when they were humanitarian organisations such as Operation Omega, which tried to provide humanitarian aid to then East Pakistan. One police officer sent into the group has said:
“They weren’t hurting anyone, they weren’t disturbing anyone. Okay, you could argue that we don’t like to see these things posted on our lampposts, you know, stuff like that.”
He was then asked:
“Did you hear them promote or encourage public disorder?”
He replied:
“That’s a difficult one to answer, because a lot of organisations recommend demonstrations and activity that would bring their cause to the attention of the press and thereby to the rest of the population.”
A demonstration is of course a legitimate form of campaigning, but it is unfortunately seen as illegitimate in some quarters.
The undercover work extended into the trade union movement. Trade unions are a legitimate and essential part of our democracy, as guaranteed by the ILO since 1949. Member countries, including the UK, are required to guarantee the existence, autonomy and activities of trade unions, and to refrain from any interference that would restrict this right or impede their lawful exercise. Despite this, the Metropolitan Police Special Branch established the industrial intelligence unit in 1970 to monitor what it saw as growing industrial unrest. There is, we understand, a present day equivalent in the industrial liaison unit of the national domestic extremism and disorder intelligence unit.
I have no idea what justification could possibly have been used to send spies into humanitarian organisations, political parties or trade unions, but I suspect that preventing disorder and it being in the interest of economic well-being of the United Kingdom will have been used. There can be no justification for this and it should be removed from the Bill.
On Monday we heard the Statement in the other place that there would be no inquiry at this time into the murder of Pat Finucane—even though there is no doubt that there was state collusion in his assassination. After 30 years, the Government will still not shine a light on this atrocious event. His death should serve as a reminder that Governments and their agents can lose the capacity for moral judgment when they convince themselves that only they serve the greater good.
We were told on Tuesday that these examples happened a long time ago and that things have changed. But while the Bill continues to cover more than serious crimes and includes subjective actions such as disorder and economic well-being, it is a danger to anyone involved in politics and trade unionism. We should never grant the legal right for covert actions against citizens whose only crime is to disagree with the Government of the day. This amendment would go some way to achieving that.
Lord Judd (Lab) [V]
My Lords, the dividing line between a police state and a democratic society with a liberal, humanitarian base is sometimes hard to define. It is not absolute and the dividing line wanders around a certain amount, but one principle should be clear above all, and that is that in the kind of society in which we want to live, the tradition is that the police do their job by public consent. The objective is to maximise good will between the public and the police, to forestall the danger of alienation from the police and the building up of a hostile relationship between police and large sections of the public. That is why, on matters of this kind, it is so important to ensure that it does not become just a convenient device that can be used pretty much at random for interests that cannot be well substantiated in the context of liberal democracy.
The Deputy Chairman of Committees (Lord Lexden) (Con)
The noble Baroness, Lady Blower, who appears next on the list, has withdrawn, so I call the noble Lord, Lord King of Bridgwater.
Lord King of Bridgwater (Con) [V]
My Lords, unlike, I think, every other speaker to these amendments so far, I do not support them. I see in them, once again, attempts to impose yet more conditions that may affect the effectiveness of the operation of undercover support and sources doing what I thought was generally agreed to be vital work in the interests of enforcement and the life of people in our country. I say at the start that a number of these things, and the worry about how these powers may be exercised, do not pay respect to the fact of the code of practice, which many have said should be required reading for everybody taking part in these debates. The importance of that code of practice is that it is going to have to be approved by both Houses of Parliament. That will be a very important protection, because it is under that code of practice that authorising officers issuing CCAs, and the Investigatory Powers Commissioner, will obviously be required to act.
I make no apology for repeating what I said on an earlier amendment in quoting James Brokenshire, the Minister for Security, when he gave the astonishing figures for a single year in London alone. The use of undercover sources resulted in 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. It also enabled, which I did not mention, the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. Those figures alone, just from London in one year, surely leave nobody in any doubt of the importance of this vital source of support for preserving an orderly and law-abiding society. I make this point because, under the code of practice, which includes this question, others are seeking to add the word “serious” to “crime”. How does an authorising officer react when an informant comes and says, “There is a group of people who are starting to get together, I am not quite sure what they are up to, but I think there is a real risk that it could turn, later on, into something much nastier”?
When one looks at those figures I quoted from James Brokenshire, how many lives have been saved; how many people’s lives have not been disrupted; how much misery and poverty that might otherwise have entailed has been prevented? For these reasons, I am not persuaded of the need to add “serious” to crime; I think it might inhibit the operation of a properly authorised issuer of a CCA, who obviously has to use his judgment, and has to persuade the IPC as well that his judgment is correct and is in line with the code of practice.
I should also say a word about preventing disorder. We are living in extremely difficult and dangerous times at the moment. We know that the power of social media now makes it possible, in an instant, practically, to organise major demonstrations which may, in fact, be based on that new and horrid ingredient “fake news”. These may disrupt many people’s lives and may cost people’s lives. Although there are many very worthy causes—whether it is Black Lives Matter or Extinction Rebellion—pursuing very understandable and admirable objectives, none the less we also know that around the fringes of those organisations, or in the confusion that some of their demonstrations cause, other sources of crime can easily emerge and it often makes opportunities for gangs to commit many more crimes as well. So I would not delete “preventing disorder”, provided it is properly covered within the code of practice.
The other thing I would just add is about economic well-being. I totally support trade unions—I always have done and, as Secretary of State for Employment, I was obviously closely involved—and legitimate trade union activity. However, we all know that, within our lifetime, we have had one or two instances where that has not been the case. One instance was the miners’ strike, when Mr Arthur Scargill said that one of his objectives was to bring down the Government, and he was not averse, in the process, to accepting money from the Soviet Union in pursuit of that objective. It is to the credit of Neil Kinnock, now the noble Lord, Lord Kinnock, if I may say so, that he would not support him at that time, because Mr Scargill had not put the issue to a vote of the whole trade union movement.
I think we have seen here, and I understood at the beginning of this, that virtually all noble Lords recognise the vital importance of undercover source information and for there to be a proper system, a statutory system, under which they would operate. That is what I wish to see. I wish to see a thoroughly effective code of practice, thoroughly trained issuing officers and rapid and close contact with the Investigatory Powers Commissioner as they carry out their work.
Lord Paddick (LD)
My Lords, I accept that it is difficult to separate these issues, but I will leave discussion of economic well-being and the activities of trade unions and trade unionists until the relevant groups.
As drafted, the Bill defines very broadly when a criminal conduct authorisation is necessary, and this group of amendments focuses on the new Section 29B(5)(b) inserted into the Regulation of Investigatory Powers Act 2000 by Clause 1(5) of this Bill. It states:
“A criminal conduct authorisation is necessary … if it is necessary … for the purpose of preventing or detecting crime or of preventing disorder”.
Crime and disorder have very wide definitions, as noble Lords have set out in this debate.
As we have already debated, tasking a CHIS to participate in crime is a very serious step for any authority to take, with all the implications for the rule of law and the potential for abuse that we have already debated, and because of the potential danger it places the CHIS in, about which we will discuss more in a later group. In many situations it could have far more negative consequences for innocent people than the interception of communications, and we should not forget that we are amending legislation that was originally intended to cover, when drafted, only the interception of communications.
The legislation covering such interception limits the use of its powers to cases of serious crime. Even in my limited seven years in this House, I have lost count of the definitions of serious crime in different pieces of legislation. It could be argued that, if we wanted to limit the power to grant a CCA to cases of serious criminality, we could choose whatever definition of serious crime we liked.
The noble Lords, Lord Hendy and Lord Hain, have decided in their Amendment 22 to define serious crime as indictable offences only, but I am glad to hear from the noble Baroness, Lady Chakrabarti, that the noble Lord, Lord Hendy, is attracted to our definition rather than the one in his own amendment.
As my noble friend Lady Hamwee has clearly articulated, we have gone with the definition already used in RIPA—for the sake of consistency, at least within the Act itself. The principle, however, is the same: that this power to grant a criminal conduct authorisation should be limited to serious crime.
The Government may say that, in addition to being necessary, the granting of a CCA must also be proportionate, and it would not be proportionate to deploy CHIS if the criminal activity was minor. The same argument applies, however, to the interception of communications in RIPA, where “necessity” is already limited to serious crime, as defined in our Amendment 31.
The noble Lord, Lord King of Bridgwater, talked about the code of practice. There is, however, a definition of serious crime in RIPA despite the existence of the code of practice for the interception of communications. The noble Lord also talked about the impressive array of offences that had been detected as a result of the deployment of CHIS, including those relating to firearms, drug-dealing and child sexual exploitation. All those examples would fall within our definition of serious crime.
What is sauce for the goose is sauce for the gander, even though geese and ganders are different in some important respects. RIPA limits the interception of communications to serious crime, so this Bill should limit the issuing of criminal conduct authorisations to serious crime using the same definition.
The second issue is more difficult and more controversial, starting with the fact that the prevention of disorder is not one of the necessary grounds for the interception of communications. The Government are already on the back foot here, in that large-scale disruptive disorder can have very serious consequences for society yet there is no power to intercept the communications of organisers of disorder in order to prevent it. None the less, there is an argument for both the interception of such communications and the deployment of CHIS into groups that are planning to cause widespread disruption that could seriously affect public order, cause damage to property and the economy, prevent people going about their day-to-day business, and create fear among innocent bystanders.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 22, moved by my noble friend Lady Chakrabarti with the support of my noble friends Lord Hain and Lord Hendy, seeks to limit the use of criminal conduct authorisations to serious crime—and by that they mean indictable offences that must be tried in Crown Court before a judge and jury.
The amendment seeks to remove subsection (5)(c) in respect of economic well-being in the United Kingdom. It would be helpful if, in her response, the noble Baroness, Lady Williams of Trafford, were to set out examples of what this provision is seeking to do and what it is not seeking to do. There are concerns about this, as I am sure the noble Baroness has heard, from around the House, during discussion of this group.
Can the Minister also explain why the list of necessary grounds given in this Bill—as listed in subsection (5)(5)—is slightly different from those listed in the Counter-Terrorism and Border Security Act? In that Act, the reasons listed are that the activity threatens national security, threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or is an act of serious crime. Why not use the same words? Not to do so is surely a recipe for confusion when you are dealing with such serious matters. We want to see clarity from the Government; clarity about what they intend to bring into law is very important. Why is a form of words that was acceptable to the Government two years ago, when they put the Counter-Terrorism and Border Security Act on the statute book, changed in this Bill? Surely there is a risk of some overlap between these two pieces of legislation. Will the noble Baroness clarify this when she responds to the debate?
Amendments 23 and 26, in the name of the noble Lord, Lord Paddick, add the word “serious” in order to limit a criminal conduct authorisation to issues of serious crime. I have listened carefully to the arguments from the noble Lord and have some sympathy with them, so I will be interested to hear from the Minister the case for why these amendments are not necessary. The noble Lord referred to the number of times we have talked about serious crime over the years, and the various definitions of “serious”. That is a fair point and it needs to be answered.
The noble Baroness, Lady Jones of Moulsecoomb, raised the question as to why preventing and detecting crime would not be enough, on their own, as reasons for the powers in the Bill to be deployed. We also need reassurance about what will not happen when powers are given by Parliament, so it is important for the Minister to set out what will not be impacted.
Noble Lords may not like it, but the right to withhold one’s labour and to strike is a hard-won right that we should all defend. We need guarantees that the powers in the Bill would never be used to undermine lawful, legal trade union activity in respect of strike action or campaigning activity. My noble friend Lady Chakrabarti raised the important point regarding trade unions, as did my noble friend Lady Bryan of Partick and many others. We have to get the balance right; lawful activity must not be undermined by the state with the use of undercover activities.
We have heard about the policing inquiry. Some terrible things have happened that I am sure we all regret, which have undermined legitimate activity. It must never happen again. Those are the questions the noble Baroness needs to reassure the House on: how will this Bill ensure that never ever happens again?
I am a proud trade unionist. I was a member of USDAW for 12 years when I first left school and I have been a member of the GMB for the last 30 years. I never rose very high in the GMB ranks; I got as fair as the chair of the Labour Party senior staff sub-branch for a couple of years. I spent probably more time arguing with the rest of the staff in the Labour Party about where we wanted to get to. But I certainly think that the unions are very important. For example, USDAW—a union I am very close to—is a great trade union with great campaigns that I always support. It is important that we support the work that unions such as USDAW do.
At this point, I pay tribute to my old friend John Spellar. John was first elected to public office 50 years ago today, in a St Mary Cray by-election on 3 December 1970. John has served as a councillor, trade unionist, trade union official, MP and Minister. John would have nothing to do with any extremism of any sense whatever; anyone who knows him would know that. He has also run a news service for many in the Labour Party called “Spellar News”. We get it two or three times a day: early bird, evening round-up and news flashes. John is actually retiring the news service today, which I am very sad about. He has done great work as a trade unionist and is a great example to many of us in the Labour Party.
I was also sorry to learn that the noble Baroness, Lady Jones of Moulsecoomb, has been arrested on demonstrations. I have been on a few demonstrations in my time as well. I have avoided being arrested, but I must admit that I have also been demonstrated against. When I was a councillor, many times things that we did on the council provoked some annoyance. I remember once that I put up the fees of the traders in East Street Market and drew their wrath for a number of weeks. There were lots of unpleasant signs about me.
What is important here is that, if you are a trade unionist or a campaigner, nothing in the Bill must ever undermine legitimate work. It is really important for the Government, and for the noble Baroness, to reassure the House and Parliament that nothing legitimate will ever be undermined when this goes on the statute book, and that actually it will be supported. I think she can see from the comments of people around the House today that we are not convinced that is the case. She needs to reassure us now in responding to the debate.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this debate and pay tribute to anyone who has been in politics—and indeed the trade union movement—for 50 years. I have heard of John Spellar in dispatches, but unfortunately not the person that the noble Baroness, Lady Bryan of Partick, referenced.
Turning to public authorities, they have different functions, the ultimate outcome of which is to keep the public safe from harm in a variety of ways. It is very important that they can lawfully deploy CHIS to fulfil those responsibilities. These amendments seek to restrict the statutory purposes available to public authorities under the Bill.
The structure of new Section 29B closely resembles that of Section 29, which authorises the use and conduct of CHIS, as there is a high degree of interrelationship between the two provisions. That is why a Section 29 authorisation is required to be in place before a Section 29B authorisation can be granted. The statutory purposes that will be available for a criminal conduct authorisation are linked to those available for a use and conduct authorisation. It is not operationally workable to have different grounds for authorisation between the provisions. For example, we would want to avoid a situation where a CHIS’s use and conduct has been deemed necessary for the prevention of crime, but the linked criminal conduct authorisation for the same CHIS and the same activity may be only on the basis of preventing a serious crime, as my noble friend Lord King of Bridgwater pointed out.
My noble friend also pointed out the words of my right honourable friend James Brokenshire about the sheer amount of activity that has been done under covert means—it led to 3,500 arrests and the recovery of more than 400 firearms, 100 other types of weapons, 400 kilograms of class A drugs and £2.5 million-worth of cash. But first and foremost, and most importantly, is the fact that it safeguarded hundreds of victims from child sexual abuse and other heinous crimes.
To restrict the prevention of “crime” to “serious crime”, as Amendments 22, 23 and 31 propose, would mean that public authorities would be less able to investigate crime that, while not amounting at the time to serious crime, actually has a damaging impact on the lives of its victims—so the outcome is serious, to answer the question of the noble Lord, Lord Kennedy. An example of this would be food crime: the extension of meat durability dates, leading to out-of-date food being consumed, is damaging and can be very dangerous to public health.
Of course, the necessity and proportionality requirements mean that an authorisation must be proportionate to the activity it seeks to prevent. This provides an important safeguard against authorisations of serious criminality being granted to prevent less serious, but equally important, crime. However, it is surely right that public authorities have access to the most effective tools to ensure justice for victims of these crimes and to prevent their occurrence.
The noble Baroness, Lady Chakrabarti, referred to some of the examples that we have heard in this Chamber of sexual relationships between undercover police and women, and some of the actually quite devastating consequences of that. I think I have said before in this Chamber that that was not lawful, is not lawful and would never be lawful.
In response to the1 amendments seeking to remove economic well-being, this is one of the established statutory purposes for which covert investigatory powers may be deployed by public authorities. It recognises that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. It might, for example, include the possibility of a hostile cyberattack against our critical national infrastructure, our financial institutions or, indeed, the Government. It is important that law enforcement bodies and intelligence agencies can deploy the full CHIS functionality against such threats where it is necessary and proportionate.
Similarly, preventing disorder is an important and legitimate law enforcement function. Where illegal activity takes place, public authorities listed in the Bill have a responsibility to take action as is necessary and proportionate. An example of this could be managing hostile football crowds, which does not involve lawful protest but causes harm to the public.
To be clear to noble Lords concerned that either economic well-being or preventing disorder could be used to target legitimate protest or the work of the trade unions, an authorisation can be granted only if it is proportionate to the harm or criminality that it seeks to prevent. Therefore, this would not include—to use the words of the noble Baroness, Lady Chakrabarti—“legitimate and lawful activity”. The noble Baronesses, Lady Jones and Lady Bryan of Partick, also gave examples of activity by political groups or trade unions. The noble Lord, Lord Kennedy, asked me about the difference between the wording in this Bill and the CT Act. It goes wider, basically, and it is consistent with RIPA.
With those words, I ask noble Lords not to press their amendments.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I have received a request to speak from the noble Lord, Lord Paddick.
Lord Paddick (LD)
My Lords, I am grateful for what the Minister has said and appreciate that she has to stick to her script, but it gives the impression on occasion that there is no point in making contributions to debate because what I have said appears, from what she has said, to have been completely ignored. I will repeat exactly what I said. I said that of course the Government may say that in addition to being necessary the granting of a CCA must be proportionate—the issue that she mentioned—and it would not be proportionate to deploy a CHIS if the criminal activity was minor. That is almost word for word what she said. However, I went on to say that the same argument applies to the interception of communications in RIPA, where necessity is limited to serious crime, as defined in our Amendment 31. That second point seems to have been completely ignored by the Minister. I accept that that is probably because she has, understandably, just stuck to her script. It comes back to the point that I made, which is: what is the point of making speeches in debates if what noble Lords say is ignored by the Minister?
The Minister said that these amendments would limit how CHIS could lawfully be deployed and seek to restrict their deployment, and authorities would be less able to investigate crime. This Bill is about criminal conduct by CHIS, not their deployment. It is about giving authority to agents and informants to commit crime, and grant complete legal immunity to CHIS in those circumstances. There is a world of difference between deploying a CHIS and authorising them to commit crime, and then granting them immunity from prosecution. Yet the whole basis of her argument, from what I understood her to say, is that there is no difference between the two. In which case, what is the purpose of the Bill?
I say again: why is the interception of communications limited to serious crime if there is no need to limit the deployment of CHIS, who are going to be authorised to commit crime? Why should they not be limited to serious crime? That is a question that the Minister has failed to answer.
Baroness Williams of Trafford (Con)
The noble Lord, with whom I am actually good friends, makes a valid point: what is the point in making speeches if points are ignored? I often find that I make the same points over and again, and they are completely ignored because such is the will of people to make their opposite points. However, on this occasion, he is absolutely right. I did not address his point about RIPA and it being confined to serious crime. In the interception of communications, we are dealing with machines. In the deployment of humans, we are dealing with something else. I apologise to him for not answering his point.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to all noble Lords for the care with which they have approached this group, which once more highlights the gravity of the development of this legislation to enable statutory criminal conduct authorisations with total immunity for the first time in our law. I will not rehearse the various arguments, most of which I agree with, but I will respond to the noble Lord, Lord King of Bridgwater, a distinguished statesman for whom I have a great deal of respect, and to the Minister. It is their opposition to these amendments and the thinking behind them that I must address, because the issue is so serious.
At various times in the debates on the Bill, some noble Lords have expressed irritation that one should hark back to past abuses including those in the Undercover Policing Inquiry, or the treatment of my noble friends Lord Hain and Lady Lawrence, as if they belong in a bygone era and would never happen again. Other examples include the treatment of the Greenpeace women and so on. One can cast those abuses aside by saying they would never happen again but, of course, we know that as legislators we have the precious duty—the sacred trust of those who have appointed us to this role—to learn from the past and legislate for the future, informed by the dangers that past activities have exposed. It is right that we take some care and employ forensic precision in refining provisions in legislation as serious as this.
With the greatest respect to the noble Lord, Lord King of Bridgwater, and the Minister, there has been an element of blurring classes of activity that should not be blurred in legislation of this kind. In particular, there has been blurring, as the noble Lord, Lord Paddick, highlighted, on authorising undercover operatives, which is perhaps the most serious kind of intrusive surveillance—because humans are human, not machines, to quote the Minister. Yes, they need more protection but we also need more protection from them because they will change our behaviour and not just record it.
Undercover operatives are important but dangerous, even under the present law. There is a new category of authorisation in this legislation, which is about criminal conduct by those agents and criminal conduct with total immunity after the fact. That is completely novel. It is important to understand how we got here, not just regarding the vital need for these operatives or the abuses of the past but the jurisprudential and legislative train that got us to this station.
Article 8 of the convention on human rights guarantees the right to respect for private and family life, stating that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
But of course there are exceptions. Article 8(2) is crucial in this debate. It states:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
That is a necessarily broad exception. Why? It is because that exception exists in international and human rights law to cover any privacy interference at all. Any camera on a high street or requirement to fill out a tax form is an interference with privacy. It includes any interference on a prisoner’s privacy or the privacy of a schoolchild—any interference at all. Therefore, that category of exception is broad. However, it is too broad for intrusive surveillance, which is why, as the noble Lord, Lord Paddick, said, we start to introduce further restrictions for intrusive surveillance. It is not just about the duty to fill out a tax form any more; we are now talking about much greater intrusions—serious crime rather than just any crime.
Economic well-being is vital, for example, for the tax form; but it is too broad a category for authorising agents of the state to commit crimes against me, my friends or my associates. That is the Article 8 wording, which is too easily copied and pasted. Then we have the slightly tighter definitions in the Regulation of Investigatory Powers Act, on to which today’s scheme is going to be grafted. That, serious though it is, is intrusive surveillance, but this is intrusive surveillance plus criminal activity plus total civil and criminal immunity. That is why the justifications in this Bill need to be tighter still than those in RIPA, not broader, and certainly a great deal tighter than the exceptions to Article 8 of the convention. I hope that I have made that clear, and I hope it rings true with most of your Lordships’ House.
To return to the noble Lord, Lord King of Bridgwater, I say that nobody is under any doubt that covert human intelligence sources are absolutely vital tools of public protection. Under the current law, we have no doubt that they have protected many of us and saved many lives. However, that was on the basis of a law where these people acted on the basis of guidance, but without this absolute immunity; but now we are told that they need absolute immunity—not a public interest defence and not what they have had until now. Therefore, it is perfectly reasonable to at least probe the possibility of, if not to insist on, much tighter regulation and safeguards than are currently provided in the Bill. Having had that discussion, however, for today at least I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group consisting of Amendment 27. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Amendment 27
Baroness Hamwee
Member’s explanatory statement
This would only allow a criminal conduct authorisation to be granted on economic grounds if it is also relevant to the interests of national security.
Baroness Hamwee (LD) [V]
My Lords, we have covered a good deal of the ground of Amendment 27 in the previous debate. I will try not to repeat too much of that. The basis for a criminal conduct authorisation under new Section 29B(5)(c) is the economic well-being of the United Kingdom. Amendment 27 seeks to qualify that with the words,
“so far as those interests are also relevant to the interests of national security”.
I said that I was not going to repeat too much of the previous debate, but I have made a note that I want to echo the wise words of the noble Lord, Lord Judd. Of course, today is not the first time that Parliament has been presented with grounds for doing something that it considers unappetising or justifiable only in quite extreme circumstances or where it is concerned that the grounds are too wide. I am not referring only to today, but the range of public authorities that fall into this Bill is wider than we have seen before by quite some margin.
Under the Investigatory Powers Act 2016, which allows for bulk acquisition warrants to be issued for the acquisition of data, if the Secretary of State considers it necessary in the interests of national security, the warrant is authorised. It is also authorised for the purpose of preventing or detecting serious crime or in the interests of the economic well-being of the UK, and then the words in Amendment 27 follow. Those qualifying words were not in the Bill as it was introduced. They were introduced and added after amendments and debate. I cannot now recall why we did not end up simply relying on the original national security grounds to cover economic well-being as well. These were words that the Government accepted; they were also words to be found in the Counter-Terrorism and Border Security Act 2019, to which the noble Lord, Lord Kennedy referred, in the definition of a hostile act that entitles questioning and detention at the border.
Baroness Jones of Moulsecoomb (GP)
My Lords, my name is down to speak on this group of amendments by mistake, but I will take the opportunity to support the noble Baroness, Lady Hamwee, and to point out to the Minister that part of the reason we keep arguing back when she gives us information is that her text rewrites history.
Many of us were there 20 years ago when, to give just one example, we challenged the police about police officers sleeping with—almost exclusively—women to infiltrate campaign groups. I was on the Metropolitan Police Authority for 12 years and challenged successive Met commissioners to say to us that that was not lawful and not something that police officers were encouraged to do. They could not do it because all the police who have leaked and whistleblown about doing that sort of thing have said that they were encouraged to do it. It was implicitly and explicitly seen as one of the perks of the job.
So, if we do not listen, it is not because we do not have a lot of respect for the Minister; it is that we know that what she says is rewriting history. It is not true that police officers were told that it was not lawful to sleep with women on campaigns. I cannot emphasise that enough. I challenged the noble Lords, Lord Stevens, Lord Blair and Lord Hogan-Howe, and Commissioner Stephenson on this very issue and none of them could reply. I hate to attack civil servants but the Minister is getting a rewriting of history from them. That is why we argue back: because we know that it is just not true.
Baroness Chakrabarti (Lab) [V]
My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.
This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.
A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as
“like the hole in a doughnut”.
He said that it
“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”
In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.
Lord Beith (LD) [V]
My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.
There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.
In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?
As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.
The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.
I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 27 is tabled in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I am not going to speak for long because we discussed some of these issues in the previous group. We have mentioned numbers in the various pieces of legislation and I have made the point about consistency. I know that when I mentioned the counter-terrorism Act, the noble Baroness was spot on and I will look at what she said in the earlier debate. However, we need to be sure that we have consistency in the various bits of legislation that we are talking about today. That is very important.
A number of colleagues have talked about the need to get the balance right here. The concerns that have been raised by Members of the House show that it is one thing when you are dealing with terrorists from another state or people who for various reasons are looking to undermine the economic well-being of the country, but on the other side of that are quite lawful campaigners. We might not like them and we might think that what they are doing is wrong or irritating, but they are acting in a perfectly lawful way. That is the area in which we need reassurance and it is what this debate comes down to. People have the right to protest, to be annoying and irritating, as long as they do it lawfully. We have to be sure that we get this right and that is what we are worried about.
Equally, I turn to the whole question of trade unionists, who have been mentioned many times. Trade unionists have the right to campaign and to know that they can do so without having agents put in to undermine their activities. You could argue that others might undermine their activities, but they do not need people in their own ranks who are sent in to do that.
As many noble Lords have mentioned, in the past undercover officers have been sleeping with campaigners. That is totally out of order. I am sure that it will be said that that will never happen again, but people need to be reassured that it is, as I say, totally out of order. While the Government are saying that this will never happen again, the noble Baroness, Lady Jones, has challenged a number of police commissioners—three of them are now Members of this House—and has never had an answer; that is also a concern. These things are totally wrong.
The Minister has a job here to find a way of reassuring the Committee that these things will not happen again, but how can we be sure about that? That is the issue that we have to deal with, because of course we thought that they could not have happened before, but clearly they did and we have only found out about them years afterwards. We want legislation that is right and proper so that people are protected, but, equally, legitimate campaigners have to be protected as well so that they are not abused and wrong things done to them. This, I think, is the crux of the issues we are debating today and I look forward to the response of the noble Baroness.
Baroness Williams of Trafford (Con)
I thank all noble Lords who have taken part in this debate. I will start with the comments of the noble Baronesses, Lady Jones and Lady Chakrabarti, and the point about listening to what each other is saying. I have never tried to skirt around the issue of the disgusting behaviour of some 30 years ago. I do not know whether police officers were not told that it was illegal and the inquiry is clearly establishing the ins and outs of that. But it was not acceptable and it was never lawful, and it cannot be authorised under this Bill. I hope that I have made that very clear. I do not dismiss what those women went through—including, indeed, what the noble Baroness, Lady Lawrence, went through—and I hope that the inquiry will vindicate an awful lot of the people who suffered, complained and were simply ignored in the past. The inquiry will get to the bottom of something that was never lawful in the first place. I digress, but I must add that operational partners are very clear that that sort of behaviour could not be authorised under this Bill.
I shall move on to the substance of Amendment 27. I will not repeat the points I made in response to the last set of amendments, but I will emphasise that economic well-being is one of the established statutory purposes for which covert human investigatory powers may be deployed by public authorities. We recognise that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. That might include, for example, the possibility of a hostile cyberattack against our critical infrastructure, as I said earlier, attacks on financial institutions or on the Government themselves. I gave examples in my previous speech of the victims of CSA, cash and drugs activity, so they may not be solely related to issues of national security.
We have agencies such as HMRC, the NCA and the Serious Fraud Office whose mandate includes mitigating broader threats to the UK’s economic well-being. These threats are real, emerging and go beyond the remit of national security. We cannot tie our hands in response to such threats by limiting the statutory purposes available to tackle these issues. Of course, there are also examples of where economic well-being is not restricted to national security, as set out in other parts of the Investigatory Powers Act and the Security Service Act.
I hope that I have given a full explanation of why Amendment 27 should be withdrawn.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I am grateful to those noble Lords who have contributed to this debate. My noble friend Lord Beith posed a number of new scenarios and he is right to prompt us to be thoughtful about these issues.
I have to say that I find it difficult to envisage what economic interests there might be which would justify a criminal conduct authorisation that do not fall within national security interests or the prevention or detection of what we think should be limited to serious crime. I do not want to repeat the arguments that I and others made in the previous debate or indeed in this one, but I will say in response to the Minister that she has introduced an element that perhaps we have not dealt with before: the need to anticipate what might happen. I may have got her words wrong, but that is the meaning I took from them. I would point to the word “preventing” crime as set out in subsection (5)(b).
I am sorry that we have not been able to progress this any further, but clearly at this moment I should beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 28. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.
Amendment 28
Lord Kennedy of Southwark
“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”Member’s explanatory statement
This would provide that circumstances in which a criminal conduct authorisation is deemed necessary for the economic well-being of the UK may not include the activities of trade unions.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 28 in my name and that of my noble friends Lord Rosser and Lady Clark of Kilwinning, and the noble Baroness, Lady Jones of Moulsecoomb, seeks to amend the Bill by adding to it an exclusion that, where a criminal conduct authorisation is sought and deemed necessary, the grounds on which it is sought cannot include the activities of trade unions. We have mentioned trade unions in a number of our earlier debates. This is a very important issue and one that I hope that the noble Baroness, Lady Williams of Trafford, will make a very positive response to at the end of the debate. I should add at the start of my remarks that I fully support Amendment 29, in the name of my noble friend Lady Clark, which is an amendment to my amendment to add the words “or legitimate political activity”.
Noble Lords will know that trade unions have been legal in the United Kingdom since about 1824. As a result of the Royal Commission on Trade Unions of 1867, it was agreed that unions were advantageous both to employers and employees. That led to the passing of the Trade Union Act 1871. Trade unions have been a force for good in the United Kingdom and around the world. They have led campaigns to improve the conditions, and the health and safety, of workers and communities alike. They are experts in the world of work. Through constructive engagement with employers in the public and private sectors, they have sought to deliver improvements of which we are all beneficiaries today. They should not be subjected to any activity resulting from the powers given under the Bill, which is why this amendment is so important.
Trade unions have brought about improvements such as sick pay, maternity pay, the eight-hour day for most workers, paternity leave, paid holidays, the minimum wage, protection against discrimination, equal pay and safe and healthy workplaces, but there is always more to do. Trade unions today are campaigning on zero-hours contracts and their associated poor working conditions, and on low wages. They also play a huge role in the campaigns on climate change, domestic abuse and the gig economy—where basic rights are often in short supply. They have highlighted the shambles of the universal credit roll-out, for example, and the great shame that, in the fifth-richest country in the world, there are people relying on food banks and sleeping in the streets close to this noble House.
All that work is legitimate and legal, and it should never be at risk from the powers contained in the Bill. I am seeking an unequivocal assurance from the Minister that trade unions will never be targeted. If she will not accept this amendment, how can she provide that assurance to the House? I fully support the amendment in the name of my noble friend Lady Clark, as I said earlier, which would further ensure that legitimate political activity cannot be targeted under the powers contained in the Bill.
Amendment 35, in my name and those of my noble friends Lord Rosser and Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, would prevent the powers in this Bill being used to compile lists of trade union members or to discriminate against them when they seek employment. We have heard disturbing stories of how, in the past, police officers were involved—and that is terrible—and organisations were doing just that. It is vital to have an unequivocal assurance that never again will we see officials of the state involved in targeting individuals, using the powers contained in the Bill. These are serious matters. Even the Metropolitan Police’s official spokesman said that the force’s internal report into blacklisting had established that the conduct of certain officers amounted to the improper sharing of information, as the law stands. Even their own spokesperson accepted that these things were wrong.
That was all part of a scandal which was exposed 10 years ago. It involved an organisation called the Consulting Association and information being quite improperly supplied to companies. That effectively ended the individual’s chances of getting a job, which was appalling and disgraceful. We are all aware of the settlements offered by companies such as Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Robert McAlpine, Skanska and VINCI. I am sure that the Undercover Policing Inquiry will look at this further, but I am also concerned that these activities should worry us all.
If these powers are put on to the statute book, what are the protections and guarantees against these activities happening again? I know the Minister will say it will never happen again but, sadly, sometimes these things do. Can she say in her answer what will be done if it happens again? We all know about the questionable activities of Mark Jenner, also known as Mark Cassidy. He allegedly passed on information about 300 workers; his name comes up many times in connection with other activities. We need to know that this cannot happen again and, if it does, what the Government would then do. I look forward to this debate and I beg to move.
Amendment 29 (to Amendment 28)
Baroness Clark of Kilwinning (Lab)
My Lords, I shall speak in favour of Amendment 28, to which I have added my name. It seeks to outlaw the infiltration of trade unions. In addition, I shall speak to my Amendment 29, which would go further in seeking to outlaw the infiltration of legitimate political organisations and activities. I have tabled it as a probing amendment. Many of these issues take up a lot of what was discussed in the previous debate.
State surveillance of political organisations is of course far from new. It has been going on for many centuries. Earlier this week, we heard powerful testimony from my noble friend Lord Hain about his own experiences. I know that there has been surveillance on my noble friend Lady Lawrence of Clarendon and her family. I suspect that other Members of this House may also have been subjected to surveillance, whether they are aware of it or not.
Lord Paddick (LD)
My Lords, I start by making it absolutely clear that I do not blame the Minister or those who have written her brief. All I am saying to the House is that Members of this House involved in this debate have hands-on experience of these issues. I include the noble Lord, Lord Davies of Gower, and the noble Baroness, Lady Manningham-Buller, in that. I ask the Government to listen very carefully to those with that experience; that is all. I can confirm that the Minister and I are friends.
The amendments in this group seek to prevent the use of criminal conduct authorisations in connection with the activities of trade unions or legitimate political activity, or to compile lists to exclude people from employment because of their involvement with trade unions or their activities. Others seek to ensure that they are not used disproportionately against minorities and to find out how the Government intend to respond to the Undercover Policing Inquiry.
There are difficulties with Amendments 28 and 29. What happens if a trade union, or its members, is involved in criminal or seditious activity, such as, as was suggested earlier, the activities of Arthur Scargill and the National Union of Mineworkers? Who defines what political activity is legitimate? If members of a trade union have been involved in criminal activity, are there not circumstances where they could legitimately be discriminated against by employers?
We have sought to take a more general approach. In an earlier group, I mentioned our Amendment 56A in this group. It might have been better in the group where we discussed prior judicial authorisation, but the amendment did not come to me until midway through that debate. That is why it is in this group. However, it addresses exactly the issues that the noble Baroness just spoke about. Therefore, it is legitimate for it to be in this group.
I believe there is consensus around the House that agents of the state, in particular the police, should not be able to authorise covert human intelligence sources—an informant or agent—to participate in crime, granting everyone involved legal immunity in the process, without more rigorous and independent oversight. Otherwise, the sort of activity that the amendments in this group seek to prevent could take place.
As we have already debated, the problem with the prior judicial authorisation of a criminal conduct authorisation, which has to define very precisely what exactly the CHIS is or is not allowed to do, is that the agent or informant is often being sent into an uncertain, rapidly changing scenario in an uncontrolled environment, often involving chaotic individuals. Straitjacketing the agent into an exact set of actions, stepping outside of which would remove his legal immunity, is not practical, not least if the CCA has to be referred back to a judge, the Investigatory Powers Commissioner or even a Secretary of State before the criminal conduct authorisation can be changed. These are often fast-moving situations, involving complex human interactions that cannot be paused while a decision is made.
It is essential that covert human intelligence sources are not tasked to commit crime in a way that is not legitimate, whether by mistake or corruptly. The draft revised code of practice is not reassuring on this point. For clarity, I will set out what could happen in practice: a handler, who is in in contact with the informant and wants him to participate in crime, makes an application to an authorising officer—in urgent cases, a police inspector or equivalent and, otherwise, a superintendent. Paragraph 5.8 of the draft code of practice says:
“authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible”.
There could be a situation where a drugs squad sergeant investigating a drugs gang gets urgent authority from his own drugs squad inspector to authorise an undercover drugs squad officer to engage in a drug deal in which the sergeant, the undercover officer and, arguably, the authorising officer are all immune from legal action. It is not difficult to see the potential for abuse in such situations. Noble Lords will be able to imagine a similar scenario, where the target of the operation is a legitimate peaceful protest or the proper activities of a trade union.
Amendment 56A in my name and that of my noble friend Lady Hamwee seeks to resolve this conundrum. It seeks to ensure that, if it is intended that an agent or informant is to participate in crime, the
“nature and extent of the deployment have been approved by the Investigatory Powers Commissioner”
in advance, not the precise details of the criminal conduct authorisation. It is pre-approval, if you will: a CCA cannot be granted unless and until the Investigatory Powers Commissioner has agreed to the mission, in general terms, on which the CHIS is about to embark.
The amendment does not require the prior approval of the exact and precise terms of the criminal conduct authorisation. Instead,
“the purpose and extent of the deployment, and … the type of criminal activity”
likely to be involved must be explained, in general terms, to the Investigatory Powers Commissioner, who must approve the use of the agent or informant in the intended way. The Investigatory Powers Commissioner could, for example, approve the deployment of an agent into a terrorist organisation, but would, in all likelihood, refuse the use of a CHIS to spy on the legitimate activities of a trade union.
We suggest that this would provide the reassurance that many noble Lords seek by ensuring that a covert human intelligence source should not participate in crime without prior judicial approval, but without the Investigatory Powers Commissioner becoming involved in trying to understand the personality of the CHIS and those he will interact with, or becoming involved in the exact detail of the criminal conduct authorisation prior to the event. It would give the handler the flexibility he needs, but ensure that the CHIS is deployed only for a legitimate purpose. Such prior approval of deployment would apply only where it is intended that the agent or informant will be authorised to commit crime.
Clearly, there needs to be provision for urgent cases, which the amendment attempts to give, but what constitutes an urgent case also needs to be defined—although there is guidance in the draft code of practice about this. The question of legal immunity needs to be dealt with separately, but I urge the Government to seriously consider this compromise, and I hope that the Minister will undertake to discuss this amendment with me before Report.
As with all activity by the state and its actors, the impact on minorities should be monitored, and we support Amendment 78. However, we feel that it is too early to expect the Government to set out how they will respond to the Undercover Policing Inquiry, as this will depend on its findings.
Baroness Jones of Moulsecoomb (GP)
My Lords, the noble Lord, Lord Paddick, gave a very graceful explanation of his previous intervention. Perhaps I should do the same and at the same time apologise to civil servants. If we accept what the Minister has said —that such actions as sleeping with campaigners to infiltrate those campaigns was illegal then and is illegal now—that still means that four Met commissioners sat in front of the body holding them to account and refused to commit to that. What does that say about our senior officers? We always have to bear this in mind, and I have been involved in this struggle for the past 20 years.
Lord Judd (Lab) [V]
My Lords, I declare an interest as a member of a trade union ever since my undergraduate days in my first job, during a long vacation, as a garden labourer for the LCC. I joined a trade union as a young man and have remained convinced about the unions’ role in society ever since. They are fundamental to the kind of free society in which we want to live, a society with checks and balances and in which the rights of individuals, whoever they are, can be protected. In the struggles of the trade union movement over many years, we can see how those rights have been hard-won by brave and courageous people who stood up for justice and fairness as they understood it.
I said on the last amendment that the dividing line between a free society and a police state is not always absolutely clear. In our society, while the majority of employers are responsible people, with a sense of responsibility towards their workforce and to all who are involved in their industry, we know that too many employers and people in the private sector are ruthless. They are prepared to do anything to further their profit and financial gain. I add in parenthesis that I always see a correlation between lasting industrial and commercial success—and responsible leadership of industry—with the recognition that the role of trade unions has been central to ensuring that success in the future. I always think people who deny these rights and freedoms, and the importance of organised labour, are in one way or another destined to have a sticky end.
In the kind of society in which we are living, it is therefore crucial to take our responsibility towards the protection of trade unionism and the protection of the rights of workers within our society as fundamentally important. We must not drift into a situation in which, by an inappropriate use of police powers, less savoury elements in our commercial system can exploit the situation for their own good. I always saw the blacklist of people who had been involved in what was regarded as unacceptable activity as pernicious. How many employers are on a blacklist from participation in the economy because of totally unjustifiable things that they have done? That is where we come down to the fundamental fairness and justice in our society. For those reasons, I am very glad that my noble friends have moved this amendment, and I express my strong support for what they have said.
Lord Thomas of Gresford (LD) [V]
My Lords, I support Amendment 56A in particular. In the earlier debate on the issue of prior judicial authorisation, I made the point that notification of an authorisation of criminal conduct to the IPC, as suggested by the noble Lord, Lord Anderson, and other noble Lords, lacked teeth. In response, the Minister argued that the oversight role of the Investigatory Powers Commissioner has teeth. She said that it includes ensuring that public authorities comply with the law and follow good practice. She added that public authorities must report relevant errors to the IPC office; for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards, saying that the role of the IPC was to make recommendations to public authorities in areas that have fallen short of the required standard. This all may happen after a criminal event has taken place. The so-called safeguards would then bite on nothing.
Alternatively, the Minister relied on a framework in which the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice. Like the noble Lord, Lord King of Bridgwater, I have looked at this, but cannot find any guidance as to the areas in which it is appropriate for all these public authorities to deploy CHISs. It says simply that the deployment must be
“necessary and proportionate to the intelligence dividend that it seeks to achieve”
and
“in compliance with relevant Articles of the European Convention on Human Rights”.
The authoriser himself or herself is charged with considering whether the activity to be investigated is an appropriate use of the legislation, which rather begs the question of what, when and where is appropriate. It is entirely the subjective opinion of that individual authoriser. He may object to the secret cultivation of leeks in Dorset, for all that the noble Baroness, Lady Jones, might know.
Examples of the deployment of covert agents, as outlined by the noble Lords, Lord Hain and Lord Mann, and the noble Baroness, Lady Jones, herself, and in the case of the Lawrence family, are dismissed as errors of the past, and that in the bright future under the provisions of this Bill, they would not happen. I agree entirely with the noble Baroness, Lady Chakrabarti, that we learn from the past, and that in this Bill there is a blurring. This bright future includes a novel element: the authorisation of crime with complete and total immunity against prosecution, or against civil suit. The Bill envisages that covert human intelligence sources will be employed in the future by a wide variety of public authorities in a wide variety of unknown situations and areas. Let us consider the areas referred to in these debates: protests against apartheid in South Africa, protests involving the cooling towers of electricity stations, and protests up trees. As for the Lawrence family, I cannot imagine what public interest was being pursued.
I recall prosecuting a case in which the defendants were charged with sending letter bombs. It emerged in the evidence at the trial that a covert security service officer was happily waving a banner in a protest march through Caernarfon in support of the aims of the bombers, shortly before the trial took place. Waving a flag may not be an offence outside Northern Ireland, but the case involved a serious crime that resulted in a 12-year sentence of imprisonment. As prosecutor, I received a knock on my door at home from the local policeman from Rhosllanerchrugog, warning me about my personal security during the trial, and telling me not to open any large letters. Two days later, I was contacted for the same purpose by the security services, who presumably did not feel the same urgency or concern for my safety as my local bobby.
Baroness Chakrabarti (Lab) [V]
My Lords, I agree with everything that has been said in this group so far. Of course, it comes at the problem from a slightly different angle. We heard in the last group that the purposes for which a CCA may be issued are incredibly broad, with definitions taken from the realms of international law not practicable enough to work at a fairly junior authorising level for something as severe as criminal conduct. This group comes at the same problem from the angle of protecting groups—legitimate political and trade union groups, and so on—which have been, on the evidence, targeted for abusing and intrusive surveillance in the past, and now there is the greater risk that comes with criminal conduct and immunity.
I join others in thanking the Minister for her comments about the victims of undercover police officers who formed intimate relationships, sometimes over many years and sometimes producing children. Her apologies and reassurances will give some comfort to the women in question, but in that spirit of constructive debate and listening, it must be pointed out that there were abuses beyond even those, including the abuses experienced by my noble friends Lord Hain and Lady Lawrence, and others, who were not subject to that sexual intrusion, but were none the less subject to intrusion on the basis of their political views and activities alone. As it stands, there is nothing on the face of the Bill that would protect such legitimate democratic actors from similar or greater abuse in the future, given that what we are talking about now is criminal conduct with total immunity, as we have heard.
I look forward once more to the Minister’s reply to the very constructive suggestions that come in a number of different forms in this group.
Lord Morris of Aberavon (Lab) [V]
My Lords, I wish to speak briefly to Amendment 28, which I support. I was surprised at the breadth of the debate on Amendment 22 and others, as some of the comments on trade unions might have been more appropriate in this debate. Nevertheless, the noble Lord, Lord Paddick, made some worrying points in that debate in comparing RIPA and seeking justification for the words in this Bill. I suspect that he will want to return to them, given the inadequacy of the reply of the Minister, who gallantly recognised the points he made.
The state is sometimes minded to intervene in fields where it should not. The words in the clause,
“in the interests of the economic well-being of the United Kingdom”,
may need clarification and, indeed, very close scrutiny. In my view—I think I am quoting Shakespeare—they need to be “cabined, cribbed, confined”. The noble Lord, Lord Thomas of Gresford, also made some pertinent points in rightly parading some historical matters. Can the Minister refer to the precedents for words of this kind? I suspect they may have been used before. If so, it should be looked at very carefully as to whether they should be repeated, because as they stand, they are a licence to do anything. The line is a very thin one, from my past experience, between legitimate activity and activity in which the state is sometimes minded to intervene. In the Bill, there is no qualification of these words, but one is mightily needed.
I have no present interests to declare, but I was for many years a member of APEX, subsequently taken over by GMB, and I was in turn a Member of Parliament sponsored by those unions. As a retired member, I no longer have that interest to declare but, as a practising barrister, I had the privilege of giving legal advice to the south Wales miners during the miners’ strike. My junior counsel was Mr Vernon Pugh, later a very eminent Queen’s Counsel. The circumstances of that particular legal advice escape me—indeed it would not be appropriate to comment any further—but it was during that period that I believe the Thatcher Government crossed the line and intervened in lawful industrial activity. The freedom of the trade unions to assemble, protest, negotiate and represent was a battle that had been won over many years. My noble friends Lord Kennedy—in a very forceful speech—and Lord Judd made reference to these points. Nobody in their right senses would want to return to that and not follow the best practice of ensuring that trade unions are able to do their work.
The amendment seeks, with belt and braces, to protect trade unions from authorisation for a criminal activity. The words are a matter of great concern. It would be a sad day if we in any way return to the state interfering with trade unions and their activities and particularly condoning and authorising criminal offences involving the proper and lawful activities of trade unions. Amendment 28 is a clear warning: keep off the pitch. No normal Government would dream of crossing the line.
Regrettably, we have lived through a period when tempers were frayed, unfortunate incidents occurred and the Government did intervene. What we do not know is how infiltration occurred during that period. It is a fundamental point that we should know more. We are not talking of surveillance; that is the vital difference. Surveillance may be proper in some circumstances, but authorising criminal activity involving trade unions is not. To avoid repetition of what has happened in the past, and with those few words, I support the amendment.
Baroness Hamwee (LD) [V]
My Lords, if the noble and learned Lord was referring at the beginning of his contribution to the term “economic well-being”, I hope that the references made during the earlier debate will be helpful. I certainly agree with him about the breadth of what is in the Bill and the distinction between surveillance and authorising criminal conduct.
The amendments in this group raise the issue of whether we are concerned about the activity or the actor. My noble friend Lord Paddick questioned Amendment 29 and the term “legitimate political activity”. I had in fact made a note that that quite attracted me, but he and I have not had the opportunity to thrash this out between us. We may get it on the floor of the House if the noble Baroness brings the matter back at a future point.
On Amendment 78, on the equality impact assessment, frankly, the Government would be ill advised to resist this. I am mindful of the need to avoid the identification of agents. The noble Baroness, Lady Manningham-Buller, was very clear about that the other day but, as the amendment is worded, I do not think that there should be such risks—although of course I am not experienced in this area.
In Amendment 56A, my noble friend has stood back to look at the purpose. Again, it is the broader point of addressing the principle rather than producing a list or a detailed prescription. I hope that the Minister will accept that we are keen to address the problems that the Bill throws up without undermining it. I am sorry that, today at any rate, I will not get the chance to speak after she has responded to my noble friend, but I believe that he has come up with a formula that is well worth pursuing.
Baroness Williams of Trafford (Con)
I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.
The Deputy Chairman of Committees (Lord Bates) (Con)
My Lords, I have received one request to speak after the Minister, from the noble Lord, Lord Paddick.
Lord Paddick (LD)
My Lords, I am grateful to the Minister. I have just one question. She said that the scenario I suggested could not happen because police forces had dedicated source units. Can she point to where in the Bill or in the codes of practice it says that that has to be the case? If not, the Bill or the code of practice is defective.
Baroness Williams of Trafford (Con)
The noble Lord will appreciate that not every Bill contains every minute detail of issues such as this, but I hope that, with my having made the statement on the Floor of the House, the noble Lord is satisfied that there cannot be conflict. However, I would be very happy to speak to him about this before Report.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank all noble Lords for their contributions to this debate, in which we have discussed some important issues. Needed here are guarantees that trade unions—as corporate bodies or their individual members—political parties, campaigning organisations and individual political campaigners undertaking legitimate and lawful activity, which you may not like, will not have agents of the state working to undermine their work. That is the key thing here. We will have to pursue this matter again on Report. This has clearly happened in the past and the Minister has admitted that it could happen in the future. If we cannot guarantee that it will not happen again, what are we going to do about it? That is what we need to know; that is the point that we need to sort out.
The noble Lord, Lord Thomas of Gresford, highlighted the wide range of authorities that have powers and the subjective nature of individual criminal activity authorisations. That is also an issue. I am starting to wonder whether some previous authorisations were malicious or, in some cases, just stupid. Either way, you worry about, “Well, why would people do that?” It may be malicious or just stupid. How could one issue an authorisation for some little organisation that poses a threat to nobody? It is a waste of public money if nothing else; it is just ridiculous. These are the things that we need to know about.
The noble Baroness, Lady Jones of Moulsecoomb, is a highly respected Member of the House. I like her very much, as I know do many other Members around the House. We do not agree on everything, but we agree on lots of stuff. She brings important points to the House which we all need to consider and respond to. For that, she is highly valued.
In response to my question and that of my noble friend Lady Clark, we need to hear from the Minister that further reassurance about what we are going to do if this happens again.
I want to make one final point—it is a little bit off-piste. We have talked about economic harm, but I would suggest that Brexit is the most ridiculous act of economic harm that has ever been bestowed on this country. That is an issue for another day, but there is nothing madder than that. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Bates) (Con)
We now come to the group of amendments beginning with Amendment 34. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anybody wishing to press this or anything else in the group to a Division should make that clear during the debate.
Amendment 34
Baroness Hamwee
Member’s explanatory statement
This amendment would provide that conduct in reach of the Human Rights Act could not be authorised.
Baroness Hamwee (LD) [V]
My Lords, we have both Amendments 34 and 36 in this group, the latter being the substantive amendment. I apologise that the explanatory statements as published refer to conduct “in reach” of the Human Rights Act; that should have been “in breach”—or, of course, not in breach. I can spell; it is just that my typing is not very good, though I suppose that “in reach” is what we were aiming at.
Lord Cormack (Con)
My Lords, I do not dissent from what the noble Baroness, Lady Hamwee, said, but I shall concentrate my remarks on the amendment in my name, to which the noble Lords, Lord Hain and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, have kindly added theirs. Just so that colleagues are precisely aware, my amendment says:
“A criminal conduct authorisation may not authorise … murder, torture or rape, in any circumstances, or … a person under the age of 18 to engage in criminal conduct”.
I tabled this amendment because, during the debate at Second Reading, a number of people expressed very considerable concern about minors, those under the age of 18, being authorised to commit crimes. A number of colleagues including, perhaps most notably, the noble Baroness, Lady Kennedy of The Shaws, talked about Canada and other countries where there is a specific list of crimes that are definitely not in any circumstances able to be authorised. I regard this as a probing amendment, and I intend to return to the subject on Report, if the Government do not give me what I think is a satisfactory response. It is a probing amendment because I think it may be that the approach of the noble Baroness, Lady Hamwee, is the one that the Government prefer. I do not know, but I think these points should and must be addressed.
I make it absolutely plain at the outset that I listened very carefully indeed to what my noble friend Lord King of Bridgwater said in the earlier debate this afternoon. He talked about the important work that these agents perform in the national interest. I do not dissent from that, nor from the very warm words of approval in a notable speech by the noble Baroness, Lady Manningham-Buller, on Second Reading, where she stressed the bravery of agents. However, we are swimming in murky waters here and, as I have said before, it is important that we recognise the implications of this very far-reaching legislation.
I think it is splendid that we have the noble Lord, Lord Paddick—he is briefly away from his seat—bringing his experience of the Met, but I wish that one or two of the former commissioners who sit in your Lordships’ House would give us the benefit of their advice as we move on to Report. We are very privileged in this House to have true experts with enormous collective experience, and it would be good to hear from them on this very important subject.
What I am seeking to do through this amendment is to achieve a balance between the absolute requirements of a civilised society and making that society safe. There are things that one should not do in any circumstances and still claim the rights of a civilised society. Torture, of course, stands out as perhaps the foremost among those, but I think a civilised society also has to be careful about what it allows its young people to do. One of the tragedies of the last 50 years —the time that I have been in Parliament—is that childhood innocence has been, to a large degree, destroyed. The principal culprit in recent years has been social media. That is something, way beyond the scope of the Bill, that the Government have to give further priority to.
If, in dealing with county lines and so on, we are going to authorise young people under the age of 18—indeed, I understand that some of them are under the age of 16—to engage in criminal conduct, that is really not a hallmark of a civilised society. I appreciate the difficulties, and I would like to hear more about them. That is why I said, a moment ago—and I am glad he is back in his place—how much we welcome the presence and participation of the noble Lord, Lord Paddick, and how helpful it would be if some of the former commissioners of the Met who are in your Lordships’ House took part on Report because, clearly, he and they know far more about this than I do. I try to look at this from a civilised perspective, and it troubles me deeply that young people should be authorised to commit crimes, and sometimes very serious crimes indeed.
I hope the Minister, who has been meticulous in seeking to answer the very legitimate points made by colleagues in this debate, will be able to devote some time and attention to this. I would welcome the opportunity of discussing these things with her before Report. We need the Bill; I accept that. Some of those we will be authorising are, indeed, as the noble Baroness, Lady Manningham-Buller, said, among the bravest of the brave, but there are others who have a criminal background themselves and, while I would not necessarily question the validity of their work, I might question the validity of some of their motives.
I think we have to get this, as we are legislating. Up to now, we have not, although we all know it has happened. As this very important, far-reaching Bill is before your Lordships’ House, and as it was not given the scrutiny in another place that we are giving it, I want us to be able to send it back to the other place significantly improved. I hope that, as in so many cases, the Government, recognising the validity of points made in your Lordships’ House, will themselves introduce amendments that we will be able to welcome and endorse, to create a Bill that is truly workable and that achieves that balance I talked of a few moments ago. I hope it goes back to the other place and does not come back to us after that, because I hope the other place will accept the improvements made to it. I commend this, as a probing amendment, to your Lordships’ House.
Baroness Jones of Moulsecoomb (GP)
It is a pleasure to follow the noble Lord, Lord Cormack, whose amendment I have signed. It is a very important amendment about putting limits on what can be authorised, excluding rape, torture and murder. Quite honestly, it is astonishing that this even has to be debated; we really ought to be free of that sort of threat to ordinary people, quite often.
The Government say that amendments such as these are not necessary, because of the complex legal web of proportionality and the Human Rights Act. That argument might carry more weight if the Government were not constantly fighting a culture war against human rights lawyers. However, one does not need to be a human rights lawyer to understand that rape, murder and torture are never justified, so these restrictions have to be in the Bill.
Then there is the Government’s circular argument that we must not ban specific crimes from being authorised, because undercover agents would be tested by the criminals to prove themselves by doing prohibited acts. The circularity of that argument is that if the Human Rights Act already prohibits something, they can already be tested. I would like that cleared up if possible.
Lord Judd (Lab) [V]
My Lords, I shall speak warmly in support of the amendment by the noble Lord, Lord Cormack. It is succinct and brief, and it clearly spells out the issues at stake. He explained why they matter so much. I am also glad to support other amendments that develop that theme with reference to activity in the same sphere.
I am also glad that the importance of the European Convention on Human Rights and our commitment to it is underlined again in this group of amendments. The convention is there to safeguard the future of a stable society. It was written in the context of what we had experienced in that bitter Second World War. People saw that these things mattered for a stable society. It is when the going gets tough and the demands get challenging that our adherence to those principles and to the convention becomes more important than ever.
The noble Lord, Lord Cormack, referred warmly and rightly to the bravery and courage of the many people in the security services. I endorse that totally; I have great admiration for what is being done by much of the security services, for what they have achieved and for the way they have safeguarded people—men, women and children—from unacceptable action. In taking that argument seriously, one of our jobs is to uphold those in the security services, and other services such as the police, who believe fundamentally in being part of a free, liberal society, which they are there only to uphold. It is easy, by not upholding the best and highest principles of those people, to begin to undermine the services. It is corrosive, and we must not let it happen. That is why the amendments are so important. We have in our midst the noble Lord, Lord Paddick, who demonstrates what decent, imaginative and responsible people in that sphere of public service are trying all the time to uphold and demonstrate. I listen always with profound respect to what he has to say.
There is only one other point I want to emphasise. In this unpleasant time in which we live, with so many challenges to our way of life and to what we want to be able take for granted, and with our anxieties about the well-being of our families and so on, we are involved—as I have said before in our debates—in a battle of hearts and minds. I am totally convinced, with all the evidence of recent decades, that terrorism and extremism gain hold and thrive when there is a climate of doubt among a significant number of people and a worry that the state is abusing its power. That is why it is so important that we demonstrate all the time that when we have to take action of the kind the Bill deals with, it is demonstrably justified by what is essential for the well-being of our society. That is why we have talked so much about judicial supervision and so on, which matters in this context. We must not allow ourselves to give ammunition to those who try to manipulate society by building up that climate of doubt and anxiety among ordinary, decent people. These amendments deal with how we approach and win the battle for hearts and minds. We are about a different kind of society.
On that final note, matters such as murder, torture and rape have no place whatever in the kind of society that we claim to be and that we want to protect. That should be a fundamental guiding principle, and that is why I am glad that the noble Lord, Lord Cormack, spelled this out so well. Also, the use of children is unthinkable when so many of them come from vulnerable backgrounds and are vulnerable themselves, and when you consider what we are doing to them as individuals and to their potential to be decent and positive citizens. No, the use of children is not acceptable. I also believe that when we slip into that sort of activity we give ammunition to the people we are determined to defeat. We must not do that. Underlying that principle is not just that it is a tactical necessity—I believe it is a necessity—but that we demonstrate all the time what the values of our society are, and how we are different from these people who want to undermine it and have very little respect for all the things we hold dear.
This is an immensely important group of amendments, and I am glad they are there for our consideration. I plead with the Minister, for whom I have great respect as an individual, to take them as seriously as she should.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have Amendment 45 in this group, which is slipstreaming along behind Amendment 44 tabled in the names of the noble Lords, Lord Rosser, Lord Kennedy of Southwark and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb. That is a body of Members of your Lordships’ House that I hold in the highest regard, but not one that I often slipstream along behind, to be honest—but I am glad to do so today. I assure them that my purpose is not to impede their amendment, but just to make clear beyond peradventure that the provisions that they seek apply equally when CHIS operations take place overseas.
The amendment follows from some of the remarks I made at Second Reading, and because, during the debate in Committee a couple of days ago on Amendment 7 —moved by the noble Baroness, Lady Ritchie of Downpatrick—in which I did not take part, the Minister made clear in reply at col. 193 of the Official Report that the Government believed that the ability to operate CHIS and CCAs overseas was essential to the proper operation of the Bill.
This is the first time I have spoken in Committee, and again I want to touch briefly on something else that I said at Second Reading. In picking up here the strictures of my noble friend Lord King of Bridgwater, also picked up on by my noble friend Lord Cormack, of course I understand the duty and importance of the Government keeping us safe, that we send men and women often into danger, and that that may require the undertaking of some actions which might be described at least as being “disagreeable”. But equally I argue—as other noble Lords have done—that in a democratic society there must be a limit to how disagreeable these things can be. That is the balance that other noble Lords referred to, and to which this amendment and others we shall discuss later tonight are directed.
I also need to make it clear that I do not have any legal or operational experience of covert operations. My views are drawn from a number of years serving as an officer of two all-party parliamentary groups—one on drones and the other on extraordinary rendition. I want to make sure that the practices used in those two areas cannot, will not and must not be allowed to morph over into the operation of CCAs overseas.
Let me deal with drones first. Drones obviously provide a long arm for military and other surveillance purposes. It is a somewhat surreal experience to go to an RAF station outside Lincoln, sit in a portakabin set in the corner of a huge hangar created to house Lancaster bombers in the Second World War and watch a pilot flying a drone thousands of miles away in the Middle East. But while it is surreal, it is also deadly serious, because this is the means for carrying out what has sometimes been called extrajudicial killing.
It is not widely known just how extensive these operations have been. In terms of the RAF’s Operation Shader, which covers Iraq and Syria, the MoD tells us that there have been over 8,000 sorties, 4,400 bombs or missiles released, 3,964 enemy fighters killed and 298 wounded—and how many civilians? Just one. That could indicate extraordinarily accurate targeting by the RAF, but the US Defense Department has to reveal to Congress the number of civilian casualties caused by US forces, and in the recent figures sent to Congress they made it clear that they specifically excluded deaths caused by non-US forces, of which there were at least 14. If you press the Government on this area, the answer is that no answers can be forthcoming because of national security. My noble friend will quite rightly say that this is a Bill about covert operations, not drone strikes. I understand that, but I want to be reassured that, down the road, the blanket refusal based on national security will not be available as a response to an inquiry looking into problems with an individual CCA undertaken overseas.
Baroness D'Souza (CB)
My Lords, Amendment 55 in my name is in this group. The amendment seeks to place on the face of the Bill a clear prohibition on three grave criminal acts, namely murder, torture and sexual violations. It is narrower in its application than other amendments in this group, to avoid any confusion about the scope of these prohibitions. Therefore, references to “too broad” and “too open to interpretation”, such as threats to economic well-being and damage to property, are omitted. An added clause, referring to the discretion of the state not to prosecute the commission of even these major crimes, provides a further lack of restriction in exceptional cases.
Of course, there is no doubt of the need for the Bill to protect informants in their often dangerous but vital work. But the Bill as it stands puts the executive authorities and their agents above the law, a concern widely expressed at Second Reading. No state should authorise serious crime without limits. The Government’s justifications for allowing these grave crimes have still not been fully dealt with—for example, why the Human Rights Act, according to previous statements on the part of the Government, would not apply to informants’ criminal actions, or why listing prohibitions would somehow expose informants to additional danger. These are among the remaining ambiguities in the Bill.
We might learn from the original RIPA legislation, which necessitated later additional amendments to prevent its scope inexorably increasing over the years. The law must be accessible and clear. There is an opportunity here and now to make this Bill fit for purpose by incorporating the three main prohibitions limiting the sanctioning of grave crimes which are themselves contrary to the terms of the ECHR, to which the UK is party. To omit these limits, the Bill damages the integrity of criminal law and suggests that the state may tolerate, or even encourage, the most serious offences in the UK law.
Lord Anderson of Ipswich (CB) [V]
My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.
First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.
As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.
What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.
It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.
I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.
Baroness Massey of Darwen (Lab) [V]
My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.
Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.
The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:
“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”
The Deputy Chairman of Committees (Lord Lexden) (Con)
The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.
Lord Dubs (Lab) [V]
My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.
Baroness Chakrabarti (Lab) [V]
My Lords, like my noble friend Lord Dubs, I can be short in the light of some outstanding contributions that we have heard from Members of your Lordships’ House. The more I listened to those arguments, the more I was convinced that there needs to be some kind of limit on the nature of criminal conduct that can be authorised with—and I repeat—total advance immunity from criminal liability or civil suit. If in Canada, why not here? It was the noble Lord, Lord Anderson of Ipswich, who dealt with the so-called Sopranos argument on testing with particular dexterity.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I shall speak briefly as my noble friend Lord Anderson of Ipswich has almost precisely expressed the views that I share.
I support the more specific amendments, particularly the first paragraph of the amendment in the name of the noble Lord, Lord Cormack, and spoken to by the noble Baroness, Lady D’Souza. I do not address the under-18 issue because that is a separate and difficult point. What we are concerned with is the question of serious crimes such as murder, sexual offending and serious violence. This point only arises or becomes of any importance if there is no pre-authorisation provision. I considered each of the arguments that have been outlined as to why this is unnecessary, first, as regards human rights. I must say, in respect of the amendment in the name of the noble Baroness, Lady Hamwee, that to frame something in terms of the Human Rights Act in this area is fraught with difficulty and uncertainty. Framing it in terms that ordinary people can understand and follow is difficult.
My noble friend Lord Anderson dealt with the testing argument and I need say nothing more about that. Perhaps the Minister can assure us regarding what the noble Baroness, Lady Chakrabarti, has just said and put an assurance into the Bill.
I want to deal with one further matter: the position of the IPC. Of course it can be said that if a serious crime of the kind we are contemplating were ever to be committed, it would immediately come to light by a post-occurrence investigation by the IPC. However, I cannot imagine anything more damaging to the security services, the police or any other body than for them to be put in such a position. It can never be necessary or proportionate to murder or torture, and it can never be necessary to commit rape. It would bring enormous confidence to everyone in the security services, for which I have the greatest admiration, as do many noble Lords who have spoken, if it were known that there are certain things that those bodies can never be authorised to do. I cannot understand why the Government are so reluctant to concede on that.
There may of course be matters that I or Members of the House do not know about, which is why it becomes important to consider the matter that I raised on Tuesday—namely, asking for a report from a trusted body or individual or to a Select Committee where the evidence justifying such a course that the Government appear to want to take could be explained.
Lord Rosser (Lab) [V]
There are a number of amendments in this group relating to human rights. They variously provide that a criminal conduct authorisation: may not authorise activity that would be incompatible with convention rights; may not authorise murder, torture or rape, or a person under the age of 18 to engage in criminal conduct; cannot authorise causing death or grievous bodily harm, sexual violation or torture; and cannot authorise causing death or grievous bodily harm, perverting the course of justice, sexual offences, torture or depriving a person of their liberty.
There is also an amendment in my name and that of my noble friends Lord Kennedy of Southwark and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, that would also put explicit limits in the Bill on the types of criminal behaviour that can be authorised. These limits cover causing death or bodily harm, sexual violation, perverting the course of justice, torture, detaining an individual or damaging property where it would put a person in danger. There is an amendment to my amendment from the noble Lord, Lord Hodgson of Astley Abbotts, the purpose of which, as he has explained, is to explore whether the proposed regulatory regime provides adequate safeguards for operations carried out overseas.
The amendments all follow a similar theme, namely, wanting to include in the Bill clearer and tighter wording in respect of the criminal conduct that can be authorised by a CCA, so that there can be no doubt over what is a permissible criminal conduct authorisation and, more significantly, what is not. The Government’s position appears to be that criminal offences that are contrary to the Human Rights Act are already precluded, given that all public authorities are bound by the Human Rights Act, and thus authorising authorities are not permitted by the Bill to authorise conduct that would constitute or entail a breach of those rights.
Interestingly, the Bill states in new Section 29B(7) in Clause 1(5), on criminal conduct authorisations:
“Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”
But what are the words “to take into account” meant to mean in this context as regards adhering to the requirements of the Human Rights Act? One can, after all, take something into account and then decide that it should be ignored or minimised in whole or in part. What do the words,
“so far as they are relevant”,
mean in relation to the requirements of the Human Rights Act? In what circumstances are those requirements not relevant in relation to criminal conduct authorisations?
Turning to an issue that the noble Lord, Lord Anderson of Ipswich, addressed, the Government have maintained that specifying in the Bill offences that cannot be authorised places at risk undercover officers and agents on the grounds that to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against. However, as has been said, the Canadian Security Intelligence Act authorises criminal conduct similar to that proposed in the Bill, and my amendment reflects the wording in the Canadian legislation on the type of serious criminal conduct that cannot be authorised.
The Joint Committee on Human Rights has pointed out that the Bill gives the Secretary of State power to make orders prohibiting the authorisation of any specified criminal conduct and that, in line with the Government’s argument, whatever might be prohibited by such an order could presumably also be used by criminals as a checklist against which to test a covert human intelligence source. The JCHR comments in its report:
“If limits can be placed on authorised criminal conduct in publicly available secondary legislation without putting informants and undercover officers at undue risk, it is unclear why express limits cannot also be set out in primary legislation.”
The JCHR report also states:
“If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the”
Human Rights Act.
Perhaps, in their response, the Government could say whether they are still committed to the Human Rights Act, since following their 2019 election manifesto commitment to ensuring that there is a proper balance between the rights of individuals, national security and effective government—which suggests that the Government do not think that is the present position—they have announced that there is to be a review into the operation of the Human Rights Act.
If the Government intend to argue that the Human Rights Act will provide protection in the years ahead against unacceptable use of the powers in this Bill, there needs at least to be a clear statement from the Government that they are committed to the Act and will not be altering its provisions.
It could be claimed with some justification, however, that the Human Rights Act has not prevented previous human rights violations connected to undercover investigations or covert human intelligence sources. I await the Government’s response to this group of amendments and to the contributions that seek more specific wording in the Bill, to put clear limits on the type of criminal behaviour that can be authorised.
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords for their very thoughtful contributions to a discussion of the upper limit of what can be authorised by a criminal conduct authorisation.
I will first address comments—because they have been the most numerous—that propose to replicate on the face of the Bill the limits that the Canadians have set in the legislation governing their security service, and Amendment 42, from my noble friend Lord Cormack, which prohibits murder, torture or rape. I totally recognise why noble Lords want to ensure that this Bill does not provide authority for an undercover agent to commit any and all crime. It does not. I reiterate once more: there are already clear limits on the criminal activity that can be authorised and they can be found within the Human Rights Act—which, by the way, was not in place when some of the activities that noble Lords have described were carried out.
Nothing in this Bill undermines the need to comply with that Act, as is made clear by new Section 29B(7). Further limits are placed on the regime by the need for the authorising officer in all public authorities to confirm that there is a demonstrable need to authorise a CHIS by making a clear case for its necessity and proportionality. I understand questions about why we cannot place explicit limits in the Bill, as they do in other countries, notably including—as noble Lords have said—Canada, and I will explain our reasoning.
We think that placing express limits on the face of the Bill is not necessary. The Human Rights Act already provides these limits and the amendments that replicate the limits in Canadian legislation do not prohibit any criminal conduct which is not already prohibited by the ECHR and HRA, as encompassed by the Bill. The noble Lord, Lord Anderson, made a point about undercover police who have sexual relationships: if gangs knew that that was unlawful, would they then test against it? I would say that although that behaviour would be unlawful in that context, it is very distinct from rape. I have been trying to talk to my noble friend who is a QC and perhaps I will set my answer out in more detail in writing.
Baroness Hamwee (LD) [V]
My Lords, I will pick up a number of points, if I may. First, the noble Lord, Lord Hodgson, raised important issues, although the whole of this debate is important. I think he will know that I agree with him because I have previously referred to rendition in this context.
Like the noble Lord, Lord Anderson, I cannot believe that crimes in the UK are worse or more intractable than those in other countries that are mentioned—although what do I know? He referred to new subsection (10)(b). I am interested that he reads the word “requirements” as being a prohibition. I find it a difficult word and am quite curious as to why it is not spelled out rather more clearly.
Like the noble Lord, Lord Rosser, I find new subsection (7) curiously expressed, or, if I might put it this way, certainly less than whole-hearted. The Minister says that nothing in it undermines the Human Rights Act, but why is it given as an example of matters
“so far as they are relevant”?
I agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, that it is important to make our legislation accessible and understood by people who do not know the detail of a technicality, but a breach of human rights may be such a nuanced matter that, on this occasion, I have some hesitation about that. The Government refer to training, which I mentioned at the beginning. Although I also put it in a slightly quizzical way, we have been given that assurance.
Perhaps following on from that point, does listing outlawed conduct risk permitting what is not listed? I certainly do not share the view that it would be a checklist, because you could equally well test against the Human Rights Act, or indeed test an individual, without being technical about it, as to how far a suspected CHIS is prepared to go. I think that that really covers most of that issue but others may think that there is more sophistication to the point.
If, as I suspect we might, we gather round the JCHR amendment proposing new subsection (8A), I hope that we might add to it that it does not limit the other provisions of the section. I am looking ahead, of course, to the next stage.
These are not easy issues. On previous Bills, I found myself saying that it is hard to deal with arguments that amount to, “You don’t know what we know about how all this operates”, but I am pretty certain that we will return to this issue at the next stage. As of now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
We now come to the group beginning with Amendment 39. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that, if Amendment 39 is agreed to, I cannot call Amendment 40.
Amendment 39
“(b) consists in conduct—(i) by the person who is so specified or described as the covert human intelligence source to whom the authorisation relates, or(ii) by another person holding an office, rank or position within the public authority making the criminal conduct authorisation, which assists or encourages criminal conduct by the covert human intelligence source to whom the authorisation relates; and”Member’s explanatory statement
This amendment clarifies who can be authorised to commit criminal offences.
Lord Dubs (Lab) [V]
My Lords, so far we have been debating the nature of the criminal offences that may or may not be authorised. Amendment 39 would clarify who can be authorised to commit criminal offences. As I made clear on earlier amendments, I am a member of the Joint Committee on Human Rights, and my contribution to the debate on this amendment stems from the report by that committee. That report has been referred to by many noble Lords and indeed has almost served as the text for some of the debates. That is a credit to the work of the committee, which I think is very positive and influential.
The committee found the Bill’s definition of what amounts to criminal conduct for the purpose of a CCA “unhelpfully obscure”. It noted, in particular, that it includes conduct in relation to a CHIS. The expression “in relation to” is one of those phrases that can mean almost anything and is capable of all sorts of interpretation, narrow and wide. My noble friend Lord Rosser used a similar phrase which was a bit vague in an earlier debate. I repeat that the expression “in relation to” can mean almost anything.
Why are the Government doing this? I will use an American expression that we all know and which I learned many years ago: mission creep. One sets out to do something but inevitably, in trying to get the powers to do that, one expands what one wants to be able to do, sometimes beyond what is reasonable or could have been envisaged at the outset. This amendment relates to what I would call mission creep on the part of those who drafted the Bill.
Lord Sikka (Lab) [V]
My Lords, it is a great pleasure to speak in this debate. My concern is about authorising corporations to commit criminal acts and the consequences for the individuals who have been somehow enrolled to commit criminal acts and subsequently discarded. Through this amendment, I seek to address those issues.
The Bill permits the relevant authorities to enrol and authorise state and non-state actors to commit criminal acts. None of the relevant authorities listed in the Bill is hermetically sealed; they are not self-contained. They use corporations—private organisations—to further their aims. They interact with others, and there is evidence to suggest that over the years corporations have been authorised to commit what some would say were criminal acts, while others might perhaps say those acts were dangerous. Corporations have become an arm of the state, and all Governments in recent years have had an appetite for outsourcing things. I can see nothing in the Bill that would prevent a Government from outsourcing the commission of criminal acts.
There is a fair bit of research into some of these companies. I want to draw attention to an article, dated 20 December 2018, that is easily accessible on the openDemocracy website. I shall quote part of it:
“G4S, one of the UK’s biggest private military companies, provides pivotal ‘operational support’ to Britain’s military in Afghanistan and such incidents bring back into focus the extent that private military and security companies are present – and sometimes directly involved – in combat … Britain has led this privatisation of modern warfare. It leads the world in providing armed contractors to ‘hot spots’, be it combating terrorism in the Middle East or fighting pirates off the Horn of Africa. Some of their biggest clients are governments; since 2004, the British state has spent approximately £50 million annually on mercenary companies.”
I would add that lots of details are very rarely provided by government officials to Parliament or the public. Over the years, I have tried to look at some of these companies, but it is almost impossible to track them. They are formed and then very quickly dissolved. It is very difficult to track their operations. The article that I have referred to goes on to say:
“Despite the size of this mercenary industry, the entire sector is marked by secrecy. Men trained in the arts of subterfuge and counter-intelligence dominate this sphere, and the result is an industry that operates from the shadows.”
How will the CHIS Bill make this industry accountable? There is clear evidence that these companies have been used for the commission of criminal acts.
One example of this is that in 2007, employees of Aegis Defence Services, based in London, posted footage on the web showing its guards firing their weapons at what was reported at the time as “civilians”. The company said the shootings were legal within the rules of protocol. That company has also been criticised for allegedly employing former child soldiers from Sierra Leone as mercenaries in Iraq. This is a company that is headquartered in London.
As far as I am aware, there is no central database of private military and security companies operating from the UK, and I do not think that there is even any legal requirement for them to register with a governing body. Yet these companies, both in the past and possibly even now, are authorised to commit criminal acts. There is nothing in the Bill to prevent a relevant authority from authorising such companies to conduct these acts.
My concern is that we must not authorise private profit-maximising corporations to commit criminal acts. You could argue that, the more terror they unleash and the more criminal acts they commit, somehow the higher their profits will be; their executives and shareholders will be that much richer. This is simply unacceptable. Their victims receive virtually no compensation or justice, and Governments have simply pretended that they know nothing about the criminal acts being committed in their name. The murk surrounding them was touched upon in the 1996 report of Lord Justice Scott’s inquiry into the arms to Iraq affair, but there was very little clarity.
Corporations provide not only mercenaries and related services; they also operate much of the local infrastructure, including the operation of prisons. Their employees may be persuaded to go undercover into a prison to learn about drug dealing and much more. Presumably, they would need to be authorised to do so by the Home Office to commit such acts. These undercover agents can, intentionally or unintentionally, injure others. In those circumstances, who exactly is to be held accountable? Is it the corporation which has been authorised to commit the criminal act, or is it the relevant authority? As far as I am aware, the Investigatory Powers Commissioner does not have access to the documents and the personnel of these corporations.
There is also the unedifying scenario of a relevant authority authorising a corporation to commit criminal acts, which in turn holds training sessions for its employees, training them to commit murder, torture and other heinous acts. What would happen to those individuals who refuse to obey the instructions of their employers? Would they be able to say that they cannot go along with that? Would they be able to access an employment tribunal to secure redress? I cannot see anything about that in the Bill.
At the moment, people can refuse to commit criminal acts but if the Bill becomes law certain criminal acts would be normalised, though they would need to be authorised. That presents an enormous danger, and we have not sufficiently discussed the implications of corporations being licensed or authorised to commit these acts. Over the years, government departments have not come clean at all about how they have interacted with such corporations.
Today, and in previous debates, many noble Lords have drawn attention to the fact that children and vulnerable people may be enrolled to commit criminal acts. They can be used by the relevant authority and then discarded, perhaps being paid a small sum. However, many of these individuals will have flashbacks for years. They will have nightmares and suffer mental health problems; where exactly will they be able to turn for help? On the other hand, if these individuals are employees of the relevant authority, the employer will owe them a duty of care. They will then have recourse against the employer—namely, the relevant authority—so that they can be supported and compensated. Again, that is an issue.
Corporations should not be authorised under any circumstances to commit criminal acts. In the UK, we do not even have a regulator to enforce company law, never mind anything else the corporations might do—there is no central enforcer of company law in this country. Another benefit of restricting the commission of criminal acts to persons employed by the relevant authority is that that would protect very young children: children under a certain age cannot be employed at all. This will provide extra protection for those individuals. If the vulnerable people are used, the relevant authority has to be accountable for their action.
It is with this kind of issues in mind that I have proposed Amendment 53, which suggests that only individuals directly employed by a relevant authority can be authorised to commit criminal acts. We do not have the power to fully look into what corporations do, and, as I said earlier, there is not even a central regulator.
Baroness Chakrabarti (Lab) [V]
I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?
Lord Anderson of Ipswich (CB) [V]
[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS
“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]
Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.
Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.
I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:
“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]
If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.
Lord Paddick (LD)
My Lords, I share the concerns of the noble Lord, Lord Anderson of Ipswich, about seeking clarity as to who is covered not just because a criminal conduct authorisation authorises somebody to commit a crime, but because they have, as a consequence, both civil and criminal legal immunity. As we and other noble Lords have argued, immunity from prosecution should be decided after the event by the independent prosecuting authority—disagreeing with the noble Lord, Lord Anderson, and the noble Baroness, Lady Manningham-Buller. However, these amendments raise important questions, not least about legal immunity.
The first person covered, without doubt, is the agent or informant—the covert human intelligence source. If the CHIS is asked or ordered to participate in crime then if anyone is to be given legal immunity, it should be him. The question then becomes: is a handler who asks or orders a CHIS to commit crime, whether or not the request or order is legitimate, also covered by legal immunity? This arises from the fact that he can request or order a CHIS to commit crime only if he, in turn, has been given authority to issue such a request or order by the authorising officer. If the authorising officer has told the handler that he is permitted to request or order a CHIS to commit crime, should the handler also have legal immunity, in that it is then the authorising officer’s decision, not that of the handler? Then, if the authorising officer has agreed that the handler can request or order a CHIS to commit crime, should the authorising officer too not be covered by legal immunity?
What the noble Lord, Lord Sikka, was aiming at with his amendment came as something of a surprise. I do not understand how, under the terms of the Bill, a corporation can be authorised to carry out crime. Surely, it has to be an individual—the covert human intelligence source himself or herself—who is authorised, not a corporation. While I accept that some work of the police service, for example, or the security services may be outsourced, surely that corporation would have to be listed as an authorising authority in the Bill if that were the case.
There would be unintended consequences of the amendment of the noble Lord, Lord Sikka, if the only person who can be authorised to commit a crime is an undercover police officer or a James Bond-type character in the security services, and not a criminal who is helping the police or, indeed, somebody in a foreign country who is simply an employee of an organisation that interests the security services and who passes information back, not an employee of the security services. That would surely leave a big hole in what the Bill attempts to achieve. We cannot support Amendment 53. However, I am very interested to hear the Minister’s response to my question, and that of other noble Lords: who is covered by the CCA? Is it the CHIS who commits the crime, the handler who tells him to commit the crime, the officer who authorises the handler to tell the CHIS to commit the crime, or all three?
Lord Rosser (Lab) [V]
My Lords, Amendment 39 in the names of my noble friends Lady Massey of Darwen and Lord Dubs removes from the definition in the Bill of authorised criminal conduct the words
“by or in relation to”
the specified covert human intelligence source. It replaces those words with a more detailed definition; namely, that it is conduct by
“the covert human intelligence source”
or by a person who holds a rank, office, or position in the public authority that is granting the authorisation and is assisting in the behaviour of the covert human intelligence source. As my noble friend Lord Dubs said, this amendment was recommended by the Joint Committee on Human Rights.
Under the terms of the Bill, authorised conduct is not limited to the conduct of the covert human intelligence source. The code of practice says that a criminal conduct authorisation may also authorise conduct by someone else in relation to a covert human intelligence source, with that someone else being those within a public authority involved in or affected by the authorisation.
If the Government do not accept Amendment 39, they need to set out in their response the reasons why they consider it necessary to provide for the authorisation of criminal conduct by someone other than the covert human intelligence source; the parameters of that criminal conduct by someone other than the CHIS that can be so authorised; and the safeguards in the Bill to ensure that the person authorised to commit criminal conduct—who is someone other than the covert human intelligence source—is not also involved in any way in the authorisation process to which that criminal conduct relates.
I shall listen with interest to the Government’s response to Amendment 39 and to the pertinent questions raised by my noble friend Lord Sikka in speaking to his amendment.
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords who have spoken in this debate.
Amendment 39 seeks clarification on who can be authorised under the Bill. The intention behind the Bill is to provide protection both to the CHIS themselves and to those involved in the authorisation process within the relevant public authority. There are a range of limitations on what can be authorised under the Bill, including the conduct being necessary and proportionate. This means that it would not be possible to grant an authorisation for criminal conduct unless that conduct was by a CHIS for a specific, identified purpose, or involved members of the public authority making, or giving effect to, the CHIS authorisation.
Amendment 53, from the noble Lord, Lord Sikka, seeks to restrict those who can be granted a criminal conduct authorisation to employees of the public authority. The Government cannot support this amendment as it would significantly hamper our public authorities’ efforts to tackle crimes and terrorism. While CHIS are often employees of the public authority, they also can be members of the public. The real value of CHIS who are members of the public is in their connections to the criminal and terrorist groups that we are targeting. This is often the only means by which valuable intelligence can be gathered on the harmful activities which we are seeking to stop. Employees of a public authority will not have the same level of access. I reassure the noble Lord that the authorising officers within the public authority set out clearly the strict parameters of a criminal conduct authorisation. Were a CHIS to engage in criminality beyond their authorisation, that conduct could be considered for prosecution in the usual way.
The noble Lord, Lord Paddick, asked whether the CHIS and their handler could be prosecuted. Obviously, every situation will be different, but if the CHIS acted beyond their authorisation, they would have to answer for that. Equally, if the CHIS handler acted inappropriately or in a way that might endanger the CHIS, they could also be liable for that conduct.
The noble Lord, Lord Sikka, talked about security guards being undercover operatives. The noble Lord will know that we have published the list of bodies that can run undercover operatives. In addition to this, the criminal injuries compensation scheme is not undermined by this Bill, and I understand that anyone can approach the IPT if they feel they are due civil compensation. I think that is right, but I will write to noble Lords if that is wrong.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I have received a request to speak after the Minister, and hand signals suggest it may be the noble Lord, Lord Paddick.
Lord Paddick (LD)
I thank the Minister for her explanation. I am not sure I explained myself well enough to her in terms of who is covered by legal immunity. It is not if the CHIS goes beyond the CCA, but if the CHIS remains within the CCA. So, if the CHIS operates exactly in the way the handler has told them to, and the handler tells them only what the authorising officer has authorised them to, but it is not necessary or proportionate, it is corrupt or a mistake, who is covered by the CCA? Who is covered by the immunity, even though the CHIS has not gone beyond what they were asked to do?
Baroness Williams of Trafford (Con)
I say again that each situation will be different, but I understand the noble Lord’s point that if the CHIS is acting as instructed, but the handler has gone beyond where they should have gone, it would be the handler’s authorising officer who would be liable for that activity. There would be an investigation, but at that point, we are talking about a theoretical case. If it was the handler who had acted beyond their purview, the handler would be liable for that handling activity, or the authorising officer. It is late, I am tired, and I have suddenly forgotten my thread.
Lord Dubs (Lab) [V]
My Lords, I am grateful to all noble Lords who contributed to the debate. I have to lead with what the Minister said. I feel that her interpretation of the part of the Bill we are talking about was nearer to the spirit of the amendment than the wording of the clause itself. That is why I want to have a look at it. As for what my noble friend Lord Sikka said, I was not aware that a person in the Bill could be a corporate body. I fear he has an important point, but maybe it is not quite in the scope of the Bill. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, we come now to the group consisting of Amendment 41. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.
Amendment 41
Baroness Chakrabarti
(d) is not carried out for the primary purpose of—(i) encouraging or assisting, pursuant to sections 44 to 49 of the Serious Crime Act 2007, the commission of an offence by, or(ii) otherwise seeking to discredit,the person, people or group subject to the authorised surveillance operation.”Member’s explanatory statement
This amendment would prohibit the authorisation of criminal conduct where the covert human intelligence source acts as an agent provocateur.
Baroness Chakrabarti (Lab) [V]
My Lords, this amendment is very simple but, none the less, incredibly important to reassure some noble Lords and organisations, which you heard from earlier, about peaceful, legitimate protest and political activity, such as trade unions, environmental movements and so on. This is an important amendment to reassure them against abuses by Governments present and future. No disrespect is intended to a Government of any particular stripe. It has been drafted with some care, because I understand that it is difficult to limit the precise positive purposes of a covert human intelligence source, not least because the Government have chosen in this legislation to cover a wide range of public authorities and their investigatory, regulatory and enforcement work. I have tried to rule out the use of a criminal conduct authorisation for the purposes of agents provocateurs.
I complained on other groups that one of the problems with the legislation, as drafted, is that it grafts criminal conduct—which is much more serious than normal intrusion—on to a legislative scheme designed for intrusion, but not for the greater harms of criminality. It also has a limited Long Title and a limited scope. It is difficult to use amendments to the Bill to improve the RIPA scheme on to which so much weight is now being placed. However, I believe it is possible to do a great deal of good, even within the limited Long Title, in preventing agents provocateurs.
For the avoidance of doubt, and for members of the public watching at home or reading tomorrow, an agent provocateur is a state agent who is placed undercover, quite often in a protest movement, trade union or other innocent, legal, peaceful organisation, for the deliberate purpose either to incite crime on the part of others who would not normally go that far in their protest or for the agent to commit crime, while undercover, to delegitimise the wider peaceful movement in the public’s eyes or to justify a more repressive policing or banning response by the state. This method has been used throughout history and throughout the world, even in the United Kingdom. It was used during the hunger marches and in various trade union activity. We will see what comes from the Undercover Policing Inquiry.
I have no doubt that the Minister does not intend the Bill to allow criminal conduct authorisations—which now come with immunity, as they never did before—to be used to license agents provocateurs. Therefore, it seems to me that she would want to support this amendment, or something like it, which puts it beyond doubt that no CCA is able to authorise agents provocateurs.
The amendment is carefully drafted not to rule out the agent who finds himself or herself joining in with criminal activity to keep their cover or encouraging, assisting or inciting, while in discussions with others, to keep their cover. It prohibits the authorisation for the primary purpose—this is the crucial part of the amendment—of inciting crime, to use the modern definition under the Serious Crime Act 2007, or otherwise seeking to discredit the person or organisation being spied on. That is, they are not inciting it, but they are doing it undercover to discredit that organisation. To me, it seems simple and carefully crafted, if I may say so, but desperately important to reassure those involved in peaceful protest in particular. I beg to move Amendment 41.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Warsi, is not participating in this debate, so I call the next speaker, who is the noble Lord, Lord Paddick.
Lord Paddick (LD)
My Lords, I too signed the amendment, which the noble Baroness, Lady Chakrabarti, has very adequately introduced. When I think back to my experience in the Metropolitan Police Service and the instructions that we had, acting as an agent provocateur was clearly and explicitly prohibited as that relates to covert human intelligence sources committing crime. However, unless I have missed it, I cannot find in the Bill or in the draft code of practice any explicit reference to “agent provocateur”.
To repeat what the noble Baroness said in different terms, an agent provocateur is someone who commits a crime or encourages others to commit a crime that would not have been committed had it not been for the actions of the CHIS, or it relates to a situation in which the CHIS commits a crime and then blames the organisation for that crime, which members of the organisation had no intention of committing. In other words, the crime would never have taken place had it not been for the presence of the CHIS.
I look forward to hearing from the Minister where I have missed that explicit instruction, either in the Bill or in the codes of practice. I stress to her that, although I understand that this scenario could not happen under existing guidelines in the police service, we in this House want reassurance either in the Bill or in the codes of practice that it is prohibited.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, my contribution on this amendment will be fairly short. I hear the point that my noble friend Lady Chakrabarti makes and I note the point made by the noble Lord, Lord Paddick, that this issue is not mentioned in the Bill. Therefore, I am not quite clear whether the amendment is necessary. It would help us if, when the Minister responds, she could say something about the detail of the authorisations in a CCA.
Behind all the amendments today are concerns and worries about what may or may not have happened in the past. People want reassurance going forward, but they are not seeing it. I see that theme across all our discussions today. At some point, the Government will probably have to go a bit further to provide that reassurance, although I do not know how they will do that.
All these issues have been raised because of concerns that people have had in the past. As my noble friend said, we do not know whether we can stop this in the future, but I hope that the Minister can go a bit further. I cannot see any particular issue but, if I am right, the reason behind an authorisation would have to be recorded and shared with the Investigatory Powers Commissioner. That is the issue on which we need reassurance, as we move forward and give people new powers.
Baroness Williams of Trafford (Con)
I thank noble Lords. I hope to reassure the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, about why we do not need this amendment.
I have already stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. Article 6 of the ECHR protects the right to a fair trial. The article restates a fundamental principle of English law and, I understand, Scottish law: that a court has a duty to ensure a fair trial. The use of an agent provocateur could be seen as affecting the fairness of a trial, and rightly so. A court already has the requisite power in law—under Section 78 of the Police and Criminal Evidence Act 1984—to consider and exclude such evidence. The relevant entrapment principles are set out in the leading House of Lords case of Loosely from 2001, which also opines on the convergence of English law in this area with our Article 6 commitments. I hope that that provides reassurance.
Baroness Chakrabarti (Lab) [V]
I apologise: I perhaps have not made myself clear enough. It is late and we have all been at this for a while, but I do not think that I explained myself well enough either to my noble friend Lord Kennedy of Southwark or to the Minister.
Agent provocateurs are not limited to the trial process. In fact, the scenario that I have painted could apply where nobody is brought to trial, so Article 6 and evidential rules against entrapment are no protection. I shall try again.
The scenario is like this. Some hours ago, the noble Lord, Lord King, spoke about the possibilities—suspicions or fears perhaps—that in the future environmental or race equality movements might become involved in more militant or violent action against people or property. That is a concern that he already has, and maybe some other people do too. Given that the Bill allows economic concerns to be a justification not just for CHIS but criminal conduct, what would happen if a CHIS were authorised to enter such a protest movement and misbehave in order to discredit it when that movement had not yet, or at all, engaged in that more violent, militant or illegal activity?
In my scenario, it is possible that only the CHIS himself is committing a crime, but because he is doing so within that movement, the organisation is now discredited in the public mind or the Government might choose to prohibit the organisation in some way. It is quite possible that in that scenario nobody will have been brought to court and there will be no Article 6 fair trial issue and no entrapment/evidence issue.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I am afraid that that is not within the rules at present. I apologise to the Minister but we have to let the noble Baroness, Lady Chakrabarti, finish.
Baroness Chakrabarti (Lab) [V]
I apologise. It is hard to see the Minister’s face or responses from this angle on Zoom. Briefly, in my scenario there is no trial, fair or otherwise, and therefore there is no issue of evidence against entrapment. There is just a CHIS who has been authorised for the purposes of discrediting a movement that may be feared to become violent in the future but is nowhere near doing so at the moment. My amendment seeks to ban a criminal conduct authorisation being issued for that primary purpose.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
Would the Minister care to respond to the noble Baroness, Lady Chakrabarti?
Baroness Williams of Trafford (Con)
I apologise for intervening at an inappropriate moment. I was trying to clarify whether the noble Baroness was suggesting that a CHIS would be authorised to entrap. I do not think that authorisation would be valid.
Baroness Chakrabarti (Lab) [V]
Forgive me, but in the scenario that I have just painted there is no entrapment because nobody is prosecuted. There is just criminal behaviour by a CHIS for the purpose of discrediting in the public imagination an otherwise peaceful protest movement, for example; it could be an environmental movement. At the moment I see nothing in the Bill that bans a criminal conduct authorisation being made with the primary purpose of discrediting an otherwise peaceful movement that perhaps poses a challenge to some people’s idea of the economic well-being of the nation.
Baroness Williams of Trafford (Con)
I think that we are coming to the end of this debate, but entrapment in and of itself would have been committed.
Baroness Chakrabarti (Lab) [V]
My Lords, we can disagree on that, but perhaps before Report the Minister and her colleagues might reflect on what I am trying to achieve. For the moment, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
We now come to the group beginning with Amendment 43. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear during the debate.
Amendment 43
Lord Young of Cookham
“( ) A criminal conduct authorisation may not be granted to a covert human intelligence source under the age of 18.”Member’s explanatory statement
This amendment would prohibit the granting of criminal conduct authorisations to children.
Lord Young of Cookham (Con)
My Lords, along with the noble Baroness, Lady Chakrabarti, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Bull, I have tabled Amendment 43, to exclude the granting of criminal conduct authorisations to children. I am grateful for the helpful meeting with my noble friend the Minister, James Brokenshire and Home Office officials, who talked me through the need for this provision. I am also grateful to Jennifer Twite of Just for Kids Law and Tyrone Steele from Justice for putting the contrary view.
As it stands, the Bill is silent on the role of children in this aspect of law enforcement. It would have been helpful if the child rights impact assessment developed by the Department for Education in 2018 had been undertaken for this Bill. It would have illuminated our debate. The amendment would not prohibit the use of children as covert human intelligence sources entirely. That would have been my preference, but unfortunately it is outside the scope of the Bill. Therefore, the amendment is narrower, focusing on the prohibition of their involvement in criminal activities, for which the case is even stronger.
The Government are asking the Committee to approve the tasking of some of the most vulnerable children in this country, some as young as 15, with infiltrating some of its most dangerous organisations and groups—drug cartels, sex-trafficking rings and, potentially, terrorist cells. Let me address head on the arguments for allowing children to be used as CHIS. These were set out at Second Reading by my noble friend Lord Davies of Gower, whose views I respect as a former member of counterterrorism command at the Met and a former member of the National Crime Squad, by the Minister in her reply to that debate, and by the Minister for Security in another place. My noble friend Lord Davies said:
“The use of children has been much exercised today. It is unpleasant… particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary.”—[Official Report, 11/11/20; col. 1083.]
The Minister basically said the same:
“This may be necessary to stop criminal gangs from continuing to exploit those individuals and prevent others from being drawn into them.”—[Official Report, 11/11/20; col. 1112.]
The Minister for Security, James Brokenshire, stated in a letter to the chair of the Joint Committee on Human Rights on 4 November that
“a young person may have unique access to information or intelligence that could play a vital part in shutting down the criminality, prosecuting offenders and preventing further harm.”
In a nutshell, the argument was that the end justified the means—that the imperative of fighting crime overrode normal standards and justified law-breaking. But I do not buy that.
Let us assume, for example, that it could be shown that waterboarding or sleep deprivation of suspected terrorists to extract information would save lives. On that theme, on the “Today” programme recently, Robert Woolsey, a former director of the CIA, said:
“Would I waterboard again Khalid Sheikh Mohammed … if I could have a good chance of saving thousands of Americans or, for that matter, other allied individuals? Yes.”
Would we condone it in legislation? Of course not. Torture was abolished in 1628 and is prohibited under international law. The utilitarian argument is trumped by the moral imperative; torture is a red line. There are no exceptional circumstances where torture is justified, no matter that it might lead to the saving of innocent lives. It is not a price that civilised society is prepared to pay.
Using children as CHIS is not of course torture, but the analogy is apt, as it shows the vulnerability of the argument that the end justifies the means. I say to my noble friend that, for some of us, using children—often vulnerable, yet to come to terms with adulthood, unable to assess properly the risk of what they are being asked to do or even perhaps comprehend the limits of their mission and often being asked to continue in a harmful relationship, to commit crimes and to penetrate criminal gangs—is also a red line. Those under 18 are legally children, and the law accepts that they cannot make good decisions about their lives, hence the ban on marriage, buying alcohol et cetera—activities otherwise legal. How could it be that a child as young as 15 can give their full and informed consent to being placed in a sexually exploitative environment, particularly given the pressures on them to do so from people in authority, people whom they should trust, who might have been expected to save them?
This red line is embedded in our legal system. We are signatories to the United Nations Convention on the Rights of the Child, Article 3 of which provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
The Children Act 2004 makes this obligation all the more concrete. Section 11 states that public bodies, including the police and other law enforcement entities, must have
“regard to the need to safeguard and promote the welfare of children”.
I do not see how we square the circle. Either we safeguard and promote the welfare of children or we do not. How can it ever be in the best interests of a child to be a spy? Far from encouraging children to get further entangled in criminal activities, those who have their best interests at heart should do precisely the opposite: disengaging them from that environment and so helping them to rebuild their lives free from harm. We should be pulling children away from criminality at every turn instead of pushing them into the arms of serious criminals. How is a child protected from danger if a gang discovers that he or she is a CHIS? What would be the public reaction if, heaven forbid, a child CHIS was murdered by the gang he or she was infiltrating? How can a local authority in loco parentis for a child discharge its duties if a social worker is not aware of what is going on?
I make one final point. Under the Children Act 1989, every local authority has the duty to safeguard children in need. Where a local authority suspects that a child is likely to suffer significant harm, it can seek an order from a court to take the child away from those parents and place them into care. This would certainly cover parents encouraging their children to take actions such as drug trafficking or gang participation. How can the local authority perform those duties when another arm of the state, the police perhaps, is doing precisely the opposite? If a parent were putting children into such risky, harmful situations, we would rightly expect the children to be taken into care.
What is happening is that the state is seeking immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism to expressly permit the harming of children. Local authorities already find this unacceptable when undertaken by parents; we must concur when the state does it. Noble Lords will have seen the statement by the Children’s Commissioner issued on Monday:
“The Children’s Commissioner remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She is extremely concerned that this practice is not in the best interests of the child and there are insufficient safeguards in place to protect these vulnerable children. To that end, the Commissioner supports the introduction and adoption of the following amendments: amendment 43.”
My objection is one of principle, but there are other issues to be raised, if the principle is set aside, about safeguards. Those will be addressed by others who propose other amendments in the group. I hope that, at the end of this debate, the Government will be persuaded to think again. They say child CHIS are used very infrequently. I believe it would be best if they were not used at all. In the meantime, I beg to move.
Baroness Chakrabarti (Lab) [V]
My Lords, it is an absolute privilege to follow the noble Lord, Lord Young of Cookham, to associate myself with every word he spoke just now and to have signed his amendment. Amendment 43 and, to some extent, the others in the group, go to the heart of who we are as a society and, indeed, to the heart of what dangerous, important law enforcement is all about if not, ultimately, to protect children most of all.
It is unconscionable that children should be used as agents per se. Unfortunately, as I have complained before, we cannot do anything about children being used as agents in the Bill, but we can amend it to prevent those children being put in even greater harm’s way by authorising them to commit criminal conduct, which is normally the opposite of the message we send to our children. Indeed, we condemn those who, elsewhere in the world, groom their children for crime or to act as soldiers even in grave situations of war, and such children have often sought refuge in the United Kingdom.
One of my fears in relation to children being used in this way is that many of them are particularly vulnerable children to begin with. Some of them may actually be wards of the state; they may actually be looked-after children who do not have a normal, viable, stable family to protect them. If these children are looked after by the state and then used by the state in this way, that is a double abuse, it seems to me, by all of us as a community.
There must be other ways to ameliorate this problem. There are young people, as I once was, who look far younger than their age well into their early 20s. There must be other, more proportionate ways to do some of the work that needs to be done, exceptionally. It is a very serious human rights violation for any state to put children as young as 15, as the noble Lord, Lord Young has said, into this kind of situation, with long-term consequences for their emotional health and, indeed, for their lives.
Baroness Hamwee (LD) [V]
The noble Lord, Lord Young, is very persuasive, and he is right. My noble friends Lord Paddick and Lady Doocey and I have Amendment 52 in this group, and I have also put my name to Amendment 60, because if the outcome of the debates is to restrict but not prohibit the authorisation of under-18s and vulnerable people to commit criminal conduct, then Amendment 60 is the amendment that deals with both groups—I do not really like the term “groups”; they are individuals, but noble Lords will understand what I mean.
The Lord Bishop of Carlisle
My Lords, I speak in support of Amendment 43, in the names of my right reverend friend the Bishop of Durham, the noble Lord, Lord Young, and the noble Baronesses, Lady Chakrabarti and Lady Bull, and Amendment 60, in the names of the noble Baronesses, Lady Young and Lady Hamwee, and the noble Lord, Lord Kennedy of Southwark. As we have heard, both concern the treatment of children.
We should not for a moment underestimate some of the evils in our society that the Government and the forces of law and order are tasked with confronting. Some of those evils involve the abuse of children and vulnerable people, including, as we know, the scourge of county lines drug gangs, sexual predators and traffickers. It does not take much imagination to see how, as a result of this, there is a periodic temptation to use children as covert assets. We must clearly guard against that temptation; as we have already been reminded, our first duty must be to the care and well-being of children. This applies all the more to children who find themselves in vulnerable and harmful situations, such as those used and abused by criminal gangs.
We are talking here about the exposure of children to dangerous, exploitative and traumatic environments, with significant potential long-term consequences for the children in question. Our responsibility must be to look first to their welfare. As we have been reminded by the noble Lord, Lord Young, it is argued that covert tactics involving children can be of great value in protecting other victims, but how do we determine an acceptable level of harm to a child, even if there might be a wider benefit? Even if that argument were acceptable, as, again, the noble Lord, Lord Young, observed, how can a child legitimately understand and give informed consent to keeping himself or herself in a harmful situation? It seems to be a very dangerous precedent to suggest that a child can provide informed consent to an activity that may cause long-term harm and trauma.
Therefore, I support both these amendments, which recognise the principle that our first duty is to protect and support children and vulnerable people. As we have been reminded, Amendment 43 would prohibit the use of children as covert agents in criminal activities, while Amendment 60 significantly raises the threshold for the granting of criminal conduct authorisations to guarantee that they could be used in only very extreme circumstances and with much more thorough safeguards than are presently provided.
As others have emphasised, we are all hugely grateful to those who work to protect children and confront criminals who would abuse them. I do not for one moment underestimate the difficulties that they face, but I fear that the Bill, as it stands, does not do enough to provide sufficient safeguards for protecting children from being seen as assets rather than victims who need support. That is why I am glad to support these amendments.
Baroness Bull (CB)
My Lords, I rise principally to support Amendment 43, to which I have added my name, but I fully support all the amendments in this group, which have in common their intent to protect children and the most vulnerable in our society. Before I address Amendment 43, I will speak briefly to Amendment 52, in the names of the noble Baronesses, Lady Hamwee and Lady Doocey, and the noble Lord, Lord Paddick. I mention Amendment 52 in particular because it addresses two issues that I and others raised at Second Reading: first that the code of practice’s definition of a vulnerable adult currently fails to include victims of slavery or trafficking; and secondly that, while the code stipulates that there must be an assessment of the juvenile’s ability to give informed consent, there is no consideration given to the ability of a vulnerable adult to give consent.
The insertion of proposed new subsection (8A)(b) would specify that authorisation must not be granted to anyone who is a
“victim of slavery or servitude or forced or compulsory labour or of human trafficking or exploitation”.
This addresses the concerns raised by Anti-Slavery International, namely that someone who has been either trafficked or exploited is unlikely to be able to give informed consent to acting as a CHIS, given their traumatic experiences of manipulation and control and the long-term psychological implications of this on their ability to make independent decisions.
Within the same amendment, proposed new subsection (8A)(c) would prevent authorisation being granted to anyone
“who has been assessed by an appropriately qualified independent person as likely to be unable to give informed consent to acting as a source”.
I believe this would go some way to addressing my concerns about the absence of any reference in the code of practice to mental capacity and the ability of someone with impaired mental capacity to consent to acting as a CHIS. It has to be borne in mind that mental capacity is specific to a given decision, rather than universal. The Mental Capacity Act code of practice is clear that someone can have capacity to make decisions in certain areas, such as deciding what activities they would like to do during the day, but lack it for others, such as deciding whether to engage in risky and dangerous activities such as acting undercover. Given this, it seems to me essential that mental capacity is specifically taken into account.
I turn now to Amendment 43. I am grateful to and in awe of the noble Lord, Lord Young of Cookham, for introducing the amendment so effectively, and to the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Carlisle for their contributions. I fully support their remarks and will add only a few of my own.
My primary objection to the use of children as covert sources is that it stands in direct opposition to our fundamental responsibility to children both morally and legally, as we have heard, to do everything in our power to extricate them from situations and relationships that promote criminality and risky behaviours. We know that vulnerable young people are targeted by criminal gangs who groom, manipulate, intimidate, coerce and force children into the packaging and supply of drugs and the transportation of money, drugs and drug paraphernalia. We know that these children are often obliged to commit criminal acts in order to establish their credibility and prove their trustworthiness within the gang.
These are children who almost inevitably come from disadvantaged backgrounds—growing up in deprived areas, living with experiences of trauma, substance misuse, mental health issues, learning difficulties and possibly even in the care of local authorities. These are children whose life chances and opportunities are already greatly reduced in comparison to their better-off peers, thus further deepening the inequalities between those who have and those who have not. It is hard to believe that, rather than acting to end this exploitation, the law itself would recruit them as covert sources, exploiting the existing exploitation and, in effect, becoming the next perpetrator in a cycle of continued abuse.
Alongside this moral argument, there is a more practical consideration. Research suggests that teenagers are not even particularly effective as covert sources, because information-processing abilities are not as developed in teenagers as they are in adults. Adults think with the prefrontal cortex, the rational part of the brain, which means they can respond to situations with judgment and with consideration of the long-term consequences. Teenagers process information with the amygdala: the emotional part of the brain. In teenagers, the connections between the rational and emotional parts of the brain are not yet fully developed, which is why they cannot always explain what they are thinking. Often they are not thinking—they are just feeling. Adolescents are more likely to act on impulse and engage in dangerous behaviours, and they are less likely to pause to consider the consequences of their actions.
We also know that most young people involved in gangs and drug supply are themselves regular users of drugs, which they may need to use in order to blend in. I am grateful to Dr Grace Robinson for sharing her work in this area. Drugs and alcohol use can change or delay development of the connections between the logical and emotional parts of teenage brains. All this throws into question the accuracy, consistency and completeness of any information provided by teenagers acting as covert sources and, as a result, its utility in intelligence-gathering operations.
Alongside the fundamental concern of whether it is morally and legally right to put young people directly in harm’s way, we need to set this secondary concern, of whether the information they are likely to provide would be of sufficient value to justify the risks. My belief is that, however valuable the information, it can never off-set the immediate and long-term harm to young people recruited to act as covert sources—young people whose life opportunities and outcomes are already likely to be compromised. For this reason, I stand with the noble Lord, Lord Young of Cookham. The end does not justify the means.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I speak to Amendment 48 tabled in my name and support all those who have spoken in favour of limiting the use of children as CHIS. The reason for putting forward Amendment 48 is to try to probe the thinking of the Government on the relationship between the provisions of the Bill with the UN Convention on the Rights of the Child. How does my noble friend the Minister believe that they can square the use of children as CHIS with the provisions of that convention?
I endorse and support entirely the comments of my noble friend Lord Young of Cookham and I thank him for so eloquently moving his Amendment 43. I congratulate the other noble Lords who supported his amendment. The noble Baroness, Lady Massey, has tabled Amendment 51, which would build on the thinking that I have put forward in my probing amendment about how the UN convention could apply in this regard.
My noble friend Lord Young referred to one of the four general principles that are set out in the UN Convention on the Rights of the Child—Article 3, establishing what is in the best interests of the child. I support that view entirely; it is difficult how using children as covert intelligence sources can be squared as being within the best interests of the child, as opposed to the wider and broader interests of the community. I also have regard to the three other general principles of the UN convention: Article 2, on non-discrimination; Article 6, on the right to life, survival and development; and Article 12, on the right to be heard. In summing up this debate, can my noble friend the Minister indicate how a child’s voice, particularly one who may be as young as 15, in the instances that we are considering, in this part of the Bill, is heard before they are asked to operate as covert human intelligence sources?
I support entirely the comments made by others that children are particularly vulnerable in this regard. They may not understand what is being asked of them. Are they in a position to ask what the implications are for their future, and how their actions might be interpreted? Are they actually in a position where they could refuse to act, if it has been explained to them, when they are being asked to act in a particular way? It is difficult to understand the circumstances in which this might be explained to a child aged 15, 16 or 17—how their conduct might benefit our society, but also how it might be of harm to themselves.
I support this group of amendments. I have tabled Amendment 48 as a probing amendment, because I believe that the provisions of the UN Convention on the Rights of the Child apply here. If that can be achieved by one of the other amendments in this group, I will be extremely happy. I urge my noble friend to put my mind at rest by indicating how what the Government are seeking to do through this Bill by using children as CHIS can be squared with the provisions to which I have referred in the UN convention.
Baroness Massey of Darwen (Lab) [V]
My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.
Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:
“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,
which has already been quoted by the noble Lord, Lord Young,
“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”
The best interests of the child must be at the core of all our concerns.
The JCHR report concludes:
“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”
The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.
I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.
The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.
I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?
Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.
Lord Dubs (Lab) [V]
My Lords, when I originally looked at this Bill and thought about it in relation to children, I felt that there might be some justification for using children as CHIS in the most exceptional circumstances. I am now doing something that is not very fashionable. I am changing my mind in the light of what I have heard in the debate so far, especially from my noble friend Lady Massey and the noble Lord, Lord Young. I now believe that there should be no circumstances in which children should be part of this process. It is wrong and cannot be justified. The highest standards of human rights would be fully met if we said that children should be totally exempt. There should never be any circumstances in which the end would justify the means. I have been persuaded by the argument. Maybe one does not often admit this publicly, but I am prepared to do so here and now.
Baroness Doocey (LD) [V]
My Lords, I wish to speak in favour of Amendment 52. I too support the comments made about children by previous speakers.
This amendment seeks to place in law safeguards for young people, for those who have been trafficked and for other vulnerable individuals. There is a real risk to vulnerable adults, as well as to children, because victims of modern slavery and trafficking are not always recognised as such. This amendment puts safeguards in place for them, as well as for minors.
I share the same fundamental concern as the noble Lord, Lord Dubs. Children should not be placed in harm’s way by the state or in the pursuit of any other alleged greater good. It is the job of the state to protect children, not to deploy them as spies.
I want to address directly the argument made on this point by the Minister at Second Reading. She said that, in practice, juveniles are not asked to participate in criminality in which they are not already involved. Surely the fact that children are already involved in crime does not make them any less worthy of protection. We like to say that with rights come responsibilities, but that maxim misunderstands rights. Rights are absolute and children should expect the absolute right to basic protection from this country. That protection should not be contingent on some invented responsibility to help the police by acting as a spy. Children seldom choose to become involved in gangs. Many are vulnerable. Many have been abused. Some are victims of trafficking. Others have been appallingly neglected both by their families and then by the state. It is not right to view them as having chosen a lifestyle of criminality and thereby complicit in their own fate.
Just as the Modern Slavery Act acknowledges that children cannot consent to their own slavery, we should recognise in the Bill that children do not put themselves into these dangerous situations. They should not be asked to take advantage of danger in the interests of police investigations. These young people are at very high risk of long-term physical and emotional harm from the experiences they have already had. Being designated a CHIS puts them at hugely increased risk. I find it indefensible that 16 and 17 year-olds can be brought into this highly dangerous territory of spying for the state with no appropriate adult to help and support them. The age of majority in this country is 18: 16 and 17 year-olds are children and these particular 16 and 17 year-olds are very vulnerable children. It is completely unacceptable for them to be co-opted by the police for spying without the same representation that they would enjoy if they were arrested for some minor offence, such as theft.
The police do a very difficult job. We are all in their debt for protecting us as individuals and as a society. The need to get a result can sometimes blur boundaries in the pursuit of solving a crime or bringing a prosecution. The genre of police drama would scarcely be so rich without the reality that rules can sometimes be bent and occasionally broken.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I call the next speaker, the noble Lord, Lord Judd.
We will go to the noble Baroness, Lady Jones, and if we can reconnect with the noble Lord, Lord Judd, we will bring him in after the noble Lord, Lord Russell. I call the Baroness, Lady Jones.
Baroness Jones of Moulsecoomb (GP)
My Lords, this is an issue that I have raised several times in your Lordships’ House: the issue of child spies. We even had a debate on it about 15 or 18 months ago in Grand Committee. Everybody I have ever mentioned it to—either out in the wider world or here in your Lordships’ House—is absolutely horrified at the idea that the police or the security services use children as spies. Other noble Lords have mentioned how damaged these children probably are. The fact is that the police find them when they are committing crimes, so they catch them doing something criminal. Anecdotally, I have heard that the children are given the option of being arrested and taken away, or they can go back into the gang. I have absolutely no way of knowing whether this is true, but it sounds like blackmail to me. So in addition to the police not rescuing these children, the children are sent back into danger.
I said in my Second Reading speech that I would stop this process immediately. Luckily, the noble Lord, Lord Young, was faster in putting the amendment down, because his support is obviously going to carry a lot more weight than mine. It struck me at the time, however, that anyone can be horrified by this. You do not have to be a right-on, woke Greenie. It is horrifying to all of us.
I have put down an amendment about vulnerable people, which I consider children to be as well, and it covers anyone who is a victim of modern slavery. Quite honestly, we have heard from the Government that this whole Bill is all about protecting the country and the people of Britain; but it is not protecting some people. Some people are not getting the protection that the Government are offering to others. If we are not protecting vulnerable people or children, what do we think we are protecting: a way of life that we can be proud of? I really do not think so.
Personally, it is unforgivable seeing these children used as pawns and spies to somehow find out what we think might be useful information about criminal gangs. It is worse than state-sanctioned child abuse: it is state-sponsored child abuse, and the Government should be thoroughly ashamed of trying to put this into legislation. I would like to see the Government more inclined to taking these children out of criminality and actually saving them from the sort of life that they have been leading, rather than pushing them back into greater danger and possibly greater criminality.
I have met police whistleblowers: I think they are astonishing, because they go against their group and their friends; it is incredibly difficult. Two of the whistleblowers I have met suffer from PTSD. The PTSD is not from confessing what they did but from the work they did when they were undercover, because being undercover is highly stressful. The “undercover” I mean is not necessarily to do with drug gangs or terrorist organisations; quite often, when it comes to political groups or campaigns or NGOs, officers are sent in for years. We have heard about relationships lasting seven years, children being fathered and that sort of thing. When you are undercover that long, you do suffer trauma. It is extremely difficult to come out of that and feel normal again, because you have hidden so much of yourself and so much of your life from other people.
One of the whistleblowers I am talking about is absolutely divorced from reality; he finds it extremely difficult to feel any emotion. He told me when his father died, he could not cry, and he still has not been able to cry, some years later, because of the trauma he suffered as an undercover police officer. The other one, who I know quite well, told me he has the opposite problem: he is extremely emotional and cries very easily at all sorts of things because of the trauma he suffered as an undercover police officer. Can anyone please tell me that children are less vulnerable to that sort of trauma than adults? Of course not; children are more susceptible to that sort of trauma. I do not care how many children it is; one is too many. Those children will suffer, possibly for the rest of lives. We as a nation really should not be causing that.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I call the next speaker, the noble Baroness, Lady Young of Hornsey.
Baroness Young of Hornsey (CB) [V]
My Lords, I am going to try not to repeat comments made by colleagues already. However, I feel it is important to put on the record some of my huge misgivings about what this Bill does in relation to children and vulnerable individuals. I wholeheartedly support the arguments put forward in other amendments in this group, especially when we are talking about children—whether we call them “children” or “juveniles” is semantics—and vulnerable adults as CHIS. I hope we can collaborate on a single amendment on Report, should that be necessary, because many of us feel we must pursue this until we cannot do so any longer.
I have been slightly conflicted about where to put my energy in this Bill: like other noble Lords who have already spoken, I fundamentally disagree with the practice of using young people and vulnerable individuals as covert intelligence sources at all, let alone encouraging them to commit criminal acts. It raises so many questions, and one that has been bugging me for a little while, since I read about this issue, is: who in this Chamber would be prepared to sacrifice—that is how I see it—their own, or a friend’s, 15, 16 or 17 year-old to become a CHIS and commit a crime in that role? When I hear people describe using children or vulnerable people as CHIS as unpleasant or uncomfortable, I think that that does not do justice to the seriousness of this issue.
All of us here accept that there are legitimate reasons for undercover work to disrupt criminality of all kinds and use a variety of strategies to secure credibility for agents working in the field. The question is, then: what are the limitations and checks and balances that are necessary to maintain confidence in the institutions undertaking such activities in our democracy and on our behalf? The draft code of conduct issued by the Government goes some way towards alleviating fears regarding the use of children and vulnerable adults, but it does not go far enough in my view or the view of most of those who have spoken in this group this evening. Amendment 60 seeks to address some of the gaps in the guidance with regard to the deployment of children, juveniles and vulnerable individuals and to ensure that these safeguards are enshrined in legislation.
Amendment 60 is straightforward. Proposed new subsection (1) defines its parameters by stating that children, vulnerable individuals and victims of modern slavery and human trafficking are the subject of this amendment. These individuals are defined in proposed new subsections (5) and (6). In essence, this amendment is concerned with the welfare of those with limited capacity to make informed choices—which noble Lords mentioned earlier—without adequate support and resources to protect themselves. I draw your Lordships’ attention to issues raised by colleagues working with learning disabled adults who have seen at first hand how vulnerable adults can be groomed and lured into being a cuckoo. Some noble Lords may not be familiar with that term but, in essence, it means an innocent person who is groomed or coerced into harbouring drugs, criminals or whatever.
This is a particular issue for people with learning disabilities because it is relatively easy to persuade them by fair means or foul to become a cuckoo—to use their spaces to hide criminal goods. The same can be said of looked-after or care-experienced children who are known to have left care and been given accommodation. These are also spaces where criminal gangs steadily work on that young person and inveigle themselves into to use for their criminal activities. The problem is that their vulnerability facilitates exploitation in both those groups. The idea, therefore, that we might endorse state or public bodies to enable vulnerable adults in hazardous situations or care-experienced care leavers to commit unspecified crimes with immunity should be totally unacceptable.
Those who have been subjected to trafficking or other forms of modern slavery are similarly vulnerable to coercion of various kinds, with threats made not only to them but to their families. On that issue, I should like some clarification on the Government’s draft code of practice. On page 18, reference is made to “collateral intrusion”—one of those terms—which concerns the potential harm that may be done to individuals who may be related to the culpable person being spied on. My understanding of that section is that the harm posed to the relatives or the family and private life of the CHIS is not under consideration there. I may have completely misread or misunderstood that and hope that the Minister can clarify it for me. If it is seen as an issue, and the authorities have to take account of the CHIS’s family welfare, perhaps I have missed it, and I apologise. However, if not, and the private life of the families of the juvenile or vulnerable adult is not a factor to be considered when assessing the appropriateness of deploying the CHIS and enabling their criminal activity, I should like to know why. This is particularly important for the welfare of the families of vulnerable individuals and young people because they may not have a complete understanding of the dangerous situation in which they are placing others, as well as themselves. It comes back to the issue of what is an informed choice.
The point of proposed new subsection (3) in my amendment is that an appropriate adult, if a parent or guardian is not available to take on that role, must be present and be independent of any of the authorities recruiting a CHIS. Whatever the age of the CHIS, whether 15, 16, or 17, it should be mandatory, not discretionary, that an appropriate adult is present. The reason is that, given that there must be exceptional circumstances when it is determined that a CHIS is the only way in which to deal with a specific situation—we explain what such circumstances are in our amendment—the young person or vulnerable individual must be able to make an informed choice on engaging with the authorities in this way, and protected as far as possible from making a decision that may cause them significant harm. If the situation is acceptable, it is all the more obvious that an independent appropriate adult must be present for anyone under the age of 18 and other vulnerable individuals. Do we really think that these young people or vulnerable adults will be able to keep what they have done to themselves, when in some circumstances they may have committed a crime at the instruction of an agent of the state? That would place not only them but their families and relations in jeopardy.
As my noble friend Lady Bull pointed out, anyone who knows young people of that age—15, 16 or 17 —will know that levels of maturity vary and that an understanding that actions taken today may impact negatively on their futures, to say the least, can be hard to grasp at that age. Why not make it mandatory for an appropriate adult to be present for all those described in proposed new subsection (1)? The very fact that they are in the predicament of involvement with a criminal gang indicates that some bad choices have already been made. Many of these young people will have been in care, as has been pointed out, excluded from school or charged with a crime; they will be using drugs. Many people are working really hard to turn the lives of these juveniles around, to set them on the right path and to point out role models who can help them make a positive contribution to society.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
After the noble Lord, Lord Russell of Liverpool, I will call the noble Lord, Lord Judd.
Lord Russell of Liverpool (CB)
My Lords, this is a fascinating if somewhat one-sided debate. I will suggest in a minute why I think that is the case and why that gives the Government a problem. I thank the Minister who, with her usual courtesy, went out of her way to have a meeting with me with her Bill team last week. I am extremely grateful for that.
It is crystal clear from the Bill’s passage in the Commons, from Second Reading and from today that both Houses have significant concerns about the use of children as CHIS. I will make my comments across all the amendments in this group, but I will try to put them in the context of why I think Her Majesty’s Government have a problem.
The fact that so many of us are so uneasy about this subject is, to me, clear evidence that we are unconvinced. We have yet to hear a compelling, clear and detailed articulation of why this is necessary in the first place. As the noble Lord, Lord Young of Cookham, said in his excellent opening speech, why, for example, did Her Majesty’s Government not conduct a child rights impact assessment on the Bill? I address that directly to the Minister, and I would like her to give me and the noble Lord, Lord Young, an answer to that, if not today, in future in writing. The template exists—why was it not used?
We feel that the onus is firmly on the Government to persuade us, and they have not yet done so. We need facts; we need solid data, redacted as appropriate, about previous and current deployments to demonstrate their necessity and value in the absence of viable alternatives. We need the evidence of their worth. We need a detailed and clear explanation of what is meant by “exceptional circumstances”, and we need examples to illustrate this. We do not have this.
Earlier this afternoon, the noble Lord, Lord Anderson of Ipswich, made what I thought was a very compelling case, which I ask the Minister to reflect on carefully. He recalled that in the passage of the Investigatory Powers Act 2016, a process went through whereby the different authorities concerned spoke in private to a group of people—including the noble Lord, Lord Anderson—probably made up largely of judicial commissioners who are privy to the Official Secrets Act and can be entirely relied upon. They in turn were able to disseminate what they had heard and to give their judgment on the value, or otherwise, of it. I think that, in this case, that might be a very useful precedent to consider following. Subsequently, the noble Lord, Lord Anderson, said that after that process there was a second stage, where those findings from that first group were relayed to both Houses of Parliament. That apparently was extremely effective, so we do not necessarily need to reinvent the wheel; I think we do have a precedent.
If the Government fail to convince us that there is a real need for and demonstrable value in using child CHISs, then it is highly probable that on Report there will be a strong case and significant backing for amendments, such as Amendments 43 and 52, which will simply prohibit their use, full stop. However, if the Government are able to convince us that this is a necessary evil, we are in a different but still problematic place. To their credit, both the Minister and her colleague, James Brokenshire, have made it clear that they acknowledge and even share some of our concerns. In that spirit, I appeal to them, and to the Bill team, to work with us to discuss and embed much more substantial and overt safeguards into the Bill on Report. Amendments 48, 51 and 60 are perhaps a good starting point.
As I said at Second Reading, we are dealing, thankfully, with a very small number of child CHIS deployments. If we can be persuaded that they are necessary, can we not create a watertight process which will mollify critics, put in place forensic scrutiny and oversight and which will, above all, focus on the best interests not of the police, or whichever authority it is, but of the child?
I think all of us who have spoken today are entirely at the Minister’s disposal and wish to work with her, should she so wish, to try to put our shared concerns to rest. But, as I said earlier, if the Government are unable to persuade us with strong evidence that there is a compelling justification for using child CHISs, many of us will feel compelled to insist upon prohibition. This is the Government’s challenge.
Lord Judd (Lab) [V]
My Lords, I thank unreservedly the noble Lord, Lord Young of Cookham, for the way in which he introduced this amendment. It was a challenge to us all. In protecting the values of our society, of which we like to speak so often, and in protecting the young and the vulnerable, there have to be some absolutes. I am glad that some of the other amendments have drawn attention to other vulnerable people who have been through nightmare experiences, and to whom the damage from being used in this way can be quite incredible.
We have to take seriously—again—the point that I have made several times this afternoon. I am afraid that we could be giving those who seek to undermine our society a victory, because they have provoked us into a situation in which we have acted against what we know to be essential. Nobody can calculate the damage to young people of being used in this way. Very few can really understand or analyse the damage done to other vulnerable people by being used in this way.
So, if we are going to stand firm for the society in which we believe, we must not allow ourselves to give in on these things; we must have absolutes. I therefore counsel those who have moved important amendments raising very serious points about “exceptional circumstances” to consider that probably, in this situation, there are no exceptions. We have to make our stand absolute and, in that way, we can win the battle for humanity that we are determined to win. I thank the noble Lord, Lord Young, for having challenged us so clearly.
Lord Paddick (LD)
My Lords, the Committee will not welcome me trying to summarise what has been said, and I could not do justice to the excellent contributions that we have heard, not least from the noble Lord, Lord Young of Cookham, who completely summed up the position with a very compelling argument, using the analogy with torture that the ends do not justify the means—in the case of this Bill, using children as CHISs and authorising them to commit crimes.
A number of noble Lords said—and the Minister may be about to tell us—that it is a very small number of children who are actually involved in this sort of activity. But the whole reason for using child CHISs that the Government use to try to justify it is that the growth in child sexual exploitation, the growth in county lines drug dealing and the growth in human trafficking mean that they need to use more children as CHISs. These are not going to be small numbers for very long—that is the point I am trying to make.
The noble Baroness, Lady Young of Hornsey, in her excellent speech, asked us to consider placing one of our own 15 year-old or 16 year-old sons or daughters into such a situation. But I ask the Minister to imagine being put herself—let alone a child—into a criminal gang and being asked to try to carry off an act where she was pretending to be part of a gang and at the same time passing information to the police, or being asked to commit a criminal offence.
Many of these children, as other noble Lords have said, are vulnerable, either because they have substance misuse problems, because they are looked-after children or simply because their decision-making is immature because of the physiology of the brain, as the noble Baroness, Lady Bull, said. This is a horrifying situation in which to place anybody, let alone a child. As my noble friends Lady Doocey and Lady Hamwee said, this should not apply just to children who are vulnerable; there are many vulnerable adults who, arguably, are more vulnerable than some streetwise teenagers. We are, again, very grateful for the support of the noble Baroness, Lady Bull, in that respect.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this is one of those debates where you can stand up and quite honestly say you agree with every single word that has been said from across the House. I am sure the noble Baroness understands that this presents particular problem for the Government, because I am sure that, in addition to the noble Lord, Lord Young of Cookham, who made an excellent speech, many other members of the Government’s own party will agree with all the points that have been raised here today.
This group of amendments brings the House back to an issue that was first raised by my noble friend Lord Haskel on a statutory instrument, to which the noble Baroness responded. I remember sitting in a much more packed House, and there was lots of concern around the House—“What is this?” People were quite shocked to learn that children were being used in such a way, and that shock and concern has continued, which is why we have come here today.
Everyone around the House is very worried. That is certainly why I signed Amendment 60, which was so ably spoken to by the noble Baroness, Lady Young of Hornsey. Other noble Lords have spoken, and all these amendments are excellent, but I hope that we can hone this down to one. I particularly like Amendment 60, but I think we can see the concern expressed by the House, and we need to deal with this. Our Amendment 60 does not rule out child CHIS completely, but it certainly restricts them. I accept that in very limited circumstances, you might have to use a child, but it must be a very limited, rare occasion.
I am confident that the House will pass an amendment on this issue. Ideally and hopefully, it would be a government amendment, but I am confident that the House will pass an amendment by a large majority on this issue, which is about children. As you have heard, people under 18 can be quite streetwise—certainly, children think they are quite streetwise, although I do not know if they are; they are not quite as streetwise as they think they are. It is about that ability to give informed consent.
We are asking these children to take part in, be involved in and inform and report back on some very dangerous situations. This can be terrorism, drug dealing, sexual abuse or paedophilia: all sorts of really appalling, terrible things. We have to ask ourselves the question posed by the noble Lord, Lord Young of Cookham: how is that individual child protected? What would be said if a child CHIS is authorised and that child dies? That would be appalling—what would we say then? I think we have to take note of and be concerned about that, as well as the comments of the Children’s Commissioner in respect of using child CHIS.
Of course, sometimes—we have had this before—the child CHIS can be asked to pass information back to their handler, who can be a member of their own family. There are often situations when they are involved in a crime family: it could be their own father or mother. It is not always the case that the child is in care and hanging around the streets before getting involved; sometimes, it can be members of their own family, who can be very dangerous people. We are putting people in very difficult situations, and we must be even more careful about the individual child in those situations. These children have rights, and we need to ensure that, as the state, we protect them even more. As I said, if you are under 18, you are legally still a child and deserve protection from the state.
The right reverend Prelate made the point again about children, and I fully support his comments, as I do the points about mental capacity made by the noble Baroness, Lady Bull, which are very important. I also support the point of the noble Lord, Lord Paddick, that, sometimes, you can have quite a streetwise child and, equally, an older adult who is not that streetwise, so there is an issue there as well. These are things that we need to consider.
I hope that the noble Baroness will be able to tell the House that she fully understands the situation—and I know she is concerned about this. I hope that she will work with the House and, as the noble Lord, Lord Russell, says, can see the concern and genuine desire to agree something. I hope that she will welcome noble Lords from around the House and that we will come back with an amendment that, hopefully, we can all sign up to on Report, allowing very limited circumstances where a child may need to be used—very limited. Equally, I want to see much more protection for people. I hope that, when the noble Baroness responds, she will be able to give the House that information.
Baroness Williams of Trafford (Con)
My Lords, I start with the words of the noble Lord, Lord Kennedy, and absolutely confirm that I fully understand what all noble Lords have been talking about this evening. Of course, I will continue to work with the House, as I have done to date, in discussing what is, for me, the most difficult part of the Bill. The noble Lord, Lord Paddick, asked me: would I like to be a CHIS? No: I would be utterly terrified. Could I see my children being deployed in such activity? It would be incredibly difficult for me.
We need to put ourselves in the shoes of those children, who, as every noble Lord has said, are fairly vulnerable people in the sense that they might have been involved in, or their home life might be the site of, criminal activity. This is a very difficult area indeed. I thank the noble Lords, Lord Russell, Lord Paddick and Lord Kennedy, and my noble friend Lord Young of Cookham—and any noble Lords who are behind me—who have taken the time to come and speak to me about this aspect of the Bill.
The noble Lord, Lord Russell, put to me the suggestion from the noble Lord, Lord Anderson, about sessions in private. We are thinking about the best way to ensure that people have some of the information they need, although noble Lords will understand that some of that is sensitive to the point that it cannot be given out. I hope that noble Lords will appreciate that I have taken the time to have a one-to-one session with any noble Lord who requested it, on any aspect of the Bill. That said, these issues are very difficult, and I totally understand the concerns that have been raised. Nobody likes to think of children or young people being involved in these horrible areas.
Noble Lords may recall that the issue of juvenile CHIS, including whether they should be authorised at all, was discussed extensively in Parliament in 2018. The noble Lord, Lord Russell, and the noble Baroness, Lady Young, asked me why there was no child impact assessment of the Bill. As a result of concerns being raised about the use of juvenile CHIS, the IPC himself launched a review of all public authorities that have the power to authorise CHIS, to ensure that there was a comprehensive record of how often these powers were used in relation to juveniles. The conclusions of the review were reported in March 2019 to the Joint Committee on Human Rights. I have discussed them before, including the numbers, on the Floor of this House.
On the basis of these detailed reviews, the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process. He also noted that public authorities are reticent to authorise juveniles as CHIS unless the criminality and the risk of harm to individuals and communities that the authorisation is seeking to prevent is of a high order and cannot be resolved in less intrusive ways. The noble Baroness, Lady Young of Hornsey, put that challenge to me.
The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can, potentially, offer a way to extricate themselves from such harm. The decisions to authorise were only made where this is the best option for breaking the cycle of crime and the danger for the individual, much as that might sound contradictory.
As well as the IPC investigation, the High Court considered the issue of juvenile CHIS last year. Mr Justice Supperstone set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are,
“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”
I hope that that goes some way to reassuring noble Lords that the decision to authorise a young person to act as a CHIS, or participate in criminality, is never taken lightly.
I will now set out the additional safeguards that apply to the authorisation of juveniles as CHIS, and which will equally apply when criminal conduct is being authorised. These include authorisation at a more senior level, a shorter duration for authorisations—four months, rather than 12 for adult CHIS—with monthly reviews, and a requirement for an enhanced risk assessment. There must also be an appropriate adult present at meetings between the public authority and the CHIS for those under 16 years of age. To answer another question, appropriate adults are always independent of the police or other investigating authorities. This must be considered on a case-by-case basis for 16 to 17 year-olds.
These safeguards are contained within the Regulation of Investigatory Powers (Juveniles) Order and the updated CHIS code of practice, where the safeguards for juveniles have been further strengthened. The revisions to the code will be subject to a full consultation before they are finalised and will have legal force.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
I have received requests to speak after the Minister from the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark. We will start with the noble Lord, Lord Russell of Liverpool.
Lord Russell of Liverpool (CB)
I thank the Minister for her very full reply. I asked whether the approach of my noble friend Lord Anderson of Ipswich in 2016 to the scrutiny of the Investigatory Powers Act, as it went through both Houses, might not be a model to follow. In our meeting last week, the Minister discussed with myself and those of us who are sceptical about the use of child CHIS for evidence the requirement for this. To convince us, she was kind enough to indicate that the 17 cases that we know of through IPCO produced a result that was deemed, in the balance of all things, positive and justified the use of those cases. In the absence of that sort of evidence, those of us whose primary concern is the best interests of the child are understandably very cautious and a little sceptical. We are willing to be convinced but we need the evidence to be convinced, please.
Baroness Williams of Trafford (Con)
I will reiterate what I said, which is that I am trying to work out a mechanism for sessions that might be helpful but not leaked, and perhaps where we can give some working examples—again, perhaps in private. We will try to do that if not before Report then during it, but before we come to this amendment.
Lord Kennedy of Southwark (Lab Co-op)
Actually, I have nothing to ask. The noble Baroness answered my point right at the end, after I had asked the clerk if I could speak, so I will leave it there.
Lord Young of Cookham (Con)
My Lords, I am very grateful to everyone who has taken part in this debate—not least the Minister, who has been on her feet answering debates for over six and a half hours and has done so with patience and courtesy. It is probably in breach of her human rights to be on duty for such a long time.
I am also grateful to all those who have taken part in this debate, the vast majority of whom have been in favour of Amendment 43—namely, there are no circumstances in which children should be used as CHIS. That is reflected in most of the amendments, with one or two, as it were, blurring the red line a little by specifying certain circumstances in which that might be possible.
Perhaps I may briefly pick up some of the points that were made during the debate. The noble Baroness, Lady Chakrabarti, made a good point about those over 18 who look younger than they are and whether, if it is inevitable that people who look young will be used, it should be them rather than people who actually are under 18. The noble Baroness, Lady Hamwee, made a good point about the rather narrow distinction between, on the one hand, grooming, which we are all against, and, on the other, persuading vulnerable children to act as covert human intelligence, which we are less enthusiastic about.
The right reverend Prelate the Bishop of Carlisle asked us to think about the consequences for the child, and he wanted better safeguards. The noble Baroness, Lady Bull, quite rightly, wanted the ban extended to victims of slavery and trafficking and those who are unable to give informed consent. She delved into the psychology of teenagers to query whether this worked and whether somebody of that age could make rational decisions. My noble friend Lady McIntosh wondered how the use of children could be compatible with the UNHCR. Then the noble Baroness, Lady Massey, joined others in pressing for a meeting with the Minister between now and Report, which she has readily agreed to.
We then came to what I thought was the most valuable contribution—from the noble Lord, Lord Dubs. He was the floating voter in this debate. He said that he had been swung by the argument and was now in favour of Amendment 43. As a former Chief Whip, I was always rather worried when colleagues went into the Chamber to listen to the debate just in case they could be swayed the wrong way, but on this occasion I am delighted that we have had an impact on the floating voter.
The noble Baroness, Lady Doocey, said that vulnerable children need support, particularly if they are already victims. She made the valid point that we do not send children into battle, so should we send them into circumstances that might be equally dangerous? The noble Baronesses, Lady Jones and Lady Young of Hornsey, touched on the risk of blackmail: “Either work with us as covert human intelligence or you will be arrested”. The noble Baroness, Lady Young, mentioned evidence from police officers that this was the case.
I say to the noble Baroness, Lady Jones, that it is not just Greenies who are in favour of this. I was a member of Friends of the Earth for a very long time— until, as Secretary of State for Transport, I built the Newbury bypass, when, I am sad to say, it expelled me. She also made the valid point that if the police are traumatised when they act in these circumstances, what will be the position of children under 18?
The noble Baroness, Lady Young, made a point that was picked up by others: would we allow our children —or, in the case of many Peers, our grandchildren—to be used as human spies? Of course, under the terms of the draft code, parents would not necessarily know that this was happening; they do not have to be told.
The noble Lord, Lord Russell, summarised the concern in both Houses and said we need the evidence. I hope we get the evidence and I hope it is all of it: not just the evidence that may substantiate the case that the Minister wishes to persuade us of, but evidence of where things have not perhaps gone quite as they should. The noble Lord asked whether the process used for the Investigatory Powers Act might be used in this case. I am not familiar with it but that sounds like a very helpful suggestion.
Lord Parkinson of Whitley Bay (Con)
My Lords, we must finish at 8.45 pm but the next group has only five speakers, so if noble Lords are willing to keep their comments brisk and brief then we may just be able to finish it before we have to adjourn.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We come now to Amendment 49. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear during the debate.
Amendment 49
Lord Paddick
“( ) A criminal conduct authorisation must be reviewed monthly by the person by whom it is granted.( ) A criminal conduct authorisation ceases to have effect on the date it provides, which must be no later than four calendar months after the date it is granted.”Member’s explanatory statement
Under this amendment a criminal conduct authorisation would be reviewed monthly and expire after four months.
Lord Paddick (Lab)
My Lords, this amendment is in my name and that of my noble friend Lady Hamwee. As we have debated at length, authorising a CHIS to commit crime and granting immunity to that CHIS and maybe others involved is a far more serious thing to do than simply deploying a CHIS. We felt that to expect such an authorisation to last for 12 months—and, in the code of practice, with no mandatory review within that 12-month period but purely at the discretion of the authorising officer—was too much; it is far too long for a criminal conduct authorisation to be in place and not be reviewed.
We cast around for what a reasonable period might be and went back to what I referred to before: the Regulation of Investigatory Powers (Juveniles) Order 2000, amended by the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018. The initial order changed the period for authorising a juvenile CHIS from one year to one month. The 2018 order amended that to four months with a monthly review, recognising how much more serious it is to deploy a juvenile CHIS than an adult CHIS. Therefore, bearing in mind how serious a CCA is compared with the deployment of a CHIS in other circumstances, we felt that a four-month cut-off for a CCA with monthly reviews was the appropriate limitation to be placed on a CCA in line with the authorisation for juvenile CHISs. I beg to move.
Baroness Chakrabarti (Lab) [V]
I will speak briefly in full-blooded support of the noble Lord, Lord Paddick, and an amendment that seems to me like a no-brainer. The worst abuses of undercover policing, as are emerging in the inquiry, have related to people who have been embedded for a long time without adequate review, and obviously the risk of abuse is greater the longer a person builds their legend and is embedded without proper review.
Given that all time limits are arbitrary, it is right that we look for something relatively short, given the gravity of the line that is being crossed with this legislation for criminal conduct. The noble Lord has come to a very decent compromise with the monthly review and the four-month maximum on licensing people to commit crime.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I will be brief. I see the point that the noble Lord, Lord Paddick, is making on the need for review, but I am not convinced that it needs to be in the Bill. I am not persuaded that it is the right thing to do, although I see the point of a review. When the noble Baroness responds, maybe she can tell us about the detail of future authorisations. Would it be built into the authorisation itself? That would seem the better place for it, but I will wait to hear what the noble Baroness says. As it is, I am not convinced by the amendment or that the issue should be in the Bill.
Baroness Williams of Trafford (Con)
My Lords, I hope to provide the clarity that the noble Lord, Lord Kennedy, seeks and persuade the noble Lord, Lord Paddick, that this is not necessary in the Bill. The current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities listed in the Bill.
In the updated CHIS code of practice that accompanies the Bill, it is clear that a criminal conduct authorisation should be relied upon for as short a duration as possible. There is also a requirement on authorising officers to undertake regular reviews to assess whether the authorisation remains necessary and proportionate, and is justified. An authorisation must be cancelled when that is no longer the case.
Authorisations will be specifically and narrowly drafted and, in many cases, the specificity of the authorisation will mean that the criminal conduct authorised is in effect narrowly time-limited. However, there will be occasions when this conduct necessarily extends longer than a four-month period; CHIS who are members of proscribed organisations is a good example of this.
Lord Paddick (LD)
I thank the Minister for what she just said and I thank the noble Baroness, Lady Chakrabarti, for her support. I do not quite understand the position of the noble Lord, Lord Kennedy of Southwark. If 12 months is specified as the length of a CCA in the Bill then why, if we want to change it to four months, should it not be in the Bill? The Minister is saying it is consistent with the period for authorising CHIS, but not the period for authorising juvenile CHIS. It is a much more serious issue than simply authorising CHIS, as we have discussed. Authorising someone to commit a crime and giving them immunity from prosecution is far more serious than simply deploying CHIS.
To say that it makes it easier if the length of time is the same for one as it is for the other is to ignore the seriousness of this deployment—authorising CHIS to commit crime. If you were to follow the noble Baroness’s argument to its logical conclusion, you would not need the Bill to authorise CHIS to commit crime, as it would be just the same as deploying CHIS. No doubt we will return to this on Report but, at this stage, I beg leave to withdraw my amendment.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Thursday 10th December 2020
(4 years ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-IV Fourth marshalled list for Committee - (7 Dec 2020)
Lord Davies of Gower
“(8A) A person may grant a criminal conduct authorisation to authorise criminal conduct that has already been committed if the following requirements are met—(a) the conduct by or in relation to the person who is specified or described as the covert human intelligence source to whom the authorisation relates was necessary on grounds falling within subsection (5), in the view of the person granting the authorisation, to avert or mitigate a threat to the physical safety of the person specified or described as the covert human intelligence source, or to avert or mitigate a threat to the physical safety of some other person engaged in the conduct;(b) the conduct was brought to the attention of the authorising officer immediately or at the first available opportunity, by the person who is specified or described as the covert human intelligence source to whom the authorisation relates;(c) the person granting the authorisation is satisfied that the threat to the physical safety of the person specified or described as the covert human intelligence source, or a threat to some other person engaged in the conduct, could not have reasonably been averted or sufficiently mitigated by other conduct which would not have constituted crime.(8B) Subsection (8A)(c) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”
Lord Davies of Gower (Con) [V]
My Lords, this amendment in my name seeks to address the current inadequacies in respect of protection afforded to undercover operatives. I apologise at the outset to the noble Lord, Lord Cormack, but I intend using the word “CHIS”, which I also find unsuitable—I prefer the phrase “undercover operative”, but I will refer to CHIS throughout my speech.
I seek to address the current inadequacies in respect of the protection afforded to an undercover operative when faced with a potentially life-threatening situation while engaged in an operation by inserting new subsections (8A) and (8B) into the new Section 29B of the Regulation of Investigatory Powers Act 2000. The effect of this new insertion would be to allow authorisation in certain circumstances after the event, and I will explain the circumstances as I progress.
It seems clear to me from noble Lords’ contributions to the Committee—I say this acknowledging the many and varied concerns expressed by noble Lords in their contributions—that there is a tendency, indeed more than a tendency, to overlook the threats and dangers that these undercover operatives are faced with at crucial times during their deployment. It is that, and that alone, which I seek to call attention to and address with this amendment.
We have heard a great deal from noble and learned Lords who have considerable experience at unravelling the machinations of the criminal law, and we have, quite understandably, also heard a great deal from noble Lords who have concerns for human rights. However, little has been said that provides for the security and protection of the undercover operative, and I suggest that the operational safeguards for a CHIS are not being addressed in this Bill. We now have an opportunity to do so.
I should add at this point that I am of course very mindful of the criminal conduct authorisation requirements, which are set out in subsection (5) of new Section 29B, and the amendment recognises that. The amendment does not for one moment propose or recommend that a CHIS should be given carte blanche to commit serious crime—given a free ticket, as it were. It is intended to ensure that those who are prepared to risk themselves for the benefit of the state should be afforded the comfort of knowing that, when they embark on a particularly serious operation, they have the full support of the law behind them at the outset, given that they may be operationally forced into a situation where they are required to take a course of action to avert or mitigate a threat to their physical safety or that of some other person which results in them committing a criminal offence not previously authorised or foreseen.
It will doubtless be maintained that the law caters for and provides protection at present—we have heard during the course of the Bill that prosecutors and the courts offer a degree of protection in such situations—but I maintain that that is not good enough.
We have also heard, with good reason, during Second Reading and in Committee, of the need to respect the requirements of the Human Rights Act. I say that it should apply collectively and that we should be very clear that the legislation applies to all, and so we must demonstrate that in the Bill. To rely on a prosecutor’s decision or a judges’ disposition on a particular day, in the hope that, after the event, they will support any previously unauthorised but necessary and vital action by an undercover operative taken to protect him or herself, or another, is just unacceptable to my mind.
Having managed quite a number of successful CHIS operations in my 32 years as a front-line detective, I have seen at first hand informants, agents and undercover operatives place themselves at incredible risk. While I do not doubt for one moment that the view of those currently at the head of organisations responsible for conducting such operations has been sought and will have perhaps influenced the course of the Bill, that does not alter the reality of the situation for the operative on the ground when challenged with the protection of life.
Unlike many policing procedures and operations that can be fine-tuned, undercover operations can be very unpredictable, to say the least. These operations present themselves in a variety of ways. It may be the activity of a drug-related gang—perhaps so-called county lines gang activity, where, sadly, juveniles are invariably involved as couriers; it may be an imminent threat of harm during a kidnap scenario requiring an instantaneous response; it could be an armed gang involved in robberies on high-profile celebrities while at home with their families; or it could just be a straightforward test purchase scenario that takes an ugly turn in order to test the veracity of the CHIS. These are not hypothetical cases: they are real-life scenarios that I can vouch for. Frankly, the list is endless. However, one thing is for sure: these organised criminals are, in the main, extremely violent people, often under the influence of extremely dangerous drugs which render them devoid of any sense of responsibility or fear.
My concern is that we should not tie the hands of undercover operatives. We should not allow them to undertake these extremely dangerous, often life-threatening roles with one hand tied behind their backs, in the sense that they fear prosecution if they follow a particular course of unanticipated action in order to protect life or prevent serious harm. They should not have the sword of Damocles hanging over them.
Of course, undercover operatives will be briefed and tasked; they will know what is before them, as well as can be expected on the available intelligence. However, once in theatre, as it were, they are on their own. Yes, there will be back-up not too far away, but this will not be instantaneous and will not allow for the situation where a CHIS, whether part of the criminal gang or a deployed undercover operative, may be put to an immediate test of their genuineness by organised criminals through circumstances that were not foreseen or allowed for in the planning, briefing and authorising stages.
Organised criminals are not, in the main, rational-thinking people. I can think of many scenarios, such as a test purchase, whereby an undercover operative is forced to partake in a class-A substance as proof of being genuine and, in the ugliest of scenarios, perhaps has a knife pressed to his or her body, with unthinkable consequences, for failing to surrender to the test. Surely, in situations such as that, where the CHIS must retain his or her credibility, they must be afforded support in the Bill. The operative should not have to rely on the good will of a prosecutor or the court. On the one hand, we are seeking in the Bill to legitimise criminal activity, yet, on the other, failing after the event to acknowledge and support the actions of a CHIS in life-threatening situations. There could be, say, an ambush attack from a rival gang, during which the undercover operative must take some immediate and previously unauthorised action to avert or mitigate a threat to life. The scenarios are endless and allowance should be made in the Bill for such eventualities in order to provide protection through law for CHIS. The question as to who authorises such previously unauthorised action is perhaps a matter for further consideration. I accept fully that that decision may rest with a person other than the initial authorising officer.
It is therefore my belief that human rights and our obligation to provide a duty of care would be properly served by the amendment. I beg to move.
Lord Morris of Aberavon (Lab) [V]
My Lords, I will be brief. In earlier consideration of the Bill, the House has been concerned with prior authorisation—I repeat, prior. I do not resile for a moment from the importance of prior authorisation and I hope that we will have the opportunity to consider it in due course.
The noble Lord, Lord Davies, who has considerable experience in these matters, raises a narrow point relating to post-authorisation for the protection of officers. I should be interested in the Minister’s reply. My understanding is that the noble Lord seeks to deal with threats to the physical safety of the persons named in the amendment in narrow and possibly important circumstances. Its thrust, while dealing with another aspect, is in the spirit of your Lordships’ consideration of authorisation—in this case post, as opposed to prior, authorisation. Hence, my understanding is that he seeks to plug a possible gap by urging upon noble Lords the need for a statutory requirement for speedy, post-hoc authorisation in certain circumstances.
I have two questions for the Minister. First, how likely is such a situation to arise? Secondly, can we properly be told whether such situations have arisen in the past? In the circumstances, while I pay tribute to the noble Lord for raising this matter, I should like to hear the Minister’s reply on the need for the amendment and its practicalities.
Lord Paddick (LD)
My Lords, the noble Lord, Lord Davies of Gower, who has great experience of these issues, spoke about our having thus far overlooked the dangers faced by undercover operatives. Little has been said about operational safeguards. Indeed, perhaps I may take this opportunity to mention that I was contacted by a noble friend this morning who emphasised the bravery of undercover operatives, who place themselves at considerable risk in many such situations.
The amendment highlights the limitations of the whole idea of granting pre-event immunity from prosecution within what the Government variously describe as criminal conduct authorisations that are tightly bound, specific, tightly drawn and within strict parameters. What the noble Lord, Lord Davies of Gower, has described is all too possible: that a CHIS—whether a highly trained agent, an undercover police officer or a 16 year-old child informant—encounters a situation that, even if foreseen as a possibility, the handler and authorising officer felt unable to authorise and grant immunity for in advance.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.
So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.
We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.
The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.
As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.
The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.
The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.
I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.
Lord Davies of Gower (Con) [V]
My Lords, I am very grateful to those who have contributed to this short debate and am very grateful to the noble and learned Lord, Lord Morris, for the points he made. As he says, it is a narrow but very important issue. I am grateful to the Minister for responding to that. I accept that it is a matter of balance, but I am also very grateful to the noble Lord, Lord Paddick, who speaks with authority on this matter and has great experience of such issues. For the time being, I am content with the Minister’s response. Therefore, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
We now come to the group beginning with Amendment 57. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the House that, if Amendment 57 is agreed to, I cannot call Amendment 58.
Amendment 57
Member’s explanatory statement
This amendment is tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.
Lord Hodgson of Astley Abbotts (Con) [V]
My Lords, in moving Amendment 57, I will also speak to Amendment 74.
These two probing amendments are designed to explore how the Government plan to use their regulatory powers in the Bill. I am informed on this because I am the chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House. Along with the Delegated Powers and Regulatory Reform Committee—chaired by my noble friend Lord Blencathra—my committee has been concerned by the increasing use of skeleton Bills, where only the broadest frameworks are set out in primary legislation and all the practical details are left to regulation.
As a result, Parliament too often has only a general idea of what it may be approving when it passes the primary legislation. The Government may—they probably will—argue that all regulations have to be approved by Parliament, but Members of your Lordships’ House are well aware of the weakness of the scrutiny of regulations, which is that they are unamendable. The House is left with only what I call the nuclear option of complete rejection. Unsurprisingly, in these circumstances, neither House has felt able to press the button, except in the most exceptional circumstances.
Our two committees—my noble friend Lord Blencathra’s and mine—have written to Jacob Rees-Mogg, as Lord President of the Council and Leader of the House of Commons, to express our concern and make suggestions for improvement. Let me take an example from earlier debates in Committee. My noble friend the Minister and other noble Lords—notably my noble friend Lord King and the noble Lord, Lord Carlile of Berriew—referred Members to the revised code of practice as providing a reassurance against bad behaviour in the operation of CCAs. Indeed, the noble Lord, Lord Carlile, urged every Member of the Committee to read through the code. I followed the noble Lord’s advice and read it, all 73 pages of it. I agree that, at least to my untutored and inexperienced eye, it appears extensive and comprehensive, but its weakness is that it is made by regulation—in this case, Section 71 of the Regulation of Investigatory Powers Act 2000. So its contents depend on ministerial policy decisions and can be changed, at any time, by the tabling of an unamendable regulation.
I do not doubt for a moment the good intentions of my noble friends on the Front Bench, nor the good intentions of the Front Benches of the other parties in this House or the other place, but none of them will be in their seat for ever. Amendment 57 is designed to explore the risk of what I described in my remarks at Second Reading as “mission creep”, or, more specifically, how wide the room for manoeuvre is for a future Secretary of State using the powers available under Clause 1(5)(10) on page 3 of the Bill.
I pose three simple questions for my noble friend the Minister to answer when he replies. First, can the Secretary of State, under this clause, add to or remove bodies from the list of relevant authorities given on page 4 of the Bill? Secondly, is there any limit to the changes that the Secretary of State may make, under this clause, to the authorisation levels for CCAs, given in annexes A and B of the draft revised code of practice? This issue has been raised on a number of occasions, notably by the noble Lord, Lord Anderson of Ipswich. Thirdly, is there any limit to the changes that the Secretary of State may make to the purposes for which a CCA is sought? That was a discussion on Amendment 22. In particular, what is meant by “impose requirements” in line 13? That issue was raised by the noble Baroness, Lady Hamwee.
Before I finish, I turn briefly to Amendment 74. This poses the same questions for Scotland as Amendment 57 does for the rest of the United Kingdom, but there is one additional point of concern: whether, as a result of two systems existing, what is known as forum shopping can take place. Historically, in cases involving extradition, prosecuting authorities were in the habit of surveying the legal options open to them and picking the route, courts and jurisdiction that, on past experience and record, were most likely to give them a favourable result. As I see it, the two CHIS systems begin in identical form but, over time, can and probably must be expected to diverge. How far that will be is impossible to predict now, but the possibility of forum shopping emerges. Can my noble friend comment on the interchangeability of CCAs granted under Scottish law being used in the rest of the United Kingdom, and vice versa? I beg to move Amendment 57.
Baroness Hamwee (LD) [V]
My Lords, I am very glad that the noble Lord decided to probe these two provisions. I have seen the correspondence published by the three committees. I was struck when the noble and learned Lord, Lord Stewart, in responding to the previous group, referred to the code of practice having the force of law. I do not dispute that, but it is of course law that can be changed by government Ministers without coming to Parliament.
The point just made by the noble Lord, Lord Hodgson, about forum shopping is interesting. As he said, I have asked for assistance on the meaning of some terms during the passage of the Bill. I questioned what is envisaged by the terms “conduct” and “requirements”. I read both to restrict, rather than expand, the scope of what may be done. I would be grateful to have that confirmed or, if not, to understand why not. In short, we should not be expanding opportunities for criminal conduct authorisations without, at the very least, understanding exactly what we are doing.
Lord Rosser (Lab) [V]
First, I wish the noble Lord, Lord Hodgson of Astley Abbotts, well in his campaign against skeleton Bills, as that issue is getting worse, not better.
The Bill provides that the Secretary of State may, by order, prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given. As the noble Lord, Lord Hodgson, said, Amendments 57 and 74, in his name, would remove those provisions and, as he confirmed, their purpose is to probe the extent to which the operation of criminal conduct authorisations can be amended by regulation.
Earlier in Committee, the noble and learned Lord, Lord Stewart of Dirleton, stated that the order-making provisions in the Bill
“allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited.”
He continued:
“I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards ... The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they are contained in secondary legislation.”—[Official Report, 1/12/20; col. 676.]
When the noble and learned Lord said that the order-making powers could not be used to remove any of the existing safeguards, did the Government mean that the wording in the Bill would make it contrary to law to do that, or did they mean only that the intention was not to use the order-making powers to remove any of the existing safeguards? That, of course, is a very different thing, as intentions can change.
No doubt in their response the Government will address that point and give specific examples of the purposes or intentions for which these order-making powers to prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given would—and, equally, would not—be used by the Secretary of State.
Lord Stewart of Dirleton (Con)
My Lords, these amendments have been tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.
As I set out in response to the amendments to the order-making powers tabled by the noble Lord, Lord Paddick, there are good reasons why these powers have been included. I do not wish to repeat the detail of what was said on group 7 of the amendments, other than to highlight again that the provisions have been drafted to resemble closely the terms of Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for CHIS use and conduct.
To answer the point raised by the noble Baroness, Lady Hamwee, I repeat what I said earlier and provide the Committee with reassurance that these powers could be used only to impose further safeguards and not to remove them. That point was raised also by the noble Lord, Lord Rosser.
My noble friend Lord Hodgson of Astley Abbotts posed the question of whether the Secretary of State can add bodies to, or remove them from, the list of authorising bodies. The addition of bodies can be accomplished only through the affirmative procedure. The changes to the bodies listed will reflect changes over time in investigative functions and the threats that the country faces. The rank of authorising officers is set by secondary legislation and will be dealt with in line with Section 29 authorisations.
The noble Lord, Lord Rosser, posed the question of whether the terms of the provision are such as to make it impossible for the powers to be extended rather than removed, or whether that is merely the intention of the Government. He correctly remarked on the fact that the persons occupying posts will change from time to time. As I see it, the legislation will not simply rely on the intention of the Government but will have force beyond that. I think that I also addressed the matter when answering the point raised by the noble Baroness, Lady Hamwee. She focused on the meaning of the words “conduct” and “requirements”. I am able to confirm that her understanding was correct. Indeed, as a consequence of what I have said, the interpretation of those words restricts, and does not permit addition to, the provisions in the Bill.
Lord Hodgson of Astley Abbotts (Con) [V]
I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.
I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.
I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?
Lord Stewart of Dirleton (Con)
I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.
The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.
Lord Hodgson of Astley Abbotts (Con) [V]
I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.
I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
We now come to the group beginning with Amendment 63. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that if Amendment 63 is agreed to, I cannot call Amendments 64 to 69.
Clause 2: Authorities to be capable of authorising criminal conduct
Amendment 63
Lord Paddick
Member’s explanatory statement
This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.
Lord Paddick (LD)
My Lords, I shall speak to Amendments 63, 65 and 80, in my name and that of my noble friend Lady Hamwee, in this group. They attempt to get to grips with the plethora of organisations that the Bill seeks to authorise to grant criminal conduct authorisations. I remind noble Lords that this is to grant legal immunity to covert human intelligence sources, informants or agents, and authorise them to commit acts that, under any other circumstances, would be a crime, but because these public authorities have said so, they are no longer crimes.
Unlike existing legislation that limits legal immunity to agents of the state engaged in property interference, intrusive surveillance, equipment interference and interception—all exclusively targeted on the most serious criminals and only with prior approval given by an investigative powers commissioner and often a Secretary of State—this Bill seeks to give public authorities the power to grant immunity to anyone, often criminals, for almost any crime that can be imagined with no prior authorisation outside their own organisation. One would hope that the number of public authorities would therefore be extremely limited, and that evidence would be produced to justify their inclusion.
I am taken back to a recent statutory instrument—the Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020—which added to the list of public authorities that can access communications data; that is, who contacted whom, from where, and when, but not the content of the communication. In the overall scheme of things, it is fairly low-level data. The Home Office had agreed to include more public authorities on the basis of detailed business cases submitted by each authority.
When I asked to see the business cases, I was told that I could, although the Home Office arranged for me to see them only 45 minutes before the statutory instrument was due to be approved on the Floor of the House. Will the Minister allow Members of this House to see the business cases that form the basis of the Home Office deciding which public authorities should be allowed to grant criminal conduct authorities, preferably not 45 minutes before we consider this issue on Report?
Our Amendment 63 would limit those public authorities that can grant CCAs to the police, the National Crime Agency, the Serious Fraud Office and the intelligence services, as it appears to us to be self-evident why these organisations may need to grant authority to agents or informants to commit crime. The other public authorities require justification, hence my request that noble Lords be able to see the business case justifying each of the other public authorities, albeit redacted and viewed in private.
Our Amendment 65 specifically singles out the Home Office, although it might be seen as a typical example—an example of a type of public authority—for further scrutiny. On the face of it, it sounds that, in theory, if not in practice, the Home Secretary could authorise a criminal to commit a crime and give that criminal legal immunity, whether directly or by ordering one of her officials to do so on her behalf. Giving power to politicians to authorise criminals to commit crime and to be able to grant those criminals immunity from prosecution, with no prior independent oversight, raises some worrying spectres.
Our Amendment 80 is consequential. At this stage, I will listen carefully to the concerns of other noble Lords and to the response from the Minister. I beg to move.
Baroness Massey of Darwen (Lab) [V]
My Lords, the noble Lord, Lord Paddick, has spoken with great clarity and authority on the amendments in this group. I will speak to the human rights perspective of Amendment 63 as set out in the Joint Committee on Human Rights’ report on the legislative scrutiny of the Bill. Chapter 6 is concerned with public authorities granted power to authorise crime, as stated by the noble Lord, Lord Paddick.
Paragraph 75 of the report states:
“We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary … However, the Bill proposes granting the power to make CCAs … to a substantially wider range of public authorities”.
That concerns us. It goes on:
“This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being … extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.”
There are two key questions here from a human rights perspective. As the report states,
“the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.”
The Government have provided little justification for the authorisation of criminal conduct by such bodies as the Gambling Commission, the Food Standards Agency and others. The Home Office published brief guidance and a series of operational case studies, which provide examples of authorisation by CHIS in the cases of the Medicines and Healthcare products Regulatory Agency, Her Majesty’s Revenue & Customs and other hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency.
The question must be asked as to why the police or other bodies focused on the prevention of crime should not take full responsibility for authorising criminal conduct that may fall within the purview of these organisations. We are all aware that the police, in carrying out their responsibilities, have vast networks of agencies whom they consult in the course of their duties. They know whom to consult for specific issue as and when such consultation is needed. It is inappropriate and irrelevant to name other specific agencies, whose role is not protecting national security and fighting serious crime.
One of the witnesses to the inquiry carried out by the Joint Committee on Human Rights said:
“If the government believes it is necessary for each of these bodies to have the power to grant authorisations, it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”
No such detail is supplied by the Government. It is therefore impossible to assess how agencies whose primary function is not serious crime or national security can, or indeed would want to, be involved formally in granting CCAs. I look forward to the Minister’s explanation.
Lord Dubs (Lab) [V]
My Lords, I support Amendment 63. I very much agree with the comments made by the noble Lord, Lord Paddick, and my noble friend Lady Massey, so I shall be brief.
Like my noble friend, I speak as a member of the Joint Committee on Human Rights. It seems to me that authorisation that goes beyond the police, the National Crime Agency, the Serious Fraud Office and the intelligence services is a step too far. There has to be clear indication by the Government as to why such authorisations are necessary; so far, that indication has not been forthcoming. The list of agencies covered by this provision is so wide—not just Customs and Excise, the Environment Agency, the Food Standards Agency and many other bodies. There is no justification for extending the provisions of the Bill to that extent.
I am very concerned about one other matter. As the Joint Committee on Human Rights noted, under Section 35 of RIPA, the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise covert criminal conduct. I accept that this power has been used sparingly in the past, but—[Inaudible.]—if additional authorities that have little or no relationship to those permitted to make CCAs—[Inaudible.]—regulatory oversight.
In a previous amendment, the noble Lord, Lord Hodgson, indicated that using subordinate legislation to extend powers was going rather too far, and it applies in this instance as well. Surely, it is bad enough having a list of these bodies that—[Inaudible]—but adding to them in the future by a parliamentary process that allows for very limited scrutiny. We all know that subordinate legislation can go through, we cannot amend it and it is—[Inaudible]—because of our relationship with the Commons; therefore, this is potentially an abuse of power. For all those reasons, I support Amendment 63.
Lord Cormack (Con)
My Lords, the noble Lord, Lord Dubs, referred to this as a potential abuse of power and, although I am entirely convinced that that is the last thing in Ministers’ minds, I say nevertheless: be careful what you wish for. I am very troubled by this section of the Bill, which is why I put down three amendments—Amendments 64, 66 and 69—to delete from the list of bodies authorised the Department of Health and Social Care, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. However, putting those down as probing amendments, I became increasingly convinced that I had not gone far enough, so I say unequivocally that I prefer the amendment of the noble Lord, Lord Paddick, which he introduced a few minutes ago.
This is a troubling Bill. I think that there has been a universal acceptance across your Lordships’ House, because it is the paramount duty of any Government to protect the state and those who live in it, of the need for, and the unavoidable necessity of, the Bill. However, it goes too far. We had a very interesting and challenging series of debates a week ago today, when we talked about whether certain crimes should be on a list of prohibited crimes. We also talked about authorising children—those under the age of 18.
Both those aspects of the Bill troubled me, and I have put amendments down, but this also troubles me: giving almost a carte blanche to a whole range of bodies, some of which are not concerned with the most heinous crimes or with the ultimate protection of the state and citizens. I urge my noble friend the Minister to accept that these are very important and valid points. We certainly will need to come back on Report, and I would like to consult the noble Lord, Lord Paddick, and others on precisely which amendments we go for.
There are two developments in modern legislation that trouble me, as I know they trouble the noble and learned Lord, Lord Judge, more than anything else: the proliferation of Henry VIII clauses and of the granting of almost unlimited powers to Ministers of the Crown, as well as what I call the “Christmas tree Bill”—of which this Bill has some aspects. Having been persuaded that legislation was necessary, and I understand why that was so, the Government have said, “We’ll give as many people as possible as much permission as possible to do what they like, and we will give a particular power”—the noble Lord, Lord Paddick, underlined this graphically—“to the Home Office”. Therefore, power is ultimately given to a party politician whose motives, I am sure, would always be pure in his or her eyes, but it would not necessarily be conducive to enhancing public confidence in the machinery of government. All these issues are touched on in this clause.
We must be very wary of what power we give and to whom we give it. Although we have said before—and I do not for a moment resile from it—that some of the agents, of whom the noble Baroness, Lady Manningham-Buller, spoke movingly a couple of weeks ago, are among the bravest of the brave, there are others who swim in murky waters and have a criminal background. It is not sufficient for the Food Standards Agency or the Environment Agency to say, “We’ll employ a thief to catch a thief”—because that is what it could come down to.
I urge my noble friend, who is due to reply, to take these points as serious points that require the most careful examination before and during Report stage. I am very grateful for the letter I received this morning from my noble friend, inviting discussions and co-operation; she has a very good track record in that regard and is an exceptionally conscientious Minister. Of course, we are not talking about current Ministers here; we are talking about giving an extended power for an indefinite period, whatever the complexion or orientation of the Government.
I strongly support the improvement on my amendments by the noble Lord, Lord Paddick, and I hope we can, on Report, ensure that this Bill is sufficiently trimmed down and that the right number of baubles are removed from the Christmas tree so that we have something in which we can all have a degree of confidence.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow my noble friend, and I associate myself with the comments made previously by the noble Lord, Lord Paddick, who spoke so powerfully, in introducing his Amendment 63. As he said, Clause 2 breaks new ground, giving powers to grant legal immunity and to authorise agents to commit acts that otherwise would be criminal to these other bodies that we have before us this afternoon, which can say that such acts are not to be considered criminal offences.
I echo the comments of my noble friend Lord Cormack. I was hugely moved by the words of the noble Baroness, Lady Manningham-Buller, who paid such justified tribute to those who work in the services that are largely contained in new Part A1 inserted by Clause 2. No one can take away from the risks that they run and the huge efforts they have made on our behalf to keep us all safe, not least those of us working in Parliament and public life; we are extremely grateful for that.
On reflection, as my noble friend Lord Cormack has said, I prefer Amendment 63 but would like to speak to the amendments I have tabled for the purposes of debate today: Amendments 67 and 68 and to oppose the Question that Clause 2 stand part of the Bill. I have absolutely no argument that the bodies listed in categories A1 to E1 of new Part A1—any police force, the National Crime Agency, the Serious Fraud Office, any of the intelligence services and any of Her Majesty’s forces—should not automatically be considered for preferment and allowed to fall under the provisions of this Bill. I assume that that was primarily what was in mind when the Bill was initially drafted.
I thank the Minister for the offer to meet; that would be extremely useful before we get to Report. On a number of occasions I was heavily involved, both as a local MP and as chair of the EFRA Select Committee next door, with rural crime. It grieves me greatly that many of these rural crimes are simply not taken as seriously as crimes that occur in towns, market towns or cities, such as London and other major cities in the UK. I am talking specifically of very serious rural crimes with a very heavy criminal content of organised gangs. I pay tribute to the work the Environment Agency has done in this regard by installing covert cameras and trying to solicit as much information and intelligence as it can. With the cost now of disposing of building waste and other hazardous waste, it is becoming extremely attractive to dispose of it on rural property, often privately owned. It is a public duty to remove this waste if on a highway or byway, but the cost of removing it to a private landowner is never considered and it is very difficult for them to resist this type of activity.
The other activity in which I was involved was taking evidence, particularly from the Food Standards Agency, on the passing off of horsemeat as beef and other meat. This is an ongoing activity. I pay tribute to Professor Elliott and others who have been heavily involved. I also pay tribute to the Food Standards Agency, and others agencies, which continues, as do local authorities—both environmental health officers and trading standards officers—to keep safe the food that we eat and ensure that, whatever we purchase, it is what it says it is on the tin or label. This is potentially a multi-million-pound fraud.
I have a simple question for the Minister: why are we seeking to extend the provisions of the Bill, in the terms set out by the noble Lord, Lord Paddick, in Amendment 63, to grant immunity from prosecution to bodies such as the Environment Agency and the Food Standards Agency? It would be perfectly proper for this action to be taken by any police force or the Serious Fraud Office. There was a problem with horsegate—the passing off of horsemeat as beef. I think it was the City of London Police fraud office that was asked to intervene, because no other body was deemed fit to have the wherewithal and capability to deal with that fraud.
I share the unease and anxiety of others who have spoken in the debate this afternoon. We are perhaps inviting unintended consequences and being a hostage to fortune by opening up to criminal activity those acting as authorising agents for CHIS to act on their behalf in bodies such as the Environment Agency and the Food Standards Agency. I would like to understand more the grounds for including these bodies and what activities will be covered.
To continue the theme, I am also deeply concerned that, in amending the Investigatory Powers Act 2016 to provide the exercise of these new powers to authorise criminal conduct falling within the statutory oversight duties of the investigatory powers provision, the secondary legislation that will be required will contain all the information and detail on the specific rank of officeholders within the bodies I have referred to who would be permitted to grant criminal conduct authorisation for the first time. I am very uneasy that this is not on the face of the Bill and that the detail will be provided in subsequent secondary legislation, albeit coming in very short order. I would much prefer that this is not included in such Henry VIII clauses in regulations; it should be in the Bill.
I support the main thrust of the provisions of the Bill, without a shadow of a doubt. However, I query many of the bodies included in the broader Clause (2) —in particular the Environment Agency and the Foods Standards Agency, which I have mentioned—and the fact that we are leaving so much to be decided at a later date; that concerns me greatly. I look forward to reassurance from my noble friend. These are intended as probing amendments.
Lord Sikka (Lab) [V]
My Lords, it is my great honour and pleasure to join the debate. I wish to speak to Amendment 70, which seeks to constrain ministerial discretion to amend the list of relevant authorities.
We all know that, as time goes by, Ministers and Governments are tempted to expand the list of regulators. In this case, they would be tempted to expand the list of relevant authorities contained in the Bill. How would they do that? They could bring about primary legislation and allow Parliament sufficient time to scrutinise it, or they could have a rushed amendment through a statutory instrument. I do not favour the second choice.
I am a relative newcomer to the House, but a little amount of research has shown me that, in the last few years, the Government have made considerable use of statutory instruments to rush through legislation, often with little time or detailed parliamentary scrutiny. Statutory instruments can vary in length and breadth. As my noble friend Lord Cunningham of Felling noted on 10 January 2019 in the official record, one statutory instrument was 636 pages long and weighed 2.54 kilos.
The increased length of secondary legislation has not been accompanied by commensurate increase in the time and resources available to Parliament. The House of Lords Secondary Legislation Scrutiny Committee, in its report published on 20 February 2019, expressed considerable concern about the extensive use of secondary legislation and argued that it prevents Parliament effectively fulfilling its scrutiny function. The participants in such debates often receive little briefing to help them prepare for the debate beyond the standard explanatory memorandum provided with the draft secondary legislation. This is often at very short notice. The impact assessments which have accompanied some of these statutory instruments have been deficient.
On 22 May 2019, in the other place, the Shadow Chancellor pointed out, at Hansard col. 6, that statutory instruments often contain “deficiencies, ambiguities and errors” which cannot be properly scrutinised by a rushed passage through Parliament. The deficient parliamentary process in turn leads to more statutory instruments to correct previous errors, and thus an overload is created.
The use of statutory instruments diminishes parliamentary powers to scrutinise the Government and their legislation. During the debate on the present CHIS Bill, many noble Lords have indicated their unease at the daunting list of relevant authorities contained in the Bill and their possible scrutiny and public accountability. There have been concerns about the use of children and vulnerable people who may be used and then discarded, left alone with their families to face private nightmares, flashbacks and mental health problems. Noble Lords have raised concerns about the rule of law, the rights of negatively affected individuals, human rights, and much more. Any future amendment to the list of relevant authorities will raise the same issues again. Such matters cannot be dealt with through statutory instruments and minimal parliamentary debates. They require public consultation, primary legislation, full debate and scrutiny by Parliament, which forces Ministers to justify their policies and practices. For these reasons, I urge the House to support my amendment.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.
I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.
Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.
I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.
Baroness Whitaker (Lab)
My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti. I echo her thanks to the Minister for her offer of a briefing. I support Amendments 67 and 70. On Amendment 67, I have little to add to the clear exposition by the noble Baroness, Lady McIntosh of Pickering. This is a really intrusive provision, and the criterion of economic well-being, to which it seems to be related, is too loose to be safe as far as the liberty of a citizen goes. The authorising officer is not even a relevant professional; it is the chair of the Competition and Markets Authority.
On Amendment 70, my noble friend Lord Sikka has covered the ground most persuasively. I simply add my voice to the alarm, echoing the concerns of the noble Lord, Lord Hodgson of Astley Abbotts, that such procedures, which are important to democracy and to liberty, should be capable of amendment only by statutory instrument outside the full parliamentary powers of scrutiny.
Lord King of Bridgwater (Con) [V]
My Lords, I am pleased to follow the noble Baroness, Lady Whitaker, although I am afraid I do not take exactly the same approach as she has on this matter; in fact, I oppose the amendments. I understand that for many people they are probing amendments, and many might take a different view when the Minister has explained some of the background to them more fully.
I am reacting slightly to the comments of the noble Lord, Lord Paddick. The noble Lord’s speech introducing this group of amendments might have given some people listening the impression that something very new is being launched, but with his own background and personal experience he knows that we are talking about a well-established practice—the use of covert sources—which, as we know, has been a vital source of information in the prevention of much crime and terrorism in our history. We are not introducing something new here but putting an established practice on a statutory basis and putting in place a much tougher regime for its operation, one that has to be voted on by Parliament, which of course was not the previous situation.
The issue of additional authorised bodies is spoken about as though this is some huge expansion, when it is my understanding—the Minister may be able to confirm this—that it is actually a reduction in the number of bodies that can apply to use the covert-intelligence-source approach. It is not new; each of the bodies listed has previously shown an operational requirement and has been using it in practice to some great benefit for the country. Here I echo what the noble Lord, Lord Paddick said, and which others have echoed, which is an appreciation of the Minister’s email to me—and maybe her letter to others who are more present on the scene—regarding what can be advanced as evidence of where this has been valuable to the organisations concerned.
The suggestion following on from that is that we do not really need all these bodies to be involved and that we should just give it all to the police. As I understand it, in many of these cases the introduction of a covert intelligence source in a particular area of responsibility, whether it be the Environment Agency or the Department of Health and Social Care, may often be to try to find out what is happening in the first place. That is not at a stage where you are producing masses of evidence of something that can be handed straight over to the police; it is about trying to assess whether there is some real threat or danger in these areas.
Many have cited the importance of a code of practice. I think there is general recognition that it is a pretty strong document. It is a huge improvement on what did not exist before, and it has to be voted on by Parliament, so we will have to approve its coming into operation. It will of course be binding on all parties.
The reason why I have taken part in these debates in Committee is that at present we are living in an exceptionally dangerous world. I have previously quoted the evidence from the Minister, James Brokenshire, on the amount of crime of very different sorts that one year’s covert intelligence had helped with. I see that included in that was the fact that no fewer than 27 different terrorist attacks were prevented by covert intelligence in the last three years.
Lord Anderson of Ipswich (CB) [V]
My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.
Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.
Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.
Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.
That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.
The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.
The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.
I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.
Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.
For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.
I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.
My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?
Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.
We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.
I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.
I look forward to the Minister’s response. There are a number of areas to cover here for the House.
Baroness Williams of Trafford (Con)
I thank all noble Lords who have taken part in this debate. To echo the words of my noble friend Lord King, we live in a very dangerous world. I made the point last time that 27 terrorist attacks have been prevented in the last three years.
I absolutely appreciate that it might not be immediately obvious why some public authorities require this power. Again, I urge noble Lords to read the case studies that have been published to reassure themselves about the contexts in which they might seek to use the power. Alongside law enforcement and the intelligence services, some of our wider public authorities have important responsibilities for investigating and preventing criminal activity and protecting the economic well-being of the United Kingdom. We should not underestimate the important role that these public authorities play in keeping the public safe.
To answer the point raised by the noble Lord, Lord Paddick, I am happy to share business cases with him and other noble Lords, should they wish me to do so—I promise that I shall not give him only 45 minutes to read them.
I think that noble Lords have fully accepted that there will be occasions where undercover operatives play a critical role in providing the intelligence needed to identify and prevent criminality. As organised crime groups increasingly expand into areas overseen by those public authorities, the need for that robust investigative tool is more important than ever.
My noble friend Lord King made a very important point: the list is not an expansion but in fact a reduction. The information about how many organisations have been taken off the list has not appeared, but I can get that number for noble Lords, if it is to hand, before Report.
To answer the point made by the noble Lord, Lord Anderson, the officers in the public authorities are experts in their fields and are best placed to take appropriate and proportionate action to tackle the harms caused by criminal groups operating in the areas that they regulate. To answer his other point, they will have received specific training, which reflects the specialist remit in which they operate. I note that having the capability to carry out their investigative work themselves allows the police to focus on their priorities, as my noble friend Lord King and the noble Lord, Lord Anderson, noted.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, I have received no requests to speak after the Minister, so I call the noble Lord, Lord Paddick, to conclude the debate on this group of amendments.
Lord Paddick (LD)
My Lords, I thank the Minister for her words and I thank all noble Lords who contributed to this debate.
I do not think that the Minister addressed the points made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, from the human rights perspective. What justification is there for public authorities to grant CCAs where it is difficult to see such CCAs being proportionate to the crimes that they seek to address? Authorising an undercover operative to commit a crime is very serious and needs to be proportionate to the harm that it seeks to address. Obviously, it will help when we see the business cases; I am very pleased that the Minister has agreed that we can look at them.
Can public authorities be added by statutory instrument? The Minister said that it will be via the affirmative procedure. I have already given the example of where authorities were added to those that could access communications data and the House was not able to properly scrutinise that statutory instrument because we were not given access to the business cases until the last minute. If that repeats itself, we will not be able to scrutinise adequately the addition of public authorities by statutory instrument.
The noble Lord, Lord Cormack, talked about being very troubled and the Bill going too far, which leads us on to the noble Lord, Lord King of Bridgwater; I look forward to the jousting between the noble Lord and myself on these sorts of issues. The noble Lord said that I gave the impression that there was something very new in what is being discussed here and that it was a well-established practice. If only he were right. The point is that the granting of legal immunity to people who are being authorised to commit crime is a completely new scenario that no public authority in the past has been able to do—except the Crown Prosecution Service, after the event. I accept that this is a very dangerous world, as the Minister started her remarks with, and that 27 terrorist attacks have been prevented as a result of actions—but not, I would humbly suggest, by the actions of the Gambling Commission or the Food Standards Agency.
The Minister talked about the horsemeat scandal and how it had the potential to undermine public confidence in the food supply. How can getting a CHIS to commit a crime be proportionate to addressing an undermining of confidence, in the human rights sense of proportionality? She talked about the Home Office and the power being specifically required for Immigration Enforcement—so why not, on the face of the Bill, authorise Immigration Enforcement within the Home Office, rather than the Home Office in its entirety? In the communications data statutory instrument, which authorises public authorities to access communications data, the Military Police, not the Armed Forces generally, is authorised. Why not authorise just Immigration Enforcement and not the Home Office?
The noble Baroness, Lady McIntosh of Pickering, asked: why not call in the police to deal with criminality that these other public authorities have responsibility for? The noble Lord, Lord Anderson of Ipswich, gave some very good reasons why that might be the case, such as that it might not be high on the list of police priorities. But that then comes back again to the question of necessity. He felt that they needed to demonstrate a need—we will look to see whether these agencies have demonstrated the need when we look at the business cases—and that training was essential; he was hoping that it would be alongside police colleagues, but the Minister did not seem to think that that would be the case. He raised this other interesting issue about the fact that, if these agencies do not use this power very much—that is, if they are not exercising it—they will need to be trained more frequently because they are not used to using it. This raises more concerns, in my mind, about these other agencies. The noble Lord also talked about safeguards, as we have discussed in other parts of the Bill.
Clearly we will return to this issue on Report. At the moment, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we come to the group beginning with Amendment 75A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
“(4B) Where the Investigatory Powers Commissioner becomes aware of any potentially unlawful or improper conduct undertaken in connection with a criminal conduct authorisation, which is not authorised by the criminal conduct authorisation, the Commissioner must refer the matter to the police for investigation.”Member’s explanatory statement
This amendment would introduce a requirement for the Investigatory Powers Commissioner to refer potentially unlawful or improper conduct undertaken through a criminal conduct authorisation to the police for investigation.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I am afraid I am going to disappoint a lot of noble Lords for whom I have huge respect, but I am afraid I do not think this Bill is necessary. That is not to say that the old system was good, because it clearly was not, but this Bill is worse. It could have been better, but it is not, so I would like to see it scrapped. However, in the meantime, our job in your Lordships’ House is to try to improve it and to get the Government to listen and understand why they are improvements.
In the previous group, the noble Baroness, Lady Chakrabarti, talked about overreach. That is part of the problem I have with this Bill, but it is not the only part. As some noble Lords have said, it is a dangerous world and we have to do what we can to keep people safe, which is all very true—and all the examples the Minister gave of how to use these powers are very reasonable. However, at some point, we have to ask ourselves, “What are we prepared to lose to keep ourselves completely safe?” In the previous group, the noble Baroness, Lady Whitaker, talked about liberty and democracy, and those are some of the things we are losing with this Bill. It is an erosion. Your Lordships’ House is very concerned about the erosion of democracy —about more and more powers going into statutory instruments.
The two amendments I have tabled require that unlawful conduct that goes beyond the criminal conduct authorisation, or that should not have been authorised in the first place, be reported to the police or a relevant oversight body—for example, the Independent Office for Police Conduct. My Amendments 75A and 75B reveal a deafening silence in the Bill about what happens when something goes wrong. I hope the Minister can explain that to us. What happens when an authorisation is granted that clearly should not have been? What happens if somebody goes beyond their authorisation and commits additional criminal offences? Amendment 75A would require that the authorising authority refer to the police any criminal conduct that was not authorised. Amendment 75B would require “unlawful or improperly granted” criminal conduct authorisations to be referred to the relevant oversight body—for example, the IOPC.
This is a gaping hole in the Bill: we are talking about state-authorised crime, and the police and other government authorities must not be complicit in criminality that goes beyond the legal authorisation in this Bill. Otherwise, it creates an additional quasi-authorisation where handlers can just sweep things under the carpet when it is dangerous to admit they have done them. They can pretend they did not happen. I hope the Minister will recognise these gaps in the Bill and work to address them on Report.
Baroness Chakrabarti (Lab) [V]
My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.
It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.
The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.
The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.
However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?
Lord King of Bridgwater (Con) [V]
My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for drawing attention to the points I made, and I am sorry if I sounded too aggressive on some of them. The point I did not make, which I shall make now, is on how much crime is committed. One would expect that, in most cases, it would not be the commission of crime so much as association with people while they committed crimes, with the person in question not necessarily being directly involved but having some complicity, which is one of the problems.
The requirements, as I understand them, if they are in that situation and a criminal conduct authorisation is issued, are that it has to be proportionate, it may not be issued if what is sought to be achieved can be done in another way, and it has to be part of an effort to prevent more serious criminality. Those three conditions are perhaps not mentioned very much but are important.
I have left out some issues that I might have discussed. We have just talked about possibly leaving the Department of Health and Social Care out of the Bill. Think of this moment when organised crime, throughout the world, is seeing how it can get into the vaccines business in one way or another. The challenge that that will pose will feature in our news broadcasts and papers in the days ahead. It will obviously be a big issue. One recalls that the NHS was practically brought to a grinding halt from its systems being hacked and disrupted.
There is this, as well, if it is not too dramatic. At the time of Brexit, when we may be moving towards no deal, there is an idea to take from HMRC its ability to keep every possible assistance. In trying to deal with some of the problems it will have, it will need all the help it can get.
My concern about these amendments, and referral to the police or judges to overview the operations of CCAs, is that a clear structure is set up. The Investigatory Powers Commissioner is a very senior judge and the judicial commissioners are very senior. My concern all the way along is that nobody has challenged how vital covert intelligence sources can be, in a range of different fields. The question is whether we can still keep those covert sources coming. The more we expand the range of people who have access to that information, the bigger the danger of leaks, and then there will be fewer sources available in the future. That is why I think the structure set up of the Investigatory Powers Commissioner and his judicial commissioners, with a tribunal and an annual report to Parliament on its operations, has important safeguards. Going much further than that starts to undermine the security of the information and imperil the safety of some brave people, who are giving evidence to help keep our country safe, in a range of different fields.
Lord Paddick (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord King of Bridgwater, with whom I completely agree on maintaining the status quo on the involvement of covert human intelligence sources and the ability of the police and security services to authorise these people to engage in crime. I have no argument with him on those issues. But, as the noble Baroness, Lady Chakrabarti, said, the issue for us is the police granting immunity from prosecution or from any legal action at all.
My noble friend Lady Hamwee and I have Amendment 79, but I will take the amendments in this group in order. Amendment 75A from the noble Baroness, Lady Jones of Moulsecoomb, is intended to require the Investigatory Powers Commissioner to identify unlawful or improper conduct through a CCA to the police for investigation. I have a great deal of sympathy for what the noble Baroness is trying to achieve, but I am not sure that her amendment achieves what she sets out to.
The amendment talks about conduct that is not authorised by the criminal conduct authorisation, but we are also concerned with conduct that is unlawful or improper that is authorised by a CCA, by accident, inexperience or corrupt practice. This does not appear to be covered by the amendment. Of course, if it is the result of police malpractice, referring the matter to the police may not be enough to ensure that it is properly dealt with.
Lord Rosser (Lab) [V]
Two amendments in this group stipulate the action that the Investigatory Powers Commissioner must take on becoming aware of unlawful or inappropriate conduct linked to a criminal conduct authorisation, or on becoming aware of an inappropriately granted or unlawful criminal conduct authorisation. I will listen with interest to the Government’s response to these two amendments.
A third amendment requires a review within six months by a High Court judge that would consider the grant of criminal conduct authorisations in relation to children or vulnerable people, the conduct of covert human intelligence sources, the oversight and monitoring of, and reporting on, such conduct, the oversight of persons allowed to authorise criminal conduct authorisations, and the sanctions available if they misuse those powers.
Under the terms of the Bill, the Investigatory Powers Commissioner has the power to conduct investigations, inspections and audits, but would not appear—I will listen to what the Government say in response—to have the capacity to investigate every time a criminal conduct authorisation is used. The Commissioner also covers the use of the power to grant criminal conduct authorisations in the annual report, which must also be laid before Parliament but which may be redacted. Of course, we do not know how much the annual report will reveal in practice. As an annual report, it will be reporting a long time after any particular issues with criminal conduct authorisations may have arisen.
It is surely important to have as much transparency as possible in how, and in what kind of circumstances, covert human intelligence sources and criminal conduct authorisations are used and granted, since the powers and activities provided for in this Bill are considerable and potentially wide ranging. They have to be applied appropriately, and the greater the transparency that is possible, the more likely that is to be the case and the greater the public confidence in how the powers are being deployed, and with what objectives in mind.
The review referred to in Amendment 79, which would be laid before Parliament, would be one way of contributing to that transparency and ensuring public confidence. If the Government are not going to accept the amendment, I hope that in response they will indicate a willingness to look further at the powers, duties and role of the Investigatory Powers Commissioner to ensure that transparency in how and in what circumstances the powers given in the Bill are exercised is maximised as far as possible. I await the Government’s response.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I know that the noble Lord, Lord Paddick, would not expect me to respond to the case that he brought before the House this afternoon, but I would be happy to sit down and discuss it with him, if he would like. I think what he wants from Amendment 79 is to require a review of all criminal conduct authorisations to be undertaken by a High Court judge, with the review to be commenced six months after the Act has come into force.
The IPC, supported by judicial commissioners, already has oversight of all criminal conduct authorisations. He and his judicial commissioners have all held high judicial office and are entirely independent of the Government. The commissioners are supported by expert inspectors and others, such as technical experts, who are qualified to assist them in their work. They are responsible for inspecting the full range of agencies and departments that will use this power and will ensure that they are complying with the law and following good practice. This includes investigating systems and processes, checking records and paperwork, interviewing key staff and investigating any known errors.
The frequency of these inspections is decided by the Commissioner, and the inspectors must have unfettered access to documents and information to support the Commissioner’s functions. This allows inspectors to undertake thorough and robust investigations of each police authority’s use of the power, covering the entire chain of events and decision-making.
A report is issued after each inspection that sets out IPCO’s conclusions and recommendations and identifies any areas of vulnerability or non-compliance. It also identifies areas of good practice which may be of interest to other similar organisations. The report will enable organisations to take action on the basis of IPCO’s recommendations. This process provides for systemic review of all public authorities’ use of the power and allows for continuous improvement in the authorisation and management of the capability.
Amendments 75A and 75B seek to put obligations on the IPC to report conduct to other bodies. Criminal conduct authorisations will be subject to the existing error-reporting processes for investigatory powers, which require public authorities to report all relevant errors to the IPC. This would include situations where undercover operatives’ conduct has taken place without lawful authorisation or there has been a failure to adhere to the necessary safeguards. Where it amounts to a serious error, the IPC must inform the person of an error relating to them where it is in the public interest.
Baroness Jones of Moulsecoomb (GP) [V]
The noble Baroness, Lady Chakrabarti, used an interesting phrase, “necessary evil”. I wonder how many necessary evils it takes to get an overload of evil, which is not a phrase that I use often. However, particularly in relation to the current “spy cops” inquiry, we know that evil things have taken place under the old system. I therefore have no doubt that it would be better to have a different system, but it is not this Bill.
The noble Lord, Lord King, said that if this matter could be dealt with in a different way—that is, by not giving consent for criminal behaviour—then it would be. However, in my experience, that does not necessarily happen because people become tired; they are human and feel fractious. They want to do something in the quickest way, which is not always the best option. For example, the use of tasers in the UK used to be rare but now that they have been rolled out further, their use has increased exponentially. That has nothing to with the greater number of tasers: it is because police officers no longer have to negotiate with people who are wielding knives or going through mental health problems. They can just taser them. It is not always true that if something can be done in a better way, it therefore is.
The noble Lord, Lord Paddick, said that authorised action was also a problem and I very much agree. I have only met undercover police spies who were whistleblowers—knowingly, that is. They were incredibly brave and well-motivated in their job. However, they found it overwhelmingly difficult and saw or did things that they felt that they should not have been doing or been involved with. I do not make a blanket criticism of people who act as undercover police spies. However, while we need to protect them, we also need to protect ourselves, the general public and the rule of law.
The noble Lord, Lord Paddick, also asked: who do we believe? That is a problem. It is possible to believe every word that the Minister said in defence of the greater controls already in the Bill. However, I am influenced by the fact that I have seen such controls flouted. I come, therefore, from a different, untrusting point of view. People do not always act honourably and play by the book. My two amendments, or Amendment 79, which I also support, would, therefore, be a good idea.
The noble Lord, Lord Rosser, in his usual calm and collected way, asked for further information. I look forward to him putting pressure on the Government to explain themselves more fully.
I will check Hansard but I am sure that I will still have concerns. In the meantime, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
We now come to the group consisting of Amendment 75C. I remind noble Lords that anybody wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Amendment 75C
(i) information on the number and types of criminal conduct authorisations requested and the number granted;(ii) whether these authorisations produced any operational benefits;(iii) any material damage or civilian harm incurred as a result of acts authorised”Member’s explanatory statement
This amendment is intended to probe the adequacy of information provided to Parliament on criminal conduct authorisations, and to probe how the efficacy of these authorisations will be evaluated.
Lord Hodgson of Astley Abbotts (Con) [V]
My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.
The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.
During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.
First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.
My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.
Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.
My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.
To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.
The Deputy Speaker (Lord Rogan) (UUP)
The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab) [V]
My Lords, not for the first time in consideration of this Bill in Committee, the noble Lord, Lord Hodgson of Ashley Abbots, comes to your Lordships’ House with an excellent amendment, a very good idea and an even better speech, which I cannot improve on. Transparency does influence conduct, and the information that he suggests ought to be included in reports speaks to common sense. We ought to know on a regular basis the number and nature of criminal conduct authorisations issued under the new legislation, the operational benefits that have been obtained from those authorisations and, crucially, the kind of damage to property and people—the incidental harm—that has come about as a result of those criminal conduct authorisations.
I do not want to labour the point—it has been a long Committee—but I want to have one final attempt at putting a question to the Minister to which I do not think I have yet heard the answer. This is my last opportunity to put this in Committee before we go forward to Report.
Why is it necessary to go further than the status quo in the scheme for this legislation? Why cannot undercover operatives, whether they are highly trained police or MI5 officers, or whether they are—and perhaps they are in greater number—members of the civilian community, including the criminal community, just be subject to the current law, which is that when they are authorised to do this work, including with criminal conduct, they will know that their conduct will be second-guessed after the fact? They currently have the ultimate incentive —and we have the ultimate safeguard—to behave proportionately and as well as possible, which is that they might, just possibly, if they over-step the mark, be subject to legal sanction after the event. That is the law that applies to uniformed police officers and people driving police cars and ambulances at high speed, with a very strong public interest defence. It is probably a presumption against prosecution, but it is that tiny risk of being judged after the fact that makes most people behave well according to the criminal law. Why should that be replaced with a total, advance and blanket immunity from prosecution and civil liability? Why quite go so far and therefore cause some of the greatest concerns that have been excited by this legislation?
I hope that the Minister will not mind me putting that fundamental, simple question one more time. I look forward to her answer, and indeed to our further work at the next stage of the Bill’s passage.
Baroness Hamwee (LD) [V]
My Lords, the horse will be out of the stable again in January: refreshed, I hope. I am sure that the Minister will welcome the pause after the marathon she has had to undergo. I am not for a moment suggesting she is anything like a horse—I am sorry, perhaps I should not have followed that simile.
My noble friend Lord Paddick recently spoke to Amendment 79, and it is clear that several noble Lords have concerns in this area, so we will come back to it. Noble Lords clearly agree on the importance of evaluating what goes on and of transparency, as has already been mentioned. However, I cannot help thinking in the context of the precise formulation of this amendment of what the noble Baroness, Lady Manningham-Buller, talked about a week or two ago, to which my noble friend referred: the problem of the extent to which one can report in detail without endangering those who are protecting us and whom we, in turn, do not wish to endanger. I cannot help thinking that if a lot of the material listed in Amendment 75C were to be published, an awful lot of it might be redacted. However, I am with the noble Lord, Lord Hodgson, in spirit, and I think that his last point about material damage or civilian harm is an important one that we must not lose sight of. We still need to explore how best and to what extent we can achieve what is obviously troubling a number of us.
Lord Rosser (Lab) [V]
The purpose of the amendment moved by the noble Lord, Lord Hodgson of Astley Abbotts, is described as being to probe the adequacy of information provided to Parliament on criminal conduct authorisations and to probe the efficacy of the authorisations.
I think that this comes back to the issue of transparency. To be a little more particular, will we be told in advance, during the passage of the Bill, precisely what kind of information about criminal conduct authorisations will be provided to us and to the public by the Investigatory Powers Commissioner in the annual report or other reports? At the moment, I am not clear about what information will be provided and what it will cover, and whether it will give us a feel for what is happening over criminal conduct authorisations or whether we will be told that the information provided will be limited and that, on grounds of security, it cannot be disclosed.
I hope that, at least in their response either to this amendment or on Report, the Government will be prepared to spell out what information will and will not be provided so that we all know where we stand on this issue.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.
My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).
I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.
Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.
Lord Hodgson of Astley Abbotts (Con) [V]
My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.
Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.
I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Monday 11th January 2021
(3 years, 11 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-R-II(Rev) Revised second marshalled list for Report - (11 Jan 2021)
17:34 - Division conducted remotely on Amendment 1 - Ayes: 153 / Noes: 309 - Amendment 1 disagreed.
20:49 - Division conducted remotely on Amendment 5 - Ayes: 278 / Noes: 283 - Amendment 5 disagreed.
21:33 - Division conducted remotely on Amendment 6 - Ayes: 282 / Noes: 259 - Amendment 6 agreed.
22:42 - Division conducted remotely on Amendment 9 - Ayes: 119 / Noes: 263 - Amendment 9 disagreed.
22:55 - Division conducted remotely on Amendment 11 - Ayes: 111 / Noes: 255 - Amendment 11 disagreed.
Baroness Chakrabarti
Member’s explanatory statement
This amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.
Baroness Chakrabarti (Lab) [V]
My Lords, I shall be speaking to Amendments 1 and 2, which are linked. For the avoidance of doubt, I shall be pressing Amendment 1 and, if necessary, Amendment 2, but they are linked. They are for the purposes of removing the total criminal and civil immunity for undercover agents authorised under this measure and would replace that with public interest defences and public interest consideration.
This seems to me, first, to better reflect in the new statute the status quo in our law and practice, which was originally advanced publicly as the motivation for this legislation. Secondly, therefore, it seems to me to create a better, safer balance between, on the one hand, empowering undercover agents to protect their cover when engaging in very important life-saving undercover operations of a kind that we have heard about at length during the passage of the Bill—and, on the other, protecting all of us, especially wholly innocent citizens, from potentially grave crimes and abuses of power by undercover agents for many years into the future. I remind noble Lords that we are not just talking about intelligence and police officers; we are talking about a much larger number of agents of the state who are members of the community, including the criminal community, whose co-operation is, of course, sometimes rightly sought by state agencies.
At this point in the proceedings, I thank the Minister, the new Advocate-General for Scotland, who is not due to speak in this debate, for his wholly courteous engagement with these amendments, both publicly and privately. By doing so, I emphasise the importance of our ability to disagree well and in good faith with each other, in this Chamber at least.
I have been a student of constitutional law all my adult life, and, in particular, I am an admirer of attempts at embedding the rule of law in great old democracies such as the United Kingdom and the United States. I am sure that I am not alone in still feeling quite shaken by the scenes from the American Capitol last week. They demonstrate, to me, at least, that this is no time for complacency when it comes to democracy and the rule of law; it is no time for any complacency on either side of the Atlantic, even on the part of those public commentators who have said that no such scenes and grave abuses of executive power could ever transpire here. That is not a sensible position.
While I have greatly benefited from the wisdom of all sides of your Lordships’ House during the passage of the Bill, I have just occasionally found some speeches a little complacent when noble Lords have discussed abuses of undercover agents in our own country in the past—for example, in the context of the “spy cops” inquiry, which is still pending and yet to be concluded or to fully investigate the true extent of abuses by undercover police and police agents over many decades.
Some noble Lords have been very crisp, clear and, sometimes, short in expressing their view that that was the past—such abuses by undercover agents are all in the past and should not be raised as a concern for the future. I know that that is well meant and comes from a place of understandable commitment to aspirations such as public and national security, but these are not times for such complacency—certainly not in the context of legislative scrutiny. As such, I disagree with some of those arguments, but I will be clear that I do not for a moment impugn the good faith or the intentions of those who have advocated the Bill in this precise form, however mistaken I may think them to be.
I regret the “shadowy sources” who chose to impugn my own motives and good faith in pressing these amendments in the Guardian this morning. Frankly, I say to those sources, who were sadly reported as being on my own side: they should grow up. Reasonable dissent reasonably put is not disloyalty in a great old democracy such as ours—far from it. With respect, I address opponents of my argument and these amendments, which I do not believe to be wrecking amendments or catastrophic to the principal purpose of the Bill, which is to put criminal authorisations for the purposes of keeping cover on a statutory footing. I say to those who disagree with me: please play the ball—or the argument—and not the woman, or at least put your name, publicly and honestly, to your briefing to journalists and so on because, as we saw last week, rather shockingly, democracy and the rule of law are all-too-fragile treasures.
I followed this kind of legislation in the realm of home affairs for about a quarter of a century, which makes me very junior in my experience and expertise in your Lordships’ House. For my part, at least, as a former government lawyer, a human rights lawyer and campaigner and, much more recently, a legislator, I believe that the Bill, unamended, is one of the most dangerous that I have ever seen presented to your Lordships’ House.
The problem is that this is about a very long list of agents—not just officers—of the state, including some from the community and criminal community and some very vulnerable and volatile people. They will now be capable of being authorised by other agents of the state to commit unlimited crimes—with no limit to the types of crime included—and they will be authorised in advance with total impunity from any second-guessing or civil or criminal consequence after the fact. Forgive me, but I find that proposition quite breathtaking in the United Kingdom.
This is why the cross-party, all-party group Justice—I declare an interest as a member of it, and I know that there are other members from across your Lordships’ Benches—have advised that the Bill, unamended, contains a number of violations of fundamental human rights, including under the European Convention on Human Rights. The Bill has also drawn heavy criticism from Amnesty International and other advocacy groups for human rights, the rule of law and victims—as well as from a number of former police officers, not least the noble Lord, Lord Paddick, who will speak in a moment, after many decades of police service. It has also drawn heavy criticism from former undercover police officers and agents who have spoken of their own practical experience and why the Bill, unamended, is so dangerous.
That is not to say that the Bill does not have some very good intentions behind it, but we know about the road paved with good intentions. The good intentions are, no doubt, to put a practice that has been implicit on a firmer statutory footing, not least because it has been challenged.
If people are to be put under cover and sometimes even advised to perpetrate crimes to keep their cover—for example, as a member of a proscribed organisation, handling stolen goods or drugs, or committing speeding offences; things that they must necessarily do to keep their cover—and if they are to be authorised to do that by their superiors and handlers, perhaps that should be put on to a firmer statutory footing. That is ultimately the good intention behind this legislation. However, as we have discussed before, the legislation goes much further and creates this total advanced immunity.
Lord Dubs (Lab) [V]
My Lords, before I speak to the details of Amendment 3 in my name, I will comment briefly on the speech made by my noble friend Lady Chakrabarti. I am totally with her in saying that there are dangers in this Bill, and some of the amendments are very crucial indeed. I also agree with her that we must always be vigilant to protect the rule of law, human rights and civil liberties. Indeed, she has done that all her life, since the time she ran the organisation Liberty in such an effective manner. I have listened hard to what she has said, and I believe that the most effective safeguards would be some kind of prior oversight to check an organisation before it went ahead. I believe that is probably the most important safeguard. I look forward to debating the amendment to that effect in the next group.
In the meantime, I turn to Amendment 3. Its purpose is to amend the Bill so that victims of criminal conduct carried out under a CCA can access compensation. I speak as a member of the Joint Committee on Human Rights, and I am very much influenced in my contributions to this debate by the conclusions of the committee’s report, which has been widely praised across the House. The report noted that the Bill as introduced was potentially incompatible with human rights legislation, specifying:
“Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.’”
People may ask at that point about the criminal injuries compensation scheme. I put it this way: since the Bill would authorise criminal conduct lawful for all purposes, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. Seemingly, this would also prevent a claim for compensation under the criminal injuries compensation scheme. This is not a novel proposal. The amendment is very close to the regime in Australia, which provides
“indemnification for any participant who incurs civil liability in the course of an undercover operation”.
The most usual and commonly quoted example, which my noble friend Lady Chakrabarti mentioned, is when a CHIS is driving a getaway car for a gang at high speed and has an accident. Under the Australian regime, the system would provide indemnification in the course of an undercover operation. In other words, in Australia, a civil claim can be brought against the perpetrator by the victim and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The amendment would ensure that the person authorised to carry out criminal conduct would not suffer the consequences of civil liability. It would also ensure that the victim of that conduct would obtain civil redress, while allowing secrecy to be maintained.
This amendment is fully in keeping with the overall intentions of the Bill, but it would provide an important safeguard. Otherwise, individuals will lose out badly through personal injury or by having their car damaged. At present, they are unable to obtain civil redress, and my amendment would put that right. It is an important but straightforward amendment. The principle is easy and I hope that the Government will find their way to accepting it. I beg to move.
Lord Anderson of Ipswich (CB) [V]
My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.
Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances
“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”
There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct
“authorised by a criminal conduct authorisation”,
not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.
Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.
Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry to interrupt the noble Lord, but there is a little bit of interference.
Lord Anderson of Ipswich (CB) [V]
[Inaudible]—in relation to matters for which a judicial commissioner is responsible. Could the Minister confirm, fourthly, that this is the Government’s understanding also?
I move on now, more briefly, as noble Lords may be relieved to hear, to civil recourse for the innocent victim of an authorised crime—[Inaudible.]
Lord Parkinson of Whitley Bay (Con)
My Lords, I do not know if the noble Lord, Lord Anderson, can hear me in the Chamber. I am afraid that we have some interference on the line, so we might need a short adjournment for five minutes while we sort it out.
The Deputy Speaker (Lord Lexden) (Con)
My Lords, I ask the noble Lord, Lord Anderson of Ipswich, not just to resume his speech—we look forward greatly to the rest of it—but, if he would be so kind, to repeat the last few statements he made, because sadly they were inaudible.
Lord Anderson of Ipswich (CB) [V]
I am grateful, and apologise for what seems to have been something of a crossed line.
I dealt with proposed new paragraph (a) in Amendment 21, so will move on to proposed new paragraph (b). I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy than for misconduct in public office, but that is because, if the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy.
However, I believe that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences, if the CCA has first been declared a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or a criminal court. The Minister and the Bill team have been extremely helpful in explaining their thinking on this; I believe that there is nothing between us on this point. I would be most grateful if she could confirm—this is the third confirmation I am asking for—that this is the Government’s understanding of the law.
Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS in Northern Ireland are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect are the powers vested in judicial commissioners under the Investigatory Powers Act. Section 231 provides for serious error reports, and Section 232(2) provides for the Investigatory Powers Commissioner to
“provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”,
presumably including the CPS. Could the Minister confirm, fourthly, that this is also the Government’s understanding?
I move on, more briefly, to civil recourse for the innocent victim of an authorised crime. I start from the position that some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation, not from the person who was authorised to commit the crime but from the authority which authorised it or from the state more generally. Proposed new paragraph (c) in Amendment 21 seeks confirmation of what I do not believe to be in dispute: that compensation may be obtained from the Investigatory Powers Tribunal in a case brought by an innocent victim. That is the fifth thing I ask the Minister to confirm.
That may, however, not be the most practical of remedies. Judicial commissioners have the power to tip someone off that they may have a remedy in the IPT when they consider that to be in the public interest but, as the noble and learned Lord, Lord Falconer, and I suggested in Committee, there may be very limited circumstances in which that will be possible; there might well be risks to the operation and to the CHIS if unconnected persons were informed that their injuries were attributable to an undercover operative. The judicial commissioners are likely to have that well in mind, hence the importance of Amendment 22, which in the case of injury to an innocent victim would ensure that an application could be made in the normal way to the criminal injuries compensation scheme. That would have the great advantage of affording compensation to the innocent victim without it being necessary to disclose to the victim the status of the person—the CHIS—who inflicted the injury.
In their response last week to the Joint Committee on Human Rights, which was published by the Joint Committee at 11 this morning, the Government state that, having considered the question in detail, they have concluded that
“nothing in this Bill would frustrate a victim’s ability to recover compensation for injury or loss through that scheme.”
That is certainly encouraging, but I am afraid that the mouth of this particular gift horse needs a little more inspection. If actions committed pursuant to a valid criminal conduct authorisation are, in the words of Section 27(1), “lawful for all purposes”, can the Minister explain how injuries caused by such acts can be criminal injuries for the purposes of the compensation scheme? That is the sixth and final assurance I request from the Minister.
There is often an argument for making things clear in statute, even if satisfactory assurances can be given. Accordingly, if the Government accept the thrust of these amendments but have difficulties with the drafting, I shall certainly look constructively on any commitment to come back at Third Reading with revised drafts. I shall listen carefully to what the Minister says in response. Depending on the content of that response, and if no commitment is given to accept these amendments or come back to them at Third Reading, on Wednesday I may test the opinion of the House on either or both of Amendments 21 and 22.
The Deputy Speaker (Lord Lexden) (Con)
My Lords, the noble and learned Lord, Lord Falconer of Thoroton, who is next on the list, has been replaced by the noble Lord, Lord Rosser.
Lord Rosser (Lab) [V]
My Lords, speaking for the Opposition, we support the essence of this Bill. As noble Lords from all sides of the House have said in earlier debates, this Bill addresses a necessary—if at times uncomfortable—reality, which prevents crime and keeps us safe. We pay tribute to those in our security services and elsewhere for the work they do on our behalf.
There has been much discussion in this House on the detail of what is before us. I very much respect the strongly felt concerns raised by my noble friend Lady Chakrabarti. I take what she said, as I do all her contributions, in the constructive spirit in which I know it was intended. However, we have reservations about the effect of the amendments she has tabled. The current status quo is that criminal conduct authorisations are given without formal accountability, and prosecutorial discretion becomes a factor only if a CHIS is caught and arrested for the offence. For the overwhelming majority of cases, prosecutorial discretion never becomes relevant. In the circumstances that a CHIS, having been authorised, is caught carrying out that criminal act, the CPS will be made aware of the authorisation and will not prosecute, on the basis of overriding public interest. The CHIS does not now, and will not under this Bill, have immunity for committing an unauthorised offence.
We therefore believe that the Bill reflects the status quo in practice. We feel that putting this on a statutory footing, with authorisation conferring immunity—with appropriate safeguards—is the best way. We seek to add provisions into the Bill on immunity plus safeguards, including on the function of the Investigatory Powers Commissioner, looking at every authorisation and possible prior judicial authorisation—to which my noble friend Lord Dubs referred—which will preserve the use of CHIS criminal conduct authorisations in the national interest while ensuring that there are safeguards for every authorisation.
Lord Paddick (LD) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Rosser, and to hear him speak in positive terms about his noble friend, the noble Baroness, Lady Chakrabarti. Before I address the main issues raised by Amendments 1 and 2, let me will clear the decks. My noble friend Lady Hamwee and I have Amendment 32 in this group, as the noble Lord, Lord Rosser, mentioned, and my noble friend will deal that amendment later in the group. I have put my name to Amendments 1, 2, 21, and 22.
The noble Lord, Lord Anderson of Ipswich, proposes Amendments 21 and 22, which seek to clarify the legal extent of immunity that the Bill confers, because, despite debates in Second Reading and Committee, and numerous meetings and email exchanges between Members of your Lordships’ House, the Minister and the Bill team, it is still not clear to me and to the noble Lord, Lord Anderson, exactly what the Bill seeks to achieve in terms of immunity. At the very least it shows how complex the Government’s proposals are. We support the noble Lord’s amendments.
Amendments 3 and 4 seek to limit the legal immunity provided by the Bill. The noble Lord, Lord Dubs, seeks to limit it to criminal liability. The noble Baroness, Lady Jones of Moulsecoomb, wants to ensure that criminals do not profit from the crimes they are asked to commit. We will support these amendments if the House divides on them, but they are both about damage limitation and will, I hope, be pre-empted by Amendments 1 and 2.
All these amendments, and those in the following groups, simply highlight the can of worms that the Government are opening by going way beyond the status quo by giving public authorities the power to grant legal immunity. As the noble Baroness, Lady Chakrabarti, said, Amendments 1 and 2 would remove the ability of public authorities to grant legal immunity to covert human intelligence sources prior to the criminal activity they are being asked to participate in. This would maintain the status quo, where the actions of agents or informants who are properly tasked by public authorities to commit crime are referred to the relevant prosecuting authority, which invariably rules that it is not in the public interest to prosecute them.
We on these Benches accept that that it is undesirable but necessary to use covert human intelligence sources and that, on occasion, these agents or informants need to be tasked to commit crime. We accept that, because of a legal challenge, it is necessary to put the tasking of covert human intelligence sources to commit crime on a statutory footing.
The noble Baroness, Lady Chakrabarti, set out the dangers of the changes the Government propose. I will take a slightly different angle. A reason often used by Governments for not accepting attempts to change existing law is that they are not necessary. We suggest that the Government have been unable to provide any evidence that a change in the law to provide covert human intelligence sources with legal immunity prior to their being tasked to commit crime is necessary.
In Committee, the noble and learned Lord the Advocate-General for Scotland said that
“noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct”.
Will the Minister today admit from the Dispatch Box that her noble and learned friend was wrong to say what he did? I, along with many other noble Lords, have said explicitly and openly before the Minister made those remarks that we do not accept the Government’s position that this it is “grossly unfair and unreasonable” to leave open the possibility of prosecuting covert human intelligence sources in such circumstances.
The noble and learned Lord went on to say that covert human intelligence sources operate “in the public interest”. Many police informants act out of self-interest and for financial gain. I have, as a senior police officer, reluctantly handed brown envelopes stuffed full of £20 notes to criminals to pay them for acting as covert human intelligence sources. They were paid an amount agreed in advance for acting on police instructions. What these informants did undoubtedly was in the public interest, but that was not their primary motivation, as the Minister has suggested.
The noble and learned Lord went on to say that
“we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do.”—[Official Report, 24/11/20; col. 171.]
Why must we accept this? Because the Minister said so? Because he has been told by operational partners who have a vested interested that this is the case? Parliament set a very useful precedent on 9 November 2005 when operational partners, backed by the then Labour Government, said that they needed to detain terrorist suspects for up to 90 days without charge. Large numbers of Labour MPs rebelled and joined a united opposition to reject what operational partners, backed by the Labour Government, were asking for. We should do the same today.
We have asked the Government for evidence of how much intelligence has been lost, as the Minister claims; we are told that they cannot produce any evidence. We have asked how many times operational partners have failed to recruit undercover operatives as a result of the status quo; we are told that the Government cannot produce any evidence. We have asked how many times a properly authorised agent or informant has been prosecuted for doing exactly what they were asked to do; we are told they cannot produce such evidence. We have said, “Okay then, just give us one example of where a properly authorised CHIS has been prosecuted for doing exactly what they were asked to do. If it is sensitive, redact the sensitive detail and show us in private if necessary.” They cannot even do that.
I suggest that, if we are to make such a monumental legal change, we should have evidence to support that decision. So, what evidence is there to support the Government’s case for so dramatically changing the law, so that a police officer can tell an informant to commit a crime, and for that criminal activity to no longer even be a crime—for that informant not to have legally done anything wrong at all, even if innocent people are hurt in the process? The Government’s case is simply their assertion, “It’s not fair.” Seriously? Do the Government think we should so radically change the law because it’s “not fair”?
I will quote the Minister again, who said that
“my respectful conclusion is to say that the continuation of the status quo is not desirable.”—[Official Report, 24/11/20; col. 173.]
Not desirable? Police officers have to secure the prior authority of both an Investigatory Powers Commissioner and a Secretary of State before they can listen to someone’s telephone conversation—and then only if the target is suspected of the most serious criminality. This Bill allows police officers to give an informant total legal immunity to commit any type of crime, with no prior independent authority or oversight, to combat even minor offences. That is the definition of “undesirable”.
Parliament rejected the unsubstantiated claims of operational partners in November 2005 and we should reject them now. We support Amendments 1 and 2.
Baroness Jones of Moulsecoomb (GP)
What a pleasure it is to follow the noble Lord, Lord Paddick, who has demolished the Government’s case for handing out immunity like sweeties to criminals. I hope that noble Lords will forgive me if I do not call these people covert human intelligence sources; they are police spies, and we have to be clear about that when we use this language, so that people outside your Lordships’ Chamber can understand what we are talking about.
I shall speak in support of Amendments 1 and 2, which I have signed, but quite honestly, as the noble Lord, Lord Paddick, has said, all the amendments here are simply damage limitation. I am staggered that the government lawyers have actually allowed this legislation to be presented to your Lordships’ House. It is appalling. I liked the comments from the noble Lord, Lord Rosser, about the noble Baroness, Lady Chakrabarti. Her stance on this is not factionalism; it is a principled stance by a lawyer who understands civil liberties and human rights, and we could all learn from that.
I will focus specifically on my Amendment 4. It might seem a little less powerful or important than the other amendments that we are coming to today and on Wednesday, but I think it is quite important. We will be authorising criminals—or officers, or police spies, or whoever they are—to make money by criminal activities and then keep that money. I would like those profits to be recoverable through the Proceeds of Crime Act 2002. I would like a proper, clear answer from the Minister on this. I have asked multiple times since Second Reading but have not yet had an answer on how the Government will recover the profits made by a police spy under a criminal conduct authorisation, or CCA.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure yet again to follow the noble Baroness, Lady Jones of Moulsecoomb. I support Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti and Lady Moulsecoomb, the noble Lord, Lord Paddick; and I too am a signatory to Amendment 1. Amendment 2 seeks to preserve the current legal status quo, whereby those authorised to engage in criminal activity are not rendered immune from either civil or criminal liability. Instead, compliance with an authorisation will be relevant to any public interest consideration to prosecute, any existing legal defences and any court considerations as to civil liability and/or damages.
I feel that the existing legislation that we are debating seeks on the one hand to regulate in statute the use of covert human intelligence sources and, on the other hand, gives CHIS and their handlers a licence to kill. The recruitment of agents is undeniably necessary as part of intelligence-led policing; any such recruit should be a fit person, properly recruited, with free and informed consent and operating to human rights standards in police-led operations.
I listened very carefully to the words of the noble Baroness, Lady Chakrabarti. I recall saying in Committee that Northern Ireland has a particular experience to note in this whole area of using handlers and agents—not police officers but agents—and some of them were linked to criminal and paramilitary activities. We are a living example of what happens when the state, or the state through its agents, commits serious crimes, including murder. For that reason, I make a special plea to the Minister to consider these amendments and the Bill as currently drafted and to ensure that all protections are put in place to prevent any nefarious activity and any misuse of activity by handlers.
One example is the continuing investigation into the agent known as Stakeknife. Probably dozens were murdered on the instructions of those in command and control of the IRA with the knowledge and approval of those in command and control of a British security agent. Another example is Ken Barrett, a British agent involved in the murder of the lawyer Pat Finucane, which a former British Prime Minister, David Cameron, conceded had involved shocking levels of collusion—a fact reiterated at the end of November by Brandon Lewis, the current Secretary of State for Northern Ireland. There is also the example of Mark Haddock, an RUC Special Branch agent believed to have been involved in more than 20 murders.
I say to the Minister that Northern Ireland is a lesson from history, which the Government should take heed of in respect of the Bill. Serious crimes and murder committed by state agencies, or the agents of the state, lead first to a generation of victims and survivors, secondly to alienation, and thirdly to conflict. Yet this legislation, as drafted, would allow agents to commit serious crimes with extravagant powers given to handlers and a severe deficit in relation to authorisation and post-operational accountability. Hence the need for Amendments 1 and 2 to curb such illegal activity and to ensure that those who commit crimes are not immune from prosecution.
It is worth remembering that one of the 175 recommendations on new policing arrangements in Northern Ireland back in 1999—accepted but not addressed—was:
“There should be a commissioner for covert law enforcement in Northern Ireland.”
Maybe it is time to give this consideration now if the Government insist on pressing ahead with the Bill unamended. The noble Lords, Lord Dubs and Lord Rosser, referred to the need for prior oversight; this is one avenue that would facilitate prior oversight, albeit in the Northern Ireland context. As a result, there is no dedicated Northern Ireland covert oversight agency, and the UK arrangements to interrogate phone tapping or search authorisations should be more extensive.
I believe—I say this rather advisedly—that this legislation compounds the problem, with even less oversight of the authorisations that would arise under its provisions than is the case currently. The Bill is deeply problematic, and it could work against the need to tackle criminality and paramilitarism. Hence the need to ensure that those authorised to engage in activities are not rendered immune from prosecution, and hence the need for both amendments, calmly presented by the noble Baroness, Lady Chakrabarti, which I urge the Minister to accept. I hope that the Minister can respond in favourable and positive terms. I support both amendments and, if pressed to a vote, I will support them.
Baroness Massey of Darwen (Lab) [V]
My Lords, I shall speak to Amendment 3, which seeks to ensure that victims of criminal conduct carried out under CCAs can access compensation. My noble friend Lord Dubs has covered this amendment comprehensively, so I will simply add a few words of support. Like my noble friend Lord Dubs, I speak as a member of the Joint Committee on Human Rights, whose legislative scrutiny report on the Bill was published last November. I am pleased that the Government have published their response to that report today. We shall no doubt refer to it during our deliberations on the Bill.
This amendment relates to paragraphs 104, 107, 108 and 110 of the Joint Committee on Human Rights report. Its purpose relates to rights under the European Convention on Human Rights, and it mirrors the system in Australia which
“provides indemnification for any participant who incurs civil liability in the course of an undercover operation”,
as described in paragraph 110 of the Joint Committee on Human Rights report. It states:
“The effect of this provision would be to ensure that the participant (i.e. the CHIS) would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”
I think the amendment is clear and I look forward to the Minister’s response.
Lord Cormack (Con) [V]
My Lords, I also think the amendment is clear, which is why I was glad to add my name to it. I would like to begin, however, by referring to the noble Baroness, Lady Chakrabarti. Anyone who knows anything of her work would not begin to challenge or dispute her integrity or motives. I am very glad that the noble Lord, Lord Rosser, made that plain even though he found items within her amendments with which he could not agree. That is a very honourable position to take.
The noble Baroness, Lady Chakrabarti, was very right to remind us at the beginning that we cannot take democracy or the rule of law for granted. She pointed to some of the events on the other side of the Atlantic, in the greatest of all democracies, that have disturbed us all. When you can have a position where the President of a country disputes the right of his successor to succeed him, and seeks to rabble rouse, we all have to take stock and realise that that could happen here. I do not think that it will, but we have to be very careful indeed. But, of course, it could not quite happen here—three cheers for a constitutional monarchy, where the head of state is totally removed from party-political considerations.
It is wrong that someone who suffers as a result of the actions of a CHIS—a horrible phrase—should not be properly compensated. It need not be a deliberately inflicted injury or wound; it could be the result of a car chase. We have all read in the last two or three years several accounts of people out innocently about their Sunday afternoon’s business of a walk in or to the park who have been killed or mutilated by someone driving a vehicle recklessly. Of course, it could happen even if the vehicle is not driven recklessly. I very much hope that my noble friend the Minister, when she replies, will be able to give us a good answer on this one.
Perhaps the answer lies in the acceptance, if not of this amendment, of Amendment 22, so clearly spoken to by the noble Lord, Lord Anderson of Ipswich. It would be quite wrong if the Bill goes on to the statute book without something in it to make it absolutely clear that people who suffer innocently are to be adequately compensated. Whether it is by means of the criminal injuries compensation board, as the noble Lord, Lord Anderson, suggested, or some other way does not matter so much. I favour his way, but it must be clear beyond any peradventure.
Lord Thomas of Cwmgiedd (CB) [V]
It is a privilege to follow the noble Lord, Lord Cormack, and I associate myself with his remarks about the noble Baroness, Lady Chakrabarti, and her desire to clarify and improve the Bill. In no way should her motives or actions be impugned.
Because this will be a long debate, I will speak only briefly about Amendments 21 and 22, to which I have added my name. If we are to legislate and to put this regime on to the statute book, we must have absolute clarity. The amendments establish that degree of clarity in relation to criminal and civil responsibility. I attach particular importance to the issue of criminal responsibility because in such a matter, it is very important that we keep alive elements of deterrence to show that the law can act swiftly and clearly if people corruptly misconduct themselves in public office or go much more seriously into criminality in authorising crimes. The noble Lord, Lord Anderson, set out with admirable clarity the changes that are required. I would not think that assurances given by a Minister would be adequate in this case. A statutory regime must start and end with a statute.
Lord West of Spithead (Lab) [V]
My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.
For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.
Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.
Lord Naseby (Con) [V]
My Lords, it is a privilege to follow the noble Lord, Lord West. I am not a lawyer but I have had the privilege to serve in both Houses for nearly 50 years now, and prior to that I was in Her Majesty’s forces. I specialise globally in south and south-east Asia, where I worked for a number of years. I am essentially a practical man. I have suffered a death threat from the IRA, so I have seen the rough side of political life as well.
We need to understand what it is that we ask the men and women to do who safeguard our communities, our society, our country. That cannot possibly be an easy job. It is a very taxing job and we need it to be done within a framework of surveillance and some control, but not such that they are restricted or confined, as the noble Lord just pointed out. There is a practical side. It would never work if you went too far that way, and frankly, Amendments 1 and 2 do that. I am not reassured by the views of Justice. I am particularly not reassured by the stated views of some of the NGOs and others in what I would call the human rights vehicle. Therefore, I will not support Amendments 1 and 2.
I understand why Amendment 3 has been tabled. As I read it, it seems to weaken the current situation, but I will listen to what my noble friend the Minister has to say. I also understand why Amendment 4 was tabled, but perhaps it would undermine the Bill in a way that is not obvious to me, as a non-lawyer.
Turning to Amendment 21, the noble Lord, Lord Anderson, is a very persuasive and clearly very thorough lawyer, and I am pleased to hear that he has had discussions with my Front Bench. I shall listen with care to what the Minister says on Amendment 21 in particular. However, I urge all of us to reflect on the reality of life today. We live in a very difficult world, and we need to make sure that the honest, genuine people who want to help maintain the security of our country and to keep our people safe can do their job properly, so that our society can flourish.
Lord Rooker (Lab) [V]
My Lords, I am very pleased to follow the noble Lord, Lord Naseby.
I see that the clear intention behind Amendments 1 and 2 is to abandon the concept on which the Bill is based and maintain the current legal status. I have read the briefing from Justice. I am not a lawyer, but it is not clear to me. To describe CHISs as often
“ordinary untrained members of the public”
or even seasoned criminals is undermined by virtually all the case studies in the business case provided to all Peers in the past few days. I have missed one speech this afternoon, but to the best of my knowledge, nobody has referred to any of the case studies. I will not go into detail on this group, but I will probably refer to them in the next group. But referring to CHISs in this way is almost emotive and misleading rather than being clear.
As I understand it, the current procedure to safeguard the covert human intelligence source includes the fact that the CHIS must give informed consent. The criminal conduct authority is specific and must be understood by the CHIS. The authorising officer must assess that the CHIS is capable of carrying out the activity safely. The handler, of whom I understand that there are almost always two per CHIS, is responsible for the CHIS’s security and welfare. The handlers in turn are supervised by the controller, and the authorising officer—not the handlers nor the controller—is responsible for granting the CHIS authorisation under RIPA.
I have heard one or two speeches today in which the process has seemed to be that the handlers are doing everything: authorising and in control of everything. This is not the case. Of course, the authorising officers cannot authorise themselves. In addition, a whole range of other people is involved: operational security advisers, looking at the activities planned; legal advisers; and possibly behavioural psychologists. The idea that the CHIS is on their own—which “ordinary untrained” implies—is put to rest in the case studies to which I referred, the fact sheets provided to all Peers and the CHIS code of practice, including the new draft one published this month.
I do not propose to go into any further detail on this, but I can tell your Lordships one thing: I have not the slightest intention of abstaining on Amendments 1 and 2. They should not be in the Bill, and if they are pushed to a vote, I will vote against them. It is as simple as that, as far as I am concerned.
The only other point I want to make on this group is in support of Amendments 21 and 22. I listened to the noble Lord, Lord Anderson, in some detail. It was most unfortunate that we needed that short adjournment, but it gave me a chance to reread proposed new paragraphs (a), (b) and (c) while no speeches were being made, so it was useful to that extent.
Given the chain of authorising and managing a CHIS and the management systems involved in the various organisations concerned, it might be thought that the actions envisaged in Amendment 21 would be impossible. It is therefore absolutely right to challenge the idea that conspiracy or malfeasance could not take place: we know they could. It will be incredibly difficult, given the structure involved in managing the CHIS, but it is important that structures are put in place to deal with such an outcome of the actions listed in Amendment 21.
It is self-evident to me that anyone who is damaged should be able to claim compensation. I think the very last point the noble Lord, Lord Anderson, made to the Minister was very telling: how can you claim under the Criminal Injuries Compensation Act if the original authorisation says it is not criminal? I am sure the Minister has come armed with information to answer that, but I look forward with interest to hearing it.
I repeat that I will not vote for Amendments 1 and 2: they should not be anywhere near the Bill, in my view, and the Official Opposition advice to abstain is not correct in the circumstances. I will not: I will vote against.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always stimulating to follow the noble Lord, Lord Rooker—although I disagree with him, which is unusual. I add my support to the amendments in this group which seek to ensure that immunity from criminal and civil liability for criminal acts cannot be given by the authoriser or controller of covert agents—including “police spies”, as the noble Baroness, Lady Jones, would have them—simply on his own initiative. I adopt all that has been said by previous speakers in favour of these amendments.
I know something of the current status to which the noble Lord, Lord Rooker, referred. I took part in the trial of a covert agent held in camera over many weeks. He was convicted of going beyond his authorisation, and he was not given immunity—nor, in my view, should he have been. I shall focus, however, on Amendment 22, which seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.
I had seven years’ experience on the Criminal Injuries Compensation Board when it was non-statutory. I supported the scheme because it recognised the duty on the state to compensate victims of crime and did so fairly, having regard to a number of factors, including the degree to which the victim might himself have been culpable in bringing the injuries upon himself.
In 1983, Mrs Thatcher’s Government promoted and ratified the European Convention on the Compensation of Victims of Violent Crimes. Article 2 provides that the state shall compensate
“those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence”.
It further provides that
“the dependants of persons who have died as a result of such crime”
shall be similarly compensated. The second paragraph of Article 2 states:
“Compensation shall be awarded … even if the offender cannot be prosecuted or punished.”
To my mind, that fully covers the position we are discussing in Amendment 22 and helps deal with the doubts expressed by the noble Lord, Lord Dubs. The European convention is made not by an institution of the European Union but by the Council of Europe, which we helped found in 1949 and of which 47 states are members, including Russia.
Of course, the institution of the European Convention on Human Rights is also governed by the Council of Europe, and it has been under attack by the Conservative Government. As I mentioned in my small contribution to the debate on the deal last Friday, the Government face a difficulty if their independent commission recommends that we resile from that convention. Article 136 of Title XII of Part 3 of the UK/EU deal provides that in the event the UK Government “denounced” the European covenant on human rights, all the security provisions—co-operation on the exchange of data, extradition arrangements, and so forth—which are set out in Part 3 would automatically cease to have force. It is not merely giving grounds for the EU to terminate these arrangements: they automatically expire. But there is nothing in the deal about the European Convention on the Compensation of Victims of Violent Crimes, and I assume that it will still be in full force.
Despite the Government’s attitude towards treaties and institutions in Europe, I sincerely hope that they will accept Amendment 22 on the basis that it is essential if the UK is to abide by the terms of the convention and for the compensation of victims of crime that it requires to be paid.
Of course, the criminal injuries scheme is for physical injuries, as it says on the box. It is perfectly possible that the crimes authorised under these provisions would cause financial harm. That is the purpose of Amendment 32: to ensure that the Investigatory Powers Commissioner would be able to award compensation to victims of financial fraud. This is the other side of the coin, and I support it. Perhaps I may join the noble Lord, Lord Anderson, in examining the teeth of the gift horse which the Government offered this morning in their response to the Joint Committee on Human Rights.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow the noble Lord, who speaks with great authority and experience in these matters. Although I do not always agree with the noble Baroness, Lady Chakrabarti, I will defend her right to say what she thinks and table her amendments to the hilt.
I support the sentiments behind Amendment 22, as expressed so eloquently by the noble Lord, Lord Anderson. I hope that, in summing up, my noble friend the Minister will clarify the Government’s position and perhaps come up with some thoughts and words from them. I take this opportunity to thank my noble friend for her letter last week and for the personal briefing that she kindly arranged for me on aspects of the Bill about which I had concerns. I am very grateful for that.
However, my noble friend’s letter makes no reference to the question of criminal injuries and compensation for victims of violent crime where the crime has been committed through activity that is the subject of a criminal conduct authorisation. My starting point on this issue was referred to by the noble Lords, Lord Dubs and Lord Anderson: paragraphs 15 and 16 of the original report, the scrutiny undertaken by the Joint Committee on Human Rights in November last year and the Government’s response, which I confess I have not had time to digest in full.
The real issue here is that we are granting immunity from prosecution to those who carry out actions and behaviour under the Bill. That leaves the question of the ramifications for victims who suffer in the circumstances outlined by noble Lords, which I do not need to repeat. I will take this opportunity, if I may, to gently nudge my noble friend the Minister to go further—as requested by the noble Lord, Lord Anderson, and others—and explain specifically the position of victims of what is currently considered a crime but would be granted immunity under this Bill. For example, a person may have been severely injured and requires compensation, as would normally be the case through recourse to the Criminal Injuries Compensation Authority.
I believe that this is a grey area that should be tidied up before the Bill leaves Parliament. I hope that my noble friend will meet the requirement to seek satisfaction and clarification in this regard.
Lord Judd (Lab) [V]
My Lords, I speak in support of Amendments 3 and 4. If I may so, my noble friend Lord Dubs covered very well the arguments in support of his Amendment 3. Amendment 4 seems self-evidently right and should not cause controversy.
It is not possible to speak to these amendments without referring to the important speech made by my noble friend Lady Chakrabarti. Unfortunately, given the nature of human affairs, it is necessary to have as part of our defence of society provisions of the kind that we are discussing. We ought to put on record our appreciation of the courage of the many people who undertake such work on behalf of us all. Many of us, including our family and friends, probably enjoy the life that we take for granted because of the work that is unfortunately necessary in this sphere. The people who do that work should not feel that they do it under sufferance; they should feel that they are doing it with the full support of society as a whole because of its essential nature.
Having said that, it is crucial that, in the organisations operating in this area and responsible for this work, there is a culture—I cannot emphasise that word strongly enough—that never forgets that the essence of a society that is being protected is one in which accountability, transparency, the rule of law and human rights are essential: that is, they are not nice tea party things to be in favour of but essential elements, the muscle, in building the kind of society that we want in the interests of everybody. That culture is essential.
I want to take a moment to refer to events across the Atlantic to show just how important that culture is and how easy it is to start stepping away from the disciplines that are necessary to uphold it. Of course, in the kind of society that we want to protect, when the going is most difficult and the challenges are at their greatest, it is more important than ever to have at the kernel—the essence—of all that takes place a kind of conviction and philosophy for the culture to which I am referring. That is not weak. It is not a lovely liberal idea. It is an absolute necessity. In the same way, those who forged the Universal Declaration of Human Rights just after the Second World War were not sentimentalists in any sense; they were people who had seen and experienced the horrors of the Second World War, and were determined to build into our society disciplines and elements that were essential for its protection.
I say that, because such a culture is crucial. We must never slip into a situation in which we begin to justify the provisions in the Bill as a convenience for activities that cannot be fully reconciled with the points that I have underlined. That is essential, which is why what my noble friend Lady Chakrabarti said in introducing her amendment, for which I am grateful, is so essential for us all. We must evaluate for ourselves whether her formula is the best one, but all I can say is that it is essential—and long may it continue—that we have her strictures with us.
I strongly support Amendments 2 and 3, and hope that what I have said underlines the value of what my noble friend Lady Chakrabarti said.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I echo the grave concerns of many Peers. I also endorse what has been said about the good faith of my noble friend Lady Chakrabarti and her commitment to civil liberties. That has been the imprimatur—the standard she has been the bearer of in her professional life.
We should recognise the importance of discussing the rule of law and how we have to be the guardians of it even when we recognise the need for the state to make use of agents. I hope the House will note the serious risks of introducing law that grants immunity to informants, agents and spies. My great regret is that the Bill lumps together the needs of different kinds of agency. The requirements of, for example, the security services are distinctly different from some of the other agencies they have been lumped together with in the Bill. Perhaps our attitudes to those different needs should be distinctly different too.
Let me assure noble Lords that from my work in the courts over the years involving national security, I accept the vital need for the police and security services to use covert operatives in their investigations, particularly into serious crime. I accept that there are times when, to maintain their cover, agents or informants have to be involved in criminal activity. The status quo, which I would like to see preserved, has security service guidelines that provide an appropriate balance between the necessity of certain law enforcement operations and the public’s legitimate expectation that informants and agents be deterred from acting with abandon and—if they go beyond what has been agreed and commit criminal offences—to be held accountable for their actions.
My noble friend Lady Chakrabarti mentioned that a level of uncertainty is quite curative; it is important for someone to be made to think, and not to feel they have the impunity of immunity. These issues are of serious importance to us, because they are about maintaining the moral equilibrium of ensuring that the law applies equally to all. That is what the rule of law is about. Let me make it clear to noble Lords: this is not some mild thing. The Bill will change the legal landscape that says we are all accountable to the law and nobody is above it. Having immunity for certain people means there is a greater sense of the weight of what people are involved in.
I have seen, in all my years of practising in the courts, that there are times when these matters go before the prosecuting authorities and no prosecution of informants or agents is forthcoming because it is not in the public interest to proceed. That is the better way of dealing with this. It is the better way of maintaining that commitment to the social contract we made that we are all answerable to law, save in exceptional circumstances, when their controllers—those who run agents in the field or deal with informants—step forward to give reasons why a person should not be prosecuted, explaining the circumstances in which crimes were committed. It is the granting of immunity that changes, in a fundamental way, relationships and the rule of law. That is why I am concerned and will support the amendment of my noble friend Lady Chakrabarti.
I am president of the JUSTICE Council—its advisory council—and it is not an organisation that goes into these things lightly. Huge care and consideration are given to the positions JUSTICE takes on matters of law and legislation going through these Houses. JUSTICE recommends that this House should be very cautious before throwing away the perfectly reasonable guidelines and provisions that currently exist and giving operatives certainty of never being prosecuted for what they do, when they may say, “I demand to be told that I will never be prosecuted for what I am doing”.
I am very concerned about this Bill. I will be supporting my noble friend Lady Chakrabarti. I regret that I cannot take the position of my party in abstaining—this is too important to me. I am a lawyer and have spent my life in the law. I head an institute of human rights; I created, at Oxford, an institute of human rights; I believe in the rule of law. We are a nation that stands for the rule of law in the world and, by God, having watched what happened in the United States recently, the need for a nation to stand for the rule of law is vital.
I regret that we are going down this road. I do not believe that this legislation is necessary in the way others seem to think it is; we could have refined this in a better way. I will be voting with my noble friend Lady Chakrabarti, and I will be adding additional amendments later if these do not succeed, as I suspect is likely.
Baroness Bryan of Partick (Lab) [V]
My Lords, it is a privilege, if not somewhat intimidating, to follow my noble friend Lady Kennedy of The Shaws. But it does give me the confidence to believe that some of the points I am making are probably accurate and worthy of consideration.
We have been told that the purpose of the Bill is to bring the operation of CHIS out of the shadows and put existing practice on a clear and consistent statutory footing. This Bill, however, goes much further than existing practice by allowing prior immunity. The current regulation on “Immunity from Prosecution” in Section 71 of the Serious Organised Crime and Police Act 2005 states that
“immunity notices can only be granted in respect of offences which have already been committed.”
There are many reasons why immunity should only be applicable to offences already committed, and we have not been given convincing reasons why this should change. There are occasions when it is in the public interest not to prosecute someone for a crime they have committed, but that does not change that there was a crime and, almost certainly, a victim. The Bill changes that: by giving prior immunity, it makes what in other circumstances would be a crime no longer a crime. The effect of issuing a CCA will commit the action of an undercover operative to
“be lawful for all purposes.”
There are some principles in law that even a lay person like me can understand. One of them is the rule of law, which the Oxford English Dictionary defines as
“the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”
If this Bill becomes law in its current state, it will undermine that basic principle.
As the noble Lord, Lord Paddick, pointed out, some of the amendments in this group attempt damage limitation by mitigating the effect of granting prior immunity. They should be supported, but the key amendments are Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick, who have all spoken persuasively on them.
I think we can predict that, if the Bill goes ahead in its current state, there will be public inquiries in the years to come into the behaviour that it will have permitted, and they will reveal even more horrific stories than those being exposed in the current Undercover Policing Inquiry.
No one is denying that undercover activities are necessary, and that they will sometimes involve using criminals, but that makes it even more important that their actions are constrained rather than given carte blanche. Those of us who are concerned about this are not being awkward or indulging in conspiracy theories; our concerns are based on the actual experience of undercover activities that have resulted, at the most extreme, in murder and rape and, quite commonly, in the destruction of innocent people’s lives. I asked the Minister at Second Reading and again in Committee—and I ask it again today—whether she can give an example of when an undercover operative has been prosecuted after receiving legitimate authorisation.
If we were to read in the daily papers that the director of Amnesty International was hugely worried about a Government introducing deeply dangerous legislation that gave disturbing powers to their secret service, I am sure we would all be concerned and wonder which totalitarian regime she was talking about. However, that is what she said about this legislation going through our own Parliament. These two simple amendments would stop that happening and I will support them in a Division.
Lord Hendy (Lab) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Bryan, in supporting Amendments 1 and 2, moved by the noble Baroness, Lady Chakrabarti, a woman of unimpeachable integrity, as the noble Lord, Lord Cormack, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Kennedy of The Shaws, have pointed out. I do not overlook the other signatories to the amendments: the noble Lord, Lord Paddick, who put a case which appears irrefutable, and the noble Baronesses, Lady Ritchie and Lady Jones, who made powerful speeches, as did the noble Baroness, Lady Chakrabarti. My position is that, unless the amendments are passed or accepted by the Government, I shall have no alternative but to vote against the Bill. This is not a matter of petty factionalism, as was disgracefully suggested in a newspaper today; it is a matter of conscience.
Like the noble Baroness, Lady Kennedy of The Shaws, I cannot support a Bill which gives the state the power to grant immunity for crimes to be committed in the future by agents on its behalf. Such immunity is contrary to the rule of law. The rule of law prescribes that all are bound equally to observe it, not least the criminal law. Giving the state the power to exempt its agents prospectively from criminal law is the antithesis of this fundamental principle.
I accept, of course, that every state necessarily deploys undercover agents to protect itself and, indeed, the rule of law. I accept that, in the course of their work, it may be necessary to break the law, including criminal law, but I cannot accept that state agents should be given prospective immunity to do so, no matter how senior or judicial is the person who authorises that criminal conduct.
The evil here is the prospective immunity to be granted, based only on an assessment of possible future situations. A decision to prosecute or not should be made only retrospectively, when the facts and circumstances of the criminal conduct are known. This is the status quo and, as far as is known, it has worked perfectly satisfactorily, as the noble Lord, Lord Paddick, demonstrated.
Baroness Blower (Lab) [V]
My Lords, it is indeed a great pleasure to follow my noble friends Lady Bryan of Partick and Lord Hendy, and to speak on Amendment 1 in the name of my noble friend Lady Chakrabarti, whose painstaking work, particularly on Amendment 1, both within and outwith the Labour Party, has been an education to me. It comes from a place of absolute lifelong commitment to the rule of law, the necessity of equality before the law, and of course very necessary civil liberties.
I am pleased also to join the noble Lord, Lord Paddick—I congratulate him on an excellent speech—and the noble Baronesses, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, whose names have been added to the amendment.
I am grateful too to Justice, the UK section of the International Commission of Jurists, for its expert and clear briefing, from which I quote. It says that the Bill unamended must fail, given the risk of
“serious violations of the European Convention on Human Rights”,
which could set the UK apart from accepted “international human rights norms”—surely not something that we would wish to do.
As I have said in previous speeches on the Bill, I want to live in a well-regulated society, so I recognise that covert operations and information from covert human intelligence sources are necessary. Accepting that, I also want to live in a society and in a state that fully observes the rule of law—a matter much discussed in your Lordships’ House. I want to live in a state in which we are all equal before the law and in which there is one law for all.
Attempts made before the start of the passage of this Bill to claim that its intention and purpose were simply to legislate for the status quo have been shown to be false, as laid out by previous speakers, including my noble friend Lady Chakrabarti. The guidelines in force since 2011 clearly state that an authorisation
“has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.”
Surely that is the very antithesis of what is proposed in the Bill. They go on to state that
“the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity … come under scrutiny by an external body.”
So the creation of immunity introduced by this Government through the Bill is a deliberate policy decision.
Will the Minister say, in precise terms, how many prosecutions there have been to date of CHIS under the existing guidelines? That question was also asked by my noble friend Lady Bryan of Partick. I associate myself with the attempts of the noble Lord, Lord Paddick, to elicit hard information from the Minister.
Covert human intelligence sources are, in the main, far from being highly trained operatives. Of course some—possibly many—will be, but not all. The individuals to whom I refer are often members of the public, many of whom are seasoned and serious criminals, yet the Bill would have it that such individuals may engage in criminal conduct considered lawful for all purposes. If a covert human intelligence source is granted immunity for any conduct without let, hindrance or potential consequence, the risk to society is indeed grave. Crimes and criminal acts deemed not to be crimes or criminal in advance is a bridge too far—“legal for all purposes” is unacceptable. Where in this is the rule of law, and where is equality before the law?
Further, there is the matter of innocent victims. If, legally, no crime has been committed, given the existence of the CCA, access to redress—whether criminal, civil or through the criminal injuries compensation scheme, which was covered in detail by the noble Lord, Lord Anderson—is removed. It is unacceptable that there is no redress. Victims must have their rights protected, as indeed they are by Article 13 of the European Convention on Human Rights. Amendment 1 would remove immunity and thereby restore access to redress. It would provide that if covert human intelligence sources, under authorisation, carried out criminal activity, they would have a defence and justification, as at present. Such a caveat is necessary. Many noble Lords far better versed in the law than me take this view. I am pleased to stand with them on this issue. Let us hold to the rule of law and equality before it.
Given the lack of clarity on immunity evident in the Bill, as outlined by the noble Lord, Lord Paddick, and as laid out in the plethora of amendments tabled, and given the damage limitation to which the noble Lord, Lord Paddick, referred, the secure route out of the lack of clarity and out of this damage limitation is to accept Amendments 1 and 2, which I absolutely support and for which I will vote.
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, the Bill is intended to provide a legal framework for the state authorising its agents to commit criminal offences where necessary. It mainly puts existing practice on a clear and consistent statutory footing. It will insert new Section 29B into Part II of the Regulation of Investigatory Powers Act, creating a criminal conduct authorisation. CCAs may be granted, where necessary, for a specified purpose:
“in the interests of national security … for the purpose of preventing or detecting crime or of preventing disorder; or … in the interests of the economic well-being of the United Kingdom.”
Authorisation must be proportionate to what is sought to be achieved. Relevant considerations when considering proportionality include where conduct is part of efforts to prevent more serious criminality and where there are no other reasonable or practical means by which the outcome can be achieved. A covert human intelligence source will never be given unlimited authority to commit any and all crimes. The Bill does not prevent prosecutors considering a prosecution for any activity outside the authorised activity.
The use of agents and informers, including the authorisation of some criminal activity, is a legitimate and necessary tool in the fight against terrorism and serious organised crime. This has been accepted by Sir Desmond de Silva and the Investigatory Powers Tribunal. It is worth noting that in December 2019 the tribunal found that the current practice did not breach human rights or grant immunity to those who participate in serious criminal activity. The courts to date have found no breach of human rights in the current practice operated by the Government, MI5 and police forces. Without such tactics throughout the Troubles in Northern Ireland, the terrorist campaign would have been extended and more innocent lives lost.
Lord Carlile of Berriew (CB) [V]
My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.
The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.
There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.
The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:
“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”
Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.
To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.
It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.
So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.
Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.
I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.
Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.
Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.
Baroness Hamwee (LD) [V]
My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.
The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.
In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this debate, which I think has gone on now for over two and a half hours, signalling the importance of this subject and this Bill. The noble Baroness, Lady Chakrabarti, started off by really pressing the importance of parliamentary democracy and the rule of law. She was, of course, supported in that endeavour by the noble Baronesses, Lady Kennedy of The Shaws, Lady Bryan of Partick, Lady Blower, and my noble friend Lord Cormack. I agree absolutely wholeheartedly with those sentiments of democracy and the rule of law.
However, it also led me to reflect, thinking about events the other day on Capitol Hill, on some of the events that have taken place close to our Parliament in the last few years. The noble Baroness will recall her erstwhile colleague John McDonnell, saying:
“Parliamentary democracy doesn’t work for us … we used to call it insurrection. Now we are polite and say, ‘direct action’. Let’s get back to calling it what it is. It is insurrection. We want to bring this Government down by whatever mechanism we have.”
I stand by the principles of democracy and the rule of law, and that there can be no departure from them. The noble Lord, Lord Carlile, whom I do consider my noble friend, posits some of the points that noble Lords have made about whether we are dodging the rule of law. We are not. We are putting covert human intelligence sources engaging in criminal conduct beyond statutory doubt in the Bill.
I will begin with Amendments 1 and 2. The question of whether properly authorised conduct should be rendered lawful or left open to prosecution was discussed at great length in Committee. I have listened very carefully to the points made by noble Lords on this issue, and to the views of operational partners, and the Government’s view is that the approach in the Bill as drafted is the right one. It seems unfair and unreasonable for different approaches to be taken here from those for other investigatory powers, such as interception and equipment interference, where otherwise criminal conduct is rendered lawful by properly granted authorisation.
In response to the remarks of the noble Lord, Lord Paddick, regarding the assertion of my noble and learned friend the Advocate-General for Scotland—and I thank the noble Lord for giving me notice that he would be making this point—that all noble Lords agree with this position, clearly, if he does not, then it is not the case. However, I hope that most noble Lords can see the merit of the Government’s position on this issue. Covert human intelligence sources operate in the background and take great personal risks to keep the wider public safe from harm. It seems a disservice to them to expect them to carry out this activity and not provide them with the appropriate protection for doing what they were asked to do.
Noble Lords are all aware, and I think appreciate, that we are limited in what we can say publicly about this tactic, so I am afraid that I cannot go any further. What I can say is that we risk damaging the future operation of this tactic if we take the approach suggested in these amendments. At the end of the day, CHISs are humans. Each CHIS is one of us and not a machine that can be switched on and off. We must do what we can in this Bill to protect them in exchange for the work that they do on our behalf to protect us.
Amendment 3 seeks to remove the exemption from civil liability for CHIS criminal conduct. Let me start by setting out the legal position in RIPA. The effect of a valid authorisation under Part 2 of RIPA is that authorised conduct is rendered
“lawful for all purposes”
by Section 27. Section 27 sets out a requirement for the conduct to be in accordance with an authorisation in order for it to be made lawful for all purposes. Where a court finds that the authorisation under the Bill does not meet the requirements of the new Section 29B, or where the conduct goes beyond what is permitted by the authorisation, it will not be rendered lawful. I will make this point again, as it is very important: an authorisation will have been granted because the authorised conduct was deemed to be both necessary and proportionate to tackle threats such as crime, terrorism or hostile state activity—and, as the noble Lord, Lord Carlile, says, it is laid out in the code of practice. Where that authorisation has been validly and lawfully granted, it is right that those criminals or terrorists cannot then sue the CHIS or the state for that same vital activity.
Let me be clear that it is not the intention of the Bill to close off routes of redress where an authorisation has not been lawfully granted, or where a person has been the victim of conduct by a CHIS that was not covered by the tightly bound authorisation. It is right that in these cases appropriate routes of redress remain open to those affected. For example, where the person is a victim of conduct not covered by the tightly drawn criminal conduct authorisation, the authorisation would not offer protection from criminal liability. This would mean that the conduct was not rendered lawful, the person could report the crime in the normal way to the police and the normal routes of redress would be available. The approach that we have taken in the Bill does not leave open the possibility of criminals and terrorists suing public authorities for legitimate and lawful activity, but it will still be possible for innocent people to seek redress where appropriate. That is why the Government cannot accept Amendment 3.
Amendment 32, from the noble Lord, Lord Paddick, seeks to ensure that conduct authorised under the Bill is within the remit of the Investigatory Powers Tribunal. I absolutely assure him that this will already be the case. Section 65 of RIPA sets out that conduct to which Part 2 of RIPA applies falls within the jurisdiction of the tribunal. The Bill creates a new Section 29B which will be inserted into Part 2 of RIPA. Any person or organisation will be able to make a complaint to the tribunal regarding CHIS criminal conduct. The tribunal also has the same remedies available to it as other courts, including the ability to grant compensation. This amendment is therefore not necessary.
Responding to the amendment tabled by the noble Baroness, Lady Jones, on the Proceeds of Crime Act 2002, I should first highlight that CHISs are authorised in essence for the purpose of acquiring information. A CHIS will be authorised to participate in criminal conduct only where it is truly necessary in connection with that overall aim. The proposal to carve out certain activity from the Bill is inconsistent with the approach of the Bill, which is to render properly authorised conduct lawful for all purposes. I assure the noble Baroness that a CHIS could not be authorised for the purpose of legalising an otherwise unlawful profit-making exercise, as it would not be necessary for a statutory purpose.
In Amendment 21, the noble Lord, Lord Anderson, seeks reassurance that the Bill will not provide a blanket immunity that results in improper conduct being excluded from prosecution. I can be very clear on this point. I would expect any improper conduct on behalf of an authorising officer to be picked up by the stringent safeguards that are in place, thereby preventing such an authorisation being granted in the first place. However, if an authorisation did not meet all the requirements of new Section 29B, a court could find that authorisation to be invalid. The conduct would not then be rendered lawful and prosecutions could be brought.
In practice, if the Investigatory Powers Commissioner’s Office felt that an authorisation was improperly granted, it would flag up any concerns that it had to the authorising authority. This could include recommending that it refers the conduct to the appropriate authorities. While the primary responsibility for reporting crime rests with the authorising public authority, IPCO could refer a case directly to the appropriate authorities, subject to the process set out in the Investigatory Powers Act. The courts could then decide whether the authorisation was improperly granted and therefore whether it was unlawful.
As a matter of public law, a decision made subject to a discretionary power, such as the decision to issue a criminal conduct authorisation, must be “reasonable”. The decision must be rationally open to a reasonable decision-maker in possession of the facts of the case, or it will be unlawful. In terms of the additional reassurance that the noble Lord, Lord Anderson, sought, it is clear that authorising officers must be acting lawfully when properly granting a CCA. That does not prevent a prosecution of that officer for having improperly granted a CCA, including for misconduct in a public office if the authorisation was corruptly granted—but we would expect a court to consider the validity of that CCA as a preliminary issue.
I can also confirm that judicial commissioners have the ability to report conduct directly to prosecutors, subject to the process set out in the Investigatory Powers Act, and that anyone who has been impacted by a criminal conduct authorisation can make a complaint before the IPT. Where that complaint is upheld the IPT can provide redress, including compensation.
The Deputy Speaker (Baroness Henig) (Lab)
I have received a request to speak after the Minister and to ask a question from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, with regard to the criminal injuries compensation scheme, the Minister said that the Bill does not “in practice”—I stress those words—interfere with its operation. Can she confirm that it does not interfere with the scheme either in law, as distinct from practice, or as the scheme is currently drawn; in other words, should we regard the term “in practice” as limiting the scope for application to it, which noble Lords have made clear is something that concerns us?
Baroness Williams of Trafford (Con)
I noticed that the noble Baroness mentioned that point in her speech. The practical application of this will not interfere with the operation of the scheme. She is shaking her head—I do not think she is very satisfied.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to everyone who has spoken in this debate and was quite humbled by so many of the speeches—both those I agreed with and many with which I disagreed—not just by the kind remarks about me and my intentions with these amendments, but by the sheer eloquence and experience which so many noble Lords displayed on all sides of your Lordships’ House. Please forgive me if I do not pay appropriate tribute to everyone individually, as I am sure your Lordships would not thank me for the amount of time that that exercise would take.
We have been dealing with some difficult realities on this legislation, but also some important principles. That has come across in the nature of this important debate. The noble Lords, Lord Paddick and Lord Naseby, and others, talked about difficult realities from both sides of the argument. The noble Lord, Lord Paddick, gave a speech rooted in being, as far as I noticed, the only former police officer who has spoken on the Bill. His picture of handing out banknotes to undercover agents is not a difficult reality, designed to undermine the importance of using undercover agents in the community. It is not designed to undermine the difficult reality of some of those people being current or former criminals—or, indeed, having turned terrorist, for that matter. But it is important to demonstrate that not everyone involved in this kind of activity—in the past, present or future—has been or will be of the character or ability of the finest trained officers and agents. There will necessarily be a variation; that is a difficult reality.
I do not say this to criticise the need to have undercover operatives. It just makes the checks and balances in a democracy founded on the rule of law even more important. I say that to those who are flabbergasted at the idea that I should not just take the Government’s case studies without looking at any other experience, including that of the noble Lord, Lord Paddick. I think it was the Minister who said, rightly, that undercover agents—or CHIS—are human. They cannot be turned off and on. I absolutely agree; they are human, as we all are, and therefore flawed. They are not robots; they cannot be pre-programmed to cover every situation in the moment. We therefore need to create ethical incentives, not just blanket immunity. We have been dealing with the difficult realities of having to go undercover and keep cover. That will mean engaging in criminal activity, perhaps quite serious criminal activity such as being a member of a terrorist group or dealing drugs, for example.
There are also important principles such as the rule of law, as rightly pointed out by the noble Lord, Lord Carlile, even if he did not agree with my emphasis or my argument. He is right, and so is the Minister, in saying that the clarity and accessibility of the law are important rule-of-law principles. With that in mind, there is great value in putting these matters on a clear statutory footing. This is so that the public at large understand, in a clear statute for all to see, if they look it up, that sometimes undercover agents of the state will be authorised to engage in crime for the purposes of keeping their cover. The noble Lord, Lord Carlile, and the Minister are quite right to say that that is one attempt towards the rule of law.
However, another foundational principle of the rule of law in any jurisdiction anywhere in the world is equality before the law—as expounded by my noble friends Lady Kennedy of The Shaws, Lady Bryan, Lady Blower, Lord Hendy, Lord Judd, and many others. Equality before the law means that there is one law of the land for Prime Ministers, police officers—uniformed or undercover—and undercover agents or CHIS. That creates a conundrum for us: how can we respect equality before the law but also authorise criminal activity in certain situations in order to keep us safe? That is a genuine conundrum that I accept we are having to engage with here.
How does our current law tend to grapple with such a conundrum? Generally, this is not done by advance blanket licence or immunity, but by defences. Whether reasonable excuse defences or public interest defences are used, these would be taken into account by an investigating officer, prosecutor or, if necessary—and it does not seem to be very often—by a court after the fact. That is the kind of regime which protects all of us, including officers and agents and people who put themselves in difficult situations in harm’s way. This includes the armed police officers who are marksmen and those who protect all of us in your Lordships’ House. Those brave uniformed officers, who have sometimes made the ultimate sacrifice to defend your Lordships’ House, have used whatever reasonable force they could. They have done this, not with advance immunity, but in the knowledge that they were doing what was right and in the public interest. They have reasonable force defences or reasonable excuse defences, and nobody would dream of prosecuting them in the public interest. If it is good enough—
Lord Parkinson of Whitley Bay (Con)
I am sorry to interrupt the noble Baroness, but we are making slow progress on the Bill and we have a number of groups to try to reach today. She had time at the beginning of the debate to set out her views. If she would let your Lordships’ House know whether she intends to divide, that would be appreciated.
Baroness Chakrabarti (Lab) [V]
I think I made my intention to divide clear earlier and I will say one or two sentences more before I close. I have not heard a good enough explanation as to why we should make what the noble Lord, Lord Paddick, called a “monumental shift” in our rule-of-law arrangements. My noble friend Lady Kennedy called it a “dramatic” change to the legal landscape to license criminality with total immunity for some people in advance and to make their activity lawful for all purposes. The stringent safeguards offered by the Minister, such as Article 3, are not going to operate in sufficient detail in the mind of an undercover agent in real time, in the moment, if they are given total immunity. I shall be seeking to test the opinion of the House.
Lord Parkinson of Whitley Bay (Con)
There appears to be a technical problem with the voting. I suggest that the House adjourn for 15 minutes until it is resolved.
The Deputy Speaker (Baroness Henig) (Lab)
We now come to the group beginning with Amendment 5. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or any other amendment in the group to a Division must make that clear in debate.
Amendment 5
Lord Dubs (Lab)
“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statement
This amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.
Lord Dubs (Lab) [V]
My Lords, in moving Amendment 5, I shall speak also to Amendment 23, which is grouped with it. I intend to seek the opinion of the House, unless I get a dramatic concession from the Minister at the end of the debate.
These amendments impose a requirement for prior judicial approval of criminal conduct authorisations, with some provision for urgent cases. I speak as a member of the Joint Committee on Human Rights. Our report, which has been widely applauded in this and previous debates on the Bill, has obviously been very helpful, and I am using a lot of information from it. I am also grateful to Justice, which provided a comprehensive report, with proposals for amendments. I am grateful to the Minister, who arranged for my noble friend Lady Massey and myself to have a briefing with some of the officials and senior police officers. We had a detailed discussion, and although it was directed at amendments relating to children which will be discussed on Wednesday, some of it is nevertheless relevant to the amendments that I am proposing today. I think I may quote from that without pre-empting the discussion about children on Wednesday.
The Government claim that prior judicial authorisation is not necessary because:
“The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]
As I understand it, the Government believe that authorisations are better left to public authorities’ delegated authorising officers, who are, supposedly, more equipped to deal with CHIS than judicial commissioners, who are one step away.
However, the noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who has been quoted more than once in this debate, said:
“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other authority.”
That seems pretty clear.
The use of prior judicial authorisation has, of course, been discussed in the past in relation to RIPA. But in 2016, the European Court of Human Rights held that judicial authorisation
“offers the best guarantees of independence, impartiality and proper procedure.”
This is particularly pertinent to surveillance, which is,
“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.
The court concluded that
“it is in principle desirable to entrust supervisory control to a judge”.
That is part of the basis of this amendment.
Concerns about whether this is feasible do not carry much weight. There is no reason why judicial commissioners could not review CCAs; they are already well-practised in making complex assessments of sensitive material in an independent, detached manner and at short notice, and they are always very senior judicial figures.
The Select Committee looked at all this. It is very clear that the Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. The report of the Joint Committee on Human Rights noted that, while the process of granting criminal conduct authorisations would be kept under review by the Investigatory Powers Commissioner, his
“role in the oversight of CCAs is entirely ‘after the event’ … nor does the Bill provide for the IPC to be informed of authorisations at the time they are made, so that prompt scrutiny can take place.”
The report further noted:
“The lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigatory functions”,
such as police search warrants and phone tapping. The former Director of Public Prosecutions, Sir Ken Macdonald—as he then was—has been quoted several times as saying that:
“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”
This has been quoted so often it must go in the Oxford Dictionary of Quotations. The argument in favour of judicial approval is there.
I refer to the Pat Finucane case in Northern Ireland—one of a number of cases—which is also mentioned in the report of the Joint Committee on Human Rights. There was a real abuse of powers which under my amendment would, I am pretty sure, have been prevented by a judicial commissioner. That case is very much unfinished business. Indeed, there is a plea, which I fully support, for a full independent review of what happened when Patrick Finucane was murdered by, or with the knowledge of, British agents. That is business for another day but, in the meantime, we have this amendment.
Some of these amendments are so crucial to the working of the Bill that it is difficult not to tread from one into the area of another, but this amendment is fundamental. Prior judicial approval for a CCA is absolutely essential to providing the safeguards which were referred to in the previous debate and which we need before we can allow such a Bill to become law in this country. I beg to move.
Lord Hain (Lab) [V]
My Lords, I will speak to Amendment 16 in my name and those of my noble friend Lord Blunkett, a former Home Secretary, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, to each of whom I am grateful. It is a very straightforward amendment that would add confidence to the deployment of state-employed undercover officers by ensuring that each had to be authorised by a Secretary of State in exactly the same way as existing legislation requires for surveillance operations.
My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000, which was updated by this Conservative Government in the Investigatory Powers Act 2016, at a time when the noble Baroness, Lady Williams, was a government Minister, even if not in her current role. In other words, she and her Conservative Government re-enacted legislation requiring Secretary of State authorisation for surveillance, and so it is a puzzle to me why Ministers have not accepted this amendment.
The amendment endorses the identical principle for CHIS or undercover officer deployment in a way that would add to public confidence, which has been badly damaged by evidence that led to the current inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because the Conservative Government—in which the noble Baroness was a Home Office Minister at the time—felt undercover policing had got out of control and needed to be made more accountable.
The abuses so far revealed in the inquiry’s proceedings fully justify the Conservative Government’s decision to launch it. I will mention only several. We have learned that the campaign by the noble Baroness, Lady Lawrence, and her family to discover the truth about her son Stephen’s brutal racist murder was outrageously infiltrated by undercover officers. Why were they not instead targeting the racist criminals responsible for Stephen’s murder? If that deployment had been subject to authorisation by the Home Secretary, would it have happened? I very much doubt it, because surely a question would have been asked of the operational police decision as to why the innocent victims of a vicious racist murder were being targeted and not the criminals responsible.
There are many other examples, including my own personal experience. As confirmed by evidence given to the Mitting inquiry, from 1969 to 1970, a British police or security service officer was at almost every anti-apartheid and anti-racist meeting that I attended, private or public, innocuous and routine, or serious and strategic, such as stopping all white apartheid sports tours and combatting pro-Nazi activity. Why were they not targeting Nazi groups responsible for attacks on black people, Jewish citizens and Muslims?
Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London offices of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose the apartheid security service operations in the UK? In June 1972, why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb capable of killing me, similar to those that had killed anti-apartheid leaders across the world?
Lord Anderson of Ipswich (CB) [V]
My Lords, in speaking to Amendments 33, 37, 44 and 46, which are also signed by the noble and learned Lord, Lord Mackay, and the noble Lords, Lord Butler and Lord Rosser, I first pay tribute to the Minister and the Bill team, who offered to co-operate with me on these amendments and have been as good as their word. They now give more complete effect, in language approved by parliamentary counsel, to the homemade amendments that I moved in Committee. The lead amendment is Amendment 33; Amendment 37 mirrors it for Scotland; and Amendments 44 and 46 are consequentials.
The amendments provide, in summary, not for prior judicial authorisation but for judicial scrutiny of another kind: the real-time notification of authorisations to a judicial commissioner, as soon as reasonably practicable and in any event within seven days. That should be seen very much as an outer limit for notification that should, so far as possible, be in real time. It will be open to the Investigatory Powers Commissioner to encourage not only prompt notification but pre-notification for informal guidance, as already occurs in some other surveillance contexts. This might be particularly useful for bodies that do not make frequent use of the power.
The case for real-time notification, as I shall call it, has been put most persuasively by those who signed the equivalent amendments in Committee—the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Butler and Lord Carlile. I shall summarise it as briefly as I can.
My immediate reaction to this Bill was to support prior judicial authorisation. I championed the use of prior judicial approval for other investigatory powers in my report A Question of Trust, and was delighted to see this in the Investigatory Powers Act 2016. I accept that it might also be feasible in this context, given sufficient judicial training, yet I have reservations about prior judicial approval in this Bill, not only for the pragmatic reason that the Government have so firmly set their face against it. Handling and authorising a CHIS is a highly specialised function that requires a close and dynamic understanding not only of the details of the operation but of the characters of those involved. That is not something that a judge, let alone a Secretary of State, will necessarily have the capacity to pick up. It differs considerably from the classic judicial exercise of weighing the benefits of tapping a phone or an undersea cable against the associated intrusion of privacy.
The person who tasks a CHIS, including by authorising criminality, effectively takes on a long-term duty of care, not only towards any potential victims of that crime but towards a CHIS for whom exposure could result in injury or death. Perhaps it is for that reason that the American and Canadian models of prior judicial authorisation, both of them inspirations for A Question of Trust, are not applied in either country to the tasking of a CHIS to commit crimes.
The main objection offered to these amendments in Committee was to the insufficient sharpness of their teeth. It is true that real-time notification may mean that the judicial commissioners are powerless to stop a particularly rapid deployment. It is also true that criminal deployments of this kind cannot just be turned on and off like a tap, but I say three things in response.
First, precisely the same result may arise under a system of prior judicial authorisation, for such a system, like its equivalents in other areas of investigatory powers, will inevitably involve an urgency procedure: deploy first, seek authorisation later.
Secondly, there is an existing precedent for real-time notification—the deployment of undercover police under the so-called relevant sources order of 2013, which, judging from IPCO’s annual reports, works well. The knowledge that a CCA will go straight before a senior judge is a useful discipline for authorising officers. My experience of IPCO, and my own work until last year as Investigatory Powers Commissioner in the Channel Islands, is that the prospect of an interrogation, investigation, recommendations and a possible serious error report are, from the police’s point of view, striking enough to encourage a high standard of conduct, but not so intimidating as to encourage the concealment of honest error. Further assurance would be given by Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, which I will leave him to develop but which I support for making this explicit in the modern practice of undercover policing.
Thirdly, though the precise mechanism may still be in dispute, it is clear that neither RIPA nor this Bill provides for complete immunity from prosecution for those who authorise criminal conduct. I mentioned earlier the assurance of the Bill team, which the Minister repeated just now, that nothing in the statute prevents the prosecution of an authorising officer for misconduct in public office—for example, a corruptly obtained authorisation. She has also accepted that such immunity as provided by Section 27 of RIPA will be removed if an authorisation is found by a competent civil or criminal court to be either not necessary or not proportionate.
I propose to move these amendments on Wednesday, subject to one point on Amendment 37, the Scottish one. The Minister updated us on engagement with the Scottish Government during the first grouping. Were the Scottish Government to indicate before Wednesday’s debate that they would not recommend a legislative consent Motion, with the result that Scotland is carved out of the Bill, I would not wish to move Amendment 37.
Lord Rosser (Lab) [V]
Amendments 5 and 23, tabled by my noble friend Lord Dubs, provide for prior judicial oversight. They have the Opposition’s support. A criminal conduct authorisation would not have effect until approved by a judicial commissioner, unless it was urgent, in which case it would come into effect immediately but with the proviso that it must receive judicial approval within 48 hours.
Amendment 17 provides that, where a criminal conduct authorisation is granted, the Investigatory Powers Commissioner must be notified of certain details, including the purpose and extent of the deployment, before the CHIS can be deployed. In urgent cases, notification can be given afterwards—as soon as reasonably possible, but within seven days. We will support Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It provides a further form of prior oversight to help ensure that the criminal conduct authorisation will not be used in an inappropriate manner.
We support Amendment 33 in the lead name of the noble Lord, Lord Anderson of Ipswich, which provides that the Investigatory Powers Commissioner must be informed of an authorisation as soon as reasonably practicable, and within seven days at the latest. It also represents a significant improvement in the Bill, in which the noble Lord, Lord Anderson, has played a key role. It enables an effective and powerful independent and impartial check on the use of criminal conduct authorisations, which will help to ensure that the bodies being given the power to authorise criminal conduct by covert human intelligence sources use that power appropriately and lawfully, in the knowledge that they will be held to account, albeit probably afterwards, by the Investigatory Powers Commissioner.
Amendment 34 would make it explicit in the Bill that, if the Investigatory Powers Commissioner thinks an authorisation should not have been granted, the authorisation will be cancelled. We support that. However, there are benefits from prior independent oversight that post-notification oversight does not provide: namely, the opportunity to prevent something out of order occurring before it happens. Prior judicial consideration is about approving or otherwise beforehand what is said needs to happen, and why. Post authorisation, it is about what actually happened and why. Both forms of consideration are important.
The absence of prior independent scrutiny for criminal conduct authorisations under this Bill is not in line with procedures that apply to other investigatory functions, although I appreciate that it has been argued that these investigatory functions are not similar to the authorisation of a CCA. Police search warrants require a magistrate to be satisfied that there are objective reasonable grounds for them. Targeted interception of communications or phone tapping must be approved by the Secretary of State and authorised by a judicial commissioner before being carried out—a double lock which the Investigatory Powers Commissioner says ensures that all investigatory powers warrants issued are necessary, proportionate and lawful. The power to require telecommunications operators to retain communication data for investigatory purposes can be used by the Secretary of State but must be approved by a judicial commissioner.
If these requirements for prior judicial approval, including in some instances a double lock of independent scrutiny, are needed for search warrants, phone tapping and retention of data, surely they are even more necessary for the potentially more damaging human rights violations, including physical violence, that could arise from the authorisation of criminal conduct by a covert human intelligence source.
Lord Paddick (LD) [V]
My Lords, it is again a pleasure to follow the noble Lord, Lord Rosser. We agree with the arguments he put forward for the need for additional safeguards, beyond what is contained in the Bill. My noble friend Lady Hamwee and I have Amendments 17 and 43 in this group.
Amendment 43 provides for a senior judge to undertake a review of the use of informants and agents and their participation in crime; in other words, to get answers to the questions, “Why do we need this Bill?” and “How far should it go?”, questions the Government have been unable to provide any evidence for. Contrary to what the Minister claimed in Committee, this review would not duplicate the oversight that the Investigatory Powers Commissioner provides in his annual review of the current use of the powers under the Regulation of Investigatory Powers Act. Instead, it would answer the questions we have been asking at every stage of this Bill that the Government have been unable to answer.
How widespread is the practice of using agents or informants who have been tasked to participate in crime? Who has been involved? Have they been brave men and women whose sole motivation is the public interest, or have they been people who lack civil responsibility, who do it for money and who have been engaged in very questionable activity—or is it both? The evidence we have heard on this point, arguably from equally reliable sources, has apparently been contradictory. To what extent has immunity from prosecution been a factor in the loss of intelligence and in potential covert human intelligence sources being deterred from helping public authorities? The Government have been unable to tell us, but this review would be able to answer the question—fundamental to the provisions of this Bill—of whether they are all needed. It would also answer the other crucial question: are the safeguards adequate?
That brings me to our Amendment 17. We have heard from Members of your Lordships’ House who have had hands-on, practical, operational experience of the issues covered by the Bill, of whom I am only one. I hesitate to use the word “expert” after I was once described as an expert on drugs—a rather dubious accolade—so I shall use the term “practitioners”. What we have heard from practitioners are the operational difficulties of prior judicial or ministerial authorisation. Practitioners have highlighted the differences between the existing provisions of the Regulation of Investigatory Powers Act—which relate to the interception of communications—and the new provisions, which relate to the use of covert human intelligence sources tasked to commit crime; I will refer to them as “participating informants”.
The former usually involve the use of technology, such as the planting of a listening device or corrupting the software of a mobile telephone or a computer. The stream of information can be turned on and off remotely, without the target even knowing. The latter involves placing someone in an uncontrolled, unpredictable, often volatile situation, where the participating informant often interacts with dangerous criminals and often must use their own initiative to deal with rapidly changing and unpredicted scenarios with no real-time contact with their handlers or authorising officers. The former is passive and controllable intrusion. The latter is interactive and often uncontrollable.
The noble Lord, Lord Anderson of Ipswich, told us in Committee that he had been
“converted to the idea of prior judicial approval”
in the case of communications interception—as he has just restated—but that, again, tasking a CHIS
“requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship.”
The noble Lord also said that judges were good at assessing
“the likely operational dividend against the likely intrusive effects”.—[Official Report, 24/11/20; col. 198.]
Our Amendment 17 is the result of listening to practitioners—and to those like the noble Lord, Lord Anderson of Ipswich, who has experience of being an Investigatory Powers Commissioner—and coming up with a compromise. The amendment allows the practitioners to do what they are good at: use the close personal knowledge of the participating informant’s character, assess the underworld group in which that person is to be embedded and define the crimes that the participating informant is to be authorised to commit.
However, once the informant has been granted a criminal conduct authority by the authorising officer, that now participating informant cannot be used or deployed unless the Investigatory Powers Commissioner has authorised use or deployment. The Investigatory Powers Commissioner must consider the purpose and extent of the deployment and the type of criminality, in general terms, that it is anticipated the informant will be participating in. If the informant is not to be used to commit crime, IPC authority is not required. It is only once the informant is authorised to commit crime that IPC authority is needed.
If I may use this analogy, if you want to deploy a missile, you need one level of authority—in this case, the authorising officer. If you want to arm the missile with a warhead, you need another level of authority—in this case, the Investigatory Powers Commissioner. If the purpose or extent of the deployment changes, or the type of criminal activity in general terms changes, the IPC has to re-authorise the use of the participating informant. Contrary to what some critics have said, it would not be the case that, once given, IPC authority would give the authorising public authority carte blanche to use the participating informant at will.
The amendment allows judges, the Investigatory Powers Commissioner and his judicial commissioners, who must hold or have held high judicial office, to do what they are good at: consider the likely operational dividend against the likely intrusive effects, including the potential for collateral damage or injury. If it is necessary to deploy the participating informant urgently, prior approval is not required but notification must be given as soon as reasonably practicable and, in any event, not less than seven days after deployment.
Our amendment attempts to square the circle. How can you have prior judicial authorisation without getting the Investigatory Powers Commissioner involved in the sordid details of participating informants but at the same time safeguarding against the kind of malpractice we have seen in the past, such as that described by the noble Lord, Lord Hain: infiltrating anti-apartheid groups, the Lawrence family support group, legitimate environmental groups and trade unions?
I believe that Amendment 17 provides prior authority by the Investigatory Powers Commissioner in a way that would be more practical in an operational setting. Amendments 22 and 33 lack the power to stop a CCA without Amendment 34; in any event, they do not amount to prior judicial authorisation, which is what many noble Lords have been calling for. As Amendment 17 authorises the deployment once the CCA has been granted, and not the criminal conduct authority itself, I believe that it is consistent with Amendments 5 and 16—that these amendments, if passed, would not pre-empt Amendment 17, which would also not pre-empt any other amendments in this group.
In Committee, the Minister said:
“We have been consistently clear that we want this important legislation to command the confidence of Parliament and the public and are thus willing to consider proposals which provide greater reassurance on oversight but do not impact operational effectiveness.”—[Official Report, 1/12/20; col. 651.]
As a former police officer, I can say that this amendment fits the Bill. I intend to test the opinion of the House when we get to Amendment 17.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I do not wish to address at any length the various competing amendments that are being suggested. Speaking for myself, I believe that pre-authorisation in one of the forms suggested is the obvious way forward. I have absolute confidence in the ability of the judicial commissioners to assess and make a judgment and, although I have much sympathy with the view that things are better now than they were in the past, we simply cannot ignore past experience, as we are constantly reminded.
As my second choice, I would go for real-time notification. I tabled Amendment 34—this is the subject on which I wish to speak—to clarify the position as to what happens if, after notification, the judicial commissioner expresses the view, or says, “This should not have happened.” It is clear from the way the Bill is drafted that, as the term “notification” is used, everything that is done prior to any decision by the judicial commissioner would remain authorised. The amendment proceeds on that basis and seeks to make that clear. However, what then happens if the judicial commissioner says, “Well, this should not have been granted”? It is very important when we try to clarify the law and put it on a statutory basis that we do not engage in a fudge. The word “notification” is used deliberately to provide for notification, but it simply does not say what happens when the commissioner makes a decision. This amendment makes it very clear that, if the judicial commissioner says that this should not have been authorised, then, subject to unwinding under a degree of judicial supervision, the activity must stop.
I have had very helpful discussions. I pay tribute to the Minister for organising this and to the officials who have been clear in some of their views. However, it has been explained to me that, in these circumstances, it is thought that, if the activity has not started, it would stop; but if it has started, it must be for the authorising officer to consider what to do. This is plainly not good enough. First, the judicial commissioner is not giving advice but making a determination; although not they are not sitting as a judge, it is as close to a judicial decision as you can get. Secondly, if the judicial commissioner says that this should not have been granted, can the authorising officer say that he is acting lawfully by going on with the activity? Thirdly, in those circumstances, is the officer at risk of committing the offence of misconduct in public office? It would be extraordinarily difficult to see how he could continue. What happens during the process of a criminal trial if a person continues in such circumstances? Does all this have to be disclosed?
Worst of all, what is to happen when the Investigatory Powers Commissioner publishes in his report that he said, “This should not have been granted” but the police or security services went on with it? As I understand it, the justification for opposing this, or saying that it is unnecessary, is, first, that the judicial commissioner is not making a decision but merely giving advice. With respect, that is pure sophistry. Secondly, it is said that you cannot have unwinding under judicial control as judges are not experienced in this sort of matter. I ask those who have doubts about the ability of judges to protect people to read the decision to which I was a party in a case called WV in 2011. In respect of a person who provided very valuable information to the police, the judiciary had to act to protect the person concerned, but in circumstances where in no way could that person be identified.
Therefore, it seems that the question of this amendment is straightforward. If a police officer or a member of the security services who has granted authorisation continues and does not accede to the judge’s decision, this says that we are a country that does not abide by the rule of law. In my respectful submission, it would be very difficult to see how this could be judged internally and it would do our security services great damage if it related to something overseas.
However, as this last remark shows, what I fear for in this is the damage that continuing with activity if the judicial commissioner says no will do to the security services. If the Minister opposes this amendment, I would ask her to set out what is to happen; we cannot leave this point undealt with. If it is possible, I ask her to deal with three of the main scenarios. If no activity has happened, surely the activity must not proceed. If activity has started, it must be stopped and unwound. I would hope for an assurance that, once the views of the judicial commissioner have been expressed, the activity would not go on.
This amendment seeks to deal with a subject that may be uncomfortable for people to face up to: that you have an authorising officer who says, “Yes, I think this is all right” and then a judge says, “No, it wasn’t.” We need clarity. When you think about this question, it shows the dangers of not having pre-judicial authorisation in a system. I suspect what will happen—this is why it is a great pity that we have not been able to go into this in much more detail with examples of what actually happens—is that once a judge says, “This should not have been granted” we will probably gradually move to a system of pre-authorisation.
Baroness Massey of Darwen (Lab) [V]
My Lords, I very much enjoyed the previous speech, which gave me much information about a great number of things. I thank the noble and learned Lord, Lord Thomas.
My noble friend Lord Dubs has set out the parameters of Amendments 5 and 23 and my noble friend Lord Rosser has made incisive comments on them. I will add just a few comments in support of my noble friend’s arguments. Basically, the issues in the amendments are covered in Chapter 7 of the Joint Committee on Human Rights report on CHIS, entitled “Adequacy of oversight mechanisms”—surely absolutely essential. The Joint Committee had several concerns about this part of the Bill.
First, the Bill does not suggest any independent scrutiny of criminal conduct authorisations before they are made and acted upon. Secondly, the process of granting CCAs will be kept under review by the Investigatory Powers Commissioner in the oversight of CCAs after the event. He or she will not be informed of the authorisations at the time they are made, so how can prompt scrutiny take place? It is worth repeating those points, which were made by my noble friend Lord Dubs.
The Joint Committee on Human Rights report quotes Sir Desmond de Silva’s report on the death of Patrick Finucane. He accepts as legitimate the running of agents within terrorist groups as at the heart of tackling terrorism but says that the
“agent-running must be carried out within a rigorous framework. The system itself must be so structured as to ensure adequate oversight and accountability.”
Those conclusions are consistent w\ith the requirements of human rights law. There must be effective safeguards against abuse. The question is: does the Bill provide that rigorous framework of oversight and accountability? The amendments query that. In its submission to the JCHR, the law reform and human rights organisation Justice said that the Bill is
“extremely limited in its oversight mechanisms”
and that its safeguards were “woefully inadequate”.
The draft code of practice published with the Bill describes how the CCA practice will operate. Only a designated officer within a public authority may make a CCA, and this must be made in writing unless urgent.
Oversight of the Investigatory Powers Commissioner —who must be a senior judicial figure, of course— applies to CCAs. The IPC has the powers to conduct investigations, inspections and audits, but these are oversight functions only. The IPC does not have the capacity to investigate every time a CCA is used. The IPC role is restricted to covering the use of the power to grant CCAs in the annual report to the Prime Minister. This can be redacted before going before Parliament.
Reprieve has said:
“Once more, the oversight powers in this Bill are far weaker than those operated by the UK’s intelligence partners. The FBI has repeatedly released details of the number of crimes committed by its agents as part of efforts to increase transparency over the use of this power.”
There is currently a lack of prior independent scrutiny or approval for CCAs, as described in the report of the Joint Committee on Human Rights. This contrasts with, for example, police search warrants and phone tapping.
The Bill requires amendment—and these amendments in particular—to remedy this lack of prior judicial approval for CCAs, with provision for urgent cases, and I strongly support Amendments 5 and 23.
Lord Cormack (Con) [V]
My Lords, for the second time today, I have the great pleasure of following the noble Baroness, Lady Massey of Darwen, and I am delighted to do so.
There seems to be a degree of consensus among those who have spoken so far. We all believe that oversight at a high level is essential. I have signed the lead amendment of the noble Lord, Lord Dubs, and I meant to sign Amendment 23, but something went wrong—it certainly must have been my fault—and his amendments offer one route forward. I have joined forces with my friend, the noble Lord, Lord Hain, the noble Lord, Lord Blunkett, and my noble friend Lady Wheatcroft to offer an alternative: the Secretary of State. I do not have terribly strong feelings as to whether the oversight should be judicial or conducted by the Secretary of State, but they could be complementary—they are not incompatible—and the excellent amendments of the noble Lord, Lord Anderson, are certainly not incompatible with Amendments 5 and 23, as the noble Lord, Lord Rosser, pointed out, having signed all three himself. When we are dealing with matters of life, death and the country’s security, we do not want what the noble and learned Lord, Lord Thomas, fears—fudge rather than clarity, as he advocated with particular clarity.
I have a suggestion, and I hope that my noble friend the Minister will take it seriously. She has been very kind in making officials available to many of us. I have much enjoyed the discussions I have had, which have mostly focused on young people being used as CHIS; we will come to that later in our debate. She has been very helpful, as the noble Lord, Lord Dubs, said. I would like her to talk personally to the noble Lords, Lord Anderson and Lord Dubs, probably on one of these ghastly Zoom calls where they can all talk together. The noble and learned Lord, Lord Thomas, and the noble Lord, Lord Hain, should also certainly be included. I would like to come out of this an amendment which the Minister can table and introduce at Third Reading, incorporating the best features of all the amendments before us this evening.
Oversight at a high level is essential to create public and parliamentary confidence. Whether that high level is judicial or the Secretary of State, I have a reasonably open mind, but it is important that we try to reach a consensus, so that the Bill commands parliamentary and public confidence and we do not have the sort of fudge the noble and learned Lord, Lord Thomas, feared but, instead, the clarity he so brilliantly advocated.
Lord Blunkett (Lab) [V]
My Lords, I support my noble friend Lord Hain in his admirable description of what has happened historically and what we need to avoid in the future. Our previous debate was cracked before Christmas because we had a break and started again on another day. I shall try to be brief because I hope that will not happen this evening and that we can move forward with some form of consensus.
In commending the admirable speech of my noble friend Lord Hain, I have to say that we are getting ourselves in a real muddle. Having sat through the earlier debate on the previous group on the very reason why this Bill is necessary, I feel incredibly sorry for the Minister. Not only does she have three major Bills on her hands and all the other day-to-day questions and activity, but she must scratch her head about why something that was taking place without the framework we are trying to develop is now being criticised when a framework is being put in place.
I have a great deal of sympathy with her, and I am grateful that she was prepared to talk to my noble friend Lord Hain and me about this. I was also grateful to the Met, the counterterrorism branch and the security services for the discussion I had with them, refreshing my memory—as the noble Lord, Lord Anderson, has—about what has taken place over the years since I was Home Secretary and the improvements that have been put in place, including the order passed in 2013 that the noble Lord referred to. I think it was Statutory Instrument 2788.
The other part of the muddle seems to be this: the noble Lord, Lord Anderson, is right, in my view, to say that it is probably not appropriate for a judge to make the pre-review, and therefore the authorisation of criminal activity. I too think it is not appropriate, not for the reasons he gave, but because I do not think that judges should authorise criminal conduct and criminal activity. They are then in an entirely different role to the one they were trained to undertake and have our confidence in carrying through independently. That is why the Minister is almost certain to agree to Amendment 33—spoken to by the noble Lord, Lord Anderson, today and in its previous iteration before Christmas—to make some progress. I say to the noble Lord, Lord Cormack, with whom I often agree, that I think there has been some move behind the scenes and that we will see that carried through on Wednesday.
I can understand the concerns of those operating in the field that we should distinguish between, for instance, those taken on as what used to be called “snouts” or informers and placing someone, as a police officer, in a situation of potential criminal conduct, which is very different. I understand that very well. At a higher level, it is really important to see the implications of placing an officer in those situations, which might have a major knock-on effect in terms of the reputation of the Government, never mind the policing and security services.
In those circumstances, it would be appropriate for the Secretary of State to authorise the clearance prior to the activity beginning, as happens with phone taps and surveillance. In those circumstances, while this amendment is much tighter than the previous one that I, my noble friend Lord Hain, and others signed, it is desirable to have that level of authorisation for very specific placements of trained officers while giving greater flexibility to what the noble Lord, Lord Paddick, has talked about and must have experienced on a day-to-day basis when he operated in the police service.
This is so complicated because these elements do not sit easily with each other. It is not easy to sort out what would be the most appropriate way forward. I simply ask the Minister to consider whether a higher level of authorisation is required for very specific activities where an officer, whether in the police or security services, is placed in circumstances and situations that could lead to considerable reverberations down the line, taking into account the strictures made on human rights and, of course, our duty of care.
I am not sure that I feel comfortable with the amendment moved and supported by my own side, and I will finish on this. There is a wonderful feeling at the moment that politicians are not appropriate for, or capable of dealing with, high-level situations, even though they have been elevated to the highest possible level. I understand that, particularly at the moment, but I cannot for the life of me understand why my own party is so taken with giving the judiciary roles that are not about judgments of criminality or even carrying out reviews, both of which judges are perfectly capable of because that is their role. What is this love of the belief that we should hollow out the state, as we call it in the academic world, so that politicians are seen as incapable of making decisions and taking responsibility for them, but judges are not? I worry about this, because we are getting ourselves into a terrible mess, where eventually politicians will dance to the tune of Covid but very little else.
Baroness Wheatcroft (CB) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Blunkett, who speaks with deep personal experience and authority. I listened to the passionate debate on the previous group of amendments, and now on this group. The noble Lord, Lord Dubs, made his case for Amendment 5 in his usual persuasive manner, but I favour a slightly different approach, not least for the reasons outlined by the noble Lord, Lord Blunkett. Hence I will speak to Amendment 16, as introduced so effectively by the noble Lord, Lord Hain, and supported by the noble Lord, Lord Cormack.
If the state is to grant advance pardon to individuals to commit serious breaches of the law, this should not be a common occurrence, and it is a decision that should be taken at the highest level. To my mind, that should be at the level of government. I accept that there might be occasions when, for matters of national security, criminal acts will need to be committed, but I have not been convinced of the need for change in the status quo regarding the way these authorisations are given. However, as the charity Justice says, it is inconceivable that the Government should not be accountable for serious criminal offences committed with their approval—but if that approval is delegated to officials, who will be accountable?
I have many qualms about this legislation. As many have remarked, the Government have repeatedly failed to make a convincing case as to why such a drastic abandoning of moral norms should be sanctioned. They have certainly failed to provide convincing arguments as to why such a broad set of agencies should need access to criminal conduct authorisation. What undercover activity does the Food Standards Agency, for instance, envisage having need of? However, while I am not comfortable with aspects of the legislation, I have no doubt of the Government’s determination to press ahead with it. It is therefore down to this House to try to make it more palatable.
As ever, the Government are keen to embrace anything that will show contempt for the European Court of Human Rights, and this obviously presents an opportunity to do that. But it is imperative that we try to stop these powers being used with impunity—and how better than by making government directly accountable? It would clearly be wrong for officials to have the power to grant immunity from prosecution to undercover agents on the basis of what they perceive as necessity without external authorisation.
The noble Lord, Lord Dubs, believes that the judiciary could provide that authorisation; the noble Lord, Lord Blunkett, pointed out the flaws in that. I would prefer it to be the Government: the shift in responsibility from Ministers to officials has become a worrying trend. It seems that senior officials are deemed dispensable these days, but Ministers are not; ministerial resignations are now very rare, although I am sure that most of us have a little list of those that we feel are long overdue. The issuing of these orders is a very serious decision, with potentially enormous effects; it would surely be appropriate for a Minister to take ultimate responsibility.
The Deputy Speaker (Lord Lexden) (Con)
My Lords, the name of the noble Lord, Lord Rosser, appears next on the list by mistake—he has already spoken—so I call the noble Lord, Lord Butler of Brockwell.
Lord Butler of Brockwell (CB) [V]
My Lords, in supporting the new clause in Amendment 33 and its consequentials, I am riding pillion to my noble friend Lord Anderson of Ipswich. When I heard his speech at Second Reading, I immediately felt that his approach struck the most practical balance in controlling the activities of intelligence agencies embedded in groups carrying out criminal activities. Following the noble Baroness, Lady Wheatcroft, I rather suspect that the scale of this is both at a lower level and in a larger quantity than previous speeches have suggested. One has to see the practicality of that in those terms.
My experience, both when I was in government and when I was on the Intelligence and Security Committee of Parliament, leads me to believe that control of these operations requires three things. First, it requires better precision than there has been so far in the definition of how far agents can be authorised to go in participation in criminal activities. That is fair to them, and it is fair to the authorities. Ever since the case of Brian Nelson, the Northern Irish loyalist informer, to which I referred in Committee, I have felt that it is unsatisfactory that judgments on these matters should be left open and to the discretion of prosecuting authorities after the event, although I have no doubt that the decision to prosecute Nelson—indeed, he confessed—was correct.
Secondly, there is a need for close contact and immediacy in the control exercised. These situations in which covert intelligence agents are involved are often fast-moving. Communication between agent and controller may need to be rapid, and control needs to be agile. I do not believe that that can practicably be provided by a judge or a Secretary of State.
Thirdly, independent oversight is needed in as close to real time as possible. Controllers cannot be the judge and jury in these matters—certainly not the sole judge and jury—since there is an obvious temptation to cross lines in the interests of achieving what are often laudable objectives. I am persuaded that oversight is likely to be best achieved by giving the independent Investigatory Powers Commissioner a more active and immediate role. It seems to me that the provision proposed by my noble friend in the proposed new clause achieves these objectives in a practical way, and I am glad to hear that the Minister is inclined to agree that this is a fair and effective way forward.
The Liberal Democrats’ Amendment 17 takes a similar approach and, to that extent, I am sympathetic to it, but I am sceptical about whether the requirement for “prior approval” by the Investigatory Powers Commissioner, even with a get-out clause in circumstances of urgency, would meet the requirement for operational agility—so I will stick with my support for my noble friend’s amendment.
Lord Mackay of Clashfern (Con) [V]
My Lords, it is a great relief to follow the noble Lord, Lord Butler of Brockwell, because I entirely agree with him. Agility, competence and experience in looking at a matter such as this are important. The commissioner has just that, being very flexible and close to the situation.
I have had difficulty in following some of this debate, as well as that on earlier amendments. I cannot believe that it is in accordance with the rule of law that Governments and their officials should ask people to commit crimes. That seems the very reverse of the rule of law, which says that you should not commit crimes and you should do what the law tells you to do as a general and universal rule. This Bill sets out a framework under which certain kinds of necessary activity in relation to the subject matter are defined in respect of day-to-day requirements, so that when the act is performed it is no longer a crime and therefore it is perfectly reasonable for the handler to ask the person in question, the participant, to do it. If it was kept as a crime, it would be breaking the rule of law.
I agree with the view that those initially responsible for activating this procedure need to be trained and experienced, and I have seen evidence that that is so. What I find difficult to be sure of is the exact level at which some help and advice should be given. I am confident that the Investigatory Powers Commissioner is qualified to give a view on the propriety of a particular course of action and whether it should be regarded as a crime.
As was said earlier, those who defend us when we are in the Palace of Westminster have to take serious decisions very quickly against an existing background of law. The problem in this context is that there is no particular background of law except that the actual doing of the thing is a crime at the present time. I do not agree with the view that that is a satisfactory system which should remain, but it is right that, so far as is possible, prescription of what can be done in regard to a matter of this kind should be available to the participant in advance, with as high judicial or legal authority as is appropriate in the circumstances; namely, that time may be of the essence and therefore it may be urgent to obtain advice. I agree with the view that this is best done by the commissioner.
I agree with the amendment tabled by the noble and learned Lord, Lord Thomas, if it is necessary. I have the feeling that the investigation commissioner has authority to deal with an objection of this kind in terms of the 2016 Act. I do not feel sufficiently confident to contradict the noble and learned Lord, Lord Thomas, on the need for this amendment, but I would be glad to know what the position is on the powers the commissioner has to deal with this matter.
Baroness Chakrabarti (Lab) [V]
My Lords, I can be brief on this, currying some favour, I hope, with the Government Whip that will be taken on board when I speak in a later group to my own amendments once more. It is a great privilege to follow the noble and learned Lord, Lord Mackay of Clashfern. Your Lordships heard it from him: when is a crime not a crime—when it has been pre-authorised with immunity attached in advance? That would be a difficult thing to explain to most members of public. However, it is not so difficult, perhaps, when you compare it with intrusions into our privacy, which is where this model comes from.
The complexities of this debate just make me sadder about where we got to in the previous one. We now have to decide about safeguards, because your Lordships have potentially created a breath-taking immunity. Under existing surveillance law, there are different models: it takes a magistrate to authorise an intrusive search of your premises; it takes a Minister to authorise the tapping of your telephone; yet inserting an undercover agent—more intrusive than either of those two measures, because a human will change your behaviour, not just monitor it—is internally authorised. Now, we have gone further, and a crime can be committed, authorised by the Executive, authorised by the police for their agents, authorised by the intelligence services for their agents, and so on.
Clutching at straws for safeguards, I have to support some kind of external authorisation at the very least. If it is good enough for search warrants and telephone taps, it must be even more necessary when criminal conduct, including violent conduct, might be authorised. As for which model, I have heard the arguments either way, and I tend to think political warrantry of something so politically dangerous is problematic, and it has proved so in the past. Former Government Ministers have written in their memoirs about how tired they were when, late at night, they were making endless intrusive surveillance authorisations. It is not about hollowing out the state; it is about trying to insert independence into the realm of criminal law. I admire the thrust of the eloquent speech of the noble Baroness, Lady Wheatcroft: if Government are to do such a thing, they should take some responsibility, not just for legislation but for authorisations.
We heard from the noble Lord, Lord Butler, with his enormous experience, his prediction that there will be some low-level warrants here and a very large number of them. This would present a real problem if it was political warrantry, because Secretaries of State have a lot to do, and there are going to be a lot more warrants under this legislation than those limited to, for example, the security services.
These are all imperfect checks and balances but, on balance, at the moment I prefer judicial authorisation, even though that will, in my view, bring dangers for the judiciary. Post-notification authorisation is a very weak protection but, if it is to happen, I agree completely with the noble and learned Lord, Lord Thomas of Cwmgiedd, that Amendment 33 without Amendment 34 is pretty much a nonsense.
Lord West of Spithead (Lab) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. She kept me well aware of civil liberties for three years when I was the Minister with responsibility for security, counterterrorism and cybersecurity, and she did it with complete purity of purpose. I do not think that anyone should have a go at her for anything other than that, so it is a pleasure to follow her.
An awful lot has been said already and time is running short. I am strongly supportive of judicial oversight of these powers. Looking at the package of amendments before us, Amendment 33 appears to be a balanced and practical proposal, and I rather like it. However, the noble and learned Lord, Lord Mackay of Clashfern, has convinced me that, in a sense, it has to be looked at in conjunction with Amendment 34, in the name of the noble and learned Lord, Lord Thomas, because the two sit well together. The Minister needs to look at them, as together they would achieve what we want in this very sensitive area.
On Amendment 16, I have considerable sympathy with having a Minister involved, but there is an issue with how many things one has to sign. I found that, when I was a Minister, I had all the dross and had to pass the really meaty bits up to the Home Secretary, who seemed to think that she was rather overloaded anyway—and that was after I had taken a hell of a lot of the weight away. So there is an issue there.
We also need to look at the wording of that amendment very carefully. Saying that one of these people is “employed” is quite specific and tricky. Similarly, the wording of Amendment 23 is slightly unclear, and we need to be careful. However, the amendment that I really like is Amendment 33, probably in conjunction with Amendment 34.
Lord Rooker (Lab) [V]
My Lords, it is an absolute pleasure to follow my noble friend Lord West of Spithead.
There are some amendments in this group that I object to, and I shall vote against them if they are pushed to a vote. I want to restrict my remarks to two amendments—Amendment 16 and Amendment 33 with its consequentials.
I am a bit confused about Amendment 16 in the same way as my noble friend Lord West has just alluded to. I have massive respect for my noble friends Lord Hain and Lord Blunkett. I operated as Minister of State for each of them for a year—at the Northern Ireland Office, under direct rule, and at the Home Office. In both cases, my role involved purely domestic policy—the only time I got close to anything remotely related to this was at the Northern Ireland Office on two of the 13 duty weekends that I did in a year.
However, as I made clear in Committee, I simply do not agree that the Secretaries of State should be involved in the issuing of authorisations. We are talking here about a level of detail and relationships with people—probably long term, in the case of many CHIS—that means it is just not possible, practical or, in my view, proper for Secretaries of State to be involved. I agree completely with the arguments put forward, both this time and the previous time, by the noble Lord, Lord Butler.
As for paragraph (b), which would require the CHIS to be an employee, as my noble friend Lord West has just referred to, I am at a slight loss to understand it. The Bill is not talking about undercover police officers who are employed as police officers, or undercover security officers employed by the security services. We are talking about a range of people with civilian occupations who are employed by other authorities—I will give some examples in a minute—or about common criminals, who are probably not employed by anyone. So I do not understand the idea that they have to be an employee of the authority. That simply cannot be done; it is a contradiction.
Lord Mann (Non-Afl) [V]
My Lords, I very much agree with the detail and the general sentiment in the excellent contribution of the noble Lord, Lord Rooker. The word “practical”, which he used several times, is a vital word, to which I would add “mundane”, which I think he used once, referring to the mundanity of many of the orders, and the potential volume of those mundane orders. I speak not as any legal expert, but as someone who was on the receiving end of precisely this. I was on the Economic League blacklist, undoubtedly because of the infiltration of the anti-apartheid movement by an agent of the state.
My concern is about the competence of the state. A book was written at the time by an extremist, a Stalinist and supporter of the Soviet Union called Denver Walker. The book is called Quite Right, Mr Trotsky! and it was released in the same year that I was having those problems. In it, he starts by saying that this could be Special Branch or MI5 in terms of what he is doing. He exposes every Trotskyist organisation in the country, naming names, citing examples and explaining ideology in minute detail. At the same time all the organisations he named, bar two, were infiltrated. That is now on the public record. The state was spending resources and putting a priority on infiltrating irrelevant, tiny organisations. The Revolutionary Communist Group, one of the two not infiltrated, is described in the book as being presumed by everyone on the ultra-left to be run by Special Branch. That is actually in his book.
Competence is critical. If we are trying to intervene in, for example, terrorist organisations or organised crime, competence is absolute and fundamental. Yet we have this history, in the 1970s and 1980s, of the most appalling incompetence. We had the targeting of irrelevant people, creating consequences for people who were on the side of the state in precisely the terms on which the state was infiltrating these organisations. What conclusions would I draw from that?
I draw the conclusion that the noble Lord, Lord Blunkett, whom I normally agree with, is fundamentally wrong to suggest that the judiciary has the wrong skill set for assessing and authorising such decisions in advance. I would say exactly the opposite. The judiciary has exactly the right skill set, not to know anything about extremist organisations or extremists but to hear and evaluate a coherent case—or an incoherent case, and turn that down if it is—when put forward by one of the agencies to or for which we are giving, clarifying or maintaining powers with the Bill.
If you are incapable, as intelligence services, the police or one of the other agencies, of putting a coherent case together for why you need authorisation, it would seem that the authorisation you need has a rather weak case. If that had happened in the 1970s and 1980s, a lot of that nonsense and wrong priorities would never have got past stage 1. They were based not even on a hunch, but on an irrelevance. If we are to have efficiency in getting into terrorist groups and organised crime, having a system that forces those who wish to do so to explain their rationale for what they plan to do, and why, and having someone able to assess whether that rationale is coherent, seems the right approach. The last people who should do it, therefore, are politicians.
The practicalities and mundanity are what we should be determining these decisions on. Of course there will be cases that are far from mundane in their application, but that does not mean that the same principles are not required in getting an agreement. It therefore seems to me that those amendments which push the Government in that direction should be welcomed by the Government, and those that do not should be rejected—not just by the Government, of course, but by the House.
Lord Carlile of Berriew (CB) [V]
My Lords, the interesting lesson from the noble Lord, Lord Mann, on the history of the left—it is a pleasure to follow him—has shown exactly why the Government are right to make a root-and-branch reform, and introduce a structure based on statute for the handling of covert human intelligence sources. We have heard a lot about what happened in the past, but an awful lot has changed since the 1970s, the 1980s and the 1990s. The major changes in this kind of policing started after 9/11, which was like a massive electric shock to the whole system of detecting various serious crimes, because of the arrival of large-scale terrorism on the streets of Europe and in many other countries. An awful lot has happened, too, since 9/11. The methodology has been sophisticated quite enormously, hence the large amount of legislation since the events of 9/11.
I listened with particular interest, because I agreed with what they said, to my noble friends Lord Anderson and Lord Butler and the noble and learned Lord, Lord Mackay. I am a great believer in the theory of Occam’s razor, that entities should not be multiplied unnecessarily or, as it is sometimes put, “Keep it as simple as you can”. To start with, this is an operational issue. In the decision to make someone a CHIS, there is usually a very long period of assessment, a decision by management in consultation with the proposed CHIS handler and sometimes, as I said in an earlier debate, some behavioural analysis. This is an operational matter.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I preface my remarks with a very straightforward point, by noting that judicial commissioners, appointed under the Investigatory Powers Act 2016, carry out a prior approval function in relation to other covert investigatory activities. While the function of judicial commissioners could be extended to cover the grant of CCAs, I understand why the noble Lords, Lord Anderson, Lord Rosser and Lord Butler, and my noble and learned friend Lord Mackay, who have proposed Amendment 33, have sought to bring in not pre-authorisation but notification in real time. Why is there a lesser test with regard to the powers under this Bill than there is that extend to other activities covered by prior judicial approval?
Having said that, I entirely endorse and support what the noble Lord, Lord Anderson of Ipswich, Lord Rosser and Lord Butler of Brockwell, and my noble and learned friend Lord Mackay of Clashfern have put forward in Amendment 33. The question that we seek to answer here is about what degree of oversight is required and the level of independence that that oversight should enjoy. I have come to the conclusion that it is better to have judicial oversight as envisaged in Amendment 33 than that to be exercised by a Secretary of State, for the multiple reasons given by many noble Lords who addressed the House earlier this evening.
I would like to see authorisations in real time being sought by such a notification as set out in Amendment 33. I entirely support and endorse the remarks made by the noble Lords, Lord Anderson of Ipswich and Lord Butler of Brockwell, and my noble and learned friend Lord Mackay of Clashfern. There would have to be a very good reason why the Government would not seek to introduce this, especially as, with all the provisions that have been set out in the debate, there should be no reduction in the ability to act swiftly, and therefore that flexibility will not be compromised.
There are very powerful arguments for Amendment 33 and the related amendments, although I am less supportive of Amendment 34 and others in this group. I hope that my noble friend will explain to what extent she can support Amendment 33 and related amendments put forward by its authors.
Lord Judd (Lab) [V]
My Lords, I want to make it perfectly plain that I totally disagree with the arguments put forward by the noble Lord, Lord Carlile of Berriew. Of course, a lot of skilled, professional, operational work has gone in to whatever is being planned. But part of that operational skill, which is professionally done, should be taking full account of what is challengeable under the rule of law. If there is nothing to fear on that front, then there is nothing to fear in terms of the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd.
If I were asked to pick one amendment from this group that had particularly cheered me, it would be that of the noble and learned Lord, Lord Thomas of Cwmgiedd; it seemed to me that he was bringing muscle to bear on the theory and operation of the rule of law. We can all talk about the rule of law, and it is nice to think that in a civilised society we have it, but how can it act in time? We all know what can happen in operations of this kind: so much momentum and impetus build up that one thing leads to another, and it becomes very difficult to reverse. I applaud the amendment tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd.
My support has gone to Amendment 7, because the work that we are discussing should not become a matter of convenience in the operation of government. It has to be serious, and if we are making the rule of law essential to our concerns, it has to be dealing with serious crime.
I am also very glad to be associated with Amendment 17 on the relevance of the Investigatory Powers Commissioner. It may not be everybody’s immediate cup of tea, but I am very glad to see Amendment 43, with its provisions for the review of authorisations over a period of time. In a democracy, we have to keep a political and active eye on what trend seems to be being established if there are trends, and what they might be.
The amendments in this group dealing with the rule of law and judicial approval, which is crucial, have all been encouraging. I cannot have more respect than I do for some of those who were involved in tabling Amendment 46, and I am sorry, because I respect them, but I hope that they have some time for my concern as a layman.
I am doubtful about the whole concept of special arrangements for the appointment of judicial commissioners in this way. How can we be cast-iron certain that this does not become open to manipulation by the Executive? Either people are judicial commissioners, or they are not. We should keep our minds very much on that principle. This is a terribly important group of amendments, and I wish most of them well.
Lord Morris of Aberavon (Lab) [V]
My Lords, I intervene briefly to support Amendments 5 and 16. The experience of so many noble Lords in this debate has been salutary. In Committee I expressed my views on the need for supervision of authorising conduct under the Bill prior to the event—I emphasise “prior”—preferably by judicial authority. I will not elaborate on what I have already said, save to repeat that from the highest level of the judiciary down, it has been my experience that there is always availability, 24 hours a day, seven days a week. I have never had to make an application in the course of advocation as counsel, but I have had to make emergency applications and judges have always been available. In my experience—limited as it was as a law officer not directly involved—I never had any anxiety that there were no judges available to take decisions.
The noble Lord, Lord Anderson of Ipswich, with his great experience, queried the use of the judiciary, as I understand his speech. I see no difficulty in the Lord Chief Justice selecting a number of High Court judges who, despite the views of the noble Lord, Lord Blunkett, would have had the necessary skills to adjudicate on these matters. They are probably unsurpassed in the range of decision that they must take: quite a few of them are life or death matters, which I will not elaborate on. Members of the judiciary from the highest to the lowest level must make difficult decisions well beyond their training and well beyond what they had thought that they might have to adjudicate on.
This has been a fascinating debate. At this hour I will not go on, save to say that authorising conduct of this kind is a very serious matter. Trying to square authorising breaches of the law with the rule of law is mind-boggling. I shall not attempt it. All I will say is that I support Amendments 5 and 16.
Lord Naseby (Con) [V]
My Lords, I speak briefly to a number of amendments. First, on Amendment 5, I do not believe whatever I have heard, even from my noble friend who spoke before me, that there is sufficient experience and competence on this kind of activity in a judicial world for a clear decision to be made. Therefore, I do not support having judicial approval.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, there are obvious flaws in any authorisation procedure in which the main safeguard against a public body carrying out unjustified surveillance, for example, or committing serious crime, is a senior official from the same organisation. It just does not make good sense. Even the most diligent individual would struggle to remain objective, particularly if the organisation was under pressure to meet targets, to achieve results or to get the job done. I remember all too painfully as a counsel in the Guildford Four appeal when there was undoubted pressure on the police to produce results and this led to misconduct and very bad judgments.
The Government and supporters of the Bill put forward an argument that prioritises operational need over independent assessment. It is not convincing. I remind the House that there is a significant difference with regard to authorising a CHIS—a covert person in place—who has worked in a factory, as was suggested, and who might have seen unlawful activity or whatever, whistle-blows but stays to give a better account of his or her observations to the authorities. That observing of criminal activities and then reporting on them is very different from the situation where someone is actively involved in criminal activity but is turned by the authorities and made into an agent on their behalf inside a criminal organisation. They may be proactively involved in criminal acts and involved in planning and encouraging them. It is a marked, simple movement for them to cross that line and to go out and commit crimes with other members of the gang. This is a clear, profound and immensely qualitative difference, for which the Government have yet to account.
Some Members have proposed that a form of retrospective authorisation might suffice, and I want to explain why this does not work in practice. Unlike other covert powers, such as bugging a property, the potential harm caused in those circumstances is difficult, if not impossible, to undo. Some harms are difficult to undo once they have been done. If you place a listening device, it can be removed. If you have unlawfully recorded private conversations, they can be destroyed.
But let us think of the example of somebody who is in a county lines drugs gang, pushing heroin into the hands of the young. That heroin is sometimes of the purest form, which will be highly damaging, potentially to someone’s life, or it is contaminated, so that it goes further and makes more money for the criminal gangs, with substances that can be noxious and lethal. Suppose those drugs get into the hands of a vulnerable teenager who ends up dead. It is not a happy thought, but that is what criminal actions are about when you are involved in gang activity.
What if somebody is involved on the periphery of terrorist activities and is informing, but is required to secure items that might be used in the creation of an explosive device—a bomb? How does that make Members of this House feel? How does one undo the damage to innocent individuals, often vulnerable victims who might come into the firing line of gang members or terrorist groups who are armed with a criminal conduct authorisation, as the Bill proposes? What can we say to them if they have their synagogue blown up, or their child physically harmed, or, heaven forbid, people lose their lives? I say to the noble and learned Lord, Lord Mackay: when does that kind of crime stop being a crime?
It is regrettable to me that the Government are persisting with this policy, but given that they want to go ahead it is vital that independent, prior judicial approval is built into the process to avoid and to mitigate the potential for tragic mistakes or abuses of power. I was very moved and affected by what the noble and learned Lord, Lord Thomas, said. His view as an experienced senior judge is that, in the end, they will have to come back to prior judicial oversight. His preference, like mine, is for prior judicial approval. I do not agree with the noble Lords, Lord Hain or Lord Blunkett, that the appropriate people are Ministers. My preference would be for it to be the judges. I echo what the noble Baroness, Lady McIntosh, said: if the judges who are dealing with other covert activities are considered good enough for that, what is so special about this?
I therefore urge this House to stick with the amendments that have been put forward. I will go with any of the collection of them that involve prior judicial authority. Of course, as a secondary position, I will support the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas, with his add-on amendment, which would ensure that it is done in real time. However, my preference is that it is done beforehand. Nothing else will make police officers and those who seek to do this kind of work with people embedded in organisations think carefully about the arguments for doing so.
I laugh when I hear my noble friend Lord Blunkett reiterating something that he has held true, which is his suspicion that the judiciary do not know how the real world works. Today we have a judiciary that is very different from the old one that operated. Happily, it is a different kind of judiciary, which is well aware of the problems and is used to making judgments in these kinds of cases.
What is being suggested in having judicial oversight is not radical but common sense. The European Court of Human Rights in many instances has spoken to the necessity of prior judicial authorisation. In one case, the court held that it offers
“the best guarantees of independence, impartiality and a proper procedure.”
This is particularly pertinent with surveillance, which, according to the court, was a field where “abuses are potentially easy” in individual cases to the extent that it
“could have harmful consequences for democratic society”.
The court concluded that
“it is in principle desirable to entrust supervisory control to”
the judiciary. I will say only that as a practitioner I can speak to the quality and speed with which our judges can handle time-sensitive and critical cases. Like other noble Lords who have mentioned it, I have had on occasion to make applications to judges late into the night, and our judges are well capable of making decisions in that way.
We have to get this right. It is incumbent on us to consider the gravity of the powers that Parliament is being asked to create, and we have to strive to ensure that they are exercised responsibly and with sufficient checks and balances. I therefore commend to your Lordships the amendments, which require prior judicial authorisation.
Lord Thomas of Gresford (LD) [V]
My Lords, it is always a delight to follow my friend, the noble Baroness, Lady Kennedy of The Shaws.
There are three sides to this argument. What makes this debate so interesting is that they cross party boundaries. The noble Lord, Lord Dubs, argues the powerful JCHR case for prior authorisation by a judge, while on the other hand the noble Lord, Lord Anderson, is of the view that a judge or a Secretary of State does not have the expertise to task or to supervise a CHIS, a sentiment echoed by my noble friend Lord Carlile and argued more stringently by the noble Lord, Lord Naseby.
The noble Lord, Lord Anderson, supports post-authorisation notification. My criticism of that process, as I advanced it in Committee, was that this was a solution without teeth, an argument adopted in an excoriating speech by the noble and learned Lord, Lord Thomas of Cwmgiedd, in support of his Amendment 34. If the commissioner says on a post-the-event inquiry, “This should not have happened”, what then? The authorisation must stop. But what about any crime that has been committed before that judgement is given? The noble Lord, Lord Rosser, made that point.
What in the Bill as it stands would prevent the authorising officer on the ground from simply shrugging his shoulders? He might ask, “Why should the judge have greater expertise post the event than he had before?” But can the authoriser be acting lawfully if he goes on in the face of a decision deploring the deployment of the CHIS? Does the commissioner’s adverse view of the department have to be disclosed at trial? That is very important. Suppose the CHIS is a witness at a trial and gives crucial evidence in person, or, more likely, evidence which he has obtained by committing a crime is relied on. The prosecutor would have to disclose the decision of the commissioner that he should never have been deployed to get that evidence in the first place.
The noble Lord, Lord Anderson, suggests that prior judicial authorisation does not match the operational requirements. He argues that it lacks agility, in the words of the noble Lord, Lord Butler. But is his solution practical—the test of the noble Lord, Lord Rooker?
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
The noble Lord, Lord King of Bridgwater, is unavailable, so I call the noble Baroness, Lady Manningham- Buller.
Baroness Manningham-Buller (CB) [V]
I was expecting to follow the former chair of the ISC from when I was there, but I am delighted to follow the noble Lord, Lord Thomas of Gresford. I do not intend to repeat what I said in Committee, but I want to make a few points—although I realise it is late and we have a lot more to get through.
If the noble Baroness, Lady Kennedy of The Shaws, is right that judges have changed over the years, so have MI5 and the police. Since I left MI5 13 years ago, oversight, which is the first thing I want to talk about, has strengthened. The double lock now exists: you cannot get a warrant for a telephone intercept or a microphone operation without a judicial signature, as well as that of the Secretary of State. IPCO has assumed a very important and vital role and I read with great interest its recent report, which is very comprehensive and thorough.
Since I left, there have been Independent Reviewers of Terrorism Legislation. I suggest to your Lordships that we are lucky to have in this House the noble Lords, Lord Anderson and Lord Carlile. They have deep inside knowledge of these issues and, unlike me, they cannot be accused of a conflict of interest. They came to these jobs and did them objectively.
I welcome this oversight. I am not somebody who feels that too much interference is tricky. It helps keep standards high, it gives confidence to the public and it gives clarity to my former colleagues, which they welcome. When I joined the Security Service there was no law at all governing what we did, and I can tell noble Lords that that was an extremely uncomfortable position.
I support the new clause proposed by Amendment 33, because it seems to be the ideal combination of independent oversight from IPCO and operational expertise—and I believe quite strongly that we should not muddle those two roles.
I had thought that I would try to resist defending covert human intelligence sources, but I cannot allow some of the comments made this evening to stand without my giving an alternative view. Of course I do not defend those involved in the murder of Finucane, and of course I regard the undercover police who grossly abused their trust as culpable. But I have met many undercover agents—as very few Members of your Lordships’ House, apart from the noble Lord, Lord Paddick, have done. I have to say that my experience is different from the noble Lord’s. Mine have not been engaged in activity regarded as undesirable. They have not been venal or self-interested, receiving brown envelopes of cash. So the earlier point about whether the legislation is right for all of us is interesting, but my experience is very different.
This is where I will repeat myself from Committee. I have met brave men and women who risked their lives—I underline that—to save other lives. Yes, they are occasionally authorised to commit crimes, but lesser crimes than the ones they seek to prevent. It is risible to suggest that they have carte blanche or should be involved in setting bombs. They have saved thousands of lives. They will never get public recognition or thanks, but I take this opportunity to thank them. We have a moral obligation to respect them, protect them and keep them safe, because many of us depend on their work. I am also very reassured that a recent IPCO report said that the way MI5 ran covert human intelligence sources was “highly professional” and “mindful” of the ethical issues.
If the House will forgive me, I will take a slight deviation to tell noble Lords about one particular human source. A few years ago, the BBC “Today” programme asked me to guest-edit a Christmas programme, which I did. I asked my former colleagues in MI5 if they could produce an agent—a CHIS—to talk to the BBC home affairs editor, to be played by an actor, and explain why they were working for the authorities in this way. MI5 produced an agent who was a British Muslim, and he described what he was doing: reporting on ISIS and related terrorism. He was asked how he justified this to himself, and he said, “I look in the mirror every morning and I know I am doing Allah’s work.” I do not know what intelligence he produced or his name—I know nothing about him. But it was a very compelling interview.
On prior authorisation, whether judicial or political or, in today’s terms, probably a combination of the two, I said in Committee that this is superficially attractive. I still think this; it would give confidence and reassurance to many. But I am afraid that I also share strongly the views of the noble Lord, Lord Anderson, that it is unfortunately not practical. Why?
The noble Lord, Lord Rooker, described—in some ways better than I have done—some of the complex aspects of running covert human intelligence sources. As I think the noble Baroness, Lady Chakrabarti, said, they are not robots. As I said a minute ago, we have an obligation to their safety first of all, under the ECHR and any other criteria. Running them is complex—there is the care for their welfare, and before they are taken on there is the involvement of in-house lawyers, security advisers and behavioural scientists. Some of them work for many years at great risk to themselves. It is quite different from microphone and interception operations, which can be switched on and off and the product from them retained or destroyed.
The handlers, who are not the people who authorise criminal activity, will have deep knowledge of the individual: their family; their history; their motivation, which will vary; their access; what intelligence they are going to get; what training they have had; what instructions they have been given; what limits have been put on what they do; what the agreed rules of their deployment are; their contacts for emergency; and if they need to be extracted. CHISs trust the handlers to protect their identity, possibly in perpetuity.
When I was head of MI5, I very rarely knew the name of a CHIS. I knew them by a number, and I knew what access they had. The authorisation for criminal activity is a small and rare part of a much broader relationship, often long-term, and running them deals with fast-moving and unpredictable circumstances. I am again reassured by IPCO’s independent view that the handling of cases involving criminality has been proportionate and necessary, and I think some of the suggestions of what CHISs might be authorised to do are just unrealistic and alarming.
I would like to pick up on Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount. Their right to life is as important as the right to life of the public who, in many cases, they seek to protect.
Lord King of Bridgwater (Con) [V]
I was expecting to follow the noble Lord, Lord Thomas of Gresford, but I am even more delighted, with no disrespect to him, to follow the noble Baroness, Lady Manningham-Buller. Obviously, I have had some personal involvement with her, and I can pay tribute to her huge experience in this field. I certainly endorse her final point, which is, of course, the issue about the security of people involved as covert intelligence sources.
Baroness Hamwee (LD) [V]
My Lords, it speaks well of the House that there is such concern about safeguards to buttress criminal conduct authorisations while, on the whole, accepting their use. Noble Lords identify the need for external validation and the oversight of the activities of different agents—of course, here we are dealing only with criminal conduct authorisations, not the whole of what they do—who are not identical across all the “public authorities”, as they are called, that fall within the Bill. We need to deal with all of them.
In most amendments, noble Lords identify the importance of someone with the authority of high judicial office, who therefore commands confidence, as well as the need to be practical, putting their arguments in the context of operational demands and realities, and paying attention to the timeframe. Of course, there are different proposals. I recall a discussion in a Select Committee a while ago about how, when you are a Minister, having to sign things off brings home to you that you are accountable—you have to answer for your decisions. We have heard from colleagues who have held high political office—of course, I have not had experience of this or judicial office. We support judicial authorisation.
The noble Lord, Lord Carlile, asked who judges the judges—but there is always that question, in the same way that there is always the question of who scrutinises the scrutineers. I have had the impression that the very experience of considering something after the event equips one for considering issues in advance, and commissioners are judges as well.
My noble friend spoke to all the amendments, including our Amendment 43, which is an outlier, not because it is inconsistent with the others—it is not—but because it is about a review of the regime rather than particular grants of CCAs. We do not suggest that the Investigatory Powers Commissioner is not alert to how CHIS may be used, but Amendment 43 would provide for a review of the regime—or the scheme, if you like—in the round, as distinct from tweaking legislation, which is what we are doing now, in response to court proceedings. As my noble friend said, it attempts to square the circle.
In their response to the JCHR, published this morning, the Government said on the issue of review that the current process
“provides for systemic review of all public authorities’ use of the power and allows for continuous improvement”
and so on. I think that “systemic” is probably not a typo, but I wondered whether it meant “systematic”; maybe it means both. I think the noble Baroness, Lady Manningham-Buller, would say it means “systemic”.
On Amendment 17, my noble friend stood back to consider the process as a whole; if he sets the grant of a CCA in the context of the deployment of the CHIS, it applies to agents used by the police and the intelligence services—not in exactly the same situations, of course—and provides for urgency.
We sought in Committee to answer the question of what follows with our own amendment to that of the noble Lord, Lord Anderson. Amendment 34, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, addresses the need for an outcome. His amendment is clear about determination, and I think that the noble Lord, Lord Anderson, said he would accept it. I was interested in the point made by the noble and learned Lord, Lord Thomas, about how the matter might evolve. We do not oppose Amendments 33 and 34, but notification is not approval, as noble Lords have noted, so they are different issues, and the amendment of the noble Lord, Lord Anderson, and our amendment are compatible. My noble friend Lord Thomas of Gresford was very persuasive on the possible fallout if there is no prior notification. The breadth of his speech has spared me, and therefore your Lordships, having to wind up on that, so I am grateful to him.
In Committee, the noble Lord, Lord Carlile, spoke of
“operational practicality together with rigorous scrutiny.”—[Official Report, 24/11/20; col. 210.]
I would summarise amendments on the subject of this debate as indicating that we prize independence, objectivity and respect for the rule of law—the protection of the citizen against the state as well as by it. We particularly support, of course, Amendment 5 and our Amendment 17.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this long but worthwhile debate. First, I pay tribute to the noble Lord, Lord Rooker. I could have just referred noble Lords to his speech then sat down, because he made his points so succinctly and brought out some case examples. My noble friend Lord King talked about the recent NCA operation that managed to yield so much thanks to undercover operatives.
I also echo for a moment the summary by the noble Baroness, Lady Manningham-Buller, and join her in thanking some of the undercover operatives who, as she said, literally risk their lives. I do not know, as I have not met any of them, but she is an expert in this area and, if she says that, I join her in tribute to them. There are no motives ulterior to keeping the public safe. She talked pertinently about oversight combined with the expertise provided for by this Bill and made the point that, when she started, there was no law at all governing the framework of this activity. She also talked about the Independent Reviewers of Terrorism Legislation—the two that were in our House and have contributed so much to this Bill, the noble Lords, Lord Carlile and Lord Anderson—and made the true point that there can be no exact accusation of conflict of interest with them. She talked about the vital role of the IPC—the report he does on a regular basis and the independence of the role. She talked about the double lock and made the point that judges have changed over the years, as the noble Baroness, Lady Kennedy of The Shaws, said, but so have the police and MI5. Noble Lords—the noble Lord, Lord Hain, in particular—will talk about some of the things that happened that under our new legal framework would not be either necessary or proportionate and would be ruled as such.
I shall start with the Investigatory Powers Commissioner: I want to welcome his most recent annual report, which was published during the passage of this Bill. He already plays an important role in providing independent oversight of this activity. But I have always been clear that the Government are willing to listen to the concerns of noble Lords and consider amendments to strengthen the Bill, providing they do not have an adverse effect on the ability of public authorities to do their job and keep us safe.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I have received two requests to ask short questions from the noble Lords, Lord Blunkett and Lord Hain, who I will call and then call the Minister. I call the noble Lord, Lord Blunkett.
Lord Blunkett (Lab) [V]
I congratulate the Minister on her tenacity and her grasp of detail, which is reassuring and refreshing. Would she consider providing a regular quarterly update to the Home Secretary in addition to the annual report to which she has referred—part of which is redacted and part of which is on public record? In that way, there is at least some responsibility in the political arena as an ongoing feature of the new pattern, which is clearly going to involve Amendment 33 and the consequentials.
Baroness Williams of Trafford (Con)
While I have the opportunity, I thank the noble Lord for the conversation we had the other day—it was very helpful in allowing me to know exactly what both noble Lords required. I cannot give that undertaking at the Dispatch Box but I can go back and ascertain just how often the Home Secretary receives these reports and whether the Investigatory Powers Commissioner might be thinking of making more regular reports in future if necessary, or indeed spot reports as and when required. I can certainly undertake to do that.
Lord Hain (Lab)
I too thank the Minister for her reply and for her engagement. It is clear from the balance of the debate that there is no point in my pressing Amendment 16, and therefore when the time comes, I will not seek to divide the House on it.
However, to follow up on the question of my noble friend Lord Blunkett, will the Minister give an assurance that the Home Secretary will take a particular interest in the most politically sensitive deployment of a CHIS, which is the area that has given rise to real worry? Whether that is in the form of a quarterly report or regular interactions with the head of the Metropolitan Police, other chief constables and the head of the security services is a matter for consideration, but there should be some hands-on authority by the Home Secretary and regular interest in deployments in politically sensitive areas.
Baroness Williams of Trafford (Con)
It was very good for us to have a chat the other day because we could discuss things that clearly we cannot discuss on the Floor of the House. I completely understood the sensitivity between some very nuanced situations and the purely operational role of the deployment of CHIS for criminal conduct. I will most certainly go back and put those points. Again, I thank the noble Lord for the time he took to discuss his concerns with me.
Lord Dubs (Lab) [V]
My Lords, the Minister has already been congratulated on her mastery of the detail. I congratulate her also on her physical and intellectual stamina. It has been quite a tour de force, particularly as I know what other business she has this week and on most days.
As someone who has had no security experience, I have found this a fascinating debate. I had very limited experience when I was a Minister in Northern Ireland. When I first got there, we had to sign extensions to hold people in detention under the terrorism legislation, although that was quickly handed over to judges. That was my primary direct experience, but it gave me an understanding of the security situation in Northern Ireland before and after the ceasefire. However, I bow to the greater experience of those who have strong security experience and indeed those who have strong experience of having—[Inaudible.].
I still believe that there is quite a strong thread of support in the debate for prior judicial authorisation. The “prior” bit has not really been hit on the head, despite the merits of some of the other arguments relating to other amendments. In the circumstances, and without my going through all the arguments—it is much too late for that—I would like to test the opinion of the House.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 6 and I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment or anything else in this group to a Division must make that clear in debate.
Amendment 6
Baroness Hamwee
Member’s explanatory statement
This amendment would insert a requirement that belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be
“proportionate to what is sought to be achieved”
and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.
The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.
Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.
I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.
In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,
“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]
Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that
“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”
The noble and learned Lord told the Committee that new Section 29B was
“drafted to align with the existing Section 29”,
and that the amendment would
“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.]
it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.
The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.
Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be
“relied upon for as short a duration as possible.”
The power should remain “operationally workable”; I think four months fulfils that.
The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.
To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.
Lord Anderson of Ipswich (CB) [V]
My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.
The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.
In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that
“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”
A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.
This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.
These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.
Lord Thomas of Cwmgiedd (CB) [V]
I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.
Baroness Chakrabarti (Lab) [V]
My Lords, the request here is very modest and I am sure that the Minister will want to accept the word “reasonable” into the belief required of those authorising this criminal conduct. It must be an objective test. Let us remember that this is about the authorisation, not about a person acting in the moment subject to an authorisation. This is about the calm, rational mind that we are supposed to trust in who is authorising this on the basis that it is necessary and proportionate. It is an incredibly modest request.
In his eloquent remarks, the noble Lord, Lord Anderson of Ipswich, points out, very importantly, the distinction between a code of practice and hard, statutory law. Codes of practice have been prayed in aid, not least by the noble Lord, Lord Carlile of Berriew, who will follow me. Codes of practice are no substitute for the statute itself, particularly if they are using language such as “it is expected.” I urge the Minister to accept the word “reasonable”; it does no violence whatever to her stated policy and scheme.
The four months proposed in Amendment 18 seems very uncontroversial, too. Surely, an authorisation of this gravity should not be sitting around to be employed and activated after many months or years. I shall leave it at that.
Lord Carlile of Berriew (CB) [V]
My Lords, on the narrow point just made very clearly by the noble Baroness, Lady Chakrabarti, I would question the way in which she diminishes the importance of codes of practice, which have the force of law. One example of a code of practice that has had the most incredible effect on the fairness of trials is Code C under the Police and Criminal Evidence Act 1984, which in many ways has been the formidable weapon in the hands of the defence advocate, and sometimes in the hands of the prosecution advocate too, to ensure that justice is done.
That said, I have no objection whatever to what is intended by Amendments 6 and 36. I suspect that the Minister would want to refer to the code, at least generally, which is peppered with words such as “reasonable”, “proportionate”, et cetera, and would say that reasonableness is imported in any event. However, I agree with the view that in a Bill of this kind, adding the word “reasonable” into the statute as suggested may be comforting and safe, and will make it a better statute.
I disagree with Amendment 18, which is in this group, and a time limit of four months. Running a CHIS is often very arduous and complicated, and many CHIS are run for much, much longer than four months. The noble Lord, Lord McCrea, in an earlier part of this evening’s debate, referred to the information that was obtained concerning the Real IRA, as it was called, which led to the conviction of a number of its operatives. I do not know anything about the facts of that case, but I suspect that in an operation of that kind, many CHIS were run for long periods, and for very good reasons. As the noble Baroness, Lady Manningham-Buller, said very eloquently, those who are running the CHIS are, in any event, these days, doing an extremely good job in great difficulty, and we do not want to add to their bureaucratic burden; they and their CHIS have great difficulties to face. They do not want to be faced with the necessity of reapplying every four months; it is just far too short a period.
Lord Thomas of Gresford (LD) [V]
My Lords, I have little to add to what has gone before. I often wonder whether the Government are concerned about judicial review when they resist placing the test of a decision on a reasonable basis in any legislation. If the test in any case is simply the subjective belief of the official—the government agent involved—it might be hoped that a trip to the divisional court and an application for judicial review would be avoided. The noble Lord, Lord Anderson, did indeed refer to public law tests. The Wednesbury test of reasonableness is now more than 70 years old and it is sometimes forgotten that it was the local picture house that took the town’s corporation to court because the licence it gave prevented children under 15 attending the cinema on a Sunday, whether accompanied by an adult or not—one’s mind flips back to the dim and distant past. That was the factual basis of a very important principle of law.
When considering reasonableness in this context, there are two limbs. In the context the House is discussing, the question would be whether the authoriser had taken into account all the wider implications of the authorisation, including its effect on prospective victims of the crime being committed. He would obviously have to follow the code, which, as the noble Lord, Lord Carlile, has just said, is peppered with instructions, having the force of law, to act reasonably. If the authorisers get beyond the first limb of the test, the second limb is whether the decision they have taken is so outrageous and irrational that, as Lord Diplock put it in a later case, it is
“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
Needless to say, cases challenging a decision tend to succeed on the first limb, but I do not see why we have to go to that position. I have been trying to check Hansard, but I think that the Minister referred, in reply to the first group of amendments today, to the decision being reasonable. I cannot see any reason why it would not be reasonable to put “reasonable” on the face of the Bill. I support these amendments.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady McIntosh of Pickering, has withdrawn. I call the noble Lord, Lord Rosser.
Lord Rosser (Lab) [V]
Before I comment on these amendments, I am told that there was a tweet earlier today from the Commons Minister on this Bill, James Brokenshire, saying that he has had a recurrence of a tumour in part of his lung and that he is taking leave for curative surgery. I am sure that I am not alone in wanting to extend best wishes to him for a full recovery.
I will be brief, because everything that needs to be said on Amendment 6 has already been said. It requires a person authorising a criminal conduct authorisation to reasonably believe that the tests for authorisation are met and are necessary and proportionate. In Committee, the noble Lord, Lord Anderson of Ipswich, referred to what the Solicitor-General had said at Second Reading in the Commons, to the effect that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. As we have heard, there is wording in part of the code of practice that is not—let us say—quite as strong as the words of the Solicitor-General in the Commons.
Crucially, once again, as the noble Lord, Lord Anderson of Ipswich, said in Committee, the notion of reasonableness is completely absent from the Bill, which the courts would treat as the authoritative source. Like others, I see no reason why the Government are not prepared to put the word “reasonable” in the Bill. We certainly support Amendment 6.
Baroness Williams of Trafford (Con)
My Lords, I echo the words of the noble Lord, Lord Rosser. I heard earlier today that my right honourable friend James Brokenshire had to go in for some more surgery; I pay tribute to him. He is one of the most decent people in politics and an extraordinarily capable Minister. He has never been far from my mind this afternoon, as not only has he mentored me but we discussed and worked closely on every aspect of the Bill. I wish him a very speedy recovery.
The noble Baroness, Lady Hamwee, seeks to add an explicit requirement for an authorising officer’s belief that the conduct is both necessary and proportionate to be a reasonable one. I have already explained why the Government cannot support this proposal. In fact, the noble Lord, Lord Anderson, almost spelled out the reasons I was going to give, which are a bit of a repetition and with which I am not sure he will be entirely satisfied. However, since Committee I have updated the CHIS code of practice to make it clearer that it is expected that the belief should be a reasonable one.
I caution against an amendment seeking to include this wording in the Bill, as it would cast doubt on the test that is expected to apply to other authorisations. In particular, it could have unintended consequences for a Section 29 use and conduct authorisation under the Regulation of Investigatory Powers Act. Including the need for a reasonable belief here, creating an inconsistency in the legislation, would create uncertainty over whether the same requirement exists for the underlying Section 29 authorisation. As I mentioned earlier, as a matter of public law, a decision made subject to a discretionary power must be reasonable; that is, the decision must be rationally open to a reasonable decision-maker in possession of the facts in the case.
The noble Baroness, Lady Hamwee, has also called for the length of authorisations to be reduced from 12 months to four months, with a formal requirement for a monthly review of the authorisation. As I have said, the current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities using it.
While the code of practice is clear that an authorisation must be relied on for as short a duration as possible, and in many cases an authorisation will not last longer than four months, reducing the maximum length risks unintended consequences; for example, a shorter duration could mean that activity is rushed through in a shorter period of time, to avoid renewal or to demonstrate the value of a deployment to support a renewal. This clearly may not be the most effective or safest way of carrying out that conduct. I therefore hope that the noble Baroness is sufficiently reassured to withdraw her amendment.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, I gather that the noble and learned Lord, Lord Mackay of Clashfern, would like to speak after the Minister.
Lord Mackay of Clashfern (Con) [V]
I think there is a question of consistency; if in one statute you have the word “reasonable”, while in other statutes of similar import you do not, that tends to create a difficulty. The statement the Minister made, that it is part of being a statement of this kind in an Act that the belief must be reasonable, is a reasonable explanation for not having it here.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
Does the Minister wish to reply?
Baroness Williams of Trafford (Con)
I will use the opportunity because the noble Lord, Lord Carlile, talked about the codes of practice, as he has done consistently; I would just like to raise those again.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
I now call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I am sorry to hear the news about James Brokenshire, whom I have known for a very long time. If the Minister is able, I hope she will pass on our best wishes to him.
She said that we would cause uncertainty about Section 29 and referred to a rational basis for decisions. That seems to suggest that we would never need to use the word “reasonable”, but it is used both in codes of practice and in statutes. I am grateful to the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas. The House is very lucky to have their expertise, and their clear explanations of the importance of what looks like a small amendment but is actually rather significant, based on how these things are applied by the courts.
The statutory code of practice—I accept that it is statutory—is indeed peppered with the term “reasonable”. It is also peppered with the terms “necessary” and “proportionate”, and of course they will be in the Act when the Bill becomes one. However, to say that something is expected—that it is expected that there should be a reasonable belief—reduces the value of what is in the code of practice.
On Amendment 18, briefly, the four months are extendable; it is late, however, and I do not want to go much further with that. However, I do want to come back to Amendment 6. We have not heard an adequate explanation of the Government’s resistance to this, if I may put it that way. I would like to test the opinion of the House.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 7. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
Amendment 7
Lord Paddick
Member’s explanatory statement
This amendment will limit the crime whose prevention or detection is the basis of a criminal conduct authorisation to serious crime.
Lord Paddick (LD) [V]
My Lords, in moving Amendment 7, I will speak also to Amendments 8, 9 and 10 in my name and that of my noble friend Lady Hamwee, and Amendment 11 in the name of the noble Baroness, Lady Chakrabarti.
The primary force of this Bill comes from inserting a new clause into the Regulation of Investigatory Powers Act 2000. Section 5 of the Regulation of Investigatory Powers Act 2000 deals with the interception of communication warrants that have to be issued by a Secretary of State. It states that the Secretary of State shall not issue an interception warrant unless she believes it is necessary, and it goes on to define “necessary” in subsection (3):
“Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—(a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; (c) for the purpose of safeguarding the economic well-being of the United Kingdom”.
There is a paragraph (d), but it is not relevant today. This definition of “necessary” appears at other places in the 2000 Act, including Section 32, on the “Authorisation of intrusive surveillance”.
Section 81 deals with general interpretations and subsection (3) sets out the tests, either of which need to be satisfied if a crime is to be considered a “serious” crime, and they are:
“(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.”
In previous groups, we have set out why we believe covert human intelligence sources committing crimes is more serious than other forms of intrusive surveillance. Agents or informants are difficult to pull out of a situation if it suddenly changes, whereas listening devices can be switched off. Agents or informants are often placed at continuing personal risk in a way that technicians deploying listening devices are not. Listening devices are deployed against serious criminals, but innocent bystanders are more likely to be caught up in the criminal activity of agents or informants.
The list goes on, and yet this Bill allows criminal conduct authorisations to be granted in order to tackle any sort of crime and any level of disorder. Of course, CCAs have to be necessary and proportionate, but so does the deployment of listening devices, the interception of communication and the interference of equipment as set out in the other parts of the Regulation of Investigatory Powers Act 2000. But in those cases, in addition to being necessary and proportionate, they also have to target “serious” crime.
The Government make great play of the fact that these new provisions should be consistent with existing provisions in this area. In that case, they should agree to our Amendments 7 and 10, which limit the granting of criminal conduct authorisations to serious crime as defined by the 2000 Act. Preventing disorder is not mentioned in any of the existing provisions of the 2000 Act. We believe that a clear distinction needs to be made between, say, lawful protests, marches and demonstrations, and serious disorder. Our Amendment 8 seeks to achieve this.
Amendment 9 takes a slightly different approach, as things have moved on from when the 2000 Act was drafted. The issue of the interests of the economic well-being of the United Kingdom has been considered by this House more recently. In the Investigatory Powers Act 2016, in various places—including subsection (2)(c) of Section 20, which deals with the grounds on which targeted interception warrants are granted—the necessary grounds include it being
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
The same definition applies to obtaining communications data, bulk interception warrants, bulk equipment interference warrants and, in fact, every provision for the granting of authorisations in the 2016 Act.
This House considered the same issue in relation to the powers granted to border security officers to stop, question and detain under the Counter-Terrorism and Border Security Act 2019. Under part 1 of Schedule 3, an “act” is defined in paragraph 1(6) as hostile if, among other things, it
“threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security”.
The same definition, including the additional phrase
“in a way relevant to the interests of national security”,
appears in relation to the power to make and retain copies of articles.
We had exactly the same discussions when it came to those Bills, which post-date the 2000 Act, as we are having now: that the economic well-being of the United Kingdom needs to be qualified to include where that is relevant to the interests of national security. In relation to the 2016 and 2019 Acts, the Government accepted those arguments and changed the legislation. In case the Minister raises it, the definition of “serious” crime in the 2016 and 2019 Acts is almost identical to that in the 2000 Act.
The Minister will have to come up with a convincing argument as to why this Bill is different from both the Investigatory Powers Act 2016 and the Counter-Terrorism and Border Security Act 2019. Quite clearly, consistency with the 2000 Act was not accepted as a good enough reason when it came to the 2016 and 2019 Acts. If the Minister fails to produce a compelling reason not to accept our Amendment 9, I intend to test the opinion of the House.
On Amendment 11 in the name of the noble Baroness, Lady Chakrabarti, I simply repeat what I said in Committee. For as long as I can remember, the use of an agent provocateur was explicitly prohibited in police guidance on participating informants, and yet it appears nowhere in this Bill, nor in the draft statutory codes of practice.
The only argument that the Minister came up with against this amendment in Committee was that Article 6 of the European Convention on Human Rights protects the right to a fair trial, an existing principle of English and Scottish law, and that the use of agents provocateurs could affect a fair trial. He also pointed out that Section 78 of the Police and Criminal Evidence Act 1984 allows a court to consider and exclude such evidence. However, as the noble Baroness, Lady Chakrabarti, convincingly responded to the Minister in Committee, agents provocateurs may be used in circumstances where there is no trial. For example, agents provocateurs may provoke a legitimate organisation to do or say something that undermines its credibility in the eyes of the public, short of a criminal offence, or they may provoke criminal offences that would otherwise not have been committed where no one is arrested or charged. The Government’s argument appears to be that agents provocateurs are acceptable provided that no one faces trial.
Amendment 11 is necessary, and we will support it if the noble Baroness divides the House. I beg to move Amendment 7.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to the noble Lord, Lord Paddick, for putting the argument for my Amendment 11, which is supported by him and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb. I intend to press that amendment.
Forgive me, but I am not being rhetorical here: I do not think this amendment should be controversial in substance. I think the only difference between the Minister and me on this issue will be on whether the amendment is necessary to deliver my intention or whether the protection already exists in the legislation.
I shall briefly make the argument to the Minister. One of the grounds for authorising criminal conduct in what will become Section 29B is
“in the interests of the economic well-being of the United Kingdom”.
We have just said that that belief must now be reasonable. Let us say that I work for one of the security agencies or indeed a police force, and I take the view that a particular environmental movement proposes the most extreme measures in the fight against climate change and that the agenda promoted by this organisation—perhaps not today but in five years’ time—is so extreme a green position that it will severely damage the economic interests of the United Kingdom. I also perhaps believe that, while that movement is yet to become extreme in its direct action, that may well happen in future, and I believe that it is in the economic and possibly even the national security interests of the United Kingdom to head this movement off at the pass and discredit it in the public eye before the damage is done.
Therefore I authorise an agent—a CHIS—to commit crime, not because it is necessary to keep their cover but to discredit the organisation, which to date has not been involved in violence or anything that is actually criminal. As the noble Lord, Lord Paddick, put it, I then authorise a crime. The agent commits a crime, and the undercover agent is the only person in that group who has committed a crime, but the crime has such consequences that it discredits that peaceful protest movement in the eyes of the media, the public and the Government. It possibly justifies if not a criminal prosecution then perhaps the banning of that organisation. Article 6, and criminal court rules against entrapment and so on, will not help because there is no trial.
It seems to me that currently in the Bill there is nothing to prevent an agent provocateur who is used to incriminate peaceful protest. This is not an academic issue; it is an issue of grave concern to trade unions, the environmental movement, the Black Lives Matter movement and others involved in peaceful dissent. This has been a problem in our country and elsewhere in the world throughout the history of peaceful protest, so I urge the Minister to consider accepting the amendment. It would do no violence to the stated intentions of her policy or the legislative scheme that she is intending to pass.
Finally, I echo the kind words of my noble friend Lord Rosser towards James Brokenshire, who may be in the other House but whom I have experience of being in very heated debates with for the media. He is a kind and gentle man worthy of this House who could teach a lot of us a few things about tone and civility. I am sure that I join the whole House, remote and present, in sending thoughts and prayers and every possible good wish for his speedy and complete recovery.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady Ritchie of Downpatrick, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP)
It is a pleasure to follow the noble Baroness, Lady Chakrabarti. She mentioned complacency in the speeches of a few noble Lords, and it seems that people are missing the point of the measures in this Bill. The Government make a great play of “This is all to catch paedophiles and terrorists”, whom obviously we all want to catch, but they ignore the human rights legislation that will inevitably be transgressed. We know the long history of abuses by undercover police, and the thought that humans can change is absolutely ludicrous, in the sense that human nature will always involve a group of people who think that they can get away with doing things that the rest of us should not. I am afraid that in the past officers have been allowed unlawfully by senior officers to do things, and this does not mean that they will not do it again: they will do it again. For example, the undercover inquiry has taken years to reach a point at which there is a judge in control—one who, I would argue, is not doing a very good job. The progress is incredibly slow and survivors of this sort of abuse should not have to wait so long for justice.
This group contains important amendments on two issues: ensuring that these powers are used only against serious offending and ensuring that they are not used to encourage offending. I have signed only one amendment in this group, but they are all sound. I wish that I could trust the Government and the authorities enough to make Amendment 11 an absurdity, but history shows that this state can and does misuse power in order to undermine and stifle dissent and opposition. The face of the Bill should make clear beyond any doubt that agent provocateur conduct is illegal and can never be authorised, otherwise we can be sure that sooner or later this power will be used for that purpose.
Lord West of Spithead (Lab) [V]
My Lords, I join in passing best wishes on to James Brokenshire. The noble Baroness, Lady Chakrabarti, talked about the calmness of debate with him. We have been talking now for some hours on an issue which a lot of us feel very strongly about in all sorts of directions, and it is rather good that it is carried out in such a sane and balanced way, with people putting very strong points of view without storming buildings—but enough of that.
I wish to speak to Amendments 8, 9 and 11. These would impose limits, albeit somewhat vague ones, on the types of criminal conduct and activity that could be authorised. The Intelligence and Security Committee supports the Government’s decision not to place limits on criminal conduct or on the activity which can be authorised on the face of the Bill, as this would undermine the effectiveness of future operations and put agents’ lives at risk.
It is unsurprising that there is speculation about the more serious forms of criminality and calls for curbs to the power and for limits to be put in the Bill—I understand that. However, there are clearly concerns, and the committee strongly supports the Government’s decision not to put them in the Bill—although, of course, this places an even greater emphasis on the need for robust safeguards, which we were talking about and voting on earlier this evening.
As a member of the ISC, I can offer some reassurance by saying that we have had full briefings on how MI5, for example, uses these authorisations at a very secure, secretive level, and we are reassured and satisfied that it uses them appropriately. I can also point to the European Convention on Human Rights: all public authorities, including those covered by this Bill, are bound by the Human Rights Act, which commits them to adhere to the ECHR, which includes the right to life and the prohibition of torture. The Bill is clear that all authorisations will be compliant with the ECHR and that the activity being authorised will be “necessary” and “proportionate” to the criminality it is seeking to prevent. On that basis, I will vote against the amendment.
Lord Beith (LD) [V]
My Lords, I add my thoughts for James Brokenshire, who was a member of the Justice Committee when I chaired it; I respect him and hold him in the highest regard, and I wish him well, as others have.
It is pleasure to follow the noble Lord, Lord West; I recall taking evidence from him when I was a member of the Intelligence and Security Committee. Now that he has gone from poacher to gamekeeper, I hope he is applying similar zeal to the scrutiny and examination of these very issues. I hope that the ISC will take a continuing interest in this legislation when it is on the statute book.
During my time on the Intelligence and Security Committee, I was concerned about the unspecific and broad nature of the “economic well-being” justification as a basis for approving various forms of action. Of course, that was in relation to intrusive surveillance powers, not the sanctioning of criminal acts, which we are discussing today; indeed, since that time, the economic well-being justification has been qualified in the same terms as those which Amendment 9 uses.
I raised my concerns in Committee on 3 December, and they echo the concerns expressed by the Constitution Committee, of which I am a member, in its report on the Bill. It was disappointing that, on 3 December, the Minister’s reply did not answer or even refer to the concerns I had raised. She had had a long day, and she has had an even longer one today, but I hope that I can provoke her to make some things clearer.
In that debate, I said that there are obviously threats to the economic well-being of the United Kingdom that are as serious as physical threats to that security. I included
“action by a hostile state or a terrorist ... group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems”—[Official Report, 3/12/20; col. 870.]
as well as government communications and many forms of cyberattack.
I will suggest three other areas which might involve action by hostile states or extremists and might be candidates for authorisation. I do this simply to illustrate how broad the concept of economic well-being is. The current pandemic is, undoubtedly, a threat to the economic well-being of the United Kingdom. Could there be a future pandemic situation in which we believed that the reckless behaviour of other countries or deliberate action by extremists was making the spread of the pandemic significantly more dangerous? Would that qualify if some form of participation by an agent or human intelligence source seemed likely to help us fight the threat? I think it probably would.
I will give another example. The way the Brexit future relationship agreement is implemented could certainly affect the economic well-being of the United Kingdom. Could that justify deploying intelligence resources, including covert human intelligence, involving themselves in criminal acts? That is not quite so clear.
I offer a third example—that of a major overseas defence and civil engineering contract, affecting perhaps as many as 10,000 jobs in Britain, where there are fears of bribery, corruption and money-laundering, and of those distorting the outcome. What if a different British company is involved in the rival bid for this contract—these bids normally come from consortia involving companies from several countries—and that company considers that it would be very adversely affected by action which might have been begun by someone qualified through this legislation? The economic well-being justification is clearly not a simple matter in such a situation.
I am not asking the Minister to comment on those three hypothetical examples individually. What I want her to consider is, first, whether the economic well-being justification should be so broad. Secondly, if it is not to be qualified by reference to national security, as Amendment 9 in the name of my noble friend Lord Paddick requires, how else can we be confident that it is not inappropriately used? The use of this justification for serious criminal action has not really been the subject of much ministerial comment, and its scope will depend heavily on how future CCAs will be viewed in retrospect by the Investigatory Powers Tribunal and by the commissioners. This approach does not give us much confidence that applications to authorise criminal conduct in relation to economic well-being issues will be considered by authorising officers against a well-understood test of what is justifiable. We have to bear in mind that these authorising officers are in a wide variety of organisations, some of which have long experience of intelligence work and some a great deal less.
The Constitution Committee said in its report:
“While we recognise that threats to the ‘economic well-being of the United Kingdom’ may justify a security response, we are concerned about the use of such a broad concept to authorise serious criminal conduct. The House may wish to consider whether the authorisation of criminal conduct should require more specific justification than a general invocation of the need to protect economic well-being.”
That is what we are doing in this short debate tonight. I would like to hear a clear statement from the Minister on how we might establish clear principles against which to test whether authorising criminal action under so broad and vague a headline as “economic well-being” will, in any future instance, be proportionate and justifiable. Would it need to be a threat to economic well-being of a kind that would, in effect, be a threat to the security of the United Kingdom? That is really what the amendment suggests.
Lord Carlile of Berriew (CB) [V]
My Lords, I join in the good wishes to James Brokenshire. He has been a superb Minister over many years and never appears to be partisan, whatever he feels inside. He is one of the best listeners among Ministers I have ever seen. He has played a very important part in some significant policy areas, so we hope that he will be much better soon and back in a very senior position.
It is always an enormous personal pleasure for me to follow the noble Lord, Lord Beith. I have admired him in politics for decades. He is one of the best parliamentary debaters that we have, as he has illustrated in the last few minutes.
I want to speak on Amendments 9 and 11. Like the noble Lord, Lord Beith, I was looking for examples and thought I would ask myself whether I had done any cases as a QC that involved serious economic crime that did not fall within the realms of national security, or clearly so. I was immediately able to think of two examples. One was a money-counterfeiting case in which a ring of forgers was forging very substantial quantities of notes, many of which passed into currency circulation. The other was a fraud relating to the activities of the London Metal Exchange in which over £1 billion-worth of fraud was committed by the simple task of forging bills of lading that referred to metals passing around the world, when the only ones that were really passing around the world were a few containers of pig iron—not the much more valuable metals referred to on the forged bills of lading.
Neither of those cases, obviously, would have any direct relevance to or interest in national security, but they are undoubtedly very serious crimes. I do not know, for I was the defence counsel in both those cases, whether any CHIS were involved in those cases, but it would not surprise me if they were, because there were obvious parts that they could have played. It seems to me that the use of CHIS in those circumstances of economic crime is entirely legitimate and that Amendment 9 is therefore inappropriate and too limiting.
Lord Judd (Lab) [V]
My Lords, I am associated with Amendment 7 and shall speak in support of my noble friend Lady Chakrabarti’s amendment on agents provocateurs. I am one of those who believes that however much, from an idealistic position, a Bill such as this should be unnecessary, in the reality of the world, what the Bill covers is desperately needed. That is why I am convinced that we should not inadvertently get into a position in which we are undermining public understanding and goodwill towards the need for the Bill and for those who courageously do the work to which we are referring.
I am therefore certain that Amendment 7 is highly relevant. I have already spoken on a previous group about the word “serious”. We must not let this become seen as a convenient system at the disposal of the security services, and the rest. The gravity and seriousness of the work when it is necessary must be free from such misunderstandings and from having created situations in which people’s anxieties can be exploited by those with whom we have nothing in common. Believe you me, there are people who are determined to exploit every opening to try to disprove the validity of the Bill and what it is about. For that reason, I believe it is not superficial to insist on the word “serious”. It is extremely serious because it is key to keeping the maximum positive attitude.
On the amendment in the name of my noble friend Lady Chakrabarti, in the same way, we need to be very careful about counterproductivity. I cannot think of anything much more easily exploited for stirring up doubt and anxiety about what the security services are about and why legislation of this sort is necessary than to prevaricate on an issue such as agents provocateurs. It is all right to say “Well, it’s covered in other aspects of the Bill”; it may well be, but I believe that the concept of agents provocateurs and the counter-productivity if misused makes it absolutely essential that we spell out that the activity of agents provocateurs is just not acceptable. The more we underline that, the better.
I am therefore firmly with my noble friend Lady Chakrabarti on this, and some of my colleagues who have carried responsibilities in this sphere and who see this from an administrative and top-down point of view have to understand the dynamics which are there in society and which work to undermine what they seek to achieve on our behalf. From that standpoint, the amendment is necessary and highly relevant.
Lord King of Bridgwater (Con) [V]
My Lords, I join so many noble Lords in paying a warm tribute to James Brokenshire and sending our best wishes to him. It is very sad to hear the news. I hope for a good and speedy recovery and to hear better news shortly.
My approach to these amendments is already pretty clear because we are setting up a completely new system. It is now on a statutory basis and has a new and I think generally respected code of practice. It has to report through the judicial commissioner and then the Investigatory Powers Commissioner, to the Prime Minister and Parliament, and to try at this stage to put in all sorts of qualifications seems quite unnecessary.
Take the issue about adding “serious” to “crime”: it seems that in many cases when the police first get some source—some possible informer—they may not be at all clear how serious the crime may be. However, I think we would all feel pretty silly if later on, when very serious crimes were reviewed, they said, “We knew about that, but because we couldn’t tell how serious it was going to be at that time, we never took any action.” That would be pretty unforgivable. Therefore, I do not support adding “serious” to these issues.
I will not say any more about how the issue of economic well-being is linked to national security, as the noble Lord, Lord Carlile, covered the point admirably. There is no question that many things could happen, as the noble Lord, Lord Beith, addressed; he is a former member of the ISC, who took evidence with me. And the noble Lord, Lord West—poacher turned gamekeeper that he is—said that we now see a situation in which many extremely serious things could affect economic well-being. That could involve perhaps many people losing their jobs and significantly higher unemployment, but you could not claim that that is linked to national security.
With the confusions and uncertainties of the world at present, the cyberattacks and the data war that is going on, I would not wish to qualify, limit or restrict a properly set up and statutorily approved new system with too many qualifications, which may limit the effectiveness of its vital work.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this is the first time I have spoken on the Bill on Report. First, I join others in sending my best wishes to James Brokenshire. I do not know Mr Brokenshire very well, but I dealt with him when he was Secretary of State for Housing, Communities and Local Government, and he was always very fair. I wish him well in his treatment and send him my best wishes, as other noble Lords have done.
Amendments 7, 8, 9 and 10 in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I will comment on these first and then come to Amendment 11, proposed by my noble friend Lady Chakrabarti, along with the noble Lord, Lord Paddick, the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Ritchie of Downpatrick.
All issues in this group of amendments were discussed in Committee, on 3 December last year. Amendments 7 and 8 would insert the word “serious” after the words “detecting” and “preventing” in the Bill, thereby seeking to limit the use of a criminal conduct authorisation. I see the point that the noble Lord, Lord Paddick, is making and, while I have some sympathy with him, I am not convinced that these amendments are necessary.
Of course all authorisations must be necessary and proportionate, but, on reading through the revised code of practice, I thought it contained enough protection to render these amendments unnecessary, as I said earlier. On looking through the code, I saw one very important paragraph, which I read carefully. It said:
“The authorisation … will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render the use or conduct of a CHIS proportionate. Similarly, an offence may be so minor that any deployment of a CHIS would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”
That is fairly clear.
If votes are called on either of these two amendments, these Benches will not support them. I take a similar view that Amendment 10 is not necessary for the same reason. It is important to enable public authorities to have a reasonable suite of tools available to prevent crime and seek justice for victims.
When we discussed these matters before, the noble Baroness, Lady Williams of Trafford, used the example of out-of-date food being sold and consumed. On one level, you could ask what the big issue with a few dates is, but the reality is that it could lead to serious public health implications, with people consuming food that is not fit to be consumed by humans, leading to serious illness and even death, in certain circumstances. I can see circumstances in which, information having been assessed carefully using the guidance of the code, a CHIS would quite rightly be deployed. This is all about balance and proportionality, and I think we are probably in the right place.
Amendment 9 seeks to restrict issues around economic well-being to those linked to national security. The noble Lord, Lord Paddick, said that he intends to test the opinion of the House if he is not satisfied with the Government’s response. I again tell the noble Lord that these Benches will not support him if he does. I have reservations about this amendment, which could unintentionally prevent a CHIS being deployed on some crimes where their deployment would otherwise be reasonable, proportionate and necessary. That could be to the detriment of our economic well-being as a country, if other tests have been met. This issue was discussed at length in Committee.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords in this group who have paid their respects and tributes to my right honourable friend James Brokenshire. I will ensure that he gets all the comments in the form of a consolidated Hansard, so that he can see what kind things people have been saying about him.
I reassure noble Lords that the decisions taken when drafting this Bill have been informed by the input of operational partners. This includes the circumstances where it is necessary to authorise a CHIS to participate in criminal conduct to ultimately ensure that we can prevent terrorism, crime and harm to the public.
However, we have been robust in ensuring the power is only as broad as it is truly necessary to be. For that reason, we have restricted the public authorities able to authorise a CCA from those able to authorise a CHIS more broadly. It is also for that reason that we have reduced the statutory purposes for which a criminal conduct authorisation can be granted from the six that are available for a Section 29 CHIS use and conduct authorisation under RIPA. The remaining purposes have been included because there is operational evidence that they are required to keep us safe. I gave examples for each purpose in Committee and I am not going to repeat them all here, but I will highlight the impact this might have of the daily lives of the public.
The noble Lord, Lord Carlile, has given two examples. Another example, which the noble Lord, Lord Kennedy, alluded to is food crime—such as the extension of meat durability dates leading to out-of-date food being consumed. It is damaging and, as he said, it can be dangerous to public health, but it might not meet the serious crime threshold. I again offer reassurance, particularly to the noble Lord, Lord Beith, that the necessity and proportionality requirements apply for all authorisations. Activity could not be authorised if it was more serious than the activity it seeks to prevent and that is the test.
The noble Lord, Lord Kennedy, asked me about other forms of legitimate activity. Normal trade union activity would of course be perfectly outwith the test that I have just outlined.
I understand that the intention behind Amendment 11 is to prevent CHIS being authorised to act as agents provocateurs. However, the amendment as drafted goes much broader than that. It seeks to prohibit any CHIS from being authorised to encourage or assist in the commission of any offence. That would impose broad and clearly unintended constraints on criminal conduct authorisations.
I sought to provide reassurance on the issue of agents provocateurs in Committee, where I stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. But perhaps I can be even clearer: CHIS cannot be used to entrap people in crimes in the manner suggested. Article 6 of the ECHR, which protects the right to a fair trial, prevents this happening. I also point noble Lords to the publicly available Undercover Policing: Authorised Professional Practice, which states in very clear terms that an undercover officer must not act as an agent provocateur. I understand that noble Lords may wish to test the opinion of the House, but I hope I have provided the necessary reassurance on this point.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I have received two requests to ask short questions, from the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Chakrabarti. I call the noble and learned Lord, Lord Mackay of Clashfern.
Okay—there is no Lord Mackay, so I call the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab) [V]
I am grateful to the Minister for her comments, but I fear that she has misread Amendment 11. It does not ban CHIS from encouraging or assisting crime, because of course they would have to do that very commonly as part of keeping their cover. If one looks at Amendment 11, one sees that it is about an authorisation, which cannot be
“for the primary purpose of … encouraging”
crime or “otherwise seeking to discredit” an organisation —that is, an organisation that is not actually committing crime in the first place. Of course, Article 6 will not help if there is no prosecution and trial, so I have yet to see a safeguard against agents provocateurs.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
Does the Minister wish to reply? No? Okay—I call the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
My Lords, I thank all noble Lords for their contributions, but, first, I send my best wishes to the right honourable James Brokenshire. James and I have known each other for a very long time—since my policing days—and he is such a lovely guy. I really hope that he recovers completely from the terrible situation that he is in.
I particularly thank the noble Baroness, Lady Jones of Moulsecoomb, my noble friend Lord Beith and the noble Lord, Lord Judd, for their support. The noble Lord, Lord West of Spithead, gave no reason why the ISC did not want these powers limited to serious crime, when so many other aspects of the Regulation of Investigatory Powers Act are limited to serious crime, and arguably this is more serious than those powers.
I was a little confused by the noble Lord, Lord Carlile of Berriew, who gave two examples of very serious criminal offences, which are of course covered by those aspects of the power that refer to the prevention and detection of crime. We are talking here about something that has an impact on the economic well-being of the UK that is not a crime, because if it was a crime it would be covered by that other aspect. I am sure that they were very important cases, but they were cases of crime, not simply impacting the economic well-being of the United Kingdom.
It sounded as though the noble Lord, Lord King of Bridgwater, was talking about the deployment of covert human intelligence sources, rather than authorising those CHIS to commit crime. I do not understand this from what anyone has said, including the Minister: if something threatens the economic well-being of the UK but is not a crime—if it was it would be covered by one of the criteria of preventing or detecting crime—how can it be necessary and proportionate, unless it also involves an issue of national security, to authorise somebody to commit a crime to deal with something that is not a crime?
On that basis, because there has not been a satisfactory response, I wish to test the opinion of the House on Amendment 9. In the meantime, I beg leave to withdraw Amendment 7.
Lord Paddick
Member’s explanatory statement
This would allow a criminal conduct authorisation to be granted on economic grounds only if it is also relevant to the interests of national security, reflecting equivalent provisions in the Investigatory Powers Act 2016 and the Counter-Terrorism and Border Security Act 2019.
(d) is not carried out for the primary purpose of— (i) encouraging or assisting, pursuant to sections 44 to 49 of the Serious Crime Act 2007, the commission of an offence by, or(ii) otherwise seeking to discredit,the person, people or group subject to the authorised surveillance operation.”Member’s explanatory statement
This amendment would prohibit the authorisation of criminal conduct where the covert human intelligence source acts as an agent provocateur.
Baroness Chakrabarti (Lab) [V]
My Lords, as I indicated earlier, I would like to test the opinion of the House on this amendment. I beg to move.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Wednesday 13th January 2021
(3 years, 11 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-R-II(Rev) Revised second marshalled list for Report - (11 Jan 2021)
17:57 - Division conducted remotely on Amendment 15 - Ayes: 299 / Noes: 284 - Amendment 15 agreed.
18:12 - Division conducted remotely on Amendment 17 - Ayes: 259 / Noes: 283 - Amendment 17 disagreed.
18:25 - Division conducted remotely on Amendment 22 - Ayes: 331 / Noes: 240 - Amendment 22 agreed.
18:38 - Division conducted remotely on Amendment 24 - Ayes: 339 / Noes: 235 - Amendment 24 agreed.
19:41 - Division conducted remotely on Amendment 34 (to Amendment 33) - Ayes: 298 / Noes: 259 - Amendment 34 (to Amendment 33) agreed.
20:21 - Division conducted remotely on Amendment 42 - Ayes: 262 / Noes: 269 - Amendment 42 disagreed.
Lord Young of Cookham
“( ) A criminal conduct authorisation may not be granted to a covert human intelligence source under the age of 18.”Member’s explanatory statement
This amendment would prohibit the granting of criminal conduct authorisations to children.
Lord Young of Cookham (Con)
My Lords, in moving Amendment 12, which seeks to prohibit the granting of criminal conduct authorisations to children, I wish to speak to Amendment 13, which does the same for vulnerable adults and victims of trafficking. These amendments build on proposals from me and other noble Lords in Committee. I will then say a brief word about Amendment 24 in the name of the noble Baroness, Lady Kidron, to which I have added my name. It does not offer all the protection of my amendments, but it is a useful advance on where we are at the moment and may provide the basis for consensus. The arguments for Amendments 12 and 13 apply with equal force to Amendment 24.
Let me begin by thanking Ministers for the extensive discussions between Committee and Report, and for facilitating a presentation by those in the Met Police who are at the operational end of the policy and a briefing with IPCO. Both were helpful in getting an insight into the reasons for using underage CHIS and the way the regime is supervised. I am also grateful to my noble friend the Minister for recognising the concerns expressed by me and others in Committee, and for tabling amendments with additional safeguards. As always, she has gone the extra mile to try to reach a compromise; it sounds churlish against that background to say that I still believe it wrong to use children.
Let me briefly summarise the argument for banning the use of children as CHIS—a reform whose time will surely come, when what happens now will be regarded as Dickensian. First, we have the clearly stated view of the Children’s Commissioner, who has a statutory role to advance and monitor the UN Convention on the Rights of the Child:
“The Children’s Commissioner remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS.”
That is pretty unequivocal.
Secondly, we have the Children Act 2004. Section 11 states that public bodies, including the police and other law enforcement entities, must have
“regard to the need to safeguard and promote the welfare of children”.
This red line is embedded in our legal system. We are signatories to the United Nations Convention on the Rights of the Child, Article 3 of which provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
How can one promote the welfare of a child or act in its best interests by tasking some of the most vulnerable children in this country—some as young as 15—with infiltrating some of its most dangerous organisations and groups, including drug cartels, sex-trafficking rings and, potentially, terrorist cells? The circle cannot be squared. Either the interests of children are paramount or they are not.
Thirdly, children—often vulnerable, yet to come to terms with adulthood—are unable properly to assess the risk of what they are being asked to do, or even the extent of the mission. Those under 18 are legally children, whom Parliament has decided cannot be entrusted with a vote, get married or, indeed, buy alcohol. How can it be that a child as young as 15 can give their full and informed consent to being placed in a sexually exploitative environment, particularly given the pressures on them to do so from people in authority—and, indeed, the incentives that we have heard are being offered—from people whom they should trust and who might have been expected to save them?
Fourthly, related to that, far from encouraging children to get further entangled in criminal activities, those who have the best interests of children at heart should do precisely the opposite: disengage them from that environment at the earliest opportunity and so help them to rebuild their lives away from crime. The police should be pulling children away from criminality at every turn instead of pushing them further into the arms of serious criminals, often being asked to continue a harmful relationship, commit crimes and penetrate criminal gangs.
Fifthly—and finally—using underage CHIS is risky, as everyone recognises. However careful the authorisation, harm may come to a child. Their cover may be blown; reprisals may be taken. I make one prediction: if, tragically, an underage CHIS were to be killed, the policy would be reversed the next day after a public outcry and incredulity that this was permissible. What is proposed in the Bill is that the state should have immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism expressly to permit the harming of children, and Parliament should stop it.
In Committee, there were 14 Back-Bench speakers, a large majority supporting the amendment and others seeking greater justification for the policy before deciding. I mention one or two contributions from among the many remarkable speeches. There was the noble Lord, Lord Dubs, who, before the debate, believed that there were circumstances when the policy could be justified but, having listened to the arguments, declared himself in favour of an outright ban. There was the noble Baroness, Lady Young of Hornsey, who powerfully asked us to consider putting our own 15 or 16 year-old into the role of a CHIS. Unsurprisingly, my noble friend the Minister acknowledged that this would be very difficult indeed for her to imagine.
In her speech, my noble friend pointed to the judgment of Mr Justice Supperstone, in which he considered this very issue of children’s welfare. She also referred to it in the email that we received at 1.58 pm. Understandably, I have not time to absorb that fully, but the Supperstone case does not apply exactly to the question at hand. Because of the scope of the Bill, the amendment cannot, sadly, prohibit the tasking of children as CHIS; it can only prohibit them being granted criminal conduct authorisations. There is a difference between passively observing criminal activity, as in the judgment, and blessing in advance the commission of a crime, as in the Bill. Further, the court recognised:
“The very significant risk of physical and psychological harm to juveniles from being a CHIS in the contact of serious crimes is self-evident”.
The Bill goes above and beyond what courts have previously assessed by enlarging the scope of activity for underage CHIS.
After the debate, the Minister kindly arranged for the noble Earl, Lord Russell, and me to talk to two police officers from the Met with direct experience of handling underage CHIS. I was impressed by their determination to ensure that the law and guidance were properly followed. Records are kept, decisions and reasons are recorded, and alternatives are considered before authorisation.
I make two comments, which are not criticisms. First, once the case has been closed, there is no way that they would know if there had been any long-term impact on the child, who may by then be over 18, or what they had been through—a point well made by the noble Baroness, Lady Bull, in her speech in Committee. We know that trained police officers going undercover suffer from the consequences. Those who are underage will be even more vulnerable.
Secondly, their interpretation of whether the circumstances are so exceptional that an underage CHIS should be used comes from the perspective of the police. Their very mission is the prevention and detection of crime. Their interpretation may be different from that of, say, the Children’s Commissioner, who, as I have said, believes that there are no circumstances where this is justified. The children’s social workers or parents, none of whom have to be consulted or informed, might similarly come to a different view as to whether the circumstances warranted a CHIS. The decision is essentially a subjective one.
I am grateful to the Minister for listening to the debate and for tabling amendments; it is welcome that the Government have come forward with them. However, it is with some regret that I say that those amendments would not make a material difference to the lives of child CHIS. Indeed, they would make no difference at all to vulnerable individuals or victims of trafficking, since they are not contemplated whatever—something my Amendment 13 would put right.
Baroness Massey of Darwen (Lab) [V]
My Lords, the noble Lord, Lord Young, has spoken passionately and eloquently about protecting children, as he did in Committee. He made an excellent start to this debate.
I shall speak to Amendment 14, which prohibits the authorisation of criminal conduct by children without specific prior judicial approval. I thank the Minister for arranging for my noble friend Lord Dubs and me to meet officials in the Home Office to discuss this amendment. This was useful and informative but my concerns remain about the use of children in criminal circumstances.
The Joint Committee on Human Rights, of which I am a member, reported on the Bill last November. The government response to the report was published on Monday and makes substantial reference to criminal conduct by children, for which I am grateful. I shall refer to those reports.
I come to the Bill as someone who has worked with children—anyone under the age of 18, as defined in the UN Convention on the Rights of the Child—for many years. I am not sentimental about children, but I believe that they have rights as set out in the UNCRC— not just legal rights, although they are important, but moral and ethical rights such as protection, safety, family life and the right to be heard. Societies that nurture, cherish and attend to the total welfare of children are civilised societies. No society should endanger children. They need protection but also empowerment to take responsibility for themselves and others, and to learn to express opinions constructively. I like to think that the UK aspires to these principles of the UNCRC which it has ratified. We are fortunate in this country in having an articulate, dedicated voluntary sector for children that keeps us vigilant to their needs.
I cannot see how a child could be used to commit a criminal offence without there being a risk of danger, physical or psychological. As the noble Lord, Lord Young, said, I would prefer children not to be working as CHIS at all, but if they do we must make the situation as watertight as possible. I and other noble Lords know of cases where children have been let down and exploited by systems, and fallen through the net to physical and psychological harm, sometimes death. That must be prevented at all costs. It is why my amendment seeks high-level judicial approval before a child can take part in criminal conduct. The organisations Justice, Just for Kids Law and the Children’s Rights Alliance for England call that “meaningful safeguards”.
Amendment 24 in the name of the noble Baroness, Lady Kidron, and other noble Lords is very worthy. The noble Lord, Lord Young, referred to it as a useful advancement. I recognise also that she and her co-signatories are people who also care deeply about children’s welfare. That amendment extends additional protection not only to children but to vulnerable adults. That is important but, and this is a big “but”, it does not provide for independent judicial scrutiny of a CCA being made in respect of a child or other vulnerable person. It imposes a requirement that there should be exceptional circumstances before an authorisation is granted and makes it clear that other interests cannot be more primary than the child’s, and that it must have been determined that the child will not be in any danger of foreseeable physical or psychological harm. That amendment also makes compulsory the presence of an appropriate adult for all under-18s when meeting with the investigating authority. It requires any use of a CCA in respect of a child to be reported to the Investigatory Powers Commissioner within 18 days.
Amendment 24 meets most of the concerns of the Joint Committee on Human Rights about the welfare of children under CCAS. However, a major concern is that there is no independent decision-maker—only independent review after the event by the IPC. This system can pick up an abuse of power only when it has happened. Tough, independent assessment of whether a child should be used as a CHIS should be made before the child moves into a dangerous situation. I am sure the people working with these children are caring and professional, but this is such a serious issue for children that a judicial commissioner should look at each case and make the final decision.
I know that the Minister, speaking on different amendments on Monday, said that she could not agree with prior authorisation. I am not sure why. It may be that she can tell me more. There are not that many children in such a position—between 12 and 17 between 2015 and 2018. Undue delay would therefore be unlikely and the children’s cases would have double scrutiny, which is what they deserve, due to the seriousness of what they are being asked to do. If Amendment 24 is accepted by the House, I shall not put my amendment to the test but will suggest further action. The government amendment does not add much to what we have already heard, and we need to go further. That amendment, however, recognises that there are concerns about authorising children as CHIS and makes efforts at reconciliation, as the noble Lord, Lord Young, said.
This issue is not new. The Joint Committee on Human Rights raised concerns in 2018 and 2019 with the Minister for State for Security and Economic Crime and the Investigatory Powers Commissioner. In 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 of the European Convention on Human Rights. The court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was
“liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”
The Joint Committee on Human Rights concluded that the Bill must be amended to exclude children or to make clear that children may be authorised to commit criminal offences in only the most exceptional circumstances. I suggest that those exceptional circumstances should have independent consideration at the highest level.
The Government’s response to the JCHR report gave considerable space to discussion of these issues in relation to chapter 6 of the report. But they came up with, to me, a rather tenuous argument, stating that
“young people may have unique access to information that is important in preventing and prosecuting gang violence and terrorism. This helps remove from the cycle of crime not only the young person … but other young and vulnerable individuals caught in criminality. We should also acknowledge that by universally prohibiting the authorisation of young people to undertake criminality we are increasing the risks to them and placing them in an even more vulnerable position. If criminal gangs … know that a young person will never be authorised by the state to undertake criminality, such groups will be more likely to force young people to engage in criminality, confident in the knowledge that they could never be a CHIS”.—[Official Report, 3/12/20; cols. 937-8.]
I can see absolutely no logic in that statement.
Indeed, a former undercover police officer, with experience of being a CHIS, has said that
“Children recruited as informants are also highly likely to end up getting drawn back into criminality and feeling trapped in their situation.”
I am aware that the noble Baroness, Lady Hamwee, knows something about those situations.
A leading and highly respected child psychiatrist has said that
“the deployment of children as a CHIS could incur significant … emotional damage to the child and could in fact engender the creation of new criminals by placing them in criminogenic environments.”
This is not child protection; it is not respecting children’s rights. It is dangerous and potentially destructive. Every care must be taken, and we have a duty to see that that happens.
I have the greatest respect for the Minister and admire her common sense, sensitivity and practicality. Might I suggest that this whole operation needs to be taken away and looked at again very carefully, with an independent review? This should cover: the types of involvement by children; how children are assessed as suitable for such work; how the views of children, parents if appropriate and those accompanying children are taken into account; what psychological support is offered; and how children are assessed and supported after their involvement as CHIS, and for any long-term effects.
This may result in a recommendation not to use children in this fashion—I would welcome that—or in more stringent methods of prior independent authorisation being employed, as suggested by my amendment. The current situation in which children are used as CHIS cannot remain the same. I hope that the Minister will consider this suggestion. This issue is not going to go away; indeed, it is likely to intensify. I look forward to her comments and thank noble Lords for their time.
Baroness Kidron (CB) [V]
I speak to Amendment 24 in my name and that of the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. This sets out the safeguards and protections that should exist if we ask a child to commit a crime as a covert human intelligence source. I pay tribute to the work that many have done on this issue, including the noble Lords who support this amendment; the noble Baroness, Lady Young of Hornsey, who raised these concerns so admirably in Committee; the right reverend Prelate the Bishop of Durham, who has left us with no doubt where right lies; and my noble friend Lord Russell of Liverpool, who has taken time to go through the interlocking amendments and considerations with me.
I also acknowledge the tireless efforts of Stella Creasy MP, in bringing this issue forward in the other place, and the children’s rights advocates Just for Kids Law, which brought the court case on this matter last year. I have taken up the baton for this work at their request. As many of your Lordships know, my time, both in the House and beyond its walls, is spent as an advocate for children’s rights online and offline. I have great sympathy for the other amendments in this group, but I speak to Amendment 24 only and will make some points about government Amendment 26. I note and take to heart the words of both the noble Baroness, Lady Massey, and the noble Lord, Lord Young of Cookham; while I have their support for what I propose, it is the absolute minimum that children require and is not ideal, in their view. I declare my interests set out on the register.
Children do not all have the same circumstances. It is simply a fact that some children will not be as well-loved as others, some not as well-cared-for and some not as well-behaved. None the less, whether they are loved, cared for or well-behaved, any person under the age of 18 is a child. In a context where a person under the age of 18 is being asked to be a covert source and do something illegal, we must ensure that they remain a child in the eyes of all who play a part. In every other interaction with the criminal justice system, we try to remove children from criminal activity to take them away from harm and towards safety, but before us is legislation that formalises our ability to do the opposite.
Lord Cormack (Con) [V]
My Lords, it is a real pleasure to follow the noble Baroness, Lady Kidron. She spoke movingly, authoritatively and with passionate conviction, as did the noble Baroness, Lady Massey of Darwen, to whose amendment I added my name, and my noble friend Lord Young, who launched the debate on exactly the right note.
It was quite clear in Committee, when I tabled an amendment on this subject, that there was widespread concern in all parts of the House at the use of children. This is the single most serious aspect of the Bill. We are in fact being asked to pass into law something that in any other circumstance would be illegal. This conundrum was referred to by a number of speakers in the debates we had on Monday. Now we come to the nub of the matter.
I am grateful to my noble friend Lady Williams of Trafford for the attempt she has made with her amendment, but I agree emphatically with the noble Baroness, Lady Kidron, that it just does not go far enough. I am also grateful to my noble friend for affording me the opportunity of discussing this matter and my concerns in two hour-long meetings organised by Mr Arthur Lau in her private office. I am grateful to all those who took part. I was reassured on one or two issues. We will come to those at a later stage.
I was to some degree won over by the arguments of a senior police officer—clearly a man of unimpeachable integrity—who talked about the need to employ occasionally young people in tackling things such as county lines and sexual assault of young girls. He convinced me to some degree to table my Amendment 19, which would in exceptional circumstances allow 17 and 18 year-olds to take part as CHIS, but would draw the line at those aged 16. There are precedents for drawing the line at 16, such as the age of consent et cetera.
I am not sure whether I will put my amendment to the vote. It depends on what is said in this debate, particularly by my noble friend the Minister. There is a logic to the age of 16. It is a very sad fact that a great many crimes, many of them violent, are committed by 16 and 17 year-olds. Many of the stabbings in London and in other parts of the country have involved young people of that age and thereabouts. There is no point denying that county lines depend to a very considerable degree on the exploitation, manipulation and abuse of young people. I can see that there is a certain logic in using 16 and 17 year-olds in exceptional circumstances, much as I deplore and regret it.
However, I believe emphatically that the line has to be drawn somewhere. If it is drawn at 18 by the will of your Lordships’ House I shall be entirely content. If it is drawn at the age of 18 but with very real conditions attached, as they are in the amendment from the noble Baroness, Lady Kidron, I will be tolerably satisfied that we have made a step forward, but there is much to be said for being clear and emphatic, and for having a specific age in the Bill below 18 but not below 16 in any circumstances.
Baroness Hamwee (LD) [V]
My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.
Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.
I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.
Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.
On the one hand, we want to support and protect the people described in the amendment
“against significant harm or exploitation”.
On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.
The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.
The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.
I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.
There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.
I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.
The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.
Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.
I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.
I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.
The Lord Bishop of Durham [V]
My Lords, it is humbling to follow the passion and wisdom of the noble Baroness, Lady Chakrabarti, and the wisdom of the noble Lords, Lord Young of Cookham and Lord Cormack, and the noble Baronesses, Lady Massey of Darwen, Lady Kidron and Lady Hamwee. I associate myself strongly with the points they have made.
I speak in favour of Amendments 12 and 14, in the names of the noble Baroness, Lady Massey of Darwen, and the noble Lords, Lord Dubs and Lord Cormack, to which I have been pleased to add my name. I also speak in favour of Amendment 24, whose sponsoring group, made up of the noble Baronesses, Lady Kidron and Lady Hamwee, and the noble Lords, Lord Kennedy of Southwark and Lord Young of Cookham, is wonderfully cross-Bench.
Therefore, it will be clear that my concerns relate to the situation of those who are children in law because they are under 18. My absolute preference lies with Amendment 12, which would make it illegal for anyone under 18 to be used as a CHIS. However, concerned that this will not be agreed, I wish to ensure that full safeguards are in place for those who are children in law. In doing so, I recognise, as we all do, that the number who are so used is very small and are mainly 16 to 17 year-olds.
I apologise to the House that, due to the time taken in Committee, it proved impossible for me to speak on the two amendments to which I had added my name when they were finally taken, and I am very grateful to my right reverend friend the Bishop of Carlisle for speaking for me.
I am here to reiterate the simple, immovable, moral truth that children must be treated as children, as many of my noble friends argued in Committee. It is not a question of ifs, buts or whens. We, as adults, have a moral obligation to protect children and safeguard their care and well-being in all respects: physical, mental, social and spiritual. Knowingly placing a child in harm’s way and encouraging them to remain in harmful situations or with harmful behaviours may be in our interest, but it is not in the child’s best interests. This is exacerbated by the likelihood that the small number of children recruited as CHIS are from a potentially vulnerable background and are already deeply damaged. We should be seeking their healing, not risking damaging them further.
In Committee, my noble friend the Minister said that
“becoming a CHIS can, potentially, offer a way”
for a child
“to extricate themselves from such harm.”
While this sounds like a laudable thing, before being able to extricate the child, are we not potentially exposing them to more harm by encouraging them at times to remain involved in a criminal situation or behaviour? The Minister also argued in Committee that
“appropriate weight is given to a child’s best interests”,
but being a CHIS is surely never in a child’s best interests. The use of child CHIS was justified in Committee through how it can help to remove them and others
“from the cycle of crime”.
However, is the hypocrisy here not evident in first encouraging the child to continue in criminal behaviours and settings? We rightly condemn the use of child soldiers around the globe for the atrocity that it is. Let us not slip into a dangerous grey space where we permit the use of children to fight our battles against criminal gangs and county lines. Let us protect their vulnerabilities.
The various arguments made in Committee conveying how the use of child CHIS has not yet been abused were exactly what we wished to hear; why not ensure that this will always be the case? I note the remarks of the Minister that
“the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process.”—[Official Report, 3/12/20; col. 937.]
It is reassuring to hear that that has been the case to date. However, the purpose of this Bill is to put the future use of CHIS on a clear and consistent statutory footing. It seems to me that placing in this Bill the most comprehensive safeguards possible when it comes to children is wholly in keeping with the Bill’s overall purpose. It is a necessary step for keeping the welfare and well-being of children as a primary consideration.
I welcome the Government’s recognition in their Amendment 26 of the need to have authorisation in the Bill and not simply in a code of practice. I also welcome the need to protect those aged under 16 more fully than 16 and 17 year-olds. However, I remain concerned that the proposals in Amendment 26 do not go far enough—as already argued by the noble Baronesses, Lady Kidron and Lady Hamwee. I want to see the independence of a judicial commissioner in place for the authorisation of those aged under 18 as CHIS, with the parameters laid out in Amendment 14.
Amendment 24 has also been very carefully worked through by a wide range of organisations and people involved in concerns around the protection of the child. Therefore, I continue to support both these amendments. They recognise that our first and most important duty is to protect and support children and vulnerable people. If the mind of the House is tested on these amendments, I shall vote in favour of them. If the House supports them, I hope that the Government will undertake to accept them.
In relation to the proper protection of children, I reiterate my preference for Amendment 12. It would prevent the granting of criminal conduct authorisations to any child in clear and unambiguous terms. This is the clearest and simplest way of guaranteeing the protection of children and resisting the temptation to use them as assets in the fight against crime. I recognise that many in this House may see that as too absolute, thus I am also glad to put my name to Amendment 14, which would at least establish more effective safeguards for those aged under 18 in ensuring prior judicial approval that explicitly considers the potential for both physical and psychological distress.
I also support Amendment 24, which lays out specific and clear additional safeguards to ensure that children can be used only when there is no foreseeable risk of physical or psychological harm—or, I wish it also said, spiritual harm. It also lays out that the circumstances should occur only as a last resort and with the oversight of an appropriate adult. Combined, they amount to much better protections than those in Amendment 26. It is inherently wrong for those aged under 18 to be used as CHIS, hence my support for Amendment 12. If not that, we need the amendments that protect children most effectively. Let us keep the best interests of children at the fore.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham. His speech was passionate, as was the speech made by the noble Baroness, Lady Chakrabarti. I have raised this issue here in your Lordships’ House several times over the years; it has never caught fire in this way. I do not understand. The noble Lord, Lord Young, spoke about public incredulity. If I ever mention this issue to members of the public, they are astonished that it was allowed to happen. This issue has caught fire because a Tory Lord—an hereditary Baronet—raised it in a very principled way. Suddenly, people heard it. I would welcome comments on why it was not heard from a Green. Why is this? Do people think I am too radical? Do they think I am making it up? I have no idea. I am sure that some noble Lords might like to comment on that.
In a previous day of debate this week, the noble Lord, Lord Cormack, corrected my use of “police spies” as being too limited because we are debating spying not only for the police but also for the security services and a host of other organisations. I accept that telling off in good grace. I could just use “spies” in the hope that it does not sound too glamorous.
On the appropriate words to use, the phrase “juvenile CHIS” is a fantastic piece of wordsmithing because it so effectively obscures what we are actually talking about. These are child spies. They are children and young people who have got themselves into some sort of trouble. When they are caught by the authorities, instead of being rescued from that dangerous situation, taken into care and helped to rehabilitate themselves and change their lives, they are being returned to harm’s way. They are put into what could be deadly danger. How is this even conceived of by the Government, the security services and the police? How on earth can they not see, as the noble Baroness, Lady Chakrabarti, said, that this is state-sponsored child abuse—a phrase I have used before.
After years of probing the Government on the use of child spies, I am yet to see or hear a single example of how the risk to the child is justified. I have heard stories of children being used, especially for county lines policing, where gangs use children and young people to extend their networks into smaller towns and expand their reach. However, we all should know that closing down any drug ring or network is a very temporary hitch in the supply of and demand for drugs. A rival or reconstituted gang will be up and running in days, if not hours. We have to understand that using children in this way is unacceptable because, in addition to everything else, it does not work.
That moves us on to drug policy, which needs drastically changing. I will look to the noble Lord, Lord Young, to pick that up in future. We can work together on amending drugs law because that urgently needs work.
I also deeply regret that the scope of this Bill is limited to prevent us banning the use of child spies entirely, but at least we can prevent them being permitted and encouraged by the authorities to commit further crimes. Obviously, I support Amendments 12 and 13, which have my name on. I also support Amendment 14. I am slightly iffy on Amendment 19, but I can see its value. If the noble Lord, Lord Young, does not push his amendment to a Division, I will vote for Amendment 24 in the name of the noble Baroness, Lady Kidron, because it is of value and it is better than nothing—but it is not as good as Amendment 12. I wish that the Labour Front Bench supported Amendments 12 and 13.
I was brought up in a Labour-loving household. My parents voted Labour all their lives, and their perception of the Labour Party was that it would always fight the big battles for the little people and that we could trust it to do the right thing. I would rather see a Labour Government than a Conservative Government, but, quite honestly, I feel that Labour has failed us here and I am extremely sad about that.
Lord Dubs (Lab) [V]
My Lords, it is a privilege to take part in the debate on this amendment, with the many excellent speeches that we have had so far.
First, I thank the Minister for having arranged for my noble friend Lady Massey and me to meet some of her officials and police officers, and for the opportunity to have a long debate about the issues concerning children.
In introducing Amendment 12, the noble Lord, Lord Young, referred to the fact that I changed my mind in Committee, as though that was a very eccentric thing to do. I thought that the point of debates was to persuade other people to change their minds. He is absolutely right: I did change my mind—from a relative position to an absolute position on children not being used as CHIS—so I thank him for referring to that.
My noble friend Lady Massey set out the ground extremely well, competently and coherently. She and I are both members of the Joint Committee on Human Rights and, in a way, she has spoken for me as well, so I shall make only a few brief comments in support. I also welcomed the very powerful speech of the noble Baroness, Lady Kidron, although her amendment does not go as far as I would like. My preference is to fully support the amendment of the noble Lord, Lord Young.
I have three points to make. The first concerns the safety and well-being of children, the second is to do with mental health and the third concerns informed consent, and I want to say a brief word about each.
First, it is slightly curious that public authorities whose job it is to protect the welfare, well-being and safety of children should also, in a sense, be complicit in authorising or encouraging them to commit criminal offences. I fear that involving children as CHIS can damage their welfare and safety, and cause them harm in their lives many years later. We are subjecting them to enormous pressures by doing this and I am not happy about it.
Secondly, as an extension of that argument, there is the question of mental health. We are talking about young people who must, in the main, be extremely vulnerable. Very often they have deprived backgrounds, they have not had much going for them and they have suffered physically and emotionally. The mental health considerations seem sufficiently serious for us to say that we do not want to use children in this way.
Thirdly, there is the question of informed consent. My understanding is that, before anybody can become a CHIS, they have to give their informed consent. I just wonder whether a young person who is vulnerable, already involved in criminality, not sure of themselves in life and possibly with mental health problems can give their informed consent to taking part in these activities. How can a young person understand the full implications of going along with this? It seems a crucial step and they could be damaged for many years; indeed, they might never recover. It is a dangerous thing to ask them to do and I would prefer that we did not do so.
That is why my first preference, if I may put it that way, is for the amendment in the name of the noble Lord, Lord Young. My second preference is for Amendment 14, in the name of my noble friend Lady Massey. My third preference is to support the noble Baroness, Lady Kidron. I do not think that we can leave the Bill as it is. It is unacceptable that we should subject young people to such a dangerous situation. It is not a healthy or proper thing to do, and I hope that we will agree to one of the amendments—preferably that of the noble Lord, Lord Young.
Baroness McIntosh of Pickering (Con) [V]
My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.
My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:
“The Bill must be amended to exclude children or”—
I agree in particular with this part—
“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”
Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.
One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.
I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.
That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I am very pleased to take part in this debate. We have already heard some truly excellent speeches and I am sure there are more to come. I support Amendment 24, which has been so ably proposed by the noble Baroness, Lady Kidron, and am very happy to have added my name to it. I have huge respect for the noble Lord, Lord Young of Cookham. I agree with virtually all the points that he made in proposing Amendment 12. I join him in paying tribute to the noble Baroness, Lady Williams of Trafford, who always engages with the House on issues and seeks to find a way forward. It is important that we do that. However, what we have from the Minister at the moment in government Amendment 26 does not go far enough to address the concerns we have heard from around the House, although I accept that considerable efforts have been made to seek a way forward. I know that those efforts are still going on.
I certainly want to seek an improvement and get something detailed into the Bill that provides further protections for children; that is the most important thing for me. If we are to deploy CHIS then, in the very rare and exceptional circumstances where we need to do that, we must have those protections. That is why I support Amendment 24: I believe it sets out the way to get the right balance and, in those exceptional and rare circumstances, allows for that better oversight to be provided. In a way, I will vote for Amendment 24 to give the Government an opportunity to carry on discussions with people around the House and outside it. If we pass it, I hope that a better amendment will come back from the other place on ping-pong that builds on Amendments 24 and 26, and seeks to address the concerns that the Minister can surely hear from around the House, to get something in the Bill that is better than what we have now.
For that reason, I will not be supporting Amendment 12 by the noble Lord, Lord Young; I just do not believe that the Government are going to support that position, so it is a practical consideration that leaving a little room there for the exceptional circumstance, with the right protections, is the way to go. We need to build on the constructive discussions that we have had outside the House, and the debates we have had on this issue in the House, to find the way forward. I want to apply protections for children and vulnerable adults, and the process outlined in the amendment is the way to get them.
I bring my remarks to a conclusion by paying tribute to the many noble Lords around the House who have been engaged in this issue. I thought my noble friend Lord Haskel raised it on an SI some years ago, so I do not know who started it; maybe it was the noble Lord, Lord Young of Cookham, or the noble Baroness, Lady Jones. Certainly a number of people have raised this issue and everyone has been vitally concerned to protect children, put safeguards in place and get us to a better place, so I thank everyone in the House who has been involved in this. I thank the noble Baroness, Lady Kidron, for tabling her amendment and my honourable friend in the other place, the Member for Walthamstow, Stella Creasy, who has been heavily involved.
I believe that this is one of those debates in the House where you can hear the concern on all Benches from numerous highly respected noble Lords. We as a House need to send Amendment 24 to the other place, which will enable us to get something back from the Government that I hope will satisfy all noble Lords and get us to a better place.
Lord Judd (Lab) [V]
My Lords, I support Amendment 25 because it seems essential for us to have safeguards in place if we go down this road at all. The noble Baroness, Lady Hamwee, spoke very convincingly on this matter. I am glad to support her on this and I do not suppose it will be the last time in my parliamentary career that I support her in her initiatives. While we are debating this group, I want to say how much I applaud Amendment 12 by the noble Lord, Lord Young of Cookham, and Amendment 19 by the noble Lord, Lord Cormack. In the operation of our society and our legal systems, we need some clear-cut cornerstones about what is permissible and what is not. I like the forthright language that they use in their amendments because it cuts out all the grounds for rationalising and talking ourselves into situations where we should not be at all. The point is that vulnerable people of the kind described in the amendments, and children, should not be involved in this kind of activity.
We are signatories to the conventions on the rights of children, and we have reaffirmed on many occasions our commitment to them. Are we just sentimentalists or are we real? If we are real, and if we want to give muscle to our expressed sentiments in those directions, that becomes very applicable in this kind of activity. We are also signatories to, and have frequently expressed our adherence to, the European Convention on Human Rights. I would always go further in this context and say that what matters even more is the Universal Declaration of Human Rights and the reasons why it was put in place. Again, if we are serious and not just sentimentalists, it is in matters of this kind that adhering firmly to the principles set out in those conventions becomes so important.
All these matters become particularly poignant—it is interesting that we have not dwelt much on this—given what is happening on the other side of the Atlantic. All of us, particularly perhaps in this Chamber, operate in the context of a political family in which it is expected and assumed that certain rules of decency, honesty and integrity will apply. We cannot be certain that will always be the case. I have always felt this about legislation: what matters is not just the people who are in place at the time of the legislation is passed, but how firmly that legislation establishes principles that it would be difficult for anyone who comes afterwards to vary. For that reason, it is significant to look at events in the States and wonder, when we talk about the kind of society that we want to be, whether we are really taking seriously our obligations, duties and concern for children and young people who have perhaps been asked to undertake activity that is very much against so much that is established as the norm for behaviour that is required in our society, for all the reasons that we have discussed on many previous occasions on this legislation. If we take those responsibilities seriously, we need the firmness of Amendments 25 and 19.
I am sure that I must be among many Members on all sides of the House who are deeply fearful about the implications of what is happening on the other side of the Atlantic. At moments such as this, where we still have the context of our own society—thank God—we need to be explicitly clear about what is acceptable and what is not. I cannot say more strongly that it is not acceptable for children to be involved in activity of this kind. That is the point: it is not acceptable; it is not something we can rationalise our way out of by saying that there are exceptions in this particular case. There are not; it is a principle that children should not be involved in such activity. Similarly, when we think of what vulnerable people have been through mentally and physically and all the traumas of their life, it is not acceptable to involve them in any way in activities which may have serious implications for their stability and well-being and for their safety.
From these standpoints, I am very glad that we have this group of amendments before us. I again say that the noble Lords, Lord Young and Lord Cormack, have been exemplary in stating a principle on which the rest of our activity should be founded.
Lord Hope of Craighead (CB) [V]
My Lords, as the speeches that we have been listening to in this debate have made so very clear, this surely is the most difficult part of the Bill and, as we search for a solution, for each of us making up our own minds this group presents a real challenge. The solutions range from an absolute bar—the “clear-cut cornerstones”, as the noble Lord, Lord Judd, has just described it—on granting authorisations to anyone under 18, in Amendment 12, and anyone under 16, in Amendment 19, to which the noble Lords, Lord Young of Cookham and Lord Cormack, spoke so movingly, to the more nuanced and carefully worded procedures proposed in Amendments 23, which would require the prior approval by a judicial commissioner, and Amendments 24 and 26, which have no such requirement.
I entirely recognise the force of the principle that the child’s best interests are paramount, and I appreciate the attraction of a clear and simple absolute bar—a red line—by reference only to a person’s age. That is right when dealing with, for example, the age of criminal responsibility, but I am not so sure that it is right here, where we are being asked to balance the protection of the best interests of the child against the need to protect the public against serious crime, such as that perpetrated by county lines where children are, sadly, so much involved. Recognising that a child’s best interests are paramount does not entirely exclude the possibility of looking at all the circumstances and balancing the interests of the child against other interests, as judges have to do from time to time, but of course it has a crucial bearing on how that exercise is carried out.
Looked at from that point of view, I suggest that one can take account of the fact that children do not all have the same circumstances, as the noble Baroness, Lady Kidron, has said. Also, the facts and circumstances may differ widely as to nature of the case and the extent of any risk of physical and psychological harm to the particular child who may be involved—I was interested in the points made by the noble Baroness, Lady McIntosh of Pickering, based on her own experience of the Scottish Bar. The fact is that we are not in possession of all the information that would guide those taking such decisions. I would therefore prefer to leave the door open for the use of children in strictly and most carefully limited circumstances, taking every possible care in full recognition of all the risks, rather than closing it firmly against their use in any case whatever. Had Amendment 12 been qualified in some way, by reference, for example, to “exceptional circumstances”, I would have found it easier to accept, but, of course, as soon as one adds such words, one has to explain what they mean. That is why I am drawn to Amendment 24, to which the noble Lord, Lord Young, has also put his name. It contains that qualification and then defines what such circumstances are. I pay tribute to the clarity with which it is expressed.
Then there is government Amendment 26. It seems to fall short of what is needed, not only because it lacks that qualification about exceptional circumstances but because it lacks the protection which Amendment 24 would give to vulnerable individuals and victims of modern slavery, whom we must also consider. I look forward to listening carefully to what the Minister has to say in support of her amendment, but, for the moment, my preference is for Amendment 24 and for supporting it if the noble Baroness, Lady Kidron, presses it to a vote.
Lastly, I am grateful to the Minister for her letter of today’s date about territorial extent. As she may tell us later on, she informs us in it that the Scottish Government have confirmed that they will recommend to the Scottish Parliament that it should withhold its consent to the Bill. It was for the Scottish Government to take that decision and we must respect it. I am sure that the Minister is right, respecting the Sewel convention, to remove from the Bill the ability to authorise participation in criminal activity for devolved purposes in Scotland. It is not for us to question the decision of the Scottish Parliament and she is right to proceed in that way.
Lord Naseby (Con) [V]
My Lords, I want to speak briefly to Amendments 12, 13 and 14. In relation to the first, I have recently done some research on military national service, introduced by a Labour Government with the support of a Conservative and Liberal Opposition in 1947 and lasting for just over 10 years. This recruited at age 18 young men to serve in the forces and possibly to face death. There was an element in that Act which allowed 17 and a half year-olds to be recruited, so it was not a carte blanche cut-off at 18; it actually started at 17 and a half.
Against that background, it seems to me—it is quite a long time ago now, but I was one of those who did my national service—today’s young people are certainly more experienced than we were at that age. Also, there is this great move afoot to give 16 year-olds the vote. That is a conundrum, is it not? If that were to happen—Scotland is in the lead on that—are those who get the vote at 16 still children or are they adults? For my money, on Amendment 13, there should be a cut-off age of 18, but subject to particular exceptions.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.
Baroness Bull (CB)
I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.
I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.
We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.
Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.
Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.
Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.
The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.
Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.
Lord Holmes of Richmond (Con) [V]
My Lords, I support Amendment 12 in the name of my noble friend Lord Young of Cookham. It is clear, coherent and consistent. It seems to me that my noble friend’s parliamentary career from the outset has been marked out by two great skills. First, he has the ability of get to the essence of the issue in front of him at the time. His second—and greater—skill is the ability to see where things are going, not least in the near and mid future. In his excellent opening speech, he demonstrated both skills perfectly.
I urge him to press Amendment 12 to a Division. A majority of noble Lords have spoken in favour of it. It is a matter of testing the opinion of the House on what is right, rather than what may fit with a particular day’s parliamentary arithmetic. I cannot improve on any of his words in his introduction, save to say that I agree with every last detail, and I urge him, as have a majority of other noble Lords, to press his amendment to a vote.
Lord Russell of Liverpool (CB) [V]
My Lords, I will speak to Amendment 24. I am grateful to my noble friend Lady Kidron for taking the lead on this amendment, to Stella Creasy for working with us so effectively from another place, and to a wide range of parliamentarians across all parties in both Houses.
As my noble friend Lady Kidron said in her comprehensive introductory speech, we are dealing with children, a point made forcefully just now by my noble friend Lady Bull—children, physically and mentally; children often abused, vulnerable, confused and frightened; children whose moral compass and sense of what is normal and of what is right and wrong may be tragically awry. Whatever they may have done, and whatever they may have become involved in, they are still children in statute, in international charter and in conscience. They need and deserve protection.
I pay tribute to the Minister, to her colleagues, and in particular to her friend James Brokenshire, who was mentioned on Monday and is in all our thoughts—I reiterate on behalf, I suspect, of everybody speaking today our best wishes for his speedy recovery—to the Bill team, and to the different individuals she has linked many of us up with to deepen our understanding of this complex background. She has made clear from the start that she understands our concerns, is sympathetic in principle and is keen to find ways to build in additional safeguards that will protect the child but also, very importantly, will build greater trust both within and without Parliament. Government Amendment 26 is not a bad start but, for the reasons stated eloquently by my noble friend Lady Kidron and others, I fear it is not good enough. A slightly enhanced re-emphasis of the status quo is not going to make a material difference to these children.
I entirely support the spirit behind Amendment 24 and I am grateful that the Government, even if they feel unable to accept it today, have acknowledged that our concerns are genuine and that there may be further work to be done before the Bill becomes law. In addition to what is stated in Amendment 24, I would like to place on the record four additional ways in which safe- guards and processes might be enhanced and improved. I have already shared these with the Minister. First, I ask the Government to consider involving IPCO from the very inception of the authorisation of a child deployment. I share the confidence of my noble friend Lord Anderson in the capacity of IPCO to oversee these highly sensitive issues, and I suspect that IPCO itself would be broadly receptive to this idea and that it could undertake this using its current resources. This would mean that, with child deployments, IPCO would be being proactive, not primarily reactive.
Secondly, for children in care who may become child CHIS, how can we enable the relevant social worker to be appropriately involved? There are many cases where the social worker is unable to do so for a variety of reasons, personal, organisational or legal, and we have work to do to ensure that there are always effective substitutes to hand. Thirdly, can we commit to a comprehensive audit and review process at the end of every child deployment to assess what went well, what went less well, what we learned and what we are going to do about it? Lastly, do we not have a duty of care to follow up with ex-child CHIS to monitor their welfare, to help and guide as necessary, and to measure the effects, if any, of their experience during deployments? This would truly be putting the interests of the child at the centre of the process and would acknowledge our responsibility to help them ensure a successful transition to adulthood.
I commend Amendment 24 to the House. I applaud the Government for being in listening mode and I urge all noble Lords to agree to this amendment, to send a clear message that we have more to do but that we intend to work with and not against the Government to achieve this.
Lord Paddick (LD) [V]
My Lords, I thank the noble Lord, Lord Russell of Liverpool, for the leading role he has played in achieving consensus around Amendment 24. I start by reminding the House of the contribution of the noble Lord, Lord Young of Cookham, in his summary of a similar group of amendments in Committee. He used the analogy of torture, where the ends do not justify the means, in the same way that using children as informants or agents is difficult to justify under any circumstances. Regrettably, banning the use of children as covert human intelligence sources is outside the scope of the Bill. He went on to recall the contribution of the noble Baroness, Lady Chakrabarti, who suggested as an alternative to using children using people over 18 who look younger, as the acting profession often does, particularly when dealing with adult themes.
My noble friend Lady Hamwee pointed out that there is a very fine line between grooming and persuading children to act as covert human intelligence sources. My noble friend Lady Doocey quite rightly pointed out that these children are already vulnerable and exploited, particularly in the case of county lines, without the need for them to be further exploited by the police. We do not send children into war, so why do we send them into potentially more dangerous situations as CHIS, as a number of noble Lords have asked this afternoon? A very experienced police handler of informants told me that, in his experience, even adult CHIS are open to manipulation, let alone children. If you are a child, a non-documented migrant or a victim of human trafficking caught by the police committing crime, you are likely to look for any available way out. You do not need to be blackmailed in such a situation; you are likely to grab at any opportunity, including being tasked to commit crime as a participating informant, a point made by the noble Baronesses, Lady Jones of Moulsecoomb and Lady Young of Hornsey, in Committee. As the noble Baroness, Lady Kidron, said, we are talking about the power imbalance between the police and these vulnerable people, including children.
The Minister’s response in Committee was to cite a High Court judge, Mr Justice Supperstone, who was convinced by the police that it was okay to use children in this way. They appear to have been less successful in convincing the noble Lord, Lord Young of Cookham. When I was seeking promotion to the most senior ranks in the police service, on a six-month course at the national Police Staff College, we were told that we were moving from superintending ranks, where we had to operate within the existing paradigm, to ACPO ranks, where our responsibility was to change the paradigm. Despite the High Court’s decision, we need to change the paradigm. As the noble Lord, Lord Young, says, the court did not consider the active involvement of children as CHIS in crime.
The Government, in response to our deliberations in Committee, have come up with their own alternative. I am as unimpressed as the noble Lord, Lord Young, with this attempt. First, in relation to authorising the use of children, it amends secondary not primary legislation—much easier for the Government to subsequently change and impossible for us to amend. The only change to primary legislation is on post-event reporting. The government amendments, particularly Amendment 26, prohibit the use of children under 16 to commit crimes against their parent or guardian, but not 17 and 18 year-olds: this is already the case, as the noble Baroness, Lady Kidron, said. It creates the position of a “relevant person” who is responsible for the risk assessment and for ensuring that an “appropriate adult” is present if the child is under 16. This risk assessment and the presence of an appropriate adult are already required in legislation. In the case of 17 and 18 year-olds, the appropriate person has only to consider,
“whether an appropriate adult should be present”.
Again, that consideration is already required.
Saying that a child criminal conduct authorisation should be limited to four months instead of 12 is also not a real change. Child CHIS can only be authorised for a maximum of four months and a CCA cannot be granted unless the child has been authorised to be a CHIS, so a review after four months is already inevitable. Overall, I would summarise the proposed alternatives the Government are putting forward as too little, too late.
Amendment 24, proposed by the noble Baroness, Lady Kidron, has been a long time in the planning. I join with the noble Baroness in thanking Stella Creasy MP and Just for Kids Law. It covers vulnerable adults as well as children—the case for which was made strongly by my noble friend Lady Hamwee this afternoon—which the government amendment goes nowhere near. The presence of an appropriate adult would be mandatory for all children and vulnerable adults under this amendment, instead of being compulsory only for under-16s, as in the Government’s alternative. It sets out the very limited circumstances when a child could be used, where the best interests of the child must be paramount. The child or vulnerable adult is not to be put at risk of physical or psychological harm, and the Investigatory Powers Commissioner must be informed. The Minister may say that these restrictions are so limiting that it may result in children and vulnerable adults not being used at all. That is a risk we should be willing to take.
In the absence of Amendments 12 and 13, we support Amendment 24 as the best of the available options, though I agree with the noble Baroness, Lady Massey of Darwen, that it does not involve the independent prior authorisation contained in her Amendment 14. However, as I have just said, it does include informing the Investigatory Powers Commissioner as soon as possible. If anyone thinks that 16 might be an appropriate age for drawing the line, I would urge them to watch the film “County Lines”, directed by Henry Blake. It brings out the horror of the impact of county lines drug dealing on teenagers, including older teenagers, and powerfully makes the case for immediately removing children from these circumstances. Important points were made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, about the lifelong impact of adverse childhood experiences such as involvement in county lines. Regrettably, contrary to the assertion of the right reverend Prelate the Bishop of Durham, Amendment 12 does not prevent using a child as a CHIS; it only prohibits tasking them to commit crime. As my noble friend Lady Hamwee pointed out, some adults are at least as vulnerable as some children.
Amendment 24 is a compromise, but it is comprehensive in that covers both vulnerable adults and children, and we support it strongly for the reasons so clearly expressed by the noble and learned Lord, Lord Hope of Craighead.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.
Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.
This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.
I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are
“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”
The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can potentially offer a way to extricate themselves from such harm. The decisions to authorise are made only where this is the best option for breaking the cycle of crime and the danger for the individual.
In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.
Lord Mackay of Clashfern (Con) [V]
My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
Short and sweet. The next speaker is the noble Lord, Lord Russell of Liverpool.
Lord Russell of Liverpool (CB) [V]
My Lords, I have a specific question for the Minister. She mentioned the lifetime duty of care to the CHIS that whichever authority is managing them has after the deployment. In the case of children who have been deployed, if and when the person managing the child CHIS retires from the force or moves on to another role, what mechanism is there to replace the individual or individuals tasked with following up with the CHIS? Secondly, is there any sort of formal reporting mechanism that loops back how those ex-CHIS are doing, so that they can be monitored? Also, is that recorded in any way and can it be reported to Parliament?
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the noble Baroness for her very detailed response to this long and important debate. I want to push her a bit further. She said that the Government cannot support Amendment 24 in its present form but understand where we are coming from. I equally understand where the noble Baroness and the Government are coming from. However, if the House voted for Amendment 24 and it was sent to the other place, I am sure that she would want to engage constructively with its movers—and other colleagues in this House and elsewhere—so that we could bring back through the ping-pong process something that the whole House could unite behind, taking the best points of her government amendment and the points in Amendment 24 that were carried. It would be useful for the House to know whether that would be possible.
Baroness Williams of Trafford (Con)
I think that the noble Lord knows me by now. If Amendment 24 is carried, I will of course continue to work with him. The same is true for any other amendment that is successful on Report. I think that most noble Lords come from the same standpoint: they want to protect children but recognise that, sometimes, children may have to be involved in criminal activity. I know that my noble friend Lord Young does not take that view, but I think that most noble Lords recognise it. I will continue to work with the noble Lord, Lord Kennedy, Stella Creasy and others, whatever the outcome of today’s votes.
The noble Lord, Lord Russell, asked what happens if a person retires. That lifetime duty of care would probably necessitate certain people retiring and others taking over, but that does not mean that the duty of care does not extend over the young person’s whole life. On the formal reporting mechanism, we have IPCO and I am sure that there are other such mechanisms through the person tasked with that duty of care to the CHIS. If there are any other formal reporting mechanisms, I will notify the House of them.
Lord Young of Cookham (Con)
My Lords, this Bill has generated a series of debates about the role of the state in protecting society, including where the boundaries lie and the extent to which they impinge on civil liberties. This debate has been no exception, as the noble and learned Lord, Lord Hope, said. I am grateful to all those who have spoken; I will come to some of their comments in a moment.
The argument in favour of the use of underage CHIS has basically been that, in exceptional circumstances, the end justifies the means. Permitting a child to commit a crime and take risks is justified by the prospect of catching criminals. The contrary argument is that the end does not always justify the means, as the noble Lord, Lord Paddick, said; if it did, we would allow the waterboarding of suspected criminals and terrorists to save lives—but we do not. The debate has really been over where the risk/reward ratio, if I can call it that, falls in this case.
I am grateful to all those who have spoken. The noble Baroness, Lady Massey, referred to the UN convention and the inevitability of an element of risk if we go down this road. She also offered some additional safeguards of her own—namely, prior judicial approval.
The noble Baroness, Lady Kidron, along with others, paid tribute to the work of Stella Creasy. I do so as well. She has been heroic in liaising with your Lordships in taking this agenda forward. As the noble Baroness said, the Bill formalises the ability of the state to harm a child. She made the very valid point that a guardian is required if someone underage is charged with shoplifting but that there is no such protection if they become a CHIS. She also analysed the difference between Amendment 24 and government Amendment 26.
My noble friend Lord Cormack came up with a different limit—namely, under 16—but said that he would be tolerably satisfied with Amendment 24, which may indeed be where we end up.
The noble Baroness, Lady Hamwee, again made the important point about how you distinguish between grooming on one hand, which we do not approve of, and using a child as a CHIS, which we, on occasion, do. I think she said that her party’s preference was for Amendment 24 rather than Amendment 12.
I am grateful to the noble Baroness, Lady Chakrabarti, for her kind words. She pointed out that having exceptional circumstances always allows a degree of flexibility and subjectivity which one cannot get away from. She pointed out that, even if the amendment was carried, we still cannot ban the use of underage CHIS. Again, she made the useful point, which I think picks up on a point the Minister made, that many people look younger than they are—they are over 18 but look younger. Could not more use be made of them to avoid the dilemma that some of us find ourselves in?
The right reverend Prelate the Bishop of Durham emphasised the moral imperative of safeguarding a child. I think he said that, while his first choice would be Amendment 12 and then Amendment 14, Amendment 24 ended up as his third choice.
The noble Baroness, Lady Jones, rightly pointed out that people are unaware at the moment of what is going on. She referred to them as “child spies”. Again, if push came to shove, the noble Baroness would support Amendment 24. She seemed amazed that an aristocrat—if I can call myself one of those—should bring forward social reform, but if she looks at the whole history of the 19th century, she will find that a lot of social reform was indeed pioneered by aristocrats.
The noble Lord, Lord Dubs, was the swing voter in the last debate. He remains pro-Amendment 12, and I am grateful for that. Amendment 24 was his third preference. He referred to the long-lasting impact on the mental health of a child and cast doubt on whether they could give informed consent.
My noble friend Lady McIntosh also referred to UNCRC and came down, on balance, in favour of allowing CHIS in the most exceptional circumstances. But she needed convincing that Amendment 26, the government amendment, was better than Amendment 24.
The noble Lord, Lord Kennedy, was in favour of Amendment 24 and felt that Amendment 26 did not go far enough. He was in favour of using CHIS in exceptional circumstances and made it clear that he cannot support Amendment 12. I am disappointed by that, and I will come back to that in a moment.
The noble Lord, Lord Judd, spoke in favour of Amendments 25 and 19, and was against the use of CHIS.
The noble and learned Lord, Lord Hope, favoured the more nuanced approach of Amendment 24, rather than the absolute approach of Amendments 12 and 14.
My noble friend Lord Naseby agreed with the arguments that the vulnerable should be exempted, but he had some doubts about modern slavery.
The noble Baroness, Lady Bull, remains pro-Amendments 12 and 13, and I am grateful for that and for her support. She has not been persuaded by the argument. She made the point that parents who did what the Bill allows the police to do would find that their child would be taken into care. She also made the point that teenagers quite often act on emotion rather than reason.
I blushed when my noble friend Lord Holmes said his kind words about me. The high esteem in which he currently holds me may be lowered by what I have to say in a few moments.
The noble Lord, Lord Russell, has played a key role behind the scenes in trying to find a way through, and I pay tribute to that. He also mentioned James Brokenshire, somebody with whom I served in government for many years; I join those who wish him well and a speedy recovery. The noble Lord made four suggestions as to how we could build on what the Government have proposed, with a view to finding a solution.
The noble Lord, Lord Paddick, was unimpressed by the government amendments and ended up pro-Amendment 24.
I have had a bit of time to read the Minister’s letter. In her wind-up speech, she made the point that Amendment 24 would be unworkable because of the difficulty of finding appropriate adults. But appropriate adults are already there; they have to be there for under-16s and for those who are vulnerable between the ages of 16 and 18. One could draw on the same cohort to meet the requirements of having an appropriate adult for others. I listened to her example, but in it the child is extricated only after the information has been procured. The argument many of us have put forward is that the child should be extricated at the earliest possible opportunity, rather than after they have done their bidding.
In a former life, I was a Chief Whip, and one of the qualities needed in a Whip is the ability to count. I have looked at the fate of amendments to this Bill where the Opposition has withheld support, and they have gone down by three-figure majorities. I also note the reservation of several on the Cross Benches whose views I respect, such as the noble and learned Lord, Lord Hope. I do not believe that dividing the House is a useful use of its time, particularly given the position of the Opposition. Against that background, I will not test the opinion of the House, but I hope that all those who spoke in favour of Amendment 12 will back Amendment 24. I beg leave to withdraw my amendment.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.
Amendment 15
Baroness Massey of Darwen
“(8A) A criminal conduct authorisation may not authorise any criminal conduct—(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;(b) involving an attempt in any manner to obstruct or pervert the course of justice;(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;(d) subjecting an individual to torture or to inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”Member’s explanatory statement
This amendment establishes a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act 1985.
Baroness Massey of Darwen (Lab) [V]
My Lords, I thank my noble friends Lord Dubs and Lord Rosser and the noble Lord, Lord Paddick, for adding their names in support of this amendment.
The bottom line on this amendment is to include a prohibition on the authorisation of serious criminal offences. It establishes a prohibition on such offences listed in my amendment; these are in similar terms to those in the Canadian Security Intelligence Service Act 1985, which I will refer to later.
I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs, and I will refer to its report on the Bill, published last November. The committee had serious concerns about this part of the Bill, and I shall put this amendment to a Division unless I receive a thorough reassurance from the Minister.
In chapter 4 of the JCHR report, four issues are discussed: first, there being no express limit in the Bill on the type of crime that can be committed; secondly, consideration of the approach taken in other jurisdictions; thirdly, the power to prohibit certain conduct by order; and fourthly, the Human Rights Act as an effective safeguard.
In their written response to the JCHR report, published on Monday, the Government give detailed consideration to the recommendations in this amendment. I am grateful for that, but I do not think it covers all our concerns as a committee. The Minister will perhaps reflect these considerations in her response. It is helpful that the Government restate their commitment to human rights in the response at the end of section 3. They say that
“the United Kingdom is committed to human rights and will continue to champion human rights at home and abroad. The United Kingdom is committed to the ECHR.”
But evidence of the commitment to human rights has to be demonstrated and reinforced, and I am concerned that by not expressing limits in the Bill on the type of crime that can be authorised, human rights are not being defended.
The Joint Committee on Human Rights has expressed the concern that:
“The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.”
The Home Office, in its guidance on limits of authorised conduct, consider this necessary because
“to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”
In their joint written submission to the JCHR, the NGOs Reprieve, the Pat Finucane Centre, Privacy International and Big Brother Watch note that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill. However, the Canadian legislation expressly provides that nothing in the Act justifies the issues set out in my amendment. They are, to summarise: causing death or grievous bodily harm; perverting the course of justice; any offence under the Sexual Offences Act 2003 or the 2009 Act in Scotland; subjecting an individual to torture, inhuman or degrading treatment or punishment, as in the meaning of the HRA 1998; or depriving a person of their liberty.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Massey of Darwen, and to express my support for the amendment she has just moved.
I have to say that I am wholly unconvinced by the argument that adherence to the Human Rights Act is all that is needed. The fact is that the convention rights set out in the schedule to that Act were not designed for this situation at all. Their purpose is to define the rights of individuals against the state, as represented by public bodies. It is not a catalogue of what individuals may or may not do to each other. Of course, the sources that the police may use must have these protections against those who use them. But to use the convention rights in the Human Rights Act to define what the sources may do to other people or may be encouraged to do to other people is to take those rights completely out of context.
Furthermore, reference to these rights lacks the precision and clarity that is needed to deal with what a source may or may not be authorised to do. If you look at Article 2 of the list of convention rights—the right to life—what is really dealt with there is the right to life as against the things that a state may do: depriving the individual of his life except in circumstances where that may be absolutely necessary; and the circumstances are set out there. Article 3 deals with the prohibition of torture, although I notice that it omits the word “cruel” before “inhuman”, which is in the Universal Declaration of Human Rights and in the UN convention against torture. Therefore, if one was trying to define the prohibition or the control against the misuse of sources, one would want to put in the word “cruel”, which is more easily understood than the word “inhuman”. Article 4 deals with the prohibition of slavery and forced labour, which is drifting far away from what we need to have as reassurance in the matter we are dealing with here. So it is with Article 5, which is the right to liberty and security, and which really deals with the circumstances in which an individual may be arrested or detained by the police. Furthermore, there is no mention in the convention rights of rape or other sexual offences, no doubt because that is what people do to each other, not what public authorities do to their citizens.
That said, I have to confess, if the noble Baroness will forgive me, that some of the wording of amendment 15 troubles me. The criterion we must apply is that what we have asked to be set out in the statute should be clear and easily understood. Proposed new subsection (8A)(b), which is given in Amendment 15, refers to
“an attempt in any manner to obstruct or pervert the course of justice.”
That is a very wide-ranging crime, and I am not sure that it would be sensible to include it in this list because very often it may be a relatively minor thing to do, with no psychological or physical consequences to anybody; it is just obstructing the interests of justice. Paragraphs (d) and (e) refer to the Human Rights Act, but for the reasons I have given, I would prefer that that reference was omitted. The Canadian example to which the noble Baroness referred is clearer in its wording. For example, when dealing with obstructing or perverting the course of justice, it includes the word “wilfully”, which would be wise if one is trying to strike the right level of balance in dealing with these matters. It refers to the torture convention when defining what is meant by torture, which I would support, particularly because it includes the word “cruel”. As for paragraph (e), when the amendment refers to depriving a person of their liberty, it really means detaining an individual, which is what the Canadian example gives. The Canadian example adds another point: damaging property. It might be wise to think of including something along those lines too. To take the example of committing or participating in arson, that would give rise to a serious risk to individuals who are in the building and it would be as well to include that along the same lines and for the same reasons as the others in the list. I suggest that some matters might have to be looked at again if the amendment is to be taken further.
I wish to emphasise one thing, as I did at Second Reading, which is that great weight must be given to the obligation in the torture convention. That convention does not merely require states to abstain from torturing people. It requires them to do more than that; it requires them to do everything in their power to avoid torture in any circumstances. I would therefore support an amendment which particularly includes the reference to torture as something that would never be authorised in any circumstances whatever.
Despite these misgivings, and extending again my apology to the noble Baroness for criticising her carefully drafted amendment, and because I believe the Government must think again, I support Amendment 15.
Lord Rosser (Lab) [V]
Speaking for the Opposition, I reiterate our appreciation of the work that our police and security services do on our behalf to keep us safe and our country secure. We know only too well that what they do makes a real difference.
Amendment 15, so ably moved by my noble friend Lady Massey of Darwen and to which my name is also attached, would put limits in the Bill on the crimes that could be authorised under a criminal conduct authorisation. The serious crimes that could not be authorised would cover murder, grievous bodily harm, torture and degrading treatment, serious sexual offences, depriving someone of their liberty and perverting the course of justice.
The Government have given an assurance that the Bill
“would not allow the public authorities named in the Bill to grant CHIS unlimited authority to commit any and all crimes. To allow this would breach the Human Rights Act 1998”.
In that context, I note the comments that were just made by the noble and learned Lord, Lord Hope of Craighead, about the Human Rights Act 1998. However, the Bill itself contains no explicit limit on the types of criminal conduct that can be authorised. The Government say that to have a list of offences excluded from being given a criminal conduct authorisation would lead to covert human intelligence sources being tested against that list. But placing no explicit limit on the types of crimes that can be authorised is not the approach that has been taken in other jurisdictions, where the same risks of CHIS being tested would apply. As my noble friend Lady Massey has said, the Canadian Security Intelligence Service Act contains a power to authorise criminal conduct similar to that proposed in the Bill, but the legislation provides that nothing in that Act justifies many of the serious crimes also excluded under this amendment.
The FBI in the USA operates under guidelines that do not permit an informant to participate in any act of violence, except in self-defence. In Australia, the legislation provides protection from criminal responsibility and indemnification for civil liability only where the conduct does not involve the participant engaging in anything likely to cause death or serious injury to, or involve the commission of a sexual offence against, any person. The Government maintain that countries which have lists of such offences do not have similar criminality to us, but it is not clear what the established basis is for that assertion.
The Government then say that such a list of serious offences is not necessary, because the Human Rights Act provides all the protection needed against such serious crimes being given a criminal conduct authorisation. But if a criminal or terrorist group was sufficiently conversant with the terms of legislation excluding specific offences from being authorised to be able to test a CHIS, it would almost certainly also be sufficiently conversant with the protections against serious crimes being authorised in the Human Rights Act to test a CHIS if, as the Government presumably believe, those protections are clear-cut.
However, the Bill does not preclude specific criminal conduct being prohibited through a list, since it gives the Secretary of State the power, through secondary legislation, to prohibit the authorisation of any specified criminal conduct. Since it would be secondary legislation, Parliament would not get the right to amend what was put forward by the Secretary of State, as it would with primary legislation. Since the Government, presumably, do not believe that whatever criminal conduct might be prohibited from being authorised through such publicly available secondary legislation could be used by criminals as a checklist against which to test a covert human intelligence source, and put such sources at risk, it is not clear why explicit limits cannot also be set out in primary legislation.
Lord Bruce of Bennachie (LD) [V]
My Lords, I have not intervened on the Bill to date. It has been well-served by the wide range of expertise across the House. I am grateful to the noble Baroness, Lady Massey, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Rosser, for their coherent explanations of support for this amendment. My brief intervention now is in the light of the Scottish Government’s current withholding of consent to the Bill. I appreciate that the first response to that action might be to dismiss it, as it is consistent with the Scottish Government’s reaction to other consent issues.
However, while the Scottish Justice Minister Humza Yousaf accepts that there is a case for the law, he is concerned that the Bill is drawn too widely and lacks adequate safeguards. His views are entirely consistent with the concerns expressed across the House. He has explained his preference for prior approval by a judicial commissioner, which has been debated and raised responses, although that consideration is still being argued. This amendment, coupled with that which was carried on Monday inserting an expectation of reasonableness, would go some way to addressing these understandable concerns.
It is widely understood and accepted that undercover agents operate to protect the state and its citizens from hostile actions. This necessitates behaviour that, in normal circumstances, might be considered criminal. Both operatives and citizens need to be reassured that actions will be reasonable and proportionate, and that this is not a gratuitous licence. A number of cases where actions were not deemed appropriate have been mentioned in our debates, but so has an understanding that undercover agents carry out vital work that saves lives. The law needs to protect them in their duties—we are talking of the police and Prison Service, in Scotland—and people who might be directly affected by their actions.
It is also clear, as asserted in all contributions to the debate so far, that the Human Rights Act alone is not an adequate safeguard. As an aside, it does not apply to British sovereign bases in Cyprus, for example. The noble and learned Lord, Lord Hope, despite his reservations about some of this amendment’s wording, clearly recognised the need to have human rights issues summarised and incorporated in the legislation. The noble Lord, Lord Rosser, made the same case and the interesting comparison that, as the Human Rights Act is well known, there is no reason for not putting these specific exclusions in the Bill.
As was said by the noble Baroness, Lady Massey, this amendment’s terms are similar to those in the Canadian Security Intelligence Service Act 1985. Can the Minister indicate whether Canada has experienced any problems with this element of its law, which has been in place for some years? After all, to commit murder, to inflict serious injury deliberately or to perpetrate rape, sexual offences, torture or imprisonment is not what we could reasonably expect of our agents.
I understand that, as of today, the Scottish Minister does not yet consider that the Bill is ready for him to recommend, and this amendment alone will not do it. He is still looking for amendments to the Regulation of Investigatory Powers (Scotland) Act 2000. Can the Minister indicate whether the concerns of the Scottish Minister can be met and the Government’s view about those reservations? I do not believe the citizens of the United Kingdom would argue for a lower standard than that set by a close and valued ally and friend, such as Canada. I am sure that the Minister will want to give assurance that the safeguards are adequate and sufficient, and in so doing ensure that this law secures the consent of all parts of the UK.
In conclusion, I can say only that the balance that the Bill is striving for has raised legitimate questions and concerns about a whole range of issues, of which this is just one. The reservations of both the Government and Parliament of Scotland are, I am told in good faith, a desire to ensure that the Bill is structured in a way that meets the objectives of the Government but also the safeguards being sought by Members of this House and the Scottish Parliament. In those circumstances, I hope the Minister can assure us that it will be possible to bridge that gap, because it would surely be far better for the Bill to be passed with the consent of the Scottish Government and the Scottish Parliament than not.
Lord Dubs (Lab) [V]
My Lords, I welcome the opportunity to speak to the amendment. I speak, of course, as a member of the Joint Committee on Human Rights, a position I share with my noble friend Lady Massey, and her amendment reflects very effectively the concerns of the committee about this issue—although the committee was, of course, also concerned by a whole range of other aspects of the Bill.
I can be very brief, but it can surely never be right for the state to authorise the gravest of crimes: torture, murder or extremes of sexual violence. That is the basis of this amendment, which I therefore fully support.
The Government have said that if we set limits on the offences to be covered by the Bill, that will risk that agents could be tested by the groups that they have infiltrated—in other words, that they would then challenge the CHIS, if they suspect them to be a CHIS, to commit one of those offences and therefore he or she would be revealed. As has already been said, other countries have the same safeguards: the United States, Australia and Canada. They already place express limits on the crimes CHIS can commit. If that works for the security services in Australia, the United States and Canada, it can surely apply to us.
The Government have said that the limits can be safeguarded by the Human Rights Act. Frankly, that is not certain at all. The Government have been hesitant about the Human Rights Act anyway, and I believe—the Minister may confirm this—that the Human Rights Act does not apply to abuses committed by agents of the Government. There is concern that this aspect of the Bill may be relevant to criminal conduct authorised overseas. That is a very dangerous situation indeed, and again I would welcome the chance to hear from the Minister whether or not that is so.
The Government produced comments on the report of the Joint Committee on Human Rights, and in particular said that we cannot go down the path of Canada, the United States and Australia because they are not under the European Convention on Human Rights and we are. That is not a straightforward argument. Canada has its own version of the European Convention on Human Rights and the United States has its own Bill of Rights, so it would be wrong to say that they are not protected by a human rights convention such as covers us. That is not a very good argument. In any case, in the United States, the FBI, as we are learning from the events of last week, has thousands of agents each year operating within terrorist and mafia groups which pose grave threats to the public, yet the United States places express limits on what crimes the FBI’s covert agents can commit.
The amendment is a proper one; it is a proper safeguard; it is something that those of us who believe in human rights would say ought to be there. We need the extra protection of the amendment: the Human Rights Act itself is not sufficient.
Lord Cormack (Con) [V]
My Lords, like the noble and learned Lord, Lord Hope of Craighead, I believe the amendment could be improved; nevertheless, like him, I support it. I support its basic principle. I support what the noble Baroness, Lady Massey of Darwen, said.
I was very glad the noble Lord, Lord Rosser, began by paying tribute to the police and those who keep us safe, following that splendidly spirited speech from the noble Baroness, Lady Manningham-Buller, on Monday, when she talked about the bravery of many who serve in the Secret Service. All that I endorse, but it cannot be right for the state to connive at the committing of heinous crimes: rape, murder or torture. I tabled an amendment in Committee specifically citing those crimes. When I saw the amendment of the noble Baroness, Lady Massey, on the Order Paper, I decided not to resubmit mine because she seemed to have covered it.
The noble and learned Lord, Lord Hope, made a wonderful forensic demolition of the Government’s citing support for resisting amendments such as this from the Human Rights Act. That really does not wash. I am bound to say that, in the various conversations I had with officials in the Home Office—I again thank my noble friend for making them possible—the only area where I felt the defence was very weak was in the opposition to an amendment along these lines. We have heard colleagues cite Canada and Australia, and again surely we cannot say that what has worked for almost 40 years in Canada without any apparent obstacle could not work here.
We are a civilised country that always proclaims its belief in the rule of law, the prime requirement of which is to defend all our citizens—hence this unpleasant but necessary Bill—and I submit to your Lordships that it would be completely wrong not to have a brake on the powers that a CHIS can be given. We have seen in the rather unpleasant stories that have come out in the recent inquiry, where women have been seduced when organisations that do not place the state in danger have been infiltrated, that things can get out of hand. I do not want to be part of any endorsement of the commission of murder, rape or torture. That is why, although I believe the amendment can be improved during ping-pong, if it is put to the vote, I will support it.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I now call the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab) [V]
My Lords, I will be short on this, not just to please my friend the Government Whip but because I want us to move to a vote as soon as possible—certainly before the black dog that is conjured in my mind as a result of our not being able to improve the Bill so far overwhelms me. It almost certainly will if we do not achieve some improvement pretty fast. I completely associate myself with the eloquent remarks of my noble friends Lady Massey, Lord Rosser and Lord Dubs in particular, but the noble Lord, Lord Cormack, has once more spoken from such a principled position in his constructive criticism of the Bill.
Briefly, the Human Rights Act is not enough to prohibit criminal offences. The European convention and the Human Rights Act require states to have effective criminal law, but if the Act or the convention were enough by themselves, we would need no criminal law at all. Clearly that is a nonsense. These are high-level, international protections that must be implemented in detail by criminal law; otherwise, there will be violations of the very convention rights on which the Government seek to rely.
Baroness Jones of Moulsecoomb (GP)
I congratulate the noble Baroness, Lady Massey, on tabling the amendment. I am deeply sad that it needed to be tabled. It is staggering that the Government could even try to legislate in such broad terms to permit people to commit murder or any sort of outrage without limits and with blanket legal immunity. I would have used the word “inconceivable”, but obviously at some point somebody has conceived that this would be all right. I very much dispute that.
The Government’s response is also that some sort of ethereal legal soup will magically prevent these powers being used for murder, rape or torture. That just is not good enough. This question has to be put beyond any doubt.
The amendment also covers the issue of obstructing or perverting the course of justice. The people who use the powers in the Bill are the very people entrusted by society to uphold the law and fight for justice. The fact that the Bill even puts into any question that they might obstruct or pervert the course of justice is frankly embarrassing.
I mentioned earlier public incredulity, as the noble Lord, Lord Young, put it, from anyone not involved in day-to-day policing, because when they are told of this practice of advanced immunity, they are frankly horrified. When I was buying a coffee today in my local grocers, I explained this part of the Bill to Maxfield, who was making my coffee. He was shocked and said, “It’s a licence for crime.” It is a licence to kill. It is a licence to commit endless perversions of the law. The rule of law demands that we pass the amendment and insist on it at ping-pong.
Viscount Brookeborough (CB) [V]
My Lords, I had not intended to intervene—[Inaudible]—discussed in the context of CHIS operating in non-terrorist criminal organisations and rather less of those in terrorist groups. Because the Bill covers both at once, I feel there is a danger—[Inaudible]—extent that it might seriously inhibit the latter, which is the fight against terrorism. I therefore cannot fully support the amendment as a whole, but I would support proposed new subsection (c) on sexual offences on its own if I could do so.
The major difference between non-terrorist crime and terrorism is that the former—[Inaudible]—of death. Terrorism always has death and destruction as its aim. I know little about the former apart from what I have read in the press and heard in the very excellent debates on the Bill. However, I have some knowledge of—[Inaudible]—we remember the serious nature of the criminality that terrorist groups seek to carry out. The intelligence that CHIS gather prevents large numbers of deaths and serious harm to the public.
There have been, I believe, some misconceptions in these debates about the terrorist world. There has been mention of informer—[Inaudible.] All agents are informers, but not all informers are agents. The single-use informer is a person who is short term only and would probably be paid off or given another life after the operation, such as the dismantling of a drug-dealing gang. This is because he will have been exposed by the arrest—[Inaudible]—operator in a large organisation that provides ongoing information that can go on for years or even decades. The noble Lord, Lord Paddick, suggested that a CHIS operating under one of these authorisations is called a participating informer. Perhaps that was so in the areas of his experience, but it was not so in mine, when—[Inaudible]—these types of agents, strategic agents in a terrorist group or short-term criminal informers.
In Committee, the noble and learned Lord, Lord Stewart of Dirleton, said:
“Let us suppose that in becoming a member of a terrorist organisation, a CHIS is required to fill out a membership form … The handlers may therefore assist”—[Official Report, 24/11/20; col. 151.]
in filling the form out. I hesitate to disagree with such an eminent noble and learned Lord, and while I do not doubt that this might be the case for other groups, I am not aware of any terrorist organisation that produces a membership application—although the IRA had a green book that was given to people once they were inducted.
[Inaudible]—in Northern Ireland for 23 years of the Troubles. More recently, I am well aware of the agent-handling protocols from the Troubles era and that they have been adapted and improved for use in Iraq and Afghanistan. For centuries, perhaps for all time, there have been spies and intelligence gatherers at state level, where it is basically strategic intelligence within a pyramid of government structure. This is, if you like, the Le Carré world. Spies rarely have to commit crimes, such as planning and carrying out a bombing—[Inaudible]—in the last 60 years is worldwide terrorism and the need to have long-term deep plants or active terrorists who have been turned.
[Inaudible]—that states have. Terrorist organisations are very flat in structure and every person from the top to the bottom is—[Inaudible]—for want of a better word. They are active terrorists. It is also important to realise that it is very difficult to—[Inaudible.] In 40 years of the Troubles, there were only, I believe—[Inaudible]—figures of such people. We saw what happened when Robert Nairac thought he could become a member of a family. As a result, most CHIS are turned terrorists or at the very least members of the same communities. They will have committed and will almost certainly continue to commit crime—[Inaudible]—a big part of the induction process in the first place. There are no convenient forms to sign, and any reluctance to take part, from initiation onwards, is suicidal.
Imposing these legal limits, as laid down in the amendment, could put CHIS in the terrorist world at substantial risk. After being inducted into a terrorist organisation, every part of that individual’s life from then on contributes, one way or another, to the terrorist aims, death and destruction—criminality of the highest order. Becoming a CHIS cannot change that much. However, the outcomes of their provision of intelligence saved many lives.
I shall give a true example of a small event. An agent turned up at a meeting of his IRA ASU—active service unit—in the county where I live. He was told to deliver a car bomb immediately. He could not refuse. He delivered the car and, luckily, the TPU—the timer power unit—gave him time to call his handler from a call box before the bomb was to blow up, thereby avoiding loss of life. If I may say so, that is not the most extreme case.
Of course it is right that CHIS activity should be regulated and the Bill does just that. There are protections in place such as the Human Rights Act. However, there may be times when participation in serious crime is necessary and at short notice. Any refusal to be involved would result in the loss of an agent, and no further information from that source. It may have taken years for him to become so deeply involved. This is real life in that terrifying world. The running of the protection of such people is vital and complex. There has to be a way in which to manage them. Inserting increasingly tight legal limits on what they can and cannot do is not the way forward, as those limits may be largely unenforceable in those circumstances.
I will not go into examples of the protection. However, there is an analogy which shows the value of sources. The Enigma was a provider of intelligence, albeit a machine, rather than a person. When the code was broken, the first signal referred to an immediate attack on a convoy by U-boats. It struck me that that was a similar situation to those of some agents. Turing’s colleagues said quickly, “We must warn the convoy.” He said, “No. We cannot risk such a valuable source for the future, or that will be the end of it.” That is one of the problems for the CHIS.
Terrorism is—[Inaudible]—operations alone. The use of many long-term, deep-intelligence CHIS creates a cancer within the terrorist organisations that does so much damage to them that, although they do not admit defeat, they begin to realise that they cannot win. That turning point is sought after by Governments worldwide, and very much due to CHIS.
In the months prior to the ceasefire in Northern Ireland, over 90% of planned terrorist operations failed or did not take place, largely as a result of long-term deep CHIS. I and my family were among the beneficiaries of such intelligence. I believe that this and some of the other amendments will inhibit the fight against the worldwide terrorist threat.
Lord Paddick (LD) [V]
My Lords, we support the amendment in the name of the noble Baroness, Lady Massey of Darwen. I have added my name to it.
The noble and learned Lord, Lord Hope of Craighead, seems to have blown the Government’s reliance on the European Convention on Human Rights out of the water. Even if he was wrong, which I very much doubt, I fail to understand the difference between a list of offences that can be deduced from the convention and an offence listed in the Bill. The Government’s argument seems to be solely based on the danger of the CHIS being tested by asking them to perform prohibited acts. Yet as the noble Lords, Lord Rosser and Lord Cormack, have said—the amendment being based on the Canadian Security Intelligence Service Act 1985—the Canadians seem to have had no such qualms or difficulties.
In any event, is the cat not out of the bag already? Do criminals read Hansard? That is about as likely as they are to read primary legislation, in my experience. We have the list of prohibited offences published as a proposed amendment. The Minister is saying that those offences would be prohibited anyway under the ECHR, so what is to be lost? I understand the reservations of the noble and learned Lord, Lord Hope of Craighead, about the wording of the amendment, but if the Government do not give an undertaking to bring this matter back at Third Reading, it can be approved on ping-pong, as the noble Lord, Lord Cormack, said.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place.
The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law.
The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct.
I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough.
We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting.
This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse.
I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively.
Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks.
Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, I have received a request to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern.
Lord Mackay of Clashfern (Con) [V]
My name was down due to a fault of mine; I apologise for interrupting.
Baroness Massey of Darwen (Lab) [V]
I have reservations about some of the issues the Minister raised in summing up this excellent debate—most of them have been addressed by noble Lords. I thank all noble Lords for their varied and incisive comments and useful examples in this valuable, interesting and important debate.
I am particularly delighted that the noble and learned Lord, Lord Hope of Craighead, immediately followed me in this debate; he raised many issues and provided excellent analysis and clarifications. I accept his comments and am delighted that he feels he can support what he has called an imperfect amendment. He is also right in saying, as did the noble Lord, Lord Cormack, and others, that great weight must be given to the issue of torture, which should never be authorised.
Other noble Lords have contributed varied arguments on my amendment. The noble Lord, Lord Bruce of Bennachie, made a useful contribution from the point of view of Scotland, where, interestingly, the Bill was found to be inadequate, as he said. That has been a theme throughout the debate, especially when discussing the Human Rights Act as an inadequate safeguard to prevent criminal offences. The noble Baroness, Lady Chakrabarti, among many others, raised this issue, saying that we cannot legislate in such broad terms; it is not all right to do so.
In thanking noble Lords for participating in this debate, I note that, although I understand what the Minister is saying, the consensus is that there are too many inadequacies. Given those inadequacies, I beg to test the opinion of the House.
The Deputy Speaker (Lord Alderdice) (LD)
We come now to Amendment 17 in the name of the noble Lord, Lord Paddick. Does the noble Lord wish to move his amendment?
Amendment 17
Lord Paddick
“(8A) Where a criminal conduct authorisation has been granted, the covert human intelligence source so authorised cannot be deployed unless the conditions under subsection (8B) have been fulfilled.(8B) The conditions are that—(a) notification has been given to the Investigatory Powers Commissioner of—(i) the purpose and extent of the deployment, and(ii) the type of criminal activity it is anticipated the covert human intelligence source would participate in, and(b) the Commissioner has considered the likely operational dividend against the likely intrusive effects, including the potential for collateral damage or injury, and has approved the deployment.(8C) In the event of urgency, prior approval is not required but notification must be given to the Investigatory Powers Commissioner as soon as reasonably practicable and in any event not later than seven days after the deployment.(8D) A notification under subsection (8B) or (8C) must be given in writing or transmitted by electronic means.”
Lord Paddick (LD) [V]
I beg to move and I wish to test the opinion of the House.
Lord Anderson of Ipswich
“( ) Notwithstanding section 27, injury sustained by any person shall not be excluded from the scope of the Schemes provided for by the Criminal Injuries Compensation Act 1985 and the Criminal Injuries Compensation (Northern Ireland) Order 2002 by virtue of the fact that the conduct causing such injury was authorised under this section.”Member’s explanatory statement
This amendment seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.
Lord Anderson of Ipswich (CB) [V]
I beg to move and I wish to test the opinion of the House.
Baroness Kidron
“29C Criminal conduct authorisations: granting to children and vulnerable sources (1) This section applies when the source is—(a) under the age of 18,(b) a vulnerable individual, as defined in subsection (5), or(c) a victim of modern slavery or trafficking, as defined in subsection (6). (2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.(3) Where a criminal conduct authorisation is granted for a source to whom subsection (1) applies, the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.(4) In subsection (3) “appropriate adult” means—(a) the parent or guardian of the source;(b) any other person who has for the time being assumed responsibility for his or her welfare; or(c) where no person falling within paragraph (a) or (b) is available and deemed appropriate, any responsible person aged 18 or over who is neither a member of nor employed by any relevant investigating authority.(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015 (human trafficking), or exploitation as defined by section 3 of that Act (meaning of exploitation).(7) The “exceptional circumstances” in subsection (2) are circumstances—(a) where authorisation of the criminal conduct authorisation is necessary and proportionate considering the welfare of the covert human intelligence source;(b) where, if the covert human intelligence source is under 18, the relevant investigating authority has determined in its assessment that the criminal conduct authorisation remains compatible with and does not override the best interests of the covert human intelligence source;(c) where all other methods to gain information have been exhausted; and(d) where the relevant investigating authority has determined in its assessment that the source to whom subsection (1) applies will not be at risk of any reasonably foreseeable harm (whether physical or psychological) arising from the criminal conduct authorisation.(8) Where a person grants a criminal conduct authorisation to anyone specified in subsection (1), that person must give notice of that authorisation to the Investigatory Powers Commissioner.(9) A notice under subsection (8) must—(a) be given in writing;(b) be given as soon as reasonably practicable, and in any event within seven days of the grant; and(c) include the matters specified in subsection (10).(10) Where a person gives notice under subsection (8) in respect of the granting of a criminal conduct authorisation, the notice must specify—(a) the grounds on which the person giving the notice believes the matters specified in section 29B(4) are satisfied;(b) the conduct that is, or is to be, authorised under section 29B(8); and(c) the reasons for believing that “exceptional circumstances” as set out in subsections (2) and (7) apply.”
The Deputy Speaker (Lord Alderdice) (LD)
Would the noble Baroness, Lady Williams of Trafford, like to move Amendment 26 formally?
Baroness Williams of Trafford (Con)
I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.
Lord Kennedy of Southwark (Lab Co-op)
I thank the noble Baroness and the Government very much for that. I am sure we can get an agreement and all come together. Thank you so much.
The Deputy Speaker (Lord Alderdice) (LD)
We now come to the group beginning with Amendment 27. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate. I should inform the House that, if this amendment is agreed to, I cannot call Amendments 28 to 31.
Clause 2: Authorities to be capable of authorising criminal conduct
Amendment 27
Baroness Hamwee
“RELEVANT AUTHORITIES FOR THE PURPOSES OF S. 29BPolice forces etcA1 Any police force.B1 The National Crime Agency.C1 The Serious Fraud Office.The intelligence servicesD1 Any of the intelligence services.”Member’s explanatory statement
This amendment would limit the public authorities entitled to grant criminal conduct authorisations.
Baroness Hamwee (LD)
We have Amendments 27, 29, 30 and 45 in this group. Amendment 27 is the central amendment. I appreciate that it may not be immediately obvious, but it responds to how the Bill is constructed, so I will try to explain.
The Regulation of Investigatory Powers Act—RIPA—allows for a number of authorities to deploy sources. That number is reduced by this Bill, and we support that. However, at the same time, all authorities that remain on the list are relevant authorities, which are also able to grant criminal conduct authorisations. Our amendment would leave out what is a repeal of the list in RIPA—that repeal follows from the Bill’s new Part A1 of the RIPA schedule—but it puts back the police, the National Crime Agency, the Serious Fraud Office and the intelligence services for the purposes of new Section 29B, which is for new criminal conduct authorisations. In short, amendments 27 and 45 would mean that all the authorities listed in Clause 2 are relevant authorities for the purposes of the sections of RIPA that continue and so can deploy sources, but only the police, the NCA, SFO and intelligence services can grant CCAs. Simply taking out a number of authorities from the Bill does not achieve that, though it took me a while to work out how to get there and we got it wrong in Committee. The Minister was kind enough not to rub that in.
At the last stage, the noble Baroness, Lady Massey, and the noble Lord, Lord Dubs, explained the concerns of the JCHR, and they have tabled their amendment again. Other noble Lords had amendments and spoke to concerns about what the noble Baroness, Lady Chakrabarti, called overreach. The noble Lord, Lord Cormack, proposes leaving off the list the five authorities which have caused the most surprise among a number of noble Lords.
At the last stage and on Monday, I felt several times that those of us who have been putting forward amendments to the Bill, in what I described then as attempts to buttress safeguards to the granting of CCAs, while on the whole accepting their use, were thought to be attacking the use of agents. We were not. We understand the safeguards in the Bill and the draft code of practice—necessity and proportionality, as well as the procedural safeguards. Of course, most of us do not have the direct experience of other noble Lords, and most of us could not do what they do or have done. But I hope they do not regard it as disrespectful of them if I say that one of the attributes of this House is that we blend expertise and experience with, I hope, reasonably informed and intelligent generalism. It would not be good for democracy—I am aware of the irony of an unelected politician making the point—if experience in a particular area were not leavened by other experiences, including life experience.
Questioning the authorities that can grant criminal conduct authorisations is not questioning the use of agents. I understand the argument that it may be better not to split activities and that, if criminal conduct is to be authorised, it is better to authorise an agent already placed in the authority, perhaps even an employee. On Monday my noble friend Lord Paddick made the counterargument that, if the situation is so serious that a CCA is contemplated, it should be a matter for the police. It is a judgment between the two positions. I regard the granting of a CCA—permission to commit a crime for the greater good—as so serious that it should be more limited than the deployment of an agent. I do not dispute that some of what the authorities in contention, if I may put it that way, deal with is extremely serious; but I started to wonder why we would take out of the list of those who can deploy a CHIS the Gangmasters and Labour Abuse Authority and the Marine Management Organisation while retaining, for instance, the Environment Agency.
Our other amendments, which would be pre-empted if Amendment 27 is agreed, are to limit the authority of the Armed Forces to the police of the three services— the reference to the intelligence services is unaffected—as we assume, or hope, that it is not intended that every part of the Armed Forces should be entitled to give agents the authority to commit crime. In the case of the Home Office, we would limit the Home Secretary’s right, in effect, to authorising herself to prevent or detect modern slavery and trafficking, picking up on the Minister’s explanation of the inclusion of the Home Office being specifically related to immigration enforcement—she gave an example. I beg to move.
Baroness Massey of Darwen (Lab) [V]
My Lords, I thank the noble Baroness, Lady Hamwee, for her explanation of this set of amendments. I shall be brief in presenting Amendment 28. I am a member of the Joint Committee on Human Rights, which considered the Bill and the issue of granting authorisations. This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.
The recent Joint Committee on Human Rights report considers the wide range of public bodies in the Bill unnecessary and unproductive. Criminal conduct authorisations, from a human rights perspective, must first consider whether the exceptional power to authorise crimes to be committed without redress is truly necessary for all these public authorities.
Lord Judd (Lab) [V]
My Lords, I rise—as it were—to support Amendments 27, 28 and 29. These are important. We are dealing with very grave matters, as we have frequently emphasised in our discussions, and it is essential that they are in the hands of bodies and people who are part of organised, disciplined and accountable elements in our state. For that reason, these amendments are self-evidently necessary.
I also commend the amendment that deals with people in the armed services who can authorise. This should be limited to the police in those services. It is very important that those involved in the work should be part of that disciplined body. I am not happy with a situation in which we use Tom, Dick and Harry to do work on our behalf. That is not healthy in a democracy and it is not in the spirit of everything we are about. We need to make sure that professional people are doing this work who, we hope—I emphasise “hope”—understand that they are doing it in the cause of defending democracy, freedom, accountability, the rule of law and justice. I am glad to support these amendments.
Baroness McIntosh of Pickering (Con) [V]
My Lords, this group of amendments is of particular interest to me as, when we first looked at the Bill in Committee, I had great difficulty in understanding why the provisions of this clause extended to the Food Standards Agency and Environment Agency. I was fortunate to have a helpful briefing arranged by my noble friend the Minister. I also looked back to the evidence we took almost 10 years ago in the Environment, Food and Rural Affairs Committee in the other place, when the “horsegate” incident arose—in which horsemeat was passed off as beef and other types of meat. Regrettably, this is a potentially multi-million-pound business, as is fly-tipping, which is the bane of public life in rural areas. As I see it, if this is organised crime perpetrated by criminal gangs, one of the only ways we can tackle it, provide evidence and bring successful prosecutions is by granting agencies the tools under this clause.
I requested case studies and I understand that this is early days and that the provisions obviously have not yet applied—perhaps my noble friend could confirm that. However, it is envisaged that the provisions under this clause would enable the Food Standards Agency to tackle the type of fraud that was experienced in the horsegate scandal and prevent it happening in the future—one hopes, at the earliest possible stage—and the Environment Agency to use the intelligence to bring a successful prosecution in incidents of fly-tipping and other forms of illegal waste disposal.
Against that background, I would like these two agencies to remain in the Bill. I presume that my noble friend will able to confirm in the absence of current case studies—which I understand to be the position—that Parliament will have the opportunity to review the arrangements through the annual IPC report. It would be helpful to have that understanding. If we were to delete the agencies entirely, as is the purpose of Amendment 27, or, as the noble Baroness, Lady Hamwee, eloquently outlined, to prevent officers of these two agencies granting CCAs, we would be tying their hands in what is a seriously fast-moving crime.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. The nature of our hybrid proceedings allows us to see her beavering away almost by candlelight, keeping warm but still with us. We have not always agreed on this Bill, but she has been a stalwart scrutineer during these proceedings.
The various safeguards that noble Lords have tried to add to the legislation are a patchwork. One could be relaxed about dispensing with some if one had others. I personally would have been much more relaxed, even about this extensive list of agencies, but for not being supported by sufficient noble Lords on that vital constitutional issue of immunity, which I am afraid has completely changed the game on CHIS criminal conduct.
I hear the arguments about the need to protect the environment and the markets, and to protect gambling from corruption et cetera, but if such scandals and organised crime were so serious, the police could be engaged to assist a relevant agency or commission in appropriate cases. That is what happens with powers to enter and powers to arrest all the time. If there was not something special about trained Security Service officers or trained police officers, we would grant a whole range of serious powers to enter and arrest to many more state departments and agencies than we do.
I understand the argument about resources because the police are so pressed, but that is an argument for giving them the financial resources and personnel they need to engage in serious crimes, including those relating to unsafe food and so on. So, I support limiting the agencies in the manner suggested by Amendments 27 and 28. We should leave it to the trained police or the trained security agencies. I would include the National Crime Agency and the Serious Fraud Office, but not a whole host of state agencies and government departments; otherwise, there could be a serious constitutional concern and a great many scandals well into the future.
Lord Cormack (Con) [V]
My Lords, I first raised this issue at Second Reading and I tabled an amendment in Committee.
I very rarely disagree with my noble friend Lady McIntosh of Pickering, but the logic of her argument is that you cannot tackle crime without giving a multitude of bodies the opportunity to enlist people to commit crime. I just do not accept that. I have deleted the bottom five organisations in the list—the ones on which, as the noble Baroness, Lady Hamwee, said in her admirable introduction, people have focused most attention by asking, “Why are they there?”
I completely understand the argument about police forces and the National Crime Agency, et cetera. Having had conversations with officials in the Home Office and HMRC, I even understand the introduction of HMRC into the Bill, but, for the life of me, I just cannot see why, as the noble Baroness, Lady Chakrabarti, said a moment or two ago, police forces cannot deal with such bodies as the Environment Agency, the Food Standards Agency and the Gambling Commission.
Having a proliferation of bodies that are able to sanction people to commit crimes sends out a very bad signal. We take pride in our police forces and they should of course have the resources necessary to investigate all manner of crimes. People who commit crimes, whether within the orbit of the Environment Agency or the Food Standards Agency, should be brought to justice and punished if they are found guilty. But I just do not see a justification for this long list in the Bill. I very much hope that, when the Minister comes to reply, she will be able to convert and convince me, but I really do not think that she will. Whether I move my amendment to a vote will depend on what I hear, but I give notice that I might.
Lord Dubs (Lab) [V]
My Lords, it is a pleasure to follow the noble Lord, particularly as on this occasion, as quite often, I find myself in agreement with him.
When I listened to the noble Baroness, Lady McIntosh, I initially thought that there was something in her argument. Then I pondered again for a moment or two and decided that this was not an acceptable way of going forward, particularly as we could get into the position of mentioning a lot of other agencies and public bodies, all of which might have a similar claim to being included in the Bill as some of these have. It is going too far. When this issue got to the Joint Committee on Human Rights, we were quite puzzled by it all. I noticed that the media—certainly the national newspapers —had fun at the expense of the list.
I do not think that we can justify it. If we said that every public body had the right to be included in the list, that would be absurd. We should confine ourselves to bodies that deal with fighting serious crime and terrorism—major national and security issues. As I said, I think that this has gone too far. When I first heard about the list, I was not inclined to take it too seriously, but then I saw it on page 4 of the Bill. It does not seem to be a good idea, and I very much hope that we will pass one of the amendments that cleans up the list and makes it smaller and more sensible.
Lord Naseby (Con) [V]
My Lords, these amendments are all about which specific public authorities should have the power to grant criminal conduct authorisations. Frankly, I disagree with my noble friend Lord Cormack and the noble Lord, Lord Dubs. I see no need to be restrictive; all sorts of public authorities may need to use the sort of, in effect, facilities to use criminal conduct authorisations. In addition to the list here, how about the Civil Aviation Authority? One knows—and I am deeply involved in civil aviation matters—that that area is riddled with challenges of illegality. The same applies to Customs and Excise, and so on. Surely the issue is not who should have the power, but deciding, after a thorough assessment of need, who is the most relevant and has the right expertise. Otherwise it becomes a bureaucratic nightmare, rather than a carefully planned and executed operation.
Lord King of Bridgwater (Con) [V]
My Lords, I am pleased to have the opportunity to follow the noble Lord, Lord Naseby, who is rather closer to my position than most of the other contributors to this debate.
I think we start, after these exhaustive Committee and Report stages, with a pretty wide recognition across the House of the value that can come from covert sources and the vital need to ensure that, in maintaining law and order and a safe country, we do not lose the opportunity of using covert sources. They may be the only way to get the results we want and to prevent very serious crime and damage to our country.
But I think the reason why perhaps we have the problem of these amendments—all of which I oppose—is that many people ask the Government for lots of examples of all the ways in which the various bodies that people wish to delete have actually had any success with covert sources. Of course, the difficulty the Government have, which I understand, is that it is very difficult in many cases. There may be ongoing issues, or they may endanger existing covert sources by giving too many examples of the ways in which we have managed to prevent crime and get the success that we want.
I certainly think that there is general agreement that, if we do have the operation of covert sources, it has been made very clear that we want to be satisfied that they are properly operated; that it is necessary and proportionate; that it is subject to effective scrutiny and inspection; and that there are clear limits on the number of authorities permitted and able to operate it.
When one looks at the list of the authorities, I was not impressed with the noble Lord, Lord Judd, talking about any Tom, Dick or Harry. These are major organisations in our country—public authorities with major responsibilities. I would just make this point: it is not just any list. We know that it would be wrong to have too many. The Minister may correct me, but I believe that there were 34 originally which, under the previous arrangements, could operate. This has now been reduced to 14, which seems to me the right approach to take.
Looking at some of the issues that there are, in my previous contributions I have drawn on the contribution of James Brokenshire, and I join in our best wishes to him. I will just repeat once the evidence he gave on the devastating amount of crime and serious events: in a year alone in London, covert sources helped ensure 3,500 arrests, the recovery of more than 500 weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. The only thing that that does not actually say is which of these agencies in London were part of that. That is part of the problem the Government have had in getting across the message of why these agencies are important.
In the current situation, in the middle of the Covid-19 pandemic, when I think we are about to have global challenges in the supply of vaccines and some new medicines thought to help with treatment, with the struggle there may be and the opportunities for organised crime to get into that area, for the Government to delete the Department of Health and Social Care and its medicines and healthcare products section from being involved in this area—they could be vital; they are needed in those situations—and say that they have decided on this occasion to deprive them of what may be a vital source of intelligence to protect the nation’s health would be unforgivable.
In passing, I note the decision to delete the Home Office from the list except in cases of slavery. I do not know how many noble Lords saw the letter in today’s Times from the Reverend Jonathan Aitken, the chaplain to Pentonville prison. He made the case that in prisons at the moment, where a number of staff are having to self-isolate and are under great pressure and there are opportunities for criminal gangs to get up to dangerous operations of one form or another, it is essential that we do not at this moment take away one of their sources of possibly vital intelligence.
I will not go on about it, because the other thing I see coming—just to cheer everybody up—in our present dramas is a real risk of world food shortages. If there is a challenge of that kind, with the opportunities for organised crime to get into the food area and cause huge problems for different people, that choice moment to delete the Food Standards Agency from being able to keep the fullest possible checks on what is happening seems very unwise. I certainly agree that there should not be a huge range of different agencies, but I do not support any of these amendments. All these agencies have good justification at the moment; it is vital we keep our defences up.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I find myself agreeing with a lot of the comments of the noble Lord, Lord King of Bridgwater.
I absolutely recognise the concerns of Members about the range of organisations listed in the Bill. It is right that we probe, question and justify to ourselves as a House which organisations are listed here—as we have heard, that is now a reduced number—but it is also important that, as this Bill passes through the House, we empower a number of organisations to have the ability, in limited circumstances, to employ a covert human intelligence source.
If you look at the organisations here and think about the potential crimes that could be under their remit—HM Revenue & Customs in terms of tax fraud, the Food Standards Agency in terms of passing off out-of-date meat, the Environment Agency in terms of discharging all sorts of stuff into our rivers or the Competition and Markets Authority in terms of many activities which are illegal and very detrimental to our country—it is right that we have this range.
It is fair to say that some organisations listed here would potentially use the power much more than others. That is fair. I am clear that the Investigatory Powers Commissioner has some oversight here, but it would be useful if the noble Baroness could be clear in responding that an organisation that used this power very infrequently would have the ability to go to the Investigatory Powers Commissioner for advice and guidance, and maybe also to other agencies that are more used to using this power.
I absolutely see the point that we need to have organisations in certain areas empowered to do this work. These are potentially very dangerous situations. This is about keeping our country safe and protected in these difficult times. Although I understand the concerns raised by noble Lords in the amendments in this group, we on these Benches would not support any votes on them.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. Like the noble Lord, Lord Kennedy, I found the contribution from my noble friend Lord King very compelling. I hope that all noble Lords have received and read the business cases for the wider public authorities that I sent to all Peers last week. On the basis of those, I hope that noble Lords will appreciate the requirement that these public authorities have for the use of this power. I can again offer reassurance that they will be low users of the power but that it nevertheless remains an important tactic in detecting and preventing crimes that have a significant impact on the lives of the public.
Regarding why the police cannot just authorise for these wider public authorities, the police have a range of priorities and we have given various organisations specific law enforcement responsibilities. That is why these public authorities have their own investigative functions, and they therefore need the tools to fulfil those functions.
If noble Lords support Amendment 33, in the name of the noble Lord, Lord Anderson, as the Government will, IPCO will have close to real-time oversight of every single criminal conduct authorisation granted by each public authority. This will be another important safeguard to ensure that the power is being used properly and appropriately. IPCO will almost definitely flag where this is not the case, or if there are training requirements.
I can confirm that my noble friend Lord King is absolutely right: there were originally 34 authorities. There are now 14, so, far from expanding that list, we are contracting it. In response to my noble friend Lady McIntosh of Pickering, I can confirm that the IPC will consider the authorisation of wider public authorities in his annual report, which will be public.
I would like to give a very topical example of how this power might be used by one of our wider public authorities, the Medicines and Healthcare products Regulatory Agency, which comes under the umbrella of the Department of Health and Social Care in the Bill. The MHRA has responsibility for protecting public health through the regulation of medicinal products, medical devices and blood and blood products in the UK. These products are not ordinary consumer goods and have the ability to cure, prevent and diagnose disease and enhance life. However, they can also cause serious harm. In particular, prescription medicines are, by their very nature, potent and are prescribed to patients by a healthcare professional based on clinical judgment and a patient’s history.
In the UK, strict legal controls govern these products and breaches of these regulations are criminal. Crime involving medicines and medical devices is increasing; they are profitable commodities and unscrupulous individuals and organised crime gangs, which put financial gain before human health, face less risk and less severe penalties compared to trading in, for example, narcotic drugs. The MHRA relies on powers under RIPA, including the power to authorise the use and conduct of CHIS, to investigate and disrupt criminal activity in this area.
Baroness Hamwee (LD) [V]
I repeat what I said at the start of this debate: that the reduction in the list is not about reducing the number of authorities which can engage covert human intelligence sources. It is about which of those authorities can grant criminal conduct authorisations—as the noble Lord, Lord Cormack, put it, fighting crime by allowing the commission of crime.
I acknowledge the reduction in the number of authorities that can engage human sources. I had hoped that I had explained that at the start of the debate, when I sought to explain the structure of Amendment 27. I do not dispute that a lot of what all the authorities in question deal with is very serious, including organised crime in some instances, but I have to say that I end this debate far more disturbed and distressed than I was half or three-quarters of an hour ago. We seem to be sliding into an acceptance of the position that, if there can be a CHIS, subject to the safeguards in particular cases that we have spent quite a lot of time on, there can be a criminal authorisation.
Should every public body have what has been described as a tool? It is a tool, but it should be a tool employed and allowed in only the narrowest, most specific and most extreme of circumstances, which is what the agencies that remain on the list of those able to grant criminal conduct authorisations deal with. They deal with extreme circumstances, and that includes the police. If every public body or public authority on this list has a tool, how should we regard the police? How should we think about society’s attitude to using crime to fight crime? I should have thought, for instance, that it should be for the police to deal with the theft of vaccine. I had hoped that I had distinguished very clearly between the two different situations.
I was puzzled by the noble Baroness, Lady McIntosh, saying that she understood that no case studies could be provided for some of the authorities because the provisions were not yet applied. I had thought that the whole Bill was about putting on a statutory basis what had been going on without that statutory basis. However, having said that—quite emotionally, I accept, because I do feel that this is emotional as well as something to which we should apply rigour and judgment, and I had hoped that that was what we were doing—I think it is about how we regard how we run our society, the place of the police in it and the trust that we have in public authorities. However, we have heard Labour say that it cannot support this amendment, so I shall not take the time of the House on a Division and I beg leave to withdraw.
Lord Anderson of Ipswich
“Notification to a Judicial Commissioner
After section 32B of the Regulation of Investigatory Powers Act 2000 insert—<strong>“32C</strong> Notification of criminal conduct authorisations(1) This section applies where a person grants or cancels an authorisation under section 29B.(2) The person must give notice that the person has granted or cancelled the authorisation to a Judicial Commissioner.(3) A notice given for the purposes of subsection (2) must be given—(a) in writing as soon as reasonably practicable and, in any event, before the end of the period of 7 days beginning with the day after that on which the authorisation to which it relates is granted or, as the case may be, cancelled; and(b) in accordance with such arrangements made for the purposes of this paragraph by the Investigatory Powers Commissioner as are for the time being in force.(4) A notice under this section relating to the grant of an authorisation under section 29B must—(a) set out the grounds on which the person giving the notice believes that the requirements of section 29B(4) are satisfied in relation to the authorisation; and(b) specify the conduct that is authorised under section 29B by the authorisation.(5) Any notice that is required by this section to be given in writing may be given, instead, by being transmitted by electronic means.””Member’s explanatory statement
This new clause requires a person who grants or cancels a criminal conduct authorisation under new section 29B of the Regulation of Investigatory Powers Act 2000 to give notice to a Judicial Commissioner (appointed under the Investigatory Powers Act 2016). It provides for when and how the notice must be given and requires that it contains certain information. The references in the new clause to the grant of an authorisation include the renewal of an authorisation (see section 43(5) of the 2000 Act).
Lord Anderson of Ipswich (CB) [V]
I beg to move.
Amendment 34 (to Amendment 33)
Lord Thomas of Cwmgiedd
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted, the person who granted the authorisation must be immediately informed and all further activities that will or might be undertaken pursuant to the authorisation must cease forthwith, subject to the power of the Judicial Commissioner to allow actions specified by the Judicial Commissioner to continue for the purpose of discontinuing the activities for which authorisation had been granted.”Member’s explanatory statement
This amendment is to ensure that on a determination by a Judicial Commissioner that an authority should not have been granted, activities under the authorisation cease forthwith.
Lord Paddick [V]
Member’s explanatory statement
This amendment would insert a requirement that belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
We now come to the group consisting of Amendment 42. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 42
Baroness Whitaker
“Commissioner approval for authorisations to identify or confirm journalistic sources
(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—(a) the public interest in protecting a source of journalistic information, and(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.(5) Where the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.(6) This subsection applies to all authorisations pertaining to sensitive journalistic information, material or communications data, other than when the authorising officer has a reasonable belief that any delay in the authorisation would cause an immediate threat to life, in which case the authorisation may only be granted—(a) by an official at a senior level in the agency concerned, and(b) where appropriate safeguards relating to the handling, retention, use and disclosure of the material are in place.(7) The Secretary of State may by regulations made by statutory instrument determine the appropriate agency under subsection (6)(a).(8) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(9) Any authorisation granted under subsection (6) must be reported to the Investigatory Powers Commissioner within seven days, specifying any sensitive journalistic information, material or communications data that has been obtained, or retained other than for purposes of destruction.(10) In this section “journalistic material” means material created or acquired for the purposes of journalism.”
Baroness Whitaker (Lab) [V]
My Lords, I speak to Amendment 42 in my name and those of my noble friend Lady Clark of Kilwinning, who regrets she cannot be here tonight, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Marlesford. I thank the National Union of Journalists for its advice and declare that I am a former member, and that my daughter has written on the subject of the amendment.
This amendment would ensure that any new powers enshrined in the Bill did not override existing legal protections on press freedom. It seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to continue to carry out their roles. As it stands, the Bill creates an avenue to access confidential journalistic material and sources without any prior judicial oversight. I hope that this is not the intention of the Government and that the current legislative framework of protections can be maintained. I intend to seek the opinion of the House if the Government cannot reassure me.
The amendment requires that a judicial commissioner give prior approval for authorisations to identify or confirm journalistic sources. The commissioner would need to have regard for both public interests in protecting the source of journalistic information, and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the requirement of the Investigatory Powers Act 2016 that, when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. Our amendment respects the contingency that there could be in some cases be an immediate risk to life. In such circumstances, it relaxes the requirement for prior approval by a judicial commissioner, so it meets government objections previously raised.
I understand that the protections enshrined in the Investigatory Powers Act 2016 honoured a commitment in the Conservative Party election manifesto. This commitment followed detailed and sustained representations by the National Union of Journalists and others. They outlined their serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, and rendering journalists unable to uphold their own ethical commitments to professional privacy.
Baroness Jones of Moulsecoomb (GP)
I declare an interest as the mother of a journalist and the friend of journalists, even. It is a pleasure to follow the noble Baroness, Lady Whitaker, who laid out the reasons for the amendment extremely well. I would add that because of journalists’ work in reporting important issues and holding power to account, they are often the target of police and state interference, as we have seen many times. Journalists and their sources need extra protection in the Bill. That must be nothing short of judicial oversight and approval. Again, I express my total exasperation that the issue even has to be debated. It seems so obvious that journalists need this protection. State abuses of power and criminal acts will be committed as a result of the legislation, and we must protect journalists.
Lord Marlesford (Con) [V]
My Lords, we must consider carefully the extent to which the legitimate functions of the media in a free society may be compromised by requiring journalists to disclose their sources of information. Good government has maximum transparency, subject to national security. Our amendment seeks to maintain at least the present level of such transparency. I refer the Minister to Chapter 3 of the 2012 report into investigative journalism by the House of Lords Communications Committee, which was then chaired by my noble friend Lord Inglewood. I submit that it justifies our amendment.
I must make a clear distinction between the traditional printed or broadcast media and the large number of widespread, rapidly growing—and now, all too often, highly malignant—vehicles of social media. It is from social media that the new concept of fake news emerged. Social media has been weaponised by several authoritarian Governments operating through channels of dark diplomacy and is a threat to western democracies. It is therefore relevant to the objectives of the Bill and I suggest that the Government and Parliament investigate it carefully.
While unregulated social media is by its nature anarchic, traditional media in the UK is already subject to multiple levels of control and invigilation. First, there are the proprietors, who are in business for profit, influence and sometimes vaguer satisfactions. Noble Lords may remember the famous 1931 speech written for him by Rudyard Kipling, when Stanley Baldwin described the press lords as seeking
“power without responsibility—the prerogative of the harlot throughout the ages”.
Since those days, we have moved on. Today proprietors are under financial pressure, with more competition for advertisers, as well as from the views of their editors and journalists and, not least, their viewers. There is much greater awareness and intolerance of media misbehaviour than there was 90 years ago. Any statutory power to compel journalists to disclose sources should be defined clearly, with the key protection of independent judicial review on both the need and proportionality in each case.
This amendment proposes a process of adjudication. It starts from the assumption of there being a public interest in non-disclosure and then suggests the need for another overriding public interest before requiring disclosure. More guidance on the nature of this overriding public interest should be introduced by law, and I suggest that there are a couple of principles which should or should not be included in that definition. Embarrassment of privacy should not be included, while national security and the need to assist investigation of serious crime should, of course, be included. Embarrassment can range from media intrusion into private lives through the behaviour of politicians or Governments. The law as it has developed since the Leveson inquiry should confine itself to seeking identification and penalties for any illegal methods of intrusion in seeking information. Whistleblowers on bad practices of organisations, whether public or private, must be protected from identification and consequent persecution. Nor should any law seek to enforce the disclosure of journalistic sources that are claimed to have resulted in the embarrassment of privacy of individuals, all too often people whose lives are focused on maintaining their celebrity status while merely seeking to control the timing of their own publicity. Many so-called celebs employ a publicist to keep them in the public eye.
When we consider national security, there must be a strict test. Some secrets must be kept, especially those in the world of intelligence and nuclear weapons. Open societies must be sensitive to this. On leaks from government and leak inquiries, in my view it is for Governments to keep their own secrets. In practice, leaking is part of the process of politics and sometimes part of the machinery of government. It is rare that there is a public interest dimension against a leak that justifies compelling journalists to reveal sources. Indeed, leaking, even on sensitive issues, can sometimes be in the national interest. The leaking by Foreign Office officials to an out-of-office Winston Churchill that revealed Hitler’s preparation for war is an obvious example of a fully desirable leak.
The Conservative Party has long had a policy of a specific commitment to protect the freedom of the press. The Investigatory Powers Act 2016 provided important safeguards for that purpose. I at any rate intend to hold the Government to that obligation and to resist any attempt to make life easier for Whitehall to operate inside a cocoon of comforting but excessive security.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Marlesford. I have ringing in my ears his commitment to protecting press freedom and that, he says, of his party. I am happy to support this amendment to protect journalistic sources, and I hope everyone else will.
I hope that my noble friend Lady Whitaker will press the amendment to a vote and that everyone will support it, but when they do, I hope that some will consider why they would support this limited protection for journalistic sources yet they did not support Amendment 11 to ban agents provocateurs, which would have protected journalistic agencies as well as other parts of civil society such as human rights NGOs and trade unions. Never came there once—not from either side, I have to say—an explanation of why that protection was unnecessary.
I have yet to pay proper tribute and give proper thanks to the noble Baroness, Lady Hamwee—although I fear that she may not be on the call any more—because never has there been a more modest or consistent defender of rights and freedoms in your Lordships’ House. I say to her that I share her sense of bleakness about how little we have achieved in providing protections in this legislation. A Rubicon has been crossed and probably will be again. There will be impunity for agents of the state to commit even serious crimes; there is no judicial authorisation; and the agencies were not limited. I feel very bleak about that.
The noble Baroness, Lady Manningham-Buller, was perhaps the most eloquent voice for security, as she so often is in this debate. Like everyone else, I was moved by her story about a CHIS, an undercover operative, who told her on a radio programme that he did what he did because he had to look in the mirror and be proud of himself. However, as legislators, dare I say it, we have to look in the mirror as well.
While I support this amendment and hope it passes, I feel very bleak about other parts of civil society and ordinary citizens who are losing their very important rule-of-law protection as I speak. I fear that history will not judge us kindly, nor will critics of our unelected House. It is a very difficult system and Chamber to defend but, when I have looked for a defence, I have always thought about the importance of independence, and independent legislators at least having the ability to defend human rights and the rule of law from populist attack. I fear that we have not perhaps done our best or most successful work on this Bill.
That said, I wish this amendment every success and hope that my noble friend Lady Whitaker will press it.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
The noble Lord, Lord Mann, has scratched. Accordingly, I call the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
My Lords, I thank the noble Baroness, Lady Chakrabarti, for her kind remarks about my noble friend Lady Hamwee. I can assure her that my noble friend will be watching and listening intently as we come to the end of this Report stage.
We support Amendment 42 in the name of the noble Baroness, Lady Clark of Kilwinning. The noble Baroness, Lady Whitaker, ably and comprehensively explained the amendment, which means that I can be brief.
Lord Rosser (Lab) [V]
As has been said, Amendment 42, moved so succinctly by my noble friend Baroness Whitaker, requires a judicial commissioner to give approval for authorisations that would identify or confirm journalistic sources. It also requires the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source.
As others have commented, the Investigatory Powers Act 2016 introduced a requirement for prior authorisation from a judicial commissioner when any application is made to identify confidential journalistic sources. The concern is that this Bill creates a means to access confidential journalistic material and sources without any prior judicial oversight. Statutory provisions in a Bill such as this on criminal conduct authorisations which might allow a way round the existing legal protection of journalistic sources would deter those sources from coming forward in future, at the potential expense of journalists being able to expose illegal, corrupt, exploitative or anti-social activity—a vital role in a democratic society.
The current Secretary of State for Justice has previously said that the ability of sources to provide anonymous information to journalists needs to be protected and preserved. That will not happen if those sources are liable to be exposed by the activities of covert human intelligence agents authorised to commit criminal conduct with no prior judicial oversight.
We need to ensure that the current protections for whistleblowers and journalists are maintained and cannot be weakened or compromised by this Bill. This amendment, requiring prior judicial approval for authorisations relating to journalistic sources, would achieve that objective. We support Amendment 42.
Baroness Williams of Trafford (Con)
My Lords, the amendment from the noble Baroness, Lady Clark, outlined by her noble friend Lady Whitaker, would require prior judicial approval for a criminal conduct authorisation seeking to identify or confirm a source of journalistic material. I set out earlier in the debate why the Government do not consider prior judicial approval to be a workable option for any CHIS authorisation, so I shall not repeat those arguments. However, I will say again that where an authorisation is likely to result in the acquisition of confidential journalistic material there are already greater safeguards in place which are set out in the CHIS code of practice.
There will also now be notification of every single authorisation to IPCO soon after they have been granted. That will of course include any authorisations that are likely to result in the acquisition of confidential journalistic material. Judicial commissioners will therefore be able to consider the necessity and proportionality of an authorisation and check that the proper safeguards have been followed. I hope that provides the noble Baroness with the necessary reassurance and that she can withdraw the amendment.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.
Baroness Whitaker (Lab) [V]
[Inaudible.] I thank the Minister for her typically considered response. After such a long session on Report, I will not comment in detail on the contributions, other than to say that the Government’s response to the 10th report of the Joint Committee on Human Rights—on the general point of judicial authorisation—underestimates the capacity of people trained and experienced in the judiciary to weigh up the implications of actions within a framework of the limits that should be set on behaviour. They are accustomed to doing this with a variety of warrants. The Government’s proposal, which the Minister has not offered to modify in any way, omits the essential requirement of prior authorisation; she insists that this is vital. However, judges are used to making prior authorisations very quickly. Even magistrates are woken up in the middle of the night to approve warrants. The Minister’s objections are not strong enough to warrant my withdrawing the amendment, so I wish to test the opinion of the House.
“2A_ In the heading before section 32A (authorisations requiring judicial approval), after “approval” insert “or notification”.”Member’s explanatory statement
This amendment is in consequence of the new clause which inserts section 32C of the Regulation of Investigatory Powers Act 2000 on judicial notification.
“Coronavirus Act 2020
15_(1) Sub-paragraph (2) applies to—(a) section 22 of the Coronavirus Act 2020 (appointment of temporary Judicial Commissioners),(b) regulation 3(1) of the Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020 (S.I. 2020/360), and(c) any appointment which was made under that regulation and has effect immediately before the coming into force of this paragraph.(2) In section 22(1), regulation 3(1) or the appointment, references to functions conferred on Judicial Commissioners by—(a) the Regulation of Investigatory Powers Act 2000,(b) the Regulation of Investigatory Powers (Scotland) Act 2000, and(c) the Investigatory Powers Act 2016,are to be read as including references to functions conferred on Judicial Commissioners by those Acts by virtue of amendments made by this Act.” Member’s explanatory statement
This amendment allows for functions conferred on Judicial Commissioners by virtue of the Bill to be performed by temporary Judicial Commissioners appointed under regulations made under section 22 of the Coronavirus Act 2020.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Thursday 21st January 2021
(3 years, 11 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 161-I Marshalled list for Third Reading - (18 Jan 2021)
14:52 - Division conducted remotely on Baroness Jones’s amendment to the Motion. - Ayes: 29 / Noes: 440 - Baroness Jones’s amendment disagreed.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am required to inform the House that the Scottish Government informed the UK Government that they would be unable to recommend legislative consent for the devolved elements of this Bill, and we have tabled amendments in advance of this debate that remove from the Bill provisions that are within the legislative competence of the Scottish Parliament. The content of the Bill does not invoke the legislative consent process in Wales or Northern Ireland.
We have engaged closely with the Scottish Government over many months, during the drafting of the legislation and throughout its passage. Where the Scottish Government have identified concerns, we have sought to remedy them. An example of that is an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service to provide the Lord Advocate with visibility of criminal conduct in Scotland.
The Scottish Government, however, required further amendments to the Bill in areas which the Government cannot support; namely, placing express limits on the face of the Bill. The Government’s position throughout this process has been based on advice from operational partners to ensure that the Bill is workable in practice and has no unintended consequences for the safety of the public, or a CHIS, and we have had clear advice from operational partners in all parts of the UK that placing limits on the face of the Bill will lead to CHIS testing and increased initiation tests. We remain open to further discussion with the Scottish Government, to ensure that operational agencies continue to have access to the tools required to keep us safe.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I call the Minister to make a Statement on legislative consent.
Baroness Williams of Trafford (Con)
I have just done that.
Clause 4: Corresponding provision for Scotland
Amendment 1
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Baroness Williams of Trafford (Con)
My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.
Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.
In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.
Baroness Hamwee (LD) [V]
My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.
First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.
In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.
How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if
“all or some of the conduct … is likely to take place in Scotland.”
If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.
Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.
Lord Rosser (Lab) [V]
I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.
The letter from the Minister of 13 January states that the Scottish Government
“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”
As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?
Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?
Baroness Williams of Trafford (Con)
I thank both noble Lords for raising those points. On the final point made by the noble Lord, Lord Rosser, on what happens if the law changes in relation to the court case, clearly the court case is ongoing, we await the findings of it and, in a sense pre-empting the court case, the Government have seen fit to put on to a statutory footing that which was never on a statutory footing. So I hope that, without in any way pre-empting the court case, this will satisfy the courts.
Obviously, the Government are disappointed that we are having to bring forward these amendments. We made it clear that a UK Bill was and remains our preference, and we have worked hard to try to accommodate that. But we have to ensure the workability of the Bill as our primary consideration, and on those grounds we could not provide the amendment necessary to ensure the support of the Scottish Government. On the point made by the noble Lord, Lord Rosser, about limits, we will not accept any change to what we have put forward because it would completely undermine the operational capabilities that the Bill provides for. I have been through the arguments about the safeguards on human rights that are provided in the Bill and, of course, the Children Act when it comes to children.
The noble Baroness, Lady Hamwee, asked about the Government’s assessment of impact. She will appreciate that we do not want to provide sensitive operational detail, but operational partners are considering how to manage any impact of the decision of the Scottish Government. In the immediate term, public authorities will need to consider any existing legal basis for an authorisation, but the noble Baroness is absolutely right to acknowledge that these organisations will not be able to rely on the clear statutory basis provided by the Bill. If there is operational or legal risk in the future, it will be for the Scottish Government to bring forward legislation for devolved activity. It will be in their gift to decide on the safeguards attached to that legislation, and I would hope and expect them to be driven by the expert advice of operational partners, as we have been.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
“(b) after subsection (4) insert—“(5) No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.(6) But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).(7) For the purposes of subsections (5) and (6),“a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).””Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
Baroness Williams of Trafford
My Lords, I beg to move that the Bill do now pass.
Amendment to the Motion
Baroness Jones of Moulsecoomb
“Leave out from “that” to the end and insert “this House declines to allow the bill to pass because the bill (1) grants blanket prior legal immunity for otherwise criminal conduct without sufficient safeguards or oversight, (2) provides no system of prior judicial authorisation, (3) does not recover profits obtained under a Criminal Conduct Authorisation which could include proceeds from the sale of drugs, weapons, human trafficking and slavery, (4) fails to provide compensation to victims of crimes authorised under the bill, and (5) represents a significant expansion of undercover policing despite, and without regard to, the ongoing Undercover Policing Inquiry.”
Baroness Jones of Moulsecoomb (GP)
My Lords, noble Lords can imagine that there is a lot of legislation going through this House that I oppose. In the past, I have exercised restraint and have not been disruptive with procedural Motions, but there are times when we all need to make a stand, and this Bill, for me, is one of those situations. It is a terrible piece of legislation and I cannot be complicit in it, nor in future acts of state oppression that will be the result of our passing it, and I will, therefore, divide the House.
Noble Lords have spent many days trying to improve the Bill, and we have made a few positive steps, but even if the other place does not remove most of those amendments, the Bill is still so fundamentally flawed that it should not be allowed to pass. Scotland has had the sense to refuse the Bill and I wish that we would do the same. I was subject to police surveillance for more than a decade. I did not know about it, it did not affect me, and even when I found out, it really did not affect me very much—but others in your Lordships’ House were subject to similar but much worse surveillance, and many will not even know whether they were observed and under surveillance or not. The Bill does nothing to improve that situation; in fact, it will make things worse by granting total legal immunity to undercover officers, spies and informants.
There is also the fact that the Bill has been brought forward while the Undercover Policing Inquiry is still going on. Not far from here, that inquiry is hearing evidence about police infiltration of peaceful campaign groups and unions, and undercover officers forming sexual relationships with women. The Bill learns no lessons from that inquiry and does nothing to support the victims. It actually grants much broader legal immunity to the wrongdoers.
I am also concerned that I did not get a proper answer to my repeated questions about the proceeds of crimes authorised under the Bill. My conclusion is that the police will be able to authorise people to profit from criminal activities, and that there is no way for the state to recover those profits. I hope there will not be too many miscarriages of justice and abuses of power before we revisit and repeal this legislation. With all that in mind, I am sad that I am in a minority in opposing the Bill, but I cannot in conscience abstain and accept its passage. I beg to move.
Lord Anderson of Ipswich (CB) [V]
My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.
This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.
I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.
Baroness Chakrabarti (Lab) [V]
My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.
I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.
Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.
Lord Carlile of Berriew (CB) [V]
My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.
It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.
The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.
Lord Hendy (Lab) [V]
My Lords, it is my particular pleasure to follow the noble Lord, Lord Carlile, although it is a particular discomfort to me to disagree with him on this occasion. The Bill proposes that the state should have the power to grant immunity for crimes committed in the future by agents on its behalf. I believe that the grant of such immunity is contrary to the rule of law, which prescribes that all are bound equally to observe the law, not least the criminal law. The fact that such immunity will derive from legislation if the Bill becomes law does not alter my belief.
Giving the state the power to exempt prospectively its agents from criminal law is the antithesis of this fundamental principle. A decision to prosecute or not should be granted only retrospectively, when all the facts and circumstances of the conduct at issue are known, including the nature of any authorisation and, above all, whether it is in the public interest to prosecute. The CPS makes such decisions all the time; that is compatible with the rule of law and equality before the law. This arrangement, as far as is known, has worked perfectly satisfactorily for the last 200 years. Instead, the Bill overturns this status quo, challenges the rule of law and gives the state unparalleled powers. I regret that on this occasion I cannot follow the advice of my noble friends on my party’s Front Bench and, as a matter of conscience, I am obliged to vote against the Bill.
Lord West of Spithead (Lab)
My Lords, I, too, thank the Minister for all the consultation she has gone through, and the Government for their flexibility in adjusting the Bill to the stage it has reached. I am also always pleased to follow the noble Lord, Lord Carlile, and find that I think along the same lines as him, as I did when I was the Government’s Security Minister and he was outside the box, looking in to make sure that we behaved.
I am speaking against the amendment of the noble Baroness, Lady Jones, albeit that she put it eloquently. We should be proud of the Bill. Putting our covert human intelligence agents’ behaviour on a statutory basis is to be praised. As I have said, agents save lives. In working under cover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration to say that they could be killed. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. This has been strengthened in our debates and we should be proud of that. The ISC believes that there is a need for such authorisations. It also supports the Government’s decision not to place limits on criminal conduct in the Bill itself for the reasons that were debated.
I have thought long and hard about the use of children and I have to say that, initially, I was very concerned about it. As an aside, I do not consider 16 to 18 year-olds children, but that is a different issue. As regards the use of those aged below 16, I now believe that they should be used in exceptional circumstances, and appropriate safeguards are in place to ensure that that can be done to maximum gain and with minimum risk.
In summary, as I say, we should be proud that we have put this issue on a statutory basis. The Bill is a necessary and useful piece of legislation.
Lord Marlesford (Con) [V]
My Lords, in nearly 30 years in your Lordships’ House, I have never seen a piece of legislation that has made me more uneasy than this Bill. To me it is counterintuitive to give anyone the power to pre-empt the application of the criminal law .
I of course support the need to do all that is necessary to protect our national security and to detect and prevent serious crime, but it should have been possible to find other means. To choose this moment to extend in legislation the legality of law-breaking seems most unwise. This, after all, is a time when Russia is without compunction using, both at home and abroad, deadly poisons to eliminate its enemies. When it succeeds, it denies it. When it fails, its leader blithely explains that when it wants to kill, it succeeds.
I give one simple and deliberately irrelevant example. If a burglar is killed by a householder protecting himself or his family, it is unlikely that a jury will convict him of murder or even manslaughter. That does not mean, however, that we should legislate to give ex-ante immunity to householders who kill burglars.
I have one more word on journalists. I tried to persuade your Lordships to require judicial authorisation for any requirement to force journalists to reveal their sources in cases covered by the Bill. The amendment was defeated by seven votes but I was comforted by the fact that three former Cabinet Secretaries voted for it.
The Bill will now pass, and I shall vote for it, but let us agree, at least informally, that its implementation should be monitored with rigour. All societies must defend their security but open societies must take especial care of how they do so. Yesterday, President Biden told the American people that
“we’ll lead not merely by the example of our power but the power of our example.”
Lord Rooker (Lab) [V]
My Lords, the noble Baroness, Lady Jones, is absolutely right to bring forward her amendment to the Motion. I might want to criticise the details, which I do not intend to do, but she is right to do so. In fact, it would have been inconsistent with her rigid approach to the Bill for her not to do so. So, to that extent, I support her right to table the amendment; there is no question whatever about that. It gives me an opportunity to further vote for the Bill because I will not support the amendment to the Motion.
The noble Lord, Lord Marlesford, just made a point about the open society. This is a problem and there is a disquiet here. As an open society, we need to protect our openness. However, when that openness is the very thing used to undermine and smash our open society, we have to say no. We have to have a process that defends our open society and is consistent with the rule of law. The Bill is perfect for that. I have no doubt that in future the Bill will be amended, but the language that has been used about it is extravagant and misleading.
I see that on Twitter it is described as the “Spy Cops Bill”. It has nothing to do with spy cops. It is completely different and that can be misleading. If I was a CHIS in Scotland, I would be a bit concerned at the moment about becoming a whistleblower because I am not sure whether the Scottish Government are fully behind the process.
Perhaps I may briefly also express thanks. I have not been involved in the detail but I took up the Minister’s opportunity for a discussion with the Bill team and some of the advisers, which I found useful. Indeed, as a result, they published more information. The case studies, which I used extensively on Report, should have been deployed even more. There has been a communication issue regarding the Bill, which I find a fault because the Government have not defended and promoted some of its practical aspects as much as they could have.
The Bill protects covert human intelligence sources. It makes sure that they are not put at risk by being tested by the criminal gangs they may have been sucked into involuntarily, as mentioned in some of the examples used in the case studies. It is not the case that all people knowingly go down that route; they get sucked in by their employers. As a non-expert in this area, I found the newly published guidance incredibly helpful.
My final point is on the pejorative language used, such as when quangos are dismissed as not important. Most of the quangos listed in the Bill are non-ministerial government departments and should not be dismissed by saying, “Oh, it doesn’t matter”. I find that kind of language unacceptable among parliamentarians because it deliberately seeks to mislead the public regarding what the Bill is about. It should stop.
Lord Paddick (LD) [V]
My Lords, I have a lot of respect for the noble Baroness, Lady Jones of Moulsecoomb, and we support the spirit of her amendment to the Motion to the extent that we oppose the granting of legal immunity. We believe that the Bill undermines the rule of law—that is, the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes. As a result of the Bill, that is called into question, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hendy, have said.
Where a police officer or member of the security services tasks a covert human intelligence source to commit an act defined in law as a crime, the person tasked will no longer be subject to publicly disclosed legal codes and processes. An existing system that has worked effectively for decades, whereby informants and agents are tasked to commit crime and the decision, almost without exception, not to prosecute is taken by the relevant prosecuting authority, after considering all the facts, will be swept aside.
It is to be replaced with what we consider an unsafe and undesirable power, vested in the hands of the police, the security services and numerous other public authorities, to grant legal immunity with no prior judicial authority. The main issue is not, as the noble Baroness, Lady Jones, says in her amendment to the Motion, that there are insufficient safeguards or oversight, although this is arguably true. It is the fact that immunity can be granted at all, making the illegal legal. That is the fundamental issue for us on these Benches. I expect the legality of this aspect of the Bill to be challenged in the courts. That said, the House fully debated this aspect of the Bill, and without the support of the Labour Party leadership, we on these Benches were unable to remove it.
Contrary to the amendment to the Motion in the name of the noble Baroness, this House has clarified the existing position and improved the Bill, to ensure that innocent victims of crimes committed by those instructed to do so by state agents can seek compensation. Contrary to her amendment to the Motion, undercover policing is not being expanded by the Bill, although the Bill has shone more light on this aspect of policing. The number of public authorities that can deploy covert human intelligence sources has been reduced by the Bill. The directed criminal activity of those informants and agents has been placed on a statutory footing, rather than the Bill enabling it to increase.
From the start, we recognised the need to place the tasking of covert human intelligence sources to commit crime on a statutory basis, which this Bill does. We have improved the Bill in some important respects—the safeguards for children and vulnerable adults, for example, despite our fundamental misgivings over immunity. Therefore, with regret, we cannot support the noble Baroness’s amendment to the Motion.
I thank the Minister and the Bill team for their work on the Bill; our Labour colleagues and their staff for their assistance and co-operation on those aspects that we were able to agree on; and those on the Cross Benches who have liaised with us. I also thank my staff and colleagues for their help with what has been a very difficult Bill for me, personally, because of my previous professional experience of this difficult area of policing and because of my knowledge of the very real opportunities that the Bill presents for corruption and malpractice. The amendments that this House has introduced are the very minimum required and we will resist any attempt to remove any of them.
Lord Rosser (Lab) [V]
My Lords, we do not support the amendment to the Motion. This unelected House does not vote down Bills. Our role is that of a revising Chamber. Through making amendments to Bills, we invite the House of Commons to reconsider its position on specific aspects of legislation. That is what we have done with this Bill.
We have debated amendments to the Bill. Some have been agreed by this House, and some have not had its support. From our point of view, we have not won the support of this House for everything we wanted, but important amendments have been agreed and we want the Bill with those amendments to go back to the House of Commons for consideration. This amendment to the Motion, if carried, would thwart that objective and accordingly we shall vote against it.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken to this amendment to the Motion. I join other noble Lords in thanking the police, MI5 and other operational partners who will now, I hope, have a clear statutory framework and, as the noble Lord, Lord Carlile, says, the accompanying code of practice, which will also have the full force of law in which to operate.
I hope that the Government have put forward their case, in spite of some of the unique challenges relating to the sensitivity of this tactic and that noble Lords are reassured that I have been listening and will continue to listen to the strength of views that have been put forward on certain issues. I am happy to discuss any issue further and urge noble Lords to take that course of action if they have any remaining concerns, rather than support the amendment in the name of the noble Baroness, Lady Jones, which would cause the Bill to fall.
My noble friend Lord Marlesford talked about the implementation being monitored with rigour and I totally agree. Any legislation brought before Parliament must have that rigorous monitoring behind it. Every time the noble Lord, Lord Rooker, has spoken on the Bill, I felt like saying, “I refer noble Lords to the comments of the noble Lord, Lord Rooker”. He talked about the case studies which were much asked for at the beginning of the debates on the Bill and, once forthcoming, as the noble Lord said, almost forgotten about.
It is also worth considering that, without the power or activity that the Bill provides for, the NCA would have been unable to take almost 60 firearms off the street in 2018 alone and the Metropolitan Police would have been unable to seize more than 400 kilograms of class A drugs between November 2018 and November 2019. MI5 and CT policing would also have been impacted in their ability to thwart some 27 terror attacks since March 2017. I do not think that any noble Lord would want to prevent this criminality being stopped in future, which is what the amendment would do.
I acknowledge the important principles behind much of our debate on the Bill—Parliament needs to reassure itself that there is suitable oversight in place, and we have really interrogated that. While strong and differing opinions have been expressed on how to legislate for this activity, I pay tribute to the quality of the debate, despite fundamental differences, and the passionate and articulate way in which noble Lords have relayed their views.
I hope that, during the course of the debates, I have demonstrated the significant safeguards that exist and some of the additional ones that, as the noble Lord, Lord Paddick, and others have said, have now been inserted. Highly trained and experienced authorising officers must assess that an authorisation is necessary and proportionate. That authorisation must be compliant with the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. The authorisation is then overseen by the independent Investigatory Powers Commissioner, who reports his findings in his annual report and, thanks to amendments supported by noble Lords, will now consider each and every authorisation within seven days of it being granted. The IPT then offers an entirely independent judicial mechanism for anyone who is concerned that they have been subjected to improper action by any user of an investigatory power.
I hope that the Division that I know the noble Baroness is going to call will not succeed, and I hope that the Bill will now go back to the other place so that it can consider the amendments that noble Lords supported on Report. The Government are committed to providing any additional reassurance to command the support of Parliament and, of course, to keep the public and CHIS safe.
I will conclude there because I realise that we have combined speeches from the debate on the amendment with the final concluding remarks, but I join the noble Lord, Lord Rosser, in thanking the Opposition Front Benches, everyone who has contributed to these debates and all the staff who support us. I hope that the noble Baroness will feel able to withdraw her amendment, but I suspect that that is not about to happen.
Baroness Jones of Moulsecoomb (GP)
I thank the Minister for her response and all noble Lords who have taken part in this debate. I also thank the eight or nine Peers I passed as I came into the House, all of whom gave me the benefit of their views on this Bill and my amendment—some were positive.
It seemed to me that this Bill was the worst I had ever seen in your Lordships’ House until yesterday, when we had the overseas operations Bill, which is even worse. Luckily, there appears to be more opposition to that; I look forward to joining in. I have been in your Lordships’ House for seven and a half years, and, to the best of my recollection—which is not always the best—I have only ever pressed one vote to a Division. Today’s will be the second. I should like to test the opinion of the House.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Wednesday 27th January 2021
(3 years, 10 months ago)
Commons ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 27 January 2021 - (27 Jan 2021)
18:30 - The House divided: - Ayes: 367 / Noes: 265 - Question accordingly agreed to.
18:41 - The House divided: - Ayes: 363 / Noes: 267 - Question accordingly agreed to.
18:51 - The House divided: - Ayes: 367 / Noes: 265 - Question accordingly agreed to.
19:02 - The House divided: - Ayes: 366 / Noes: 265 - Question accordingly agreed to.
19:12 - The House divided: - Ayes: 361 / Noes: 267 - Question accordingly agreed to.
The Solicitor General (Michael Ellis)
I beg to move, That this House disagrees with Lords amendment 1.
Mr Deputy Speaker
With this it will be convenient to discuss the following:
Lords amendment 2, and Government motion to disagree.
Lords amendment 3, and Government motion to disagree.
Lords amendment 4, and Government motion to disagree.
Lords amendment 5, and Government amendment (b) thereto.
Lords amendments 6 to 14.
The Solicitor General
This Bill is an important piece of legislation that places a long-standing tactic on a clear and consistent statutory basis. It provides certainty for those who engage in important and dangerous operations on our behalf that they are able to utilise the tools needed to keep us safe and prevent crime. It also rightly provides assurance to the men and women who may find themselves in risky and dangerous situations in order to provide vital intelligence that the state will not prosecute them for activity that the state has asked them to commit.
Since March 2017, MI5 and counter-terrorism police have together thwarted 28 terror attacks, a figure that is higher than that which the Government provided on Second Reading a few months ago. As the director general of MI5 said when this Bill was first introduced:
“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.
There is a real threat out there, and it is critical that our partners have the tools they need to stop it.
I thank the other place for its detailed and thoughtful debate on this legislation. The other place considered the Bill at length, and has brought forward several amendments to it, which I will now speak to in turn. However, I will first take the opportunity to pay tribute to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is the Bill Minister on this legislation and has taken a typically collaborative and thoughtful approach to it. I think I can say on behalf of the whole House that we wish James all the best for a speedy recovery. [Hon. Members: “Hear, hear.”]
Lords amendment 1 introduces the requirement that an authorising officer must “reasonably” believe that an authorisation is necessary and proportionate. The Government cannot support this amendment because it is both unnecessary and risks creating inconsistency, thereby casting legal doubt on the position in other legislation.
Mr Kevan Jones (North Durham) (Lab)
On juveniles, the right hon. and learned Gentleman is correct that the Bill does not give authorisation to allow for CHIS, because it happens already under the CHIS code of practice, which is also legally enforceable under the Regulation of Investigatory Powers (Juveniles) Order 2000. Given some of the concerns that people rightly have, would it not help to put that into the Bill?
The Solicitor General
The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.
Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.
Bob Stewart (Beckenham) (Con)
Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.
Bob Stewart
Forgive me—I am on my knees.
Having done this sort of thing, albeit in a relatively minor way, I want to clarify one thing. Often, information was given to people who were doing this kind of work in the field by juveniles. That does not make the juvenile a source. That information can still obviously be passed on, but clearly there are restrictions on using that juvenile in future. However, the information given by juveniles certainly must not be stopped.
The Solicitor General
Not for the first time, my hon. Friend makes a very powerful point by dint of his experience in these matters, and in a moment I will give an example that he might find interesting on that exact point. As I said, the Investigatory Powers Commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in. The commissioner also noted that decisions to authorise were only made when that was the best option for breaking the cycle of crime and danger for the young person involved.
To demonstrate how authorisations for juvenile covert human intelligence sources are managed in reality by the police, let me give an example that can also be found in the IPC’s most recent annual report:
“In one…case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group”—
a gang. The juvenile owed money to the gang. He or she
“approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”
That is a particularly instructive example of the sort of circumstances in which that can apply.
Lords amendment 4 seeks to add further safeguards for the authorisation of juveniles and vulnerable adults when they are granted a criminal conduct authorisation. While the Government recognise the spirit of these amendments, Lords amendment 4 as drafted creates operational issues. For example, the amendment defines exceptional circumstances as
“where all other methods to gain information have been exhausted”.
That requirement has a tendency to risk the workability of the power and, crucially, the safety of the juvenile because there may be occasions, in the cut and thrust of these things, where there are other ways to gain the information, but those other ways may not be the safest way to extricate the juvenile from the situation that he or she finds themselves in and to lead to the best outcome for the juvenile involved. The words in the amendment are too prescriptive and creative operational and workability issues.
Mr Kevan Jones
I welcome what the Minister has said, but would that information be contained in the annual report of the Investigatory Powers Commissioner?
The Solicitor General
That is a perfectly reasonable question, but I cannot speak to what might feature in the report of the Commissioner. However, there has been a clear indication from looking at previous reports that he has been as full and frank in his reports as one might expect in the circumstances. I think that is all I can say about what might feature in his reports.
The remaining amendments are either consequential on those discussed or they carve out devolved activity in Scotland. The Government have engaged extensively with the Scottish Government on this legislation, and we are disappointed that we have had to bring forward these amendments, but we do so in respect of the Sewel convention. The Scottish Government were unwilling to recommend legislative consent, despite movement from the UK Government on several issues, as they are requiring express limits on the face of the Bill. As I have mentioned, the Government’s approach to this is driven solely by the advice that we are getting from our operational partners—the people at the coalface, the brave men and women who are doing the job—and I note that operational partners from all parts of this kingdom have advised of the risks to covert human intelligence sources and to the general public of this approach. So it will now be for the Scottish Government to bring forward their own legislation if they wish to place devolved activity on an express statutory basis. I hope and expect that, like the Government, they will strongly follow the advice of their operational partners to ensure that all parts of the United Kingdom retain access to a workable form of this vital tactic.
Mr Kevan Jones
I agree with the Minister on this point, but can he clarify whether the non-adoption of this in Scotland will affect the operational impact on, for example, MI5? I understand that that is a national jurisdiction, and not controlled by Scotland.
The Solicitor General
What I can say is that the Scottish Government will need to bring forward their own legislation if they wish to place devolved activity on an express statutory basis.
I hope I have outlined in some detail the issues and amendments that the House needs to consider today. The Government have shown a willingness to compromise on the Bill where that helps to reassure Parliament, but only where it does not threaten the operation of this critical tool that prevents crime and saves lives.
Mr Deputy Speaker (Mr Nigel Evans)
Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.
Conor McGinn (St Helens North) (Lab)
It is a pleasure to follow the Solicitor General, but I am sure he will understand when I say that I would much prefer to have been following the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire). We wish him well, and I want to thank him for his engagement with me and the shadow Home Secretary, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), on the progress of the Bill throughout its passage. I am grateful to colleagues in the other place who have shown their customary high standards of diligence and ensured that the Bill contains some robust and vital checks. It returns to us in substantially better shape than when it left us.
As I have said throughout the Bill’s passage, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has made it clear that security is a top priority for the Labour party. Under his leadership and that of the shadow Home Secretary, we will support a robust policy in fighting terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our community safe. We are, of course, grateful to those in the police, the security services and wider law enforcement who put their own safety and lives at risk to protect us, and we will meet our duty to support them.
It is the responsibility of Members of Parliament to ensure that there is a system in place that allows our law enforcement to uncover, disrupt and ultimately bring to justice illegal and dangerous activity that threatens the safety and security of the British people. The Solicitor General reminded us of the sobering context of this debate, given the number of terror plots that have been disrupted. The latest figures show that in the last year alone covert human intelligence sources foiled 30 threats to life. It is therefore right that, finally, we should put on a statutory footing the activity of those who work to disrupt some of the vilest crimes imaginable. It is vital that through this process, in creating a statutory framework for the operation of the CHIS, we seek to make sure that there are formal checks, balances and safeguards that ensure that the Bill is fair and protects those who work under its jurisdiction, as well as innocent parties who may be affected by their activity.
Lords amendment 1 was proposed by Cross-Bench peers, and it seeks to ensure a fair and reasonable frame- work for those making an authorisation. It adds the word, “reasonably” so that, with an order to grant an authorisation, the person authorising would need reasonably to believe that it was necessary and proportionate. Without confusing the House with the use of too many “reasonables”, that would seem eminently reasonable. When dealing with sensitive matters of this nature, that places trust in those authorising the activity required, but ensures that their judgment is guided by the parameters of what is deemed appropriate or reasonable.
Lords amendment 2 progresses an amendment that we tabled in the Commons on Report, and which has received support in both Houses. It adds so-called Canada-style limitations to the Bill, including on death, grievous bodily harm, perverting the course of justice, sexual offences, torture and the deprivation of liberty. The Solicitor General has sought to assure us that the Bill is explicit about the fact that the Human Rights Act is applicable in all circumstances, but there is merit at least in exploring the setting-out of specific limitations on the Bill for the sake of clarity and reassurance. Like him, I do not want to see circumstances in which these horrendous offences are set as a test for the CHIS in the field—I know that that view is shared by my right hon. Friend the Member for North Durham (Mr Jones)—but if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.
Lords amendment 3 builds on amendments that we introduced in the Commons, and ensures that victims of violent crime in particular are not ineligible for criminal injuries compensation by virtue of the fact that the crime was the subject of a criminal conduct authorisation. We heard many powerful arguments for the amendment during the passage of the Bill. It is vital that, as well as clarifying permissible action for agents working to keep us safe, the Bill ensures that victims are properly protected and can seek redress and compensation if those boundaries are broken. The amendment would ensure that victims can seek adequate redress from the criminal injuries compensation scheme. All victims deserve an unimpeded pass to attaining justice. Despite the unique and rare circumstances of what we are discussing, the provision none the less protects victims of any criminal acts with proper and due process.
Lords amendment 4 makes a change to the Bill that would ensure an authorisation involving children and vulnerable people could be authorised only in exceptional circumstances. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), as the Solicitor General has done, for her strong campaigning, along with the right hon. Member for Haltemprice and Howden (Mr Davis), other Government Members and the shadow Home Secretary, my hon. Friend the Member for Torfaen, who has taken part in intensive discussions and lobbied on these incredibly important matters.
The amendment has also been supported by the Children’s Commissioner, because it provides the necessary safeguards. The Children’s Society urged the Government to look at the complex interrelationships between different forms of exploitation and abuse, and suggested that they need to be properly considered in policy, policing and child protection. The anomaly that would see 16 and 17-year-olds treated differently if they commit a criminal offence of their own volition, rather than one they are instructed to commit as CHIS, needs to be addressed. I hope the Government listen to the concerns of Parliament, as the Solicitor General outlined, and to those of experts, children’s advocates and wider civil society on this issue.
Sir Edward Leigh (Gainsborough) (Con)
It is welcome that, under new management in the Labour party, the country can probably rest assured that after an interlude the Labour party have returned to the attitude that prevailed under the Blair and Brown leaderships and can be trusted on security issues. I hope therefore, in that spirit of bipartisanship, the Labour party will think carefully about dividing the House and recognise that many of the arguments promoted by the Solicitor General actually made a lot of sense. We might put our agents’ lives at risk if we were to set limits on what could be authorised, so I hope the hon. Gentleman can give me a reassuring reply on that.
Conor McGinn
I think I might put the first part of what the right hon. Gentleman said on my election leaflets the next time around. On the second part of what he said, I respect entirely the point he made. I listened carefully to the Solicitor General and I will explain in my conclusion our approach to the Bill, which I think has been one where we have sought to co-operate, given its serious and sensitive nature. We rightly and understandably wanted to scrutinise the Bill in its entirety and would seek to improve it were we in the position of introducing it. I hope that will make sense in the next few minutes.
Before I come to that conclusion, let me say that it is unfortunate and disappointing that the Government and the Scottish Government have not been able to reach an agreement. We encouraged those discussions from the outset to ensure that the Bill covered the entirety of the United Kingdom. Even at this late stage, I urge them to work together, because it is important that the public in Scotland have confidence not only that their safety and security is protected, but that they have the safeguards that other parts of the United Kingdom will have, too.
In conclusion, we feel that the Bill has been improved by the amendments. It is not perfect—far from it—but it does provide an important legal framework for activity that previously operated with none. We recognise that it provides formal safeguards and protections for those who operate in this field at this precise moment and who seek to keep us all safe. It provides clarity and guidance for those who have to make difficult decisions in the interests of law enforcement in areas of serious and highly organised terrorism and crime, and it provides protection and the potential for recompense for those who may be adversely affected.
As I have said before, this is uncomfortable territory for the whole House and for many of us personally. It covers activity that operates, frankly, in the shadows, tackling serious and deadly crime and some of the most heinous and awful offences imaginable. The Opposition are committed to working in the national interest to keep people, their families, our communities and the country safe. We know that it is not just the Government who have to make difficult decisions to do this but us as well. I want to be clear: we would and will put forward a different Bill with the safeguards we have outlined at its heart. But when it comes to national security and keeping the public safe, we are not prepared to allow these matters to remain outside parliamentary scrutiny and without any statutory footing. We have a duty to the public and to those who keep us safe.
We acknowledge the importance of putting CHIS activities on a statutory footing, and we have unapologetically worked to scrutinise robustly and responsibly the way in which that is done. We have hopefully ensured some vital safeguards, accountability and protections, and we will continue, as always, to place national security, human rights and support for victims at the centre of our approach to these matters.
Dr Julian Lewis (New Forest East) (Con)
On behalf of the Intelligence and Security Committee, I entirely endorse the tributes and good wishes paid by the Solicitor General and the hon. Member for St Helens North (Conor McGinn) to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). His professionalism, calmness and dedication as Security Minister and in other roles are a model for us all. We admire him greatly and wish him the best of health.
Despite extraordinary technical advances in surveillance and espionage methods, human sources in intelligence operations remain indispensable, especially in the counter-terrorist work of our Security Service. Going undercover to join terrorist groups or remaining in a terrorist group, having become disillusioned with its objectives, in order to frustrate them, calls for courage of the highest order. The Intelligence and Security Committee has been briefed by MI5 on specific instances of this, and we accept that, without the use of covert human intelligence sources, many of the attacks foiled in recent years would have succeeded in their horrific aims. That is what justifies the authorisation of specified criminal acts, on occasion, in order to maintain an agent’s cover and in proportion to the potential harm that he or she is working to prevent.
As pointed out on Second Reading on 5 October, the report on Northern Ireland-related terrorism compiled by our predecessor Committee and presented to Parliament that same day firmly concluded at paragraph 39:
“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only when necessary and proportionate, and subject to proper scrutiny.”
Precisely because covert human intelligence sources are so effective, ruthless terrorist organisations have no qualms in devising tests of the utmost depravity to flush out agents infiltrating their ranks. That is why the provisions of Lords amendment 2 to prohibit the granting of criminal conduct authorisations, or CCAs, are certain to be as counterproductive as they are well-intentioned.
What the amendment proposes, if enacted, would soon come to constitute a checklist of atrocities that could be used to expose undercover agents known to be forbidden from carrying them out. As sure as night follows day, it would also increase the number of such atrocities committed. In order to flush out MI5 agents by putting suspects to the test, paranoid extremists would resort to testing more and more of their group members, if they felt that their organisation was coming under pressure and suffering setbacks.
Mr David Davis (Haltemprice and Howden) (Con)
My right hon. Friend does great service to this House and the Committee. Given what he has just said, does he believe that these terrorists are unable to read the Human Rights Act?
Dr Lewis
I have the advantage of having been present when my right hon. Friend made that very point on Second Reading, and therefore I was entirely prepared for that intervention. I will give a response that is perhaps slightly unorthodox, despite the emphasis put on the Human Rights Act by my right hon. and learned Friend the Solicitor General.
In my previous role as Chair of the Defence Committee, it became more and more obvious that the Human Rights Act, and the European convention on human rights, had had serious, and perhaps largely unanticipated, adverse consequences for the operations of our military. I suspect that if applied too literally, they would have equally adverse effects on the operations of our security and intelligence services. As the years go by, and as experience shows, I fully expect that there will have to be amendments to the Human Rights Act. I believe that although terrorists could indeed read it, they would take rather more seriously a categoric list of forbidden offences in the Bill than they would the rather generalised content of the Human Rights Act. I do not expect my right hon. Friend to be wholly satisfied with that, but it is my honest opinion.
Consequently, terrorist groups whose operations might have been compromised by technical means, rather than by human infiltration, would be likely to ask their genuine members to commit more and more forbidden offences, simply to prove their loyalty. The outcome would inevitably be an increase in murders and other serious offences on their lordships’ list, which would not have happened but for the incorporation in statute of such a collection of prohibited crimes.
As I said earlier, the ISC has had a comprehensive briefing from MI5, explaining how those authorisations are used in practice. We are convinced that the Security Service uses them appropriately and proportionately. We are also reassured that the measures in the Bill legalise only what is specified in each criminal conduct authorisation. That means that any other criminal behaviour not covered by the terms of a CCA may be subject to prosecution—a safeguard that will hopefully encourage the House to reject Lords amendment 2. This is one of those occasions when it is necessary—really necessary—to keep our enemies guessing.
Joanna Cherry [V]
I mean no disrespect to the Solicitor General when I say that, like others, I am sorry not to see the right hon. Member for Old Bexley and Sidcup (James Brokenshire) on the Government Front Bench today. He is a thoroughly decent man. I wish him all the best, and I have been in touch to tell him that privately.
The Scottish National party will support the Lords amendments, but we do not support the Bill. We voted against it on Third Reading for reasons that I set out in some detail in Committee. We regard it as another milestone in the British Government’s retreat from support for such basic rule-of-law principles as equality before the law, and another milestone in the rolling back of human rights protections. That is not to say that we do not see the necessity for some legislation, given the ongoing court proceedings, but we do not think the balance is right in this legislation at all.
Sir Robert Neill (Bromley and Chislehurst) (Con) [V]
This is a very important Bill, not least because it touches on that really difficult balance that we often have to struggle with—perhaps not to this degree very often, in a democracy—between keeping the nation and our fellow citizens safe and our commitment to the rule of law. There are rare occasions when those can rub up against each other, sometimes uneasily, but whenever possible, I think we would all agree, the rule of law ought to be as paramount as it can be, subject to that duty to protect our citizens and our national interests. So are there ways in which we can reconcile this?
Can I, too, refer to my good and personal friend and constituency next-door neighbour, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), and wish him well? I think the consensual and constructive approach that he adopted has done a great deal to smooth the passage of this Bill through potentially difficult matters.
I welcome the approach that the Solicitor General adopted in his opening speech, but can I perhaps press him on one or two matters precisely from the rule of law point of view? I would not seek to trespass on some of the expertise of others in relation to operational matters of the security services. I do not think anyone would wish to make life harder for those brave men and women who put their lives at risk to protect ourselves, and sometimes have to authorise operations that otherwise we might find unpalatable. I recognise that, but there are still rule of law issues that I think need to be addressed and ventilated. They were in the upper place, and we need at least to pay attention to them here.
In relation to Lords amendment 1, I hear what the Solicitor General says, but I am struggling at the moment to see why it is convincing to say that it is not reasonable to have, as the shadow Minister said, a reasonableness test. One would have thought that it was logical, if we are to have a statutory scheme, that that scheme should set out what the test shall be. By and large, I would have thought that an objective test, of a high but well-established standard, would be sensible and potentially a safeguard for operatives should their use of the test subsequently be challenged.
I note and understand the Solicitor General’s point about the potential inconsistency with the terms of different parts of the Regulation of Investigatory Powers Act, but as Lord Anderson of Ipswich and Lord Thomas of Cwmgiedd pointed out in the other place—both highly experienced lawyers and people with experience in sensitive matters—there is potentially a greater inconsistency between the wording in the Bill, and therefore potentially the governing statute when it comes into law, and the code of practice. The code of practice, at paragraph 6.4, provides that
“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”
As Lord Anderson pointed out, that of course is not law, but it is something that, should there be any challenge, would doubtless be taken into account. It seems undesirable that there should be a difference in wording between the code of practice and the statute that governs it.
Would the Solicitor General think again about what is so objectionable about the existence of a reasonableness test and how that would actually compromise the effective operation of operatives in the field? I do not see that. As Lord Thomas put it, at the end of the day
“it is very important to make sure that the language of the statute is clear. Nothing could be less desirable than the language of paragraph 6.4…using the words ‘it is expected’”.—[Official Report, House of Lords, 11 January 2021; Vol. 809, c. 553.]
Basically, if it is a statutory scheme, the statute ought to be clear. I would like to hear some further justification from the Solicitor General on that, because it seems to me that if we are creating one inconsistency, we are potentially creating another. I think the words of the former Lord Chief Justice deserve some consideration.
In relation to Lords amendment 2, what was said by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, is right. Although the amendment is well intentioned, it seems to me that practical risks could arise. Those of us who have some experience of serious organised crime will know the lengths to which these gangs are prepared to go to prevent infiltration and the ruthlessness with which they operate. On balance, I think the Government’s case against that amendment is made out.
In relation to Lords amendment 3, I do not think anyone would wish to have a situation where villains—people who would do us great harm, either as terrorists or as serious organised criminals—might seek an opportunity to use the criminal injuries compensation scheme or some other scheme to make claims against the state for circumstances that, in effect, they brought upon themselves, such as injury which they brought upon themselves because of the activities in which they were engaged. I am sure we would all agree with that.
I hope the Solicitor General will address the issue raised by Lord Cormack and others in the debate in the other place: what about the innocent victim, the person who is collateral damage? Say that in pursuant to a properly granted authorisation, a CHIS carries out an activity that unintentionally—perhaps as a result of a car chase, which is the example that Lord Cormack gave—causes injury to a passer-by, a bystander or someone who happened to be in the wrong place at the wrong time. Surely the Government would accept that morally there can be no justification for that person not being properly compensated. What is the scheme, therefore, by which they are to be properly compensated? I would have thought there was a way forward for the Government to achieve compromise on this. The suggestion is that the Government say, “There are means of doing this”, and I hope the Solicitor General can spell that out.
The person ought at least to be able to go to the criminal injuries compensation scheme. I am told that in Australia and some other jurisdictions, there is a separate indemnity scheme. Either way, the innocent victim of work that is necessarily and properly undertaken to protect the broader interests of the state and its citizens should not go without the scope for recompense. I hope the Solicitor General will address that when he responds to the debate.
Lords amendment 4 raises very sensitive issues. We all accept that there have to be particular protections in law for children and vulnerable people, so I am very sympathetic to the spirit of the amendment, but I do listen to what the Solicitor General says, and I take on board in particular the view of the Investigatory Powers Commissioner as to what actually happens in practice. I hope that the Solicitor General will undertake that the Government will continue to keep a most careful watch on how young people and potentially vulnerable people are used on the very rare occasions when it might be thought necessary to authorise activity involving them.
That brings me to Lords amendment 5 and the amendment in lieu, where it is the second part that is the issue. It was generally accepted that although in an ideal world judicial pre-authorisation would be preferable from a legal point of view, there were arguments about operational difficulties that could arise. Could the Solicitor General do more to address the very important point that Lord Thomas of Cwmgiedd made in moving his amendment, which the Government seek to reverse by the amendment in lieu? We have set up a system with a judicial commissioner, who is to be notified, and who then has a duty to consider that notification and come to a view on it. If they are under a duty to do that, and their conclusion is that the authorisation should not have been granted, are we really to leave it hanging there and to leave it to a rather fudged system of, “Let’s have a word and see what can be done”? If a judicial commissioner—in effect a judge, as Lord Thomas pointed out—says that something was not lawful, because that would be the ground on which they would find that was to be the case, are we then to have a means where something that is unlawful is to carry on, but without more ado? That does not seem to be consistent with our commitment to the rule of law.
Mr Kevan Jones
May I join colleagues in the House in sending best wishes to the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire), for a speedy recovery?
In his contribution to this debate, my hon. Friend the Member for St Helens North (Conor McGinn) said that we were talking about issues that take place in the shadows. Well, we are, because many of the activities that our security services undertake cannot, quite rightly, be talked about publicly. I wish to put on record my thanks to the men and women of our services who protect us.
The Chair of the Select Committee, the right hon. Member for New Forest East (Dr Lewis), said that covert human intelligence is important. It is, but there is an emphasis these days that, because we have electronic eavesdropping, data collection and everything else, it is a thing of the past. May I recommend that you, Mr Speaker, and other Members read John Ferris’s excellent new book on the history of GCHQ? It was always the case, even during the second world war, that human intelligence along with intercept was the way in which we got the full picture around intelligence. That is important.
Why do people become covert human intelligence sources? Having seen some of the cases, I can say that the reasons vary. In some cases, they are very brave individuals who put their lives at risk to protect others, and the interface with our security services is vital. I said on Second Reading that, sadly, certain labels got stuck on this Bill right from the beginning. It was felt that, somehow, it would allow the state suddenly to authorise everything from torture to murder. Certainly in my party, it is felt that if a Member is a true socialist on the left, they would have to oppose this Bill every step of the way. I am sorry, but I think that that is very unfortunate. People should read what is in the Bill. We should be welcoming the Bill, as my hon. Friend the Member for St Helens North said. What it is doing is putting on a statutory footing what is taking place anyway. If we look at the law as it stands at the moment, certain authorisation of and participation in criminality by CHISs has always been accepted as necessary by UK courts as long as it is proportionate to the safeguarding of the public. However, it is not on a statutory basis, so actually people who have concerns about the operation of our security services should welcome the Bill. Certainly, in MI5’s case there is an implication about this in the Security Service Act 1989, but the Bill, for the first time, puts it on a statutory footing, which we should welcome.
Having said that, there are aspects of the Bill that need to be improved. Will there be situations in which the individuals that we are talking about have to be part of criminal activity? Yes, there will be. I have been a member of the ISC for a number of years now. I have been briefed, along with other Members, by MI5 not just on this Bill but on others. I have also, in a previous inquiry, read the transcripts between handlers and CHISs. I will not divulge their contents; all I can say is that the information and intelligence obtained in the transcripts that I read was vital to disrupt a number of terrorist plots. This will not go away if we just think that it is too hot to handle; it has a real impact on our daily lives in this country in terms of national security.
I understand what those who tabled Lords amendment 1 want. They want some protection in the Bill so that the list of things that can be authorised can be a checklist. As the Solicitor General and the right hon. Member for New Forest East have already referred to, setting that checklist will make the operation of CHISs very difficult. I do not necessarily agree with what the right hon. Member for New Forest East said about the Human Rights Act, but the idea that the Bill will allow murder, rape and everything else is just not true. That assures me that the justifiable and proportional approach in the Bill is important. We also have the cover-all in terms of the Human Rights Act, so I do not accept, for practical reasons, that Lords amendment 2 would either improve the Bill or make it easier for our security services to operate.
Bob Stewart
I thank the right hon. Gentleman, who happens to be a good friend, for letting me intervene. I am slightly worried that if we put something into statute and law, it would be utterly tragic if someone who was operating covertly was killed as a result of having a constraint on him or her—there are hers too—that identifies them, and the next thing we know they are stuck in a ditch somewhere with a round in the back of their head. That is the dilemma we face.
Mr Jones
It is, and there is another thing of which I would like to reassure the House, from a security point of view and from my position on the ISC. As I think I said on Second Reading, such decisions are not taken lightly by the security services. Senior officers authorise and control CHISs for good reasons. Do they have some difficult calls to make? Certainly, from one of the transcripts that I read, they do. Do they, on occasions, withdraw authorisation? Yes, if they think that the individual is doing something that is not justifiable or proportionate.
The other point is that we, and a lot of the Bill’s opponents, have concentrated on the security services, but remember that it will be used by the police and others.
Mr David Davis
As I was listening to the right hon. Gentleman’s very thoughtful speech, it occurred to me that it might be a mistake to have the same Bill cover the security services and everything up to and including the Food Safety Agency.
Mr Jones
I have to agree. One thing I do not agree with about the Bill is the scope in terms of some of the organisations that it covers; I raised my concerns about that on Second Reading.
Use of CHISs disrupts child exploitation, county lines, organised crime and—increasingly, when it comes to the security services—right-wing extremism, for which human intelligence is part of the suite of intelligence gathering that those services need to use. I do not agree with Lords amendment 2.
Lords amendment 4 is about juveniles. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), who has raised what is clearly an emotive issue. I think that covert human intelligence sources should be authorised for the investigation of juvenile criminality only in very exceptional circumstances. But as the Solicitor General said, the impression being given again is that somehow the Bill for the first time gives our security services or police the ability to authorise juvenile covert human intelligence sources. It does not: the ability is there already.
When I intervened on the Solicitor General, I referred to the CHIS code of practice. The Regulation of Investigatory Powers (Juveniles) Order 2000 sets out the additional safeguards relating to junior CHISs. The Government need to find some way of incorporating that in the Bill. The Solicitor General said that it was rather long, but something needs to be there, to answer the issues being raised. I accept—I have seen evidence of this—that there are occasions when junior CHISs are needed: work around county lines gangs is just one example. But the provisions need strengthening, and I ask the Solicitor General to look at that when the Bill goes back to the other place.
Lords amendment 5, on judicial oversight, is important. It is important that the Investigatory Powers Commissioner looks at these issues. Personally, I am not in favour of pre-authorisation because, having spoken to MI5 and seen the transcripts of at least one of the interviews in one terrorist case, I see that these situations are dynamic. It would be very difficult if authorisation had to be obtained every time.
However, I am very much in favour of the Investigatory Powers Commissioner having scrutiny over the authorisations afterwards; that would allow an extra tier of judicial oversight, which would certainly knock on the head some of the nonsense we have heard about the Government or the security services being given the powers to murder people. I asked the Solicitor General about the annual report because it is important for public transparency and scrutiny of this place. I welcome what the Solicitor General said about bringing back an amendment on the issue. That would also allow us on the Intelligence and Security Committee to have some scrutiny.
Like my hon. Friend the Member for St Helens North, I am a little disappointed that Scotland has not agreed to this; to protect the public, it is vital that it does. However, I am reassured by what the Minister said in the House of Lords about that not in any way limiting MI5 operations in Scotland in the national security interests of the whole UK.
Finally, I turn to the issue just raised by the right hon. Member for Haltemprice and Howden (Mr Davis). If I have one big concern about the Bill, it is the Christmas tree of other agencies that are to have these powers; I have not yet personally been given a good explanation of why the Food Standards Agency needs them, for example. I am quite comfortable and satisfied not only that the security services, police and other agencies are able to run CHISs, but that they do it. They know what to do, they do it on a regular basis, and they have officers with huge experience. That gives me some reassurance that the operation of the Bill, when it becomes law, will be done properly. I would like some convincing that the Food Standards Agency and others that use these powers on a less regular basis will necessarily have that thoroughness.
Let me conclude by again thanking the Solicitor General and the right hon. Member for Old Bexley and Sidcup, who have interacted on the Bill with Members across the House, and by once again thanking the men and women of our security services.
Mr David Davis
May I, too, start by paying proper credit to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)? James is a very old friend, a very long-standing colleague and an old protégé of mine. I spoke to him only a few days ago, and I have to tell the House that, given the seriousness of the operation that he is facing, he is both calmer and braver than I would be. We wish him well.
The origins of this Bill are, to say the least, somewhat doubtful. It started out with a circumstance where the state faced the prospect of being taken to the English courts over its current practice of giving many state agencies, including the Food Standards Agency, the right to authorise any criminal activity by their informants or agents, and having that power taken away from it. That is the origin of this Bill; that is where it comes from.
So what did the Government do? They cobbled together all the existing practices of their various police, intelligence and other agencies, good and bad—there were both good and bad—and set out to put them into law. That is not just theoretically problematic; it does not work perfectly today. For example, the Investigatory Powers Commissioner uncovered a case a couple of years ago where an MI6 agent or informant clearly very seriously broke the law, in breach of the guidelines he had been given, and the agency did not even inform the Minister before it carried on and allowed him to do the same again.
I am not prissy about the operation of our intelligence and police agencies. I was one of the Ministers who took through this House the Intelligence Services Act 1994. That is the one with the so-called licence-to-kill clause—the 007 clause, section 7 of that Act—which explicitly permits the action of the agencies to commit crimes under English law, but with restrictions and ministerial oversight built into it.
Nevertheless, this Bill, unamended, in my view goes too far, as is demonstrated by the fact that the amendments in front of us today were voted for in the Lords by a past Cabinet Secretary, a past Home Office permanent secretary, a past Foreign Office permanent secretary, a past National Security Adviser, a past Director of Public Prosecutions and a past reviewer of our counter-terrorism legislation—every single one of them more familiar at a close and tactical level than any Minister serving in Government. That is not meant as an insult; it is just a fact of life.
I have sympathy with many of the Lords amendments, but the business before us today contains, in my view, two vital amendments passed in the other place: Lords amendment 4, concerning the use of children as agents; and Lords amendment 2, placing limits on the type of crime that can be sanctioned. Both are entirely sensible amendments that significantly improve the Bill.
Let me start with child spies. The use of children as undercover informants is, in my view, very largely a morally repugnant policy. It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place. The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs, or continuing victims—continuing: that is the important point—of child sexual abuse, when they are recruited as intelligence sources. We should normally be seeking to move heaven and earth to remove these children from their horrible situations. Instead, the Bill would allow them to be sent back into harm’s way with minimal safeguards in place.
I am speaking from memory here, so I hope I get this exactly right, but in the other place, an example was given of a 17-year-old who was basically sold for sex to a variety of people, along with a number of other young women and children—legally, children—under one of these CHIS arrangements, and this was allowed to continue. The result was that the child involved was the witness to a murder, and not just the witness: she was effectively coerced by her circumstance into helping to cover up the murder, having to hide the evidence and so on. This was a youngster who had been a product of the care system, who had bounced from authority to authority—as we have seen happen in so many terrible cases—yet she was left in these circumstances in pursuit of getting more information about the criminal she was under the control of.
The Bill also raises the possibility of 16 and 17-year-olds being authorised by any of a number of different agencies to spy on their parents. These agencies include police forces and the intelligence services, but it also extends to the others that the right hon. Member for North Durham (Mr Jones) referred to earlier. Do we really want to give such arbitrary and unfettered powers to such agencies? I, for one, do not under any circumstances. Amendment 4 would limit the deployment of child spies to exceptional circumstances, where all other methods to gain information have failed, and only if there is no risk of any reasonably foreseeable harm. We are not talking about MI5 or MI6 here, but about police agencies that are dealing with people, no doubt in county lines operations, sex trafficking operations and so on. Their first duty is to rescue the child, so it is an entirely sensible amendment, which I will support. It introduces real, meaningful safeguards that have been endorsed by the Children’s Commissioner.
However, on its own, amendment 4 is not enough. In its current form, the Bill also allows organisations to permit their employees and informants to commit criminal activity, with no express limit on the crimes that can be authorised—a point addressed by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee. In my view, this lack of an express limit is wrong. It can never be right for the state to authorise the gravest of crimes—we are talking about a narrow group of crimes here: torture, murder, or sexual violence—yet that is precisely what this Bill will do if left unamended. I am as sceptical about the human rights protections as my right hon. Friend, but for different reasons, and I will explain why. For a start, allowing this type of behaviour puts us out of step with our international allies. Our Five Eyes security partners recognise the need for limits. Australia, Canada, and nowadays America all have common-sense limits on what their covert agents can do to prevent this line from being crossed. We must now do the same.
Lord Carlile of Berriew, who frankly is a long-standing opponent of mine in these things—he mostly takes the authoritarian state line, despite the fact that he is nominally a liberal—has described this Bill as the most constitutionally dangerous legislation presented in his working life. I agree, which is why I support Lords amendment 2, which places clear, common-sense limits on the crimes that covert agents can be authorised to commit, ensuring that the worst crimes such as murder, torture and rape can never be authorised. It mirrors an amendment I tabled in Committee in the Commons, and if the CHIS Bill becomes law without those limits, it is almost certain to be challenged in the courts and may eventually be overturned. This will not be the first time we have been here: those who have been here for some years will remember the Data Retention and Investigatory Powers Act 2014, which went through the same process. Tom Watson and I took it to court; we won, and the Government had to rewrite it. I hope we do not have to do the same with this Bill—it would be unwise to repeat that experience.
Let me explain why that is a risk. The argument made by some hon. Members, particularly those on the Intelligence and Security Committee—who have close involvement with this issue, and whose experience I recognise—has to be put up against one test: if it is impossible for us, why is it not impossible for Australia, America and Canada? They can operate; why can’t we? The Government have to answer that question, otherwise I think they will find that this Bill will not stand.
There are real risks to providing these powers without limit. At the end of last year, the Investigatory Powers Commissioner reported that he had identified several weaknesses in MI6’s agent-running practices in the UK, leading to several errors, and, even worse, that high-risk covert agents had indulged in serious criminality overseas. Only this morning, MI5 confirmed in court that it would authorise one of its informants to carry out murder as part of its activities. So much, frankly, for the safeguards of the Human Rights Act. If MI5 is willing to say that in court, where in this exercise is the protection of the Human Rights Act, which was the Government’s defence last time and, indeed, the Minister’s defence today?
There is a real need for legislation in this area; I agree about that with pretty much everybody who has spoken. This is better in law than in some standard written inside an agency, with all the influences that being inside an agency brings to bear on it. There is a need for legislation, but this legislation is, bluntly, thrown together. In many ways, it incorporates some of the worst elements of the preceding arrangements, which need to be put right. The Minister kindly said that he will be listening before the Bill goes back to the Lords for amendment. I think there are amendments that could meet most of the concerns of those who have spoken, and that is what I would like to see before it goes back to the Lords.
Stella Creasy (Walthamstow) (Lab/Co-op) [V]
The House is considering this Bill and these amendments at a time when we recognise the difficult job that we ask our security services, and indeed our police, to do to keep us safe. However, these practices have gone on for some years and it is right to legislate to give the protection of a framework as to how they can happen. It is important that that framework is protected. I therefore want to speak in support of amendment 4, tabled in the other place by Baroness Kidron and supported by a cross-party group including Lord Young, Lord Kennedy and Baroness Hamwee, which sets out the protections and safeguards that we should ask for if we expect children or vulnerable people to commit crimes on our behalf. Like others, I thank the people in the Lords who have done a huge amount of work to get us to this place on these protections. I also thank the previous Minister, the right hon. Member for Old Bexley and Sidcup (James Brokenshire), and his counterpart in the Lords, Baroness Williams, both of whom have listened to concerns with regard to this amendment. I know that the Minister has come to this matter late and he wants to listen too.
That is why I want to put on record how sorry I am that we have not yet got to agreement across this House and across this Parliament. If the Minister was listening to the right hon. Member for Haltemprice and Howden (Mr Davis), who I recognise also has strong feelings about this, he would see that there is concern across this House about how we best protect children. I think that everyone in this House knows that when it comes to other people’s children, it is a fundamental principle that we should want for them what we want for our own. Sadly, some children will not be as loved as others, as well cared for as others or as well-behaved as others, but they are all children.
That is why, although I listened carefully to the Minister’s comments on amendment 4 and why he will not accept it, I want the Government to go further and give assurances about what will happen next. Ministers have yet to acknowledge that if we do not include amendment 4 in the Bill, there is no alternative provision to cover this scenario and the inconsistencies in the arguments that they are making today. The Minister has said that there are no new powers in the Bill with regard to child CHISes, but there are no protections either. He will be well aware that the Government were taken to court by Just For Kids and the court said that children were put in harm’s way as a result of these proposals. Therefore, this House does have to act. The Government’s own guidance accepts that participation in criminality is an inescapable feature of being a CHIS, including for children. Ministers have said that there is increasing scope for young people to be used as they are increasingly being involved in criminality—that as the criminals use more children, so should we.
Sir Edward Leigh
I would like to associate myself with the arguments that have been adduced today by the Solicitor General and by my right hon. Friend the Member for New Forest East (Dr Lewis). I am afraid that I must disagree with my other very good friend, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Nobody doubts his complete honesty and passion in these matters, and I hope that he does not accuse me of being an authoritarian, because I really am not. I hope I am as committed to civil liberties as anybody, but we are under a ruthless attack. The Minister mentioned 28 attacks, and we all know the appalling atrocities that have been committed on our streets in recent years. We all know about the Manchester bombing and about Lee Rigby. The list is endless. We all know that there are absolutely ruthless people who care nothing about our values and who are prepared to destroy and kill innocent people. This is not a game of cricket, and we cannot play and defeat these people by traditional policing methods. We cannot rely simply on bugging their mobile phones. As my right hon. Friend the Member for New Forest East, who speaks with more experience than anybody else as Chairman of the Intelligence and Security Committee, said, we rely absolutely on covert intelligence sources: people going into these organisations and acting with extraordinary bravery.
I understand the motivation of what has been said in the other place, and I can understand why people are adducing these arguments based on human rights, but there is a possibility that if we were to accept these Lords amendments we would be putting the lives of our own people at risk. The most powerful point made by the Solicitor General was almost at the beginning of his speech when he said that the state should not prosecute people for actions that the state asks them to do. These people are working for us. They are working to defend our people, and I have to say to my right hon. Friend the Member for Haltemprice and Howden that if it is a choice between my daughters being blown up on the London tube and there being some slight and occasional infringement of the human rights of terrorists and potential terrorists, I know where my choice is. I think that the public are also on this space.
Mr David Davis
I do not think that my right hon. Friend was in the Chamber for the beginning of my speech, because I was going to refer to him and tell him that I did not agree with him that the Blairite approach to terrorism worked at all. Indeed, I think it made it considerably worse. In my speech I listed a whole series of people—the Home Office, the Foreign Office, security and prosecution specialists—who knew their way around this like the back of their hand, and they were not making the recommendations because they thought they needed to uphold some civil liberty. They were making the recommendations because they thought that what they were proposing worked better than what the Government were proposing, and that is what I think, too.
Sir Edward Leigh
I apologise for missing that. I was summoned in to see the Speaker, as I warned the Deputy Speaker, so I missed that part of my right hon. Friend’s speech, but I listened to everything that was said in the early part of the debate, and I followed it carefully. I made an intervention on the Opposition spokesman, and I still believe it. I frankly trust Mr Blair and Mr Brown more than I trust the former leader of the Labour party on these issues.
Dr Julian Lewis
In support of my right hon. Friend, it will come as no surprise that I would simply say that, whether one trusts this expert or that expert, or this or that Committee Chairman, that is what is known in philosophical terms as the appeal to authority. I am happy to rely on the argument that I put forward, which is that, if we create a list of things that agents cannot do, we invite terrorists to use it as a checklist to test their own membership for spies and infiltrators.
Sir Edward Leigh
Of course I agree with that, and I wanted to make that point as best I could. It is quite a weak argument to say that, because certain people who have been in authoritative positions make a certain argument, that it is therefore a clincher in argumentation. Actually, the point put by my right hon. Friend the Member for New Forest East was far more powerful, frankly. He was adducing a specific example. If it is laid down in statute that a covert agent cannot take a particular action, that is an invitation to terrorist or gangster groups to have an initiation ceremony based precisely on what is forbidden by Parliament. I thought that that was a completely unanswerable argument.
Sir Edward Leigh
But if my right hon. Friend wants to defeat it, let us hear it.
Dr Julian Lewis
Just because an ally has a system that may leave its agents vulnerable to exposure and death, that does not mean that we should copy that.
Sir Edward Leigh
Exactly, and I hazard a guess—as we have seen with the covid outbreak—we are a uniquely open society. We have very large levels of immigration. We have large minority communities. By the way, 99.9% totally oppose terrorists, do not believe in that and all the rest of it, but we know we are fundamentally and hugely vulnerable as a nation, probably much more vulnerable than Australia or New Zealand, so the fact that Australia does certain things does not apply. Personally, speaking for myself, I would rather listen to arguments from my right hon. Friend the Chair of the Intelligence and Security Committee, who has been briefed by MI5 and MI6, than to arguments adduced at second hand by my right hon. Friend the Member for Haltemprice and Howden, who tells me that in New Zealand and Australia they do things in a different way and are at no higher risk. In any court of law, the evidence adduced by my right hon. Friend the Member for New Forest East is more powerful than the arguments adduced by my other right hon. Friend.
We have just heard a passionate defence of children. No one denies the commitment of the hon. Member for Walthamstow (Stella Creasy) to the welfare of children, but when I was reading about this debate in some Sunday papers and other parts of the media at the weekend, it gave the impression that we were almost going back to Stalin’s Russia, and getting children to spy on their parents. This is ridiculous—we have to have a sense of proportion. We live in the United Kingdom. We have a system of law. Can we not trust our operatives in MI5, MI6 or the police force to act proportionately and in a necessary way?
Sir Edward Leigh
I am sorry, we already have human rights legislation—my right hon. Friend places a lot of faith in that. Like my right hon. Friend the Member for New Forest East, I think we have seen numerous instances where our armed forces have been treated appallingly in the past. There is great public concern about that. We do not want to put our security services, who are living in an infinitely more dangerous world, in the same position in which we put our armed forces. The Bill as it stands is proportionate and reasonable, and there has to be an element of trust. Personally, I think that it is extraordinarily unlikely in our country that MI5, MI6 or the police forces would act in such a way that if we knew what they were doing we would be horrified and think it was corrupt or that they were somehow abusing children. I suspect that if we use minors who are 16 or 17 in a certain way that is done very carefully. I suspect that we are not initiating any new behaviour at all and we are rescuing young people from cruel fate.
Bob Stewart
I thank my really good friend, my right hon. Friend, for letting me intervene. I speak from experience, because I have run an organisation—I will not be too precise—and there were several hundred people on my books. Not one was a child. We did not need a law to tell us not to use children. We did not use children, and there was no flipping law that stopped us.
Sir Edward Leigh
I think that is powerful evidence. This is about common sense; it is about proportionality and being reasonable. We cannot use law or statute to provide a sort of envelope around every action that the security services do. In the real world that does not work. It may be counterproductive, dangerous, and could put our own people at danger.
Finally, perhaps the Minister can comment on the fact that Lords amendment 5 would require all criminal conduct authorisation to be notified to the judicial commissioners, as set out in the Investigatory Powers Act 2016. Again, that sounds reasonable, but it also provides the judicial commissioners with the power to cancel an authorisation if they determine that it should not have been granted. That would require the covert activity to cease immediately. Such authorisations would only need to be notified to the judicial commissioners within seven days of them being granted. That means that they might cancel an authorisation, and insist that the activities carried out under it cease immediately, in the middle of the very acts in question. As I understand it—I may be wrong—the amendment would therefore undermine the very ability of our security services to recruit covert human intelligence sources. I mention that point because am not sure that it has already been raised in this debate. Let us be reasonable and proportionate, and let us leave the Bill as it is.
Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]
It is a pleasure to follow the right hon. Member for Gainsborough (Sir Edward Leigh), and I confess that I am slightly frustrated sitting here in my sitting room in Orkney. I suspect that if I were with you on the green Benches, Mr Deputy Speaker, I would have joined the right hon. Members for Haltemprice and Howden (Mr Davis) and for New Forest East (Dr Lewis) in engaging in the debate as it went along. Such is the nature of the times in which we find ourselves.
The thesis that the right hon. Member for Gainsborough offers the House tonight proceeds on the basis that it is necessary to empower those who engage in protecting us through the work of the security services, by offering them unlimited power and leaving everything up to their discretion. The thesis that I offer in rebuttal to that—this is very much in line with what the right hon. Member for Haltemprice and Howden said—is that we best serve the people who put themselves in the way of danger by laying down the limits with which we authorise their activity. It seems to me that to leave everything to their discretion means that we abdicate our duties as parliamentarians, and subcontract them to those who do not have the authority that we have, and who as a consequence are left exposed.
May I add my name to the long list of those who send good wishes to the right hon. Member for Old Bexley and Sidcup (James Brokenshire)? He is a Minister who brings an incredible amount of diligence, care and thoughtfulness to his work in the House, and it was a matter of significant regret and sadness when I heard that he found himself again unwell. No Member of the House would not concur in sending him the very best of wishes.
I thank their lordships in the other place for the manner in which they have further scrutinised the Bill. They did so in a typically thoughtful and reasoned manner, and I invite the Solicitor General to consider the nature of those who have sent us these amendments. They include Lord Anderson of Ipswich, Lord Thomas of Cwmgiedd, Lord Paddick and Baroness Hamwee, a former independent reviewer of terrorism legislation, a former Lord Chief Justice, a former senior police officer, and a distinguished legal practitioner of many decades and experience. This is not some cabal of over-zealous radicals and anarchists. These are people, men and women, who have significant experience in the realities—the practicalities—of those matters before the House. I suggest gently to the Solicitor General that their views require rather more substantial and considered rebuttal than we have heard from those on the Treasury Bench today.
I will canter through the different amendments that come to our House tonight from their lordships. On Lords amendment 1, inserting the word “reasonably” would effectively turn a subjective test into an objective test. This comes back to the point that I made at the start. It is for the benefit and protection of those who are required to engage covert human intelligence sources and send them out into the field that there should be some objective measures that they know their conduct and judgments can be measured against.
Lords amendment 2 introduces a number of limitations —Canadian-style, essentially. I thought that the objections that we heard from those on the Treasury Bench in relation to this were somewhat synthetic. In terms of our standing in the world community and as important protectors of the concept of the rule of law, I suggest again to the Minister that this is something that really requires a bit more care for our reputation on the world stage.
Lords amendment 3 is different from all the others, because all the others relate to the practice and conduct of people who are the sources, whereas this relates to those who are victims. It is entirely right that protections should be put in the Bill for those who are victims—innocent victims, in particular—of this sort of criminality. Again, I ask the Minister to reconsider the position on what is a very modest protection, but an important one none the less for those who will find themselves in that position.
The hon. Member for Walthamstow (Stella Creasy) made a powerful and impassioned case on Lords amendment 4. It is a well-accepted principle throughout the criminal and civil law of this country that we treat children differently. I again suggest that the Government need to be a bit more circumspect in relation to that.
I thought that the hon. Member for Bromley and Chislehurst (Sir Robert Neill) dealt very effectively and eloquently with Lords amendment 5. In the event that conduct is deemed to have been unlawful, even retrospectively, surely that is the point at which it should be stopped. The Government’s case that our intelligence services can serve the national interest by continuing with conduct that has been considered by a judicial authority to be unlawful undermines the force of their arguments.
I want to remind the House of the genesis of this legislation. As the right hon. Member for Haltemprice and Howden and the right hon. Member for North Durham (Mr Jones) touched on, the third direction by the former Prime Minister was being tested in the investigatory powers tribunal. The Government had what I think would be best described as a narrow squeak there, and it was then, as a measure of some panic, that they decided to bring in this legislation in anticipation of the fact, or in fear, that their position would be overturned in the Appeal Court. I think that that was a not unreasonable view to be taken by the Government in all the circumstances. It is worth noting, in relation to the effectiveness of the Human Rights Act as a protection in this area of law, that not only is the Human Rights Act itself under review by the Government, but that the reliance on the Human Rights Act in Parliament stands in very stark contrast to the repudiation of it being applicable in their pleadings in the tribunal. I do not think the Government can have it both ways. The bringing of the Bill is in itself is a good and worthy ideal, but these are matters that should be regulated by Parliament. We realise that this is not done for any sort of Damascene conversion, but that it is, in fact, a panic measure.
The thinking behind the Bill seems to be that the Government accept that there has to be change inasmuch as the regulation of this activity has to be put on to a statutory footing. At the same time, however, they want to do it in such a way that nothing actually changes. It is done on a fairly crude world view, if I may say that. Somehow or other, law enforcement is always about good guys doing good things, pursuing bad guys who have done bad things. Those of us who have worked in the criminal courts and elsewhere know that is often a bit more nuanced than that. The sort of world view that brings this legislation is one which very quickly brings us to the point where the end can be seen always to justify the means. The bottom line is that those who are involved in these difficult areas of judgment very often do get them wrong.
I offer not a directly applicable example here, but one that I think should give the House cause to pause: the operation under the Blair Governments of extraordinary rendition and the cases of Boudchar and Belhaj. Jack Straw, as Foreign Secretary, and Mark Allen were essentially responsible for the rendition of Belhaj and Boudchar to Libya—incredibly, to say it now—and they did so in contravention of every stated Government policy. Ultimately, those cases were required to be settled with non-disclosure agreements and substantial amounts of public money paid in compensation.
Those cases illustrate the fact that there is a need for us as Parliament to put limits on what can be done by those who we charge to operate in this field. It should not be prescriptive, but it should be something that is there to which they can have reference, so that we can have security of knowledge that the work they do on our behalf is done properly. That is what these amendments are about. That is why this Bill has gone so badly wrong. The amendments from the other place seek to improve the Bill and my party will this evening vote in support of maintaining them.
Geraint Davies (Swansea West) (Lab/Co-op) [V]
I do not want to breach the consensus that has emerged, but I have to say that in my view the Bill brings new powers that are unnecessary, disproportionate and open to abuse, and brings operatives beyond the rule of law, which is unnecessary. I have already opposed the Bill in the past and I very much support the amendments to provide some constraints on prospective abuses.
I should say at the outset that we all very much welcome and applaud the covert human intelligence sources, and the fantastic work they have done over the past few years in thwarting 28 terrorist attempts. However, that, of course, was all achieved under the current law, with safeguards. The problem with the Bill is that it actually removes the law and the safeguards, and I therefore cannot support it. In a nutshell, the Bill allows new powers—not existing powers—for Ministers and officials to confer immunity from prosecution for people to commit serious crimes.
Those crimes can be authorised in the name of national security, which we understand, of crime prevention and detection—yes, perhaps—and of the
“economic well-being of the United Kingdom.”
In other words, crimes could be committed against anti-frackers and Extinction Rebellion and so on, so this is much too broadly defined.
Imran Ahmad Khan (Wakefield) (Con) [V]
I would like to take a moment to wish my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) a speedy recovery and thank him for all his hard work in his role as Minister for Security.
This Bill provides our operational agencies with the powers required to enhance our national security, protecting British citizens from those who seek to do them harm. When a story relating to covert intelligence breaks in the news, there follow lazy and ill-informed references to James Bond and a licence to kill. We in Parliament have a duty to keep the discourse on this topic sensible. James Bond is a magnificent manifestation of the United Kingdom’s creative arts. He does not, however, reflect the reality of the serious work that goes on in the intelligence services. Those brave men and women do not have a licence to kill or needlessly commit crimes, but have chosen to put themselves at risk for our common safety. The best way to express our gratitude to those who serve this country is for us to help stop sensationalising this issue. It pollutes the debate and does nothing to help pass effective legislation that simultaneously safeguards security and human rights. I am committed to both, and it is a mistaken belief to maintain that security and human rights are mutually exclusive, for in truth they are mutually reinforcing.
Covert human intelligence sources operations have proven their effectiveness. CHIS-led operations have allowed the National Crime Agency to disrupt over 30 threats to life, safeguard over 200 people and seize 60 firearms from those who may use them to do harm. Between 2017 and 2019, HMRC CHIS have prevented hundreds of millions of pounds in tax loss, including one case that was estimated to have prevented a loss of over £100 million.
I recognise that some of the amendments sent by the Lords wished to safeguard vulnerable and juvenile CHIS and ensure that operatives do not take part in the worst type of crimes, such as rape or murder. Certainly, I understand the thinking behind these amendments, but I do not support them. With regard to juvenile and vulnerable CHIS, Her Majesty’s Government have put forward substantial amendments to the Bill to ensure that robust safeguards are established for the very rare circumstances when juvenile CHIS may be tasked with participating in criminal activities.
The Government amendments leave no doubt that the authorising officer has a duty to safeguard and protect the best interests of the juvenile. This duty is a key factor in any decision for the authorisation of a mission. The amendment proposed by the Lords certainly raises the importance of ensuring that CHIS are adequately protected from harm, but ultimately it would undermine our ability to tackle criminal activities. I have an extract from the report from the Investigatory Powers Commissioner that demonstrates the importance of juvenile CHIS:
“In one such case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group. The juvenile owed money to the group and approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”
With regard to concerns that the Bill allows operatives to get away with the worst types of crimes, let me say this: the Bill has already outlined that authorisation is only granted by highly trained authorising officers, who work within and maintain strict operating parameters. Crucially, there are clear and regulated limits to the types of criminal activities that may be conducted. As part of our obligations under the European convention on human rights, the prohibition of torture and subjection of individuals to degrading treatment is strictly enforced. Further, all activity is overseen by the independent Investigatory Powers Commissioner, who ensures that accountability is maintained throughout the process of any such operation. It is crucial that the ISC and the Investigatory Powers Commissioner have proper oversight and that such oversight is published.
In ensuring greater accountability, more effective oversight should be promoted. I am not alone in taking that view, but share it with those possessed of particular understanding and expertise in these matters. For example, that view is at the centre of the research by Professor Rory Cormac of the University of Nottingham, who is one of the country’s leading experts on covert intelligence. A number of points that I have made are mentioned in his research, including his book “Disrupt and Deny”, which I recommend to colleagues. One point stressed by Professor Cormac is that CHIS have to be able to commit certain crimes in order to be credible, gain information and/or engage in covert operations.
Regulation is certainly crucial to prevent problems such as the collusion in Northern Ireland from ever arising again. Any co-operation with violent non-state actors must be properly regulated to prevent officers and agents from getting ahead of themselves and interpreting their own parameters too broadly. The Bill would make such activity less likely, while allowing those who take risks with their lives to keep us safe the support that they need to be successful. I do not doubt the well-meaning intentions of the Lords amendments or the concerns surrounding the Bill; however, the Bill will ensure that regulations and processes are effectively enforced, preventing officers from acting autonomously or beyond their remit.
As I have said previously, protocols are already in existence that ensure that the interests and safety of juvenile and vulnerable CHIS are maintained; however, I am gladdened that additional measures are being considered to bolster the existing provision. Without such operatives working within strict parameters and with the necessary oversight, as outlined in the Bill, we, and all that we care about most, would be less secure.
Apsana Begum (Poplar and Limehouse) (Lab) [V]
I speak in support of Lords amendments 1 to 6, and particularly Lords amendment 3.
I have repeatedly spoken out and voted against the Bill because I believe it to be fundamentally unjust. The Government have claimed that the Bill is
“a continuation of existing practice”
that it puts on a “statutory footing”. For many, though, the existing legislation was not fit for purpose in the first place. The Government’s approach to the Lords amendments does not go far enough to recognise the extent to which the Bill still undermines human rights.
Public inquiries into the nature and impact of the criminal actions of covert human intelligence operatives are still under way. We in this House have not had the opportunity to consider any of the findings of those inquiries, nor any that they may produce in future, but it is clear that those inquiries have come about because there are lessons to be learned from serious cases involving our operatives engaging in sexual relationships. It would therefore be helpful if the Solicitor General outlined in his closing statement whether the Government will commit to reviewing the Bill in the light of any findings produced by inquiries in the future.
It is not clear how any provisions of the Bill, even with the Lords amendments that the Government are indicating they are willing to listen to, will ensure that innocent victims can seek redress. The Solicitor General said in his speech earlier that Lords amendment 3 is unnecessary. Government Front Benchers have also said that the Human Rights Act provides sufficient safeguards, but that Act, significant as it is as a piece of legislation, contains no provision for prosecutions to be brought against individuals. For example, if an innocent victim—a woman or a child—believes that they have been exploited for the collection of intelligence, they cannot bring a covert operative or a public body in front of the courts under the Human Rights Act. For that reason, Lords amendment 3 is absolutely necessary to ensure that the door of justice is open for such victims.
So far in this debate, many Members have rightly highlighted the threats posed by terrorism, but they have failed to mention the scope of the authorities to which the Bill provides powers—not just MI5 and MI6 but authorities such as the Food Standards Agency. The Government should consider the impact of the Bill, even with all the Lords amendments, and how it goes much further beyond the very serious threat of terrorism.
There has been little, if any, mention of the communities that are likely to be most impacted by the Bill—communities that are already experiencing marginalisation in society. Among them is a community that is extremely and excessively policed and unduly spied on. They have had their homes raided and their children targeted in schools. They have unduly borne the brunt of security and counter- terrorism legislation, particularly over the past two decades —I recognise that that has been under successive Governments. That community is the Muslim community. The Government’s Prevent programme has fostered discrimination against Muslims by perpetuating Islamo- phobic stereotypes. This Bill, even with the amendments that the Government have conceded, does not address the environment of hostility that the community will be further subject to or the threats to their human rights in particular.
I conclude by saying that for as long as I am a Member of this House, I will continue to speak out about these concerns on behalf of such communities in the east London constituency that I represent. For as long as they continue to experience the erosion of their human rights, I will continue to oppose this legislation as it continues its journey in this House and the other. I will do so as a Member of this House, in proud, socialist, Labour tradition.
The Solicitor General
With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.
First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.
Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.
The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.
We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.
I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.
Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.
I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.
My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.
Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.
I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.
The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.
Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.
Conor McGinn
I appreciate the Solicitor General giving way and I am reassured by much of what he says, but having just said that the Government would not accept amendment 1 because of the need to be consistent across the law, will he comment on the fact that it is still an anomaly that 16 and 17-year-olds who commit a crime of their own volition are entitled to different protections from 16 and 17-year-olds who commit a crime as a result of a criminal conduct authorisation?
The Solicitor General
The reality, of course, is that the safeguards that I have adumbrated in regard to CHIS are very relevant here and, as I have mentioned, there are considerable safeguards that form the protections that we can say with confidence mean that those 16 and 17-year-olds will have very good protection.
I will now turn specifically to the point raised by the requirement for an appropriate adult to be placed for sources aged 16 or 17, which I would like to explore a little bit more. The Regulation of Investigatory Powers (Juveniles) Order sets out a requirement for an appropriate adult to be in attendance at all meetings between a public authority and a source below the age of 16. It must be considered on a case-by-case basis for sources aged 16 or 17, and this is the case for any general authorisation of the CHIS and any specific additional authorisation for participation in criminal conduct, which is what we are debating in this Bill.
Let me be clear, though, that when each case is being considered carefully, there is a presumption that there will be an appropriate adult in place—that is the default position, unless there is a justification for not having an appropriate adult in place. An example of such a justification might be that doing so would not be in the best interests of the child. The best interests of the child are always at the heart of the decision making. If the authorising officer believes that an appropriate adult should not be in place, that justification must be documented, and can be considered by the IPC.
I would caution the House against using examples, whether real or hypothetical—it does tend to be risky to do so, and puts young people at risk—but criminal gangs will seek to apply the scenario that has been set out to their own experience, which could result in them wrongly identifying and putting at risk of harm anyone suspected of being a CHIS. As such, the example suggested by the hon. Member for Walthamstow and by my right hon. Friend the Member for Haltemprice and Howden does not fit with the framework of safeguards that is in place for juvenile CHIS. This could not happen, and we do not recognise the example given.
However, as I said in my earlier remarks, the Government are listening. We will continue to listen, and will do so by means through which we can provide further reassurance about these authorisations. I hope these conversations can continue, and that we can find a means of providing additional reassurance while not risking the safety of a juvenile CHIS. While it is not appropriate to put all 74 pages of the code of practice into the Bill—I think I said “hundreds” earlier, but it is actually only 74 pages— I agree with the right hon. Member for North Durham that it may be appropriate to include some of those safeguards, including confirmation that a juvenile could only be authorised in exceptional circumstances. Not all of the code of practice applies to this Bill, but some parts may, so the right hon. Gentleman makes a perfectly good point.
Turning briefly to Lords amendment 5, I think there is consensus that the additional oversight provided by the requirement to notify a judicial commissioner is reassuring. The commissioner will see all authorisations of juvenile CHIS, and likewise will be able to confirm that all authorisations are compliant with the Human Rights Act.
In response to the question posed by my hon. Friend the Member for Bromley and Chislehurst, let me offer reassurance about what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag any concerns to the authorising officer, and they would work collaboratively to address such concerns. If an authorisation has been granted but the activity not yet started, the judicial commissioner and authorising officer will work together to address those concerns. If the activity has started, the authorising officer must take into account any concerns that have been raised, and will continue to discuss these with the judicial commissioner. It would not be the case that a public authority would simply ignore feedback from the IPCO: it is a collaborative process, and the views of the commissioners carry serious weight. However, ultimately, it would be a matter for the court to determine.
Finally, in response to the right hon. Member for North Durham, who asked whether any concerns raised by the IPC will feature in the annual report, I can confirm that the IPC must include statistics on the use of this power, including any errors and areas where improvement has been recommended.
I hope that I have been able to provide additional clarity and reassurance on these issues, and that the House will vote to reject these amendments.
Question put, That this House disagrees with Lords amendment 1.
Madam Deputy Speaker (Dame Rosie Winterton)
In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.
Medicines and Medical Devices Bill (Programme) (NO.3)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Medicines and Medical Devices Bill for the purpose of supplementing the Order of 2 March 2020 (Medicines and Medical Devices Bill (Programme)), as amended by the Order of 22 April 2020 (Medicines and Medical Devices Bill (Programme) (No. 2)):
Consideration of Lords Amendments
(1) Proceedings on consideration of Lords amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement.
Subsequent stages
(2) Any further Message from the Lords may be considered forthwith without any Question being put.
(3) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Rebecca Harris.)
Question agreed to.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Tuesday 9th February 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 168-I Marshalled list for Consideration of Commons reasons and amendment - (5 Feb 2021)
15:19 - Division conducted remotely on Motion B1 (as an amendment to Motion B) - Ayes: 143 / Noes: 311 - Motion B1 (as an amendment to Motion B) disagreed.
15:35 - Division conducted remotely on Motion E1 (as an amendment to Motion E) - Ayes: 127 / Noes: 296 - Motion E1 (as an amendment to Motion E) disagreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I begin by paying tribute to all noble Lords who have contributed to the debates on this Bill. The quality and detail of discussion have been exceptional, and even where the Government have not agreed with the remarks of noble Lords, I recognise the value they have added to the debate. I also thank those noble Lords with whom I have discussed the Bill directly to seek to reach agreement on key issues, and I thank Opposition Front-Benchers in particular for the collaborative approach they have taken. I hope that today, we are able to reach consensus on the issues raised in these amendments, and to provide the certainty and assurance that CHIS and operational partners deserve when this Bill moves on to the statute book.
I have been clear throughout these debates that the Government’s position on this Bill is driven by the need to ensure that this important tactic remains operationally workable. We cannot risk the operation of the tactic or create unintended risk of harm to CHIS, or indeed the wider public, through damaging amendments, even where the sentiment behind them is well-intentioned. However, where we have been able to provide additional reassurances about the safeguards underpinning the power in an operationally workable way, we have welcomed the opportunity to do so. I again thank the noble Lord, Lord Anderson, for his amendments on real-time notification. I hope I can demonstrate that same approach to the amendments we will discuss today.
Amendment 1 would place on the face of the Bill the requirement that an authorising officer must reasonably believe an authorisation is necessary and proportionate. As I have previously confirmed, it is indeed the case that the belief of the authorising officer should be a reasonable one. The revised code of practice confirms this, and in response to concerns raised by noble Lords, this was further amended to make that clear. However, placing this requirement on the face of the Bill risks casting doubt on whether the belief must be reasonable when that is not specified elsewhere—for example, in Section 29 of Part II of RIPA.
However, the Government are willing to be clearer still in the code of practice and specify that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
I thank the noble Lords, Lord Anderson and Lord Paddick, and the noble Baroness, Lady Hamwee, for their engagement on this point, and I hope this provides the necessary reassurance on this issue.
Amendment 2 would place express limits on the face of the Bill. We have discussed at length why this is not workable and risks CHIS testing and harm to the public by enabling the development of wider initiation tests. To be clear, it is the assessment of operational partners that to explicitly rule out rape, for example, would lead to gangs asking potential members to rape people to prove that they are not working on behalf of the state.
Let me once again confirm that the necessity and proportionality tests and the Human Rights Act provide limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful, and this is clear in the training and guidance of all public authorities. I ask all noble Lords to seriously consider, therefore, whether we should risk CHIS testing and serious harm to the public when the practical effect of Amendment 2 is not necessary. The Government will not support this amendment for these reasons, and I implore noble Lords to place weight on the advice of operational experts and do the same.
Amendment 3 relates to the criminal injuries compensation scheme. As I said earlier, the Government are listening to ways of providing additional reassurances to Parliament and the public with regard to the safeguards underpinning this legislation where that is operationally workable. Therefore, recognising the views of noble Lords on Report, we are bringing forward an amendment in lieu which makes it clear that a person can access the compensation scheme where appropriate. Therefore, I hope noble Lords are reassured on this point.
Amendment 4 relates to the authorisation of juveniles and vulnerable adults. Let me start by thanking the noble Baroness, Lady Kidron, my noble friend Lord Young of Cookham and the noble Lords, Lord Russell of Liverpool and Lord Kennedy of Southwark, for their extensive engagement on this issue. I also pay tribute to Stella Creasy MP in the other place. This is an uncomfortable area and I completely understand why many noble Lords’ starting position would be to seek to prohibit any authorisation of a juvenile. The danger of that approach is that in prohibiting their use as a CHIS you increase their use by criminal gangs, which will be reassured that a juvenile cannot be working on behalf of the state.
Amendment 4 recognises this issue, and instead places additional safeguards into the Bill. The Government agree with the sentiment of this amendment but cannot support it in its current form, as it would create operational issues that would risk unintended consequences for the young person or vulnerable adult. For example, the amendment defines exceptional circumstances as those
“where all other methods to gain information have been exhausted”.
This requirement risks the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain the information, but these may not be the safest way to extricate the juvenile from the situation and lead to the best outcome for the juvenile involved.
Therefore, the Government have brought forward amendments in lieu. These capture the essence of this amendment and provide significant additional safeguards for the authorisations of these groups, but in an operationally workable form. The government amendments make clear that the authorising officer is under a duty to safeguard and promote the best interests of a juvenile and that the authorisation must be compatible with that duty. This reflects Article 3 of the UN Convention on the Rights of the Child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requires the IPC to keep these enhanced safeguards under particular review. The use of such authorisations will therefore be subject to close and independent scrutiny, through both the real-time notification process, regular inspections and the IPC’s annual report, which is laid before Parliament.
I encourage all noble Lords to read the 2019 annual report, published in December last year, and I can quote from IPCO here to provide further reassurance today. The 2019 report stated:
“In the very rare instances when a juvenile is authorised as a CHIS, we conduct a close examination of the case. We examine every such case at inspection and focus on the safety and welfare of the juvenile and check that the use and tasking (conduct) is not endangering the CHIS or leading the juvenile to associate with criminals and environments that they would not otherwise encounter.”
I also reiterate another important point relating to oversight of authorisations. It will never be the case that just one individual in the public authority is involved in the authorisation process. RIPA requires the handler and the authorising officer to be different people, while the code of practice mandates that no authorising officer can authorise themselves, so no single officer could ever take a decision without consulting others.
In addition, recognising the views of noble Lords on Report, the amendments also place the requirement for a juvenile CHIS to be authorised only in exceptional circumstances into the Bill and tighten the existing definition of “exceptional circumstances”. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile, as per Amendment 4.
The amendments in lieu further clarify that an appropriate adult must be in place for any meetings with an individual under the age of 16, and that there is a presumption that an appropriate adult will attend meetings with 16 and 17 year-olds, with any derogation from this position justified in writing. I hope noble Lords recognise the addition of this language to the Bill in response to concerns raised previously. I can also provide reassurance that the same principles apply to the underlying authorisation of the use and conduct of a juvenile CHIS; an appropriate adult must be in place for a meeting with a juvenile under the age of 16, and justification must be provided if one is not in place at meetings with 16 or 17-year olds.
The definition of “vulnerable adults” is deliberately broad so as to capture a wide range of people—including, for example, victims of modern slavery. The amendments recognise that children are a specific subset of vulnerable individuals, due to their age. It is appropriate for there to be consistent safeguards for all juveniles, as the reason for their vulnerability is the same. It is not possible to apply the “exceptional circumstances” requirement to all vulnerable individuals, as they will be considered to be vulnerable for a wide range of reasons and will require different levels of support. The safeguards, while still robust, recognise this distinction. The amendments add additional safeguards for vulnerable individuals, however. These require that an enhanced risk assessment must be carried out; the source must be capable of understanding and consenting to the deployment and any associated risks; and consideration must be given to the best interests of the source.
Baroness Chakrabarti (Lab) [V]
My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.
While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.
Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?
In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.
However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?
As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.
Baroness Hamwee (LD) [V]
My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.
The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.
The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that
“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]
We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.
On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.
The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be
“inappropriate to create an exception to the effect of”
CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.
The Deputy Speaker (Lord Alderdice) (LD)
The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.
Lord Anderson of Ipswich (CB) [V]
My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.
Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.
I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was
“inappropriate to create an exception to the effect of criminal conduct authorisations.”
I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.
Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—
not whether any action should be taken, but what action should be taken, which implies that some action will be taken.
IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.
The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.
In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.
Lord Paddick (LD) [V]
My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this
“would place sources, and the wider public, at risk.”
As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.
Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.
What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.
The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.
To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.
Baroness Kidron (CB) [V]
My Lords, I wish to speak to Motion D, the government amendment in lieu of Lords Amendment 4. I, too, thank the Minister for her time and the care that she showed when we met. I wish also to recognise Stella Creasy MP, who has done so much to advance this issue.
I warmly welcome the enhanced protections, most particularly on the definition of exceptional circumstances. Experts have made clear to me that if that is applied rigorously, coupled with the amendment of the noble Lord, Lord Anderson, it will indeed make a real difference on the ground. Asking children to undertake illegal activities on behalf of the authorities is a place that none of us wants to be in, but as the Bill does precisely that, by formalising and giving permission to instruct child operatives to commit crime, it must be to the highest order of protection. It is the question of what a child is that I wish to raise once more.
A child of 16 or 17 is still a child, as defined by the UN Convention on the Rights of the Child and in our laws, and treated in our communities and families as a child—by right, by law and by practice—and yet the Bill does not afford 16 and 17 year-olds the protections due to children. While under-16s have the absolute right to have an appropriate adult with them when they meet a relevant person, in the case of 16 and 17 year-olds, a relevant person can decide that there are
“circumstances which justify the absence of an appropriate adult”,
even when that is a meeting that will lead to the child undertaking illegal activity on behalf of the authorities. This introduces an extraordinary conflict of interest that structurally undermines the Bill’s other requirement to act in the best interest of the child because it denies a 16 or 17 year-old child the automatic right to the presence of an adult who has the child’s interests as their unfettered concern.
Moreover, while I know the Minister’s assurance that more than one person must be involved, those circumstances can happen at the beginning of a child’s use as a CHIS, during their term as a CHIS and again under proposed new article 10 concerning the renewal of each four-month term, thereby making it possible for a child to be introduced, managed and repeatedly renewed as a CHIS, with no appropriate adult present at any time.
When we last debated this matter, a number of colleagues robustly criticised the amendment in my name, arguing that we should ban child CHIS altogether. However, while my heart is entirely with them, I had accepted the Government’s argument that if gang leaders knew beyond doubt that a child could not be a CHIS, it would drive further recruitment and exploitation of children by gangs. My, albeit reluctant, view was that the best way in which to protect children from being exploited by gangs was to allow the possibility of a child CHIS but to shroud the process in robust protections. We have failed to do that for 16 and 17 year-olds.
This is a failure of which the Front Bench of the Official Opposition in the other place should be ashamed, given that they have not fought for it. I am further disappointed that the Government have used their majority to walk through the Lobby rather than to protect the citizens they are elected to serve—in this case, vulnerable children being made more vulnerable at the behest of the state. All that is being asked here is that every child has an appropriate adult whose role is to make sure that what the child is being asked to do meets the bar of exceptional circumstances, and is understood, agreed to without pressure and in their best interests.
I do not doubt the principled behaviour of many in the enforcement community. I will work alongside officers in the UK and internationally whose commitment to exploited children online is nothing short of humbling. However, history is littered with examples of people in authority who have abused their position. In creating this glaring loophole, not only are we clearly exposing these children to the possibility of abuse by those in authority, we are also exposing those in authority to suspicion, and the Home Office itself to reputational and legal risk from even one bad apple.
Therefore, while the Bill is all but done, I still have some practical questions on both safeguarding and arrangements for meeting, as set out in proposed new Clause 29C(3)(b)(ii) and proposed new subsection (3)(c), where the word “believes” is the bar. In spite of the Minister’s assurance, that still appears to allow a relevant person to say that he or she thought that there was no harm in asking the child to do something illegal. Can she confirm that the guidance will include an objective test for both issues? Similarly, does the IPCO have to work out whether the officer “believed” that the illegal activity was in the child’s best interests or will they be looking to establish whether the action was “compatible” with the child’s best interests? In the event that the IPCO does not like the explanation, how quickly and by what process would it be challenged, bearing in mind that all the while a child is acting as a CHIS with no support? If the final port of call is reporting to Parliament, as we have heard, what level of detail is the IPCO to provide to Parliament? If, God forbid, something went wrong, is there an expectation that the police would reveal that a child was acting as an informant to serious case review, and would that automatically trigger an investigation?
The guidance, the code of conduct or, as the Minister rightly suggested, secondary legislation may be the last port of call for these children. Perhaps she can say when it will be ready, what form it will take and whether she would consider sharing it in advance so that parliamentarians with an interest in this matter can comment and input. Will the guidance be subject to a child rights impact assessment? I understand that it is frustrating to have to deal with so many questions at this late stage but almost every child CHIS has been or will be 16 or 17 years old. If the Bill fails this age group, it will have failed children overall.
In these extraordinary times, we have byzantine rules that make it difficult for colleagues to participate, so I want to put on the record that while the form of expression is mine, the view I am expressing is shared by scores of noble Lords on the Government Benches, the Opposition Benches and my own Benches, and a veritable flock of Bishops, who regret the lack of opportunity to make their views known.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.
First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:
“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]
I believe that she was right to say what would happen if a judicial commissioner expressed that view.
However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.
It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.
As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.
The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.
The Deputy Speaker (Lord Alderdice) (LD)
The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.
Lord West of Spithead (Lab)
My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.
I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.
It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.
The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.
On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.
The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.
In the other place, the Solicitor-General said:
“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]
This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.
The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.
In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.
Lord Young of Cookham (Con)
My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.
The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.
My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.
Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.
Lord Russell of Liverpool (CB)
My Lords, like the noble Lord, Lord Young, I will also speak very briefly to Motion D. I thank all noble Lords who have been part of a chorus of voices speaking on behalf of children, young people and vulnerable adults. It is very good news that their voices have been heard.
I thank the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I also thank the noble Baroness, Lady Young of Hornsey, who first tabled the amendment that the noble Baroness, Lady Kidron, then took on. I thank the noble Lord, Lord Anderson, because the initiative he brought forward to have greater involvement by IPCO has been and is extremely welcome. Stella Creasy has probably got enough plaudits without needing any more; it will doubtless go to her head. I thank the charity Just for Kids Law, which has been very active, helpful and constructive in realising what is and is not realistic.
The noble Baroness, Lady Kidron, asked all the questions that I would have asked, and probably rather better than I would have. I am sure the Minister will deal with them when she comes to respond. I quickly looked up whether a flock of Bishops is the right collective noun. It is actually a Bench of Bishops or a sea of Bishops, but unfortunately we do not have any with us today.
Lord Adonis (Lab)
My Lords, the Government have clearly moved on most of the contentious issues. We expect nothing less of the Minister, whom we hold in very high regard. The fundamental issue that is outstanding—you could argue that the use of under-18s is fundamental, but at least the Government have moved on that, although as it happens I agree with the noble Lord, Lord Young, and the noble Baroness, Lady Kidron, that under-18s should not be used—which the Government have not moved on and which we wish to press the Minister on is Amendment 2. I have listened to the debates, but I have not participated in them until now. We are at the crucial moment of whether the House will insist on its amendment, so it is reasonable for people to express a view on this crucial point.
The crucial question is the one put by my noble friend Lady Chakrabarti. We are talking about very weighty matters in Amendment 2 as to whether authorisations can be given in respect of murder, rape and torture. I thought the Minister equivocated on this in the example she gave in opening the debate. Can she say categorically when she replies that murder, rape, torture and their authorisation by agents of the state would contravene the European Convention on Human Rights and the Human Rights Act?
If she is saying that, then it is a complete mystery why the Government will not accept Amendment 2. As my noble friend Lady Chakrabarti so rightly said, Amendment 2 cannot be both dangerous and superfluous. If it is indeed superfluous because the authorisation of murder, rape and torture, even in the circumstances the Minister gave where it might somehow protect an agent’s cover, would itself contravene convention rights and the Human Rights Act, then how can we not be prepared to put it in the Bill? The only reason not to do so is to equivocate on whether murder, rape and torture are indeed against the European Convention on Human Rights and the Human Rights Act. This point seems fundamental.
I so rarely disagree with my noble friend Lord West, even on the need for more frigates; I generally agree with him even on the long list he has of further naval equipment that we need. In this case, I thought that he was in danger of simply parroting the lines of those people who clearly support having no legal safeguards at all in this respect. He said, slightly glibly, if I may say so, that we were talking about a checklist that it would be unreasonable for agents of the state to observe. We are talking not about a shopping list, but about specific exceptions for the most heinous crimes, which I do not believe that my noble friend, whom I know and trust greatly, would grant authorisations for.
The noble Lord, Lord Paddick, gave a very powerful speech; he has himself operated and manged agents and is not coming to this as a kind of naive human rights lawyer. But when he gave chapter and verse on other jurisdictions and how they have dealt with precisely the same issue, my noble friend said that Australia and the United States are—I noted down his phrase—“dangerous and irrelevant.” I was then waiting for him to expand on why they were dangerous and irrelevant, but he stopped at that point; he did not tell us why, somehow, the experience of the United States and Australia—not countries that play fast and loose with their own security—was not relevant to us here.
That leads on to the powerful points made by my noble friend Lady Chakrabarti about the role of the House and, if I may say so, the role of my party, the Labour Party. Those of us who engage in public life do so because we think that our parties express our values. My noble friend pointed out that these provisions were in no party’s manifesto. The Salisbury convention, which rightly governs our conduct, states that we should not insist on amendments in respect of a matter that the governing party has put in its manifesto and on which it has therefore had the explicit endorsement of the people. However, this issue is not covered by those arrangements.
Therefore, there is an important question of judgment as to why we are placed here: whether the House of Lords, as a second Chamber, should seek to insist on amendments concerning an issue in respect of which the Salisbury convention is not operating. Normally, we would not, and normally, I do not, because I am very conscious, as we all are in this place, that we are nominated and the other House is elected. But my noble friend made a very powerful point: that fundamental protections for human rights and the constitution are issues in respect of which, if the Government do not have explicit Salisbury convention mandates, we should be prepared to insist on amendments. The Parliament Acts themselves recognise that, because they except from the power of the House of Commons to override this House Bills to extend the life of Parliament. That was specifically put in to provide a constitutional protection, and in our enlarged understanding of the sphere of proper constitutional protections since the Parliament Act 1911, it is reasonable that fundamental human rights should be a part of that.
If this House does not exist to see that murder, rape and torture cannot be committed by agents of the state, then I am at a loss to understand why we are here at all.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am not shy about admitting that I am critical of this Government, whose majority in the other place has made them quite shameless. They have, on occasion, asked your Lordships’ House to break the law, and this is another such occasion. Sometimes we are tough and we refuse; I hope that that is what will happen today.
It was superb listening to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Of course, both Greens will be voting for the amendments because this is about the rule of law and human rights. I do not very often agree with the noble Lord, Lord Adonis —probably never, in fact—but on this occasion I agreed with every single word he said, and I wish I had said it first.
On the enhanced protections for children, I understand that the noble Baroness, Lady Kidron, and the noble Lords, Lord Russell and Lord Young of Cookham, feel that something is better than nothing. But quite honestly, this is child abuse. It is child abuse by the Government—using children as spies. I cannot see how any Government who care about the rule of law could put this in legislation. It is obvious that this Government do not care about the rule of law; they protect their own while throwing others to the dogs.
This Bill provides blanket legal protection for undercover police and their informants—who could be criminals—for crimes with pre-authorised immunity. Similarly, the forthcoming overseas operations Bill creates new protections against prosecution for military personnel acting overseas. The Government have fought strongly for these protections against prosecution for the police and the military. They fought against any attempt by your Lordships’ House to reduce or check these protections.
Yet, having granted such broad protections to the police and military, even in cases of fundamental wrongdoing, the Government then refuse what is a comparatively far more limited legal defence for survivors of domestic abuse—usually women. A public inquiry is under way examining the 40-year history of government agents abusing their power while spying on trade unions, green campaigners and those in the black community fighting for justice. Police officers were using sexual relations with women as a deliberate strategy, although we are now told that it was unlawful all the time. We see this Government protecting their own from the law while allowing the abuse of vulnerable people and women. That is what this Government do.
I do not want to pile in on the noble Lord, Lord West, who said that the safety of CHIS should be paramount, but quite honestly, I thought the rule of law and the safety of the realm were meant to be paramount. If you continue to break the law as a Government, you are not increasing the safety of the realm; you are actually making it more dangerous for us all. I very much hope that noble Lords will vote for these amendments today and refuse again to let the Government abuse the law.
Lord Rosser (Lab) [V]
I thank the Minister for her opening statement setting out the Government’s position on these motions. I also thank her for the helpful meetings that have taken place throughout the passage of this Bill.
On Motion A on Lords Amendment 1, we welcome the Government’s willingness to address this issue in the code of practice by including in the code the words, “that the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
On Motion B and Lords Amendment 2, we note that the Commons disagreed with the Lords amendment on the basis, as has been said, that it would place sources and the wider public at risk. The Minister repeated that view when she said that the Government would not support the amendment and implored this House to accept the advice of operational experts and do the same. We are disappointed that the Lords amendment has not been accepted. As my colleague, the Member for St Helens North, said in the Commons:
“if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.”—[Official Report, Commons, 27/1/21; col. 431.]
I thank noble Lords who have raised their concerns today.
The Lords amendment was originally carried in this House by a small majority. We have already asked the elected House to think again on this issue, and it has not accepted the view we expressed. There was no indication, when it was debated and voted upon in the Commons, that our amendment had sufficient support to lead to a change in the Government’s position. We do not believe that sending the same amendment back a further time will produce any change in the legislation. For these reasons, we will not support the amendment to Motion B should the House divide, as it appears it will.
Motion C in respect of Lords Amendment 3 relates to the criminal injuries compensation scheme. We welcome the fact that on Report, the Government listened to the views of this House on redress for victims and have brought forward an amendment in lieu making it clear that an individual can access the scheme where appropriate. I pay tribute to the work done on the issue of redress for victims by the Joint Committee on Human Rights during its consideration of the Bill, and, in particular, by my noble friends Lord Dubs and Lady Massey of Darwen.
Motion D on Lords Amendment 4 relates to the authorisation of juveniles and vulnerable adults. I endorse the Minister’s comments on the involvement of noble Lords who have been particularly engaged with this issue—including my noble friend Lord Kennedy of Southwark and Stella Creasy MP—and pay particular tribute to the noble Baronesses, Lady Young of Hornsey and Lady Kidron, who tabled amendments that we supported throughout the Bill. The Minister will have heard the remaining concerns expressed by the noble Baroness, Lady Kidron. On this issue, we have not achieved everything that was asked for but we welcome the government amendments in lieu, which go further than previous government amendments on this issue.
Baroness Williams of Trafford (Con)
My Lords, I again thank all noble Lords for their thoughtful and detailed contributions to today’s debate and the lead-up to it. As the noble Lord, Lord Russell of Liverpool, pointed out, we have found a new way to work as a closed Committee without having to go through any of the bureaucracy of setting one up; I was very pleased to hear from him and other noble Lords that those sessions were very useful indeed. I have had many discussions with noble Lords, which have been very helpful. To echo the words of the noble Lord, Lord Rosser, we have made the Bill better, as we often do in your Lordships’ House.
The noble Lord, Lord Paddick, regretted that he could not have a meeting on his amendment. I thought that I had squared off all meetings that I possibly could. I spoke to him and the noble Baroness, Lady Hamwee, at the end of last week. It is unfortunate that he feels that his amendment could have been discussed further.
I also heard comment that the Bishops wanted to be here. The advancement of modern technology means that everybody can be here, remotely or otherwise, should they want to.
I particularly thank three noble Lords. The noble Lord, Lord West of Spithead, summarised the amendments very succinctly. The noble Lord, Lord Anderson, in typical forensic style, did similarly, as did the noble Lord, Lord Russell. A number of noble Lords, including the noble Lord, Lord West of Spithead, went into this Bill with some degree of scepticism. It is a tribute to the way in which our engagement has worked that they all feel that the Bill is better now that we have dealt with it than it was initially.
I want to start with the various responses and comments. First, in response to the noble Baroness, Lady Hamwee, I can confirm that the code of practice will state that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
The noble Baroness, Lady Chakrabarti, raised the reporting of the recent Court of Appeal hearing as to whether MI5 had authorised offences as serious as murder; the noble Lord, Lord Adonis, also mentioned this. I have been clear throughout that the Bill does not provide a licence to kill and that our commitment to the safeguards in this Bill is firm. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all authorised activity of undercover agents, alongside the state itself.
The noble Lord, Lord Adonis, asked me a specific question to which he required a specific answer: could I commit to there being no authorisation of murder, torture or rape? Obviously, I cannot be drawn on the crimes that can or cannot be authorised, for reasons that have been stated throughout the course of this Bill, but I note that all authorisations must be necessary and proportionate and must comply with the Human Rights Act. The independent IPC will be notified and see every authorisation in as close to real time as possible.
To clarify, the context of the remarks in the Court of Appeal—to which the noble Baroness, Lady Chakrabarti, referred—was a legal discussion that was solely about the existing vires for the Security Service to operate a policy that authorises its agents to participate in conduct that might, or would be, criminal. The First Treasury Counsel said that there is a power to authorise the commission of a crime under the Security Service Act and under the royal prerogative before that, although the power conferred no immunity from prosecution. The comment that the noble Baroness refers to concerns an entirely hypothetical question regarding the narrow point of whether the vires is limited to the commission of some crimes but not others. It was not and is not. That discussion is quite distinct from the question of whether an authorisation or subsequent conduct might be a breach of other law such as the Human Rights Act. I also note that the First Treasury Counsel said nothing about whether any particular type of conduct would or would not be authorised in practice or indeed compatible with a policy that requires it to be necessary and proportionate in any event.
The issue of whether certain conduct or types of conduct should be off limits has deliberately not been discussed in open court proceedings, for the same reasons as I have been unable to discuss these issues on the Floor of the House. It would not be appropriate for me to comment on the legal proceedings further. What I can say and what I have been consistently clear about is that, under the new regime introduced by the Bill, the necessity and proportionality test and the Human Rights Act provide legal limits to the conduct that can be authorised—and I say that again now.
On the subject of juvenile CHIS, I shall response to the points made by the noble Baroness, Lady Hamwee, on the government amendments. She is right that the amendment will prevent an authorisation being granted when the authorisation would put the juvenile in a position of reasonably foreseeable harm. In response to her question about injuries of a psychological nature, I reassure her that the definition of injury in the Bill includes that.
On the subject of the appropriate adult, they are there to support the young person to make informed decisions in relation to any tasking and nothing prevents them from playing an active part in the meetings that take place. The role of the appropriate adult in this setting differs from their role in a custody suite or an interview; they can have discussions with the CHIS and authorising officer outside those meetings, subject to any arrangements that the authorising officer may put in place to ensure that the safety of the CHIS and the adult themselves is assured at all times.
As to whether a juvenile CHIS would be used when other alternatives are available, they are used only in exceptional circumstances and, more importantly, when it is compatible with the best interests of that child. All authorisations must meet the proportionality threshold so, when using an adult could achieve the same outcome as using a child, that could be the correct option. However, even when an adult may be available, there may be occasions when the authorisation of a specific child is the only way in which to remove the child from a harmful situation.
In response to the noble Baroness, Lady Kidron, I pay tribute to her role in shaping the debate on this issue. This is a difficult and emotive area, and we all want to ensure that the well-being of a child is the priority of any authorisation, including for 16 and 17 year-olds. There is a presumption that there will be an appropriate adult in place for all meetings with CHIS aged 16 to 18 years. The justification for not having one will be available for IPCO to scrutinise and comment on; he or she will look at all aspects of an authorisation to ensure that all the enhanced safeguards have been applied, and they have stated that they pay particular attention to the welfare of the juvenile.
I assure the noble Baroness that the CHIS code of practice will be updated following the passage of the Bill and will provide the detail that underpins the authorisation process. There will be a public consultation on the updated code, followed by a debate and vote in both Houses. I encourage all noble Lords, as I have said previously, to feed into that process, and I certainly welcome any contribution from the noble Baroness and will make officials and operational partners available for any further discussion.
The noble Baroness asked about the level of detail given to Parliament. Clearly, there will be open and closed parts. The Prime Minister and Home Secretary will look at the closed part, and the open parts will, of course, be shared with colleagues.
As I said in my opening remarks, all criminal conduct authorisation will be the subject of rigorous independent oversight, which includes CCAs for juvenile CHIS, with the Investigatory Powers Commissioner seeing all authorisations in real time and being required to keep under review in particular the safeguards relating to juvenile or vulnerable individuals. The updated code will provide guidance on how the notification process will work and the enhanced safeguards that will apply to juvenile CHIS CCAs to supplement the detailed safeguards that we are bringing forward in the Bill.
I turn to the amendment of the noble and learned Lord, Lord Thomas, with regard to the points made by the noble Lord, Lord Paddick, on what happens if a judicial commissioner provides comments on an authorisation. Again, I offer reassurance on what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag it to the authorising officer, and would work collaboratively to address such concerns; it would not be the case that a public authority would simply ignore feedback from IPCO. This is collaborative, and the views of the commissioners carry very serious weight, but the commissioners have the power to refer an issue to the prosecution services if they felt it was necessary and, ultimately, it would then be for a court to determine the lawfulness and validity of an authorisation.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.
Lord Adonis (Lab)
My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?
Baroness Williams of Trafford (Con)
I think that, like other noble Lords, the noble Lord will know that throughout the passage of the Bill I have very consistently said that I cannot be drawn on the crimes that can and cannot be authorised, for the reasons that I have stated consistently throughout the passage of the Bill. But I will say that all authorisations must be necessary and proportionate, and they must comply with the Human Rights Act. I will go no further than that.
Baroness Williams of Trafford
Moved by
That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.
Motion B1 (as an amendment to Motion B)
Baroness Chakrabarti (Lab) [V]
[Inaudible]—my noble friend Lord Adonis, in particular with regard to the exchange between them, so I would like to test the opinion of the House.
Baroness Williams of Trafford
That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A, but do propose Amendment 3B in lieu—
“Criminal injuries compensation
After section 27 of the Regulation of Investigatory Powers Act 2000 (lawful surveillance etc.) insert—
“27A Section 27: criminal injuries compensation for s. 29B conduct
For the purposes of—
(a) the Criminal Injuries Compensation Act 1995,
(b) the Scheme made under that Act,
(c) the Criminal Injuries Compensation (Northern Ireland)
Order 2002 (S.I. 2002/796 (N.I. 1)), and
(d) the Scheme made under that Order, section 27(1) has no effect in relation to conduct authorised under section 29B.””
Baroness Williams of Trafford
That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, but do propose Amendments 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4J in lieu—
“Criminal conduct authorisations: safeguards for juveniles
(1) After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1(5)) insert—
“29C Criminal conduct authorisations: safeguards for juveniles
(1) This section applies in relation to the grant of a juvenile criminal conduct authorisation.
(2) “A juvenile criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is under the age of 18 (“the juvenile source”).
(3) In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—
(a) the person has considered the results of an appropriate risk assessment;
(b) there are exceptional circumstances such that—
(i) it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and
(ii) the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and
(c) the person believes that appropriate arrangements for meetings are in force.
(4) For the purposes of subsection (3)(a), “an appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the juvenile source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(5) In subsections (3)(b)(i) and (4)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(6) For the purposes of subsection (3)(c), “appropriate arrangements for meetings” are such arrangements for the juvenile source’s case as are necessary for ensuring—
(a) that, at all times when the juvenile source is under the age of 16, there will be a relevant person who will have responsibility for ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority; and
(b) that, at all times when the juvenile source is 16 or 17 years old, there will be a relevant person who will have responsibility for—
(i) ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority, other than any such meeting in relation to which a relevant person decides there are circumstances which justify the absence of an appropriate adult, and
(ii) maintaining a record of the reasons for each such decision that there are circumstances in relation to a meeting which justify the absence of an appropriate adult.
(7) In subsection (6)—
“appropriate adult”, in relation to a juvenile source, means—
(a) the parent or guardian of the juvenile source; or
(b) any other person who—
(i) has for the time being assumed responsibility for the juvenile source’s welfare, or
(ii) is otherwise qualified to represent the interests of the juvenile source;
“relevant investigating authority”, in relation to a juvenile criminal conduct authorisation, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities of the juvenile source as a covert human intelligence source are to take place;
“relevant person”, in relation to a juvenile criminal conduct authorisation, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;
and in this subsection, “guardian”, in relation to a juvenile source, has the same meaning as “guardian of a child” in the Children Act 1989 (see section 105 of that Act).
(8) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a juvenile criminal conduct authorisation.”
(2) The Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/ 2793) is amended in accordance with subsections (3) to (8).
(3) In article 2 (interpretation)—
(a) in the definition of “relevant investigating authority”, after “authority”” insert “, in relation to an authorisation under section 29 of the 2000 Act,”;
(b) after that definition insert—
““relevant investigating authority”, in relation to an authorisation under section 29B of the 2000 Act, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities as a source of the source to whom the authorisation relates are to take place;
“relevant person”, in relation to an authorisation under section 29B of the 2000 Act, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;”.
(4) Before article 3 insert—
“Authorisations under section 29 of the 2000 Act”.
(5) In article 3 (sources under 16: prohibition), after “authorisation” insert “under section 29 of the 2000 Act”.
(6) In article 5 (sources under 18: risk assessments etc.), after “An authorisation” insert “under section 29 of the 2000 Act”.
(7) In article 6 (sources under 18: duration of authorisations), after “an authorisation” insert “under section 29 of the 2000 Act”.
(8) After article 6 insert—
“Authorisations under section 29B of the 2000 Act
7 Sources under 16: prohibition
(1) No authorisation under section 29B of the 2000 Act may be granted authorising criminal conduct in the course of, or otherwise in connection with, the conduct of a source if—
(a) the source is under the age of 16; and
(b) the relationship to which the relevant conduct would relate is between the source and—
(i) the source’s parent, or
(ii) any person who has parental responsibility for the source.
(2) “The relevant conduct” means the conduct of the source which the authorised conduct would be in the course of or otherwise in connection with.
8 Sources under 18: additional requirements
(1) An authorisation under section 29B of the 2000 Act may not be granted or renewed in any case where the source to whom the authorisation relates is under the age of 18 at the time of the grant or renewal unless the person granting or renewing the authorisation—
(a) has considered whether the relationship to which the relevant conduct would relate is between the source and—
(i) a relative or guardian of the source, or
(ii) a person who has for the time being assumed responsibility for the source’s welfare; and
(b) where the relationship would so relate, has taken that fact into account as a particular consideration.
(2) In paragraph (1)(a), “the relevant conduct” has the same meaning as in article 7.
9 Sources under 18: arrangements regarding best interests of the source
Where the source to whom an authorisation under section 29B of the 2000 Act relates is under the age of 18, the arrangements referred to in section 29B(4)(c) of the 2000 Act must be such that there is at all times a relevant person who has responsibility for safeguarding and promoting the best interests of the source.
10 Sources under 18: duration of authorisations
In relation to an authorisation under section 29B of the 2000 Act where the source to whom the authorisation relates is under the age of 18 at the time the authorisation is granted or renewed, section 43(3) of the 2000 Act is to have effect as if the period specified in paragraph (b) of that subsection were four months instead of twelve months.”
(9) The amendments made by subsections (3) to (8) to the Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/2793) are to be treated as having been made under section 29B(4)(c) or (10) or section 43(8) of the Regulation of Investigatory Powers Act 2000 as the case may be (and may be amended or revoked under those powers accordingly).”
“Criminal conduct authorisations: safeguards for vulnerable adults
After section 29C of the Regulation of Investigatory Powers Act 2000 (inserted by section (Criminal conduct authorisations: safeguards for juveniles)) insert—
“29D Criminal conduct authorisations: safeguards for vulnerable adults
(1) This section applies in relation to the grant of a vulnerable adult criminal conduct authorisation.
(2) “A vulnerable adult criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is a vulnerable adult (“the vulnerable adult source”).
(3) For the purposes of this section, a “vulnerable adult” is a person aged 18 or over who by reason of mental disorder or vulnerability, disability, age or illness, is or may be unable to take care of themselves or to protect themselves against significant harm or exploitation.
(4) In addition to satisfying the requirements of section 29B, a person may grant a vulnerable adult criminal conduct authorisation only if the person—
(a) has considered the results of an appropriate risk assessment;
(b) believes that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and
(c) has taken into account the need to safeguard and promote the best interests of the vulnerable adult source.
(5) “An appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the vulnerable adult source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(6) For the purposes of subsections (3), (4)(b) and (5)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(7) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a vulnerable adult criminal conduct authorisation.””
“(4B) In keeping under review the exercise of the power mentioned in subsection (4A), the Investigatory Powers Commissioner must, in particular, keep under review whether public authorities are complying with any requirements imposed on them by virtue of Part 2 of the Regulation of Investigatory Powers Act 2000 in relation to juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.
(4C) For the purposes of subsection (4B)—
(a) “a juvenile criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is under the age of 18; and
(b) “a vulnerable adult criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is a vulnerable adult within the meaning of section 29D(3) of that Act.”
“(ba) in the case of an authorisation under section 29B where the source is under the age of 18 (“the juvenile source”), the person—
(i) becomes aware of circumstances in which it is reasonably foreseeable that harm, within the meaning of section 29C(5), to the juvenile source would result from the authorisation,
(ii) is satisfied that the authorisation would no longer be compatible with the need to safeguard and promote the best interests of the juvenile source, or
(iii) is satisfied that arrangements for the juvenile source’s case that satisfy the requirements of subsection (3)(c) of section 29C no longer exist; or”
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 5A.
Lord Paddick
Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 5A and do propose Amendment 5B in lieu—
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted—
(a) the person who granted the authorisation must be immediately informed,
(b) the Director of Public Prosecutions and the Director of Public Prosecutions for Northern Ireland must be immediately informed, and
(c) all further activities that will or might be undertaken pursuant to the authorisation are not “lawful for all purposes” under section 27(1).””
Lord Paddick (LD) [V]
My Lords, I have three things to say. First, I beg to move; secondly, I wish to test the opinion of the House; and, thirdly, please take into account my voice when taking soundings in the Chamber.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Wednesday 24th February 2021
(3 years, 9 months ago)
Commons ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 168-I Marshalled list for Consideration of Commons reasons and amendment - (5 Feb 2021)
The Solicitor General (Michael Ellis)
I beg to move, That this House agrees with Lords amendment 3B.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to consider Lords amendments 4B to 4J.
The Solicitor General
I am very pleased to be here today for the final debate on this important Bill before it receives Royal Assent and becomes law.
The Government introduced the Bill in order to provide a clear and consistent legal basis for the rare occasions when, in the course of their important work keeping us safe, it is necessary and proportionate for undercover agents to themselves participate in criminal conduct. That is a long-standing practice that has proved critical, frankly, in identifying and disrupting terrorist plots, drugs and firearms offences, and child sexual exploitation and abuse. For the first time, the Bill places that covert human intelligence source activity on an expressly statutory basis, providing our operational partners with the certainty that they can continue to utilise this tactic as we continue to respond to the evolving threat picture we face as a nation.
The Bill also resolves the tension that has previously existed where the state is asking an individual to engage in the difficult and dangerous work of frustrating crime without providing those self-same individuals with protection from prosecution for doing so. It will therefore benefit our ability henceforth to recruit and retain covert human intelligence sources.
I want to take this opportunity to thank all colleagues, in this House and in the other place, who have contributed to the thoughtful and detailed debates that we have had on the Bill. It is right that the important issues that it raises are subject to scrutiny, and I hope that Her Majesty’s Government have demonstrated a willingness to engage and provide reassurance where possible, including through private briefings with operational partners such as MI5 and others.
I believe that we have a good piece of legislation, which will now move on to the statute book. It strikes an important balance by providing for clear safeguards and independent oversight without jeopardising the operational workability of the regime.
Conor McGinn (St Helens North) (Lab)
It is a pleasure to follow the Solicitor General. Given the seriousness and sensitivity of these matters, it is right to recognise the challenging but constructive engagement that we have had with the Government throughout the passage of this Bill. I again pay tribute to colleagues in the other place. The experience and expertise that so well informs their scrutiny has, without a shadow of a doubt, strengthened this legislation and the protections and safeguards in it. I think the whole House can agree that the Bill before us is in much better shape. We welcome the Government concessions that the shadow Home Secretary and Labour Members, as well as other colleagues, have secured during the Bill’s parliamentary passage.
Turning to the amendments in lieu, Lords amendment 3B relates to the criminal injuries compensation scheme and the vital matter of redress for innocent victims. It would properly ensure that victims were protected and unimpeded in obtaining justice if harm came to them during authorised conduct. Throughout this process, we and colleagues across both Houses have stressed the importance of a viable route to redress for innocent victims if boundaries are broken, and we have tabled and supported amendments to that effect. It is an important principle in law that victims of crime can seek recompense, and these circumstances should be no exception. We therefore welcome the amendment and the Government’s change of heart on the need to make it explicit in the Bill that individuals can access criminal injuries compensation whenever appropriate. I pay tribute to colleagues on the Joint Committee on Human Rights for the work that they have carried out on this alongside Lord Anderson and his colleagues in the other place.
Lords amendments 4B to 4J relate to safeguards for juveniles and vulnerable adults. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), the right hon. Member for Haltemprice and Howden (Mr Davis), noble lords in the other place and many civic society groups, charities and experts who have worked tirelessly on this issue. We maintain that the protections could go further, but none the less welcome movement on this issue. It was very important to Labour Members and colleagues across the House that the heightened protections for children and vulnerable adults outlined in these amendments should make it clear that criminal conduct authorisations can be granted to minors only in exceptional circumstances, and should take into account any potential physical or psychological harm and wider safeguarding issues, as well as the results of an appropriate risk assessment. The amendments also provide that an appropriate adult must be present at meetings with individuals under 16 years old; most 16 and 17-year-olds will have this right, too. I echo Lord Rosser, who said:
“On this issue, we have not achieved everything that was asked for”,—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 201.]
but we are pleased to see the Government have listened to our and others’ concerns, and gone beyond prior commitments.
Labour Members will continue to monitor these matters and work to assess their impact. In addition, following the Bill’s passage, we will keep a close eye on the upcoming consultation on the CHIS code of practice to ensure and, if necessary, enhance safeguards in this arena and make them as effective as possible.
As I have said in this House previously, this is not the Bill that we would have proposed or passed. It is far from perfect, but it has been vastly improved during its passage. The amendments in lieu being considered—and, I hope, accepted—today are proof of that. I reiterate that Labour Members recognise the importance and significance of putting CHIS activities on a statutory footing for the first time through this Bill, while ensuring vital safeguards, accountability and protections.
We are eternally grateful to those in the police, the security services, the National Crime Agency and wider law enforcement who put their safety and life at risk to protect ours—as indeed do covert human intelligence sources. Through this Bill, we have sought to meet our duty to support them. The resolute focus on national security, on tackling serious and organised crime, on human rights and on supporting victims that has guided us throughout this Bill’s passage will continue to be a central tenet of our approach as we seek to keep this country, its citizens and our communities safe.
Madam Deputy Speaker (Dame Rosie Winterton)
We have until 6.56 pm to conclude proceedings on the Bill, so if Back-Bench contributions were less than five minutes long, that would enable us to get as many Members in as possible. I do not want to impose a time limit, but I hope that colleagues will be considerate of one another. I call Dr Julian Lewis, Chair of the Intelligence and Security Committee.
Dr Julian Lewis (New Forest East) (Con)
Right from the outset, the Intelligence and Security Committee has supported the principle behind the Bill, although we have also welcomed attempts by Members in both Houses to improve it. It is a very important Bill. Covert human intelligence sources or agents provide vital information to assist the security and intelligence agencies in their investigations. They save lives. As the head of MI5 recently said, without them, many of the attacks foiled in recent years
“would not have been prevented.”
In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information that the authorities need. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so, in certain circumstances and subject to specific safeguards. The Bill places the powers that certain organisations have to authorise such activity on an explicit statutory basis—something that we should all welcome.
The Bill before us has been improved since it was introduced in September, and that is a measure of the effective scrutiny of national security legislation by Parliament, including by the ISC. These are very serious powers for the state to exercise, and it is right that they be properly scrutinised. In particular, the ISC welcomes the provisions brought forward in the other place by Lord Anderson, the former independent reviewer of terrorism legislation, requiring all criminal conduct authorisations to be notified to judicial commissioners as soon as possible and within seven days. Judicial oversight is a vital safeguard, and this measure should give the public confidence that these powers will be used only when proportionate, necessary, and in accordance with the law.
The final amendments to the Bill that the House is being asked to approve today are sensible provisions that the House should welcome. The additional safeguards for children and vulnerable people are particularly welcome, and it is clear that the Government have listened to the strength of feeling in both Houses on this matter. Many of the changes made to the Bill will be reflected in an updated CHIS code of conduct, which I understand will be drafted over the coming months. This revised code of conduct will include new language emphasising the important oversight role of the Intelligence and Security Committee in relation to the use of these powers by the intelligence agencies. The Committee welcomes that, and I can assure the House that the ISC fully intends to exercise its oversight powers to ensure that criminal conduct authorisations are used appropriately.
I thank Ministers and those who support them for the constructive way in which they have engaged with the Committee on the Bill. I pay particular tribute to my right hon. Friend the Minister for Security, who unfortunately cannot be with us today. I wish him the very best for his recovery, and I look forward to working with him in future. Finally, I pay tribute to the men and women of our security and intelligence agencies and, most importantly on this occasion, to their covert human intelligence sources—individuals whom few of us will ever know, but whose bravery saves lives. We all owe them a great debt of gratitude for their courageous service.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]
It is a pleasure to follow the Chair of the Intelligence and Security Committee, and I join him in sending my party’s best wishes to the Minister for Security.
There is absolutely no disagreement about the need for a Bill. These are self-evidently significant, extraordinary and important powers being put on the statute book, and not before time. However, it is precisely because of the significance and importance of these powers that, although we acknowledge the need for a Bill, we could not support one that did not provide proper safeguards, oversight and limitations on these powers. Those points were made at earlier stages by my hon. Friends, including my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Gordon (Richard Thomson), and that is why we ultimately voted against the Bill on Third Reading.
As the Solicitor General set out, the latest round of ping-pong has produced additional protections in cases where authorisations are being considered for covert sources who are children or vulnerable people. It has also ensured that some access to criminal injuries compensation will continue when a person is a victim of the criminal conduct of a covert source. The Bill is certainly better with these changes. In particular, we welcome the work undertaken by Just For Kids Law, and others, in advocating for safeguards for children and vulnerable adults. They could, and probably should have been even stronger, but even speaking about authorising criminal conduct by a child operating covertly feels very troubling. Hopefully those limits will make such occurrences very rare, as they should be, and we must and will monitor risk closely.
Sir Robert Neill (Bromley and Chislehurst) (Con) [V]
I welcome the Bill and the approach that the Government have adopted. I thank the Solicitor General for his willingness to listen to arguments regarding the amendments, and I join others in paying tribute to my right hon Friend, and good personal friend, the Member for Old Bexley and Sidcup (James Brokenshire). I wish him well in his recovery.
The Bill is important because legal certainty in such sensitive and delicate matters is crucial for upholding the rule of law. That is why the Bill was necessary. There can be arguments about where the balance should be, but I believe a fair balance has now been struck, and it enhances the rule of law and accountability. I also pay tribute to those men and women who operate in extremely dangerous, sensitive and difficult circumstances, and who put their lives on the line for our safety. They deserve a proper legal framework to safeguard their activities. Equally, those who in certain rare circumstances might be the innocent victims of collateral damage caused by such activities ought to have proper redress and compensation. I therefore welcome the Government’s acceptance of the amendment that would make that explicit in the Bill. I understand the points that have been raised, but as the Solicitor General will know, criminal compensation law and procedure can seem quite arcane to the lay person, and it was a sensible and helpful move to put that measure in the Bill.
I also welcome the strengthening of provisions for protection for juveniles. For example, the use of appropriate adults more closely mirrors the protections that we recognise for juveniles elsewhere in elements of the justice system. That is a welcome improvement, and I am confident that the Investigatory Powers Commissioner and the judicial commissioners will give full and proper weight to those important safeguards.
I pay tribute to the work of the Investigatory Powers Commissioner and the judicial commissioners who work with him. Many of us know Sir Brian Leveson, the Investigatory Powers Commissioner, as a judge of the very highest integrity, and the same is true of some of those judicial commissioners who work with him and the staff who support that office. That system of checks and balances is critical to ensuring the rule of law, and it is important that such oversight exists.
On balance, the Bill has been improved by the amendments and by the co-operative approach adopted by right hon. and hon. Members on both sides of the House and in both Houses. I hope that we can leave those who operate on our behalf in this critical manner not only with a greater measure of legal certainty, but with a proper balance to ensure that both access to justice and the rule of law itself are properly preserved in a workable and modernised framework.
Stella Creasy (Walthamstow) (Lab/Co-op)
I agree with the hon. Member for Bromley and Chislehurst (Sir Robert Neill) when he said that this Bill has been improved by the work that has been done across the two Houses of Parliament and across the Benches. With that in mind, I will start by acknowledging the work that has been done on the issue around the use of children—the concept of juvenile CHIS. I acknowledge the work of Baroness Kidron, Lord Russell, Lord Young and Lord Kennedy who led the debates and discussions on these issues in the other place, and they have brought us to a much better place as a result. If we are honest, when this Bill first came to us, there was no discussion about children and what might happen if children were used as covert intelligence sources, so it is important that we recognise the work that they did to get us to this place, with the amendments before us.
I also put on record my thanks to the right hon. Member for Haltemprice and Howden (Mr Davis). I do not know whether that is helpful to him, but I know that he is speaking after me. Certainly, it might be of concern to our Whips that I agree with much of what he has said with regard to this Bill. We share the concern that it is important to have the right legislation in place for these issues, because we know that covert intelligence sources are already being used. In that sense, I also want to thank the Minister for Security for listening to our concerns and I wish him well in his recovery.
I also pay tribute to the work of Just for Kids Law and JUSTICE, which have been phenomenal champions of the young people we are talking about today. I also thank the Minister in the other place, Baroness Williams, for her work and the Solicitor General before us today, who has had to step into this debate. I hope that now that he has had time to look at this issue, he will reconsider what he said a couple of weeks ago when he suggested that some of our concerns and examples were not valid and could not have happened, not least because his colleague, Baroness Williams, has acknowledged that those very cases about vulnerable children aged 16 and 17 being exploited and then put at risk and used as covert intelligence sources were in fact real.
With that in mind, I agree very much with the shadow Minister that the Bill is much improved and that the Government have moved on this issue. We now have in the Bill the exceptional circumstances principle—that we should only ever ask children to put themselves in harm’s way and to commit criminal acts in very exceptional circumstances. Indeed, our argument that there should always be an appropriate adult as part of those conversations has certainly moved forward, as has our suggestion that IPCO should be overseeing this. Those are very welcome developments and it is important that we recognise that.
There is an understanding that we need to go further in recognising that appropriate adults are not always part of these conversations and the discrepancies that that creates. If a child is arrested for shoplifting at the age of 16 or 17, there will always be an appropriate adult involved in their conversations with the police, but if a child is asked at the age of 16 or 17 to spy on their parents or to commit a criminal act as part of an investigation there might not always be an appropriate adult. That reflects a bigger challenge that I hope the Minister will take up: that this legislation is obviously looking only at the use of criminal conduct authorisations, and yet what this debate has shown is that across the House and across the different sections of Parliament there is a concern about the use of children at all as covert intelligence sources. I make a plea to him today that the long-awaited code of practice be published—we were promised it during the passage of the Bill, but we have not yet seen it—and that we look at that much bigger concern about ensuring that there is always appropriate welfare and safeguarding protection for children of all ages, recognising that the United Nations and, indeed, this country have signed up to recognising children under the age of 18—so 16 and 17-year-olds—as children who require our protection. We need to extend the principles that we have put in this Bill regarding criminal activities to all their engagement.
I think that everyone recognises that our security services and the police do a phenomenal job and work in some very difficult circumstances. We also recognise our responsibility in this place to those young people that we ask, in these exceptional circumstances, to put themselves in the way of harm. The Bill certainly takes us much further towards having the protections in place that we would all wish, but we know that there is more work to do. I appeal to Ministers to continue to work with organisations such as Just for Kids Law, to listen to the concerns of not just the right hon. Member for Haltemprice and Howden but Members across the House about where we might cut across international standards and welfare protections, and to recognise that the best states are those that protect everyone, including those people that we put in harm’s way, whether they are in our secret services or they are young people.
Thank you very much, Madam Deputy Speaker, for allowing me to participate in this debate and support the hard work of our Members of Parliament on this issue.
Mr David Davis (Haltemprice and Howden) (Con)
I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.
I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.
I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.
The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.
That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides
“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]
However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, said that
“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”
I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.
That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.
Mr Davis
That is fine. I will say one last thing with respect to that. If the Government do not make it clear and that still hangs as an ambiguity around the Bill, then the Bill, along with the Overseas Operations (Service Personnel and Veterans) Bill, could well end up with this country being in the International Criminal Court for reasons that the House did not intend. It is that important that the Minister makes that clear.
Apsana Begum (Poplar and Limehouse) (Lab) [V]
I rise to speak on Lords amendments 3B and 4B to 4J. While there are improvements to the legislation, I would like to reaffirm on record that I continue to be utterly astounded at the chilling gravity and significance of this piece of legislation, which seeks to decriminalise criminal conduct by intelligence and undercover agents, representing another departure from the recognised rules of domestic and international law.
Amendments 4B to 4J provide safeguards where children and vulnerable individuals who are involved in criminality become covert human intelligence sources. However, I would have liked this to go much further and, in particular, include safeguards for ethnic minorities, protest movements and trade unions in particular. The amendments outline that no criminal conduct authorisation can be made for a source who is under the age of 18 or is a vulnerable individual unless in exceptional circumstances, yet human rights and the rights of children are absolute in my mind, and I am not sure what circumstance could possibly render this fundamental principle secondary.
As a Muslim growing up in east London, I have experienced the well documented rise in Islamophobia and the steady erosion of civil rights, including the installation of cameras on street corners and increased surveillance. Our communities are too often seen not as citizens worthy of equality and respect, but as a threat viewed with hostility and suspicion. Indeed, Prevent has been widely criticised for fostering discrimination against people of Muslim faith or background. It was developed without firm evidence, and is rooted in a vague and expansive definition of extremism, including overt targeting of Muslim children in schools, which has meant that our Muslim young people in particular are being increasingly viewed through the lens of security. I fear that, as currently drafted, amendments 4B to 4J, while a moderate improvement, do not provide the safeguards for ethnic minority children. They will not protect my constituents from what they increasingly feel to be the lawlessness of undercover agents, which makes our communities feel less safe.
The use of undercover police posing as protesters, committing crimes and provoking violence, including violent responses from the authorities, has been discussed in the public domain in recent years in relation to Black Lives Matter protests, actions on climate change and G20 demonstrations. Lords amendment 3B seeks to ensure that innocent victims are able to seek compensation from the Criminal Injuries Compensation Authority. Throughout its passage, this Bill has triggered alarm bells for trade unions and justice campaigns such as the Orgreave Truth and Justice Campaign, which fear that these latest draconian powers could be used to interfere with the legitimate activities of trade unions. The deployment of agents provocateurs to commit and incite criminal activity, misconduct, malpractice and corruption during the miners’ strike has been well documented—the idea being to sabotage and destroy from within. Lords amendment 3B, while an improvement, falls far short of providing innocent victims with the right to seek justice.
To conclude, it is because I believe in a free and democratic society that I have opposed this Government’s authoritarianism with all my might. Our police and security services should exist to uphold the rule of law, not to break it. Human rights are absolute. The amendments today, despite their relative merit, are unable to counter- balance this legislation’s unprecedented breach of this essential principle.
Sir John Hayes (South Holland and The Deepings) (Con) [V]
This legislation is first and foremost about taking risks to save lives. The information acquired by covert human intelligence sources, often requiring great personal sacrifice at the cutting edge of terror, disrupts plots, secures prosecutions and prevents death and destruction, all of which takes courage and skill; sharp minds and brave hearts. As the Chairman of the ISC, my right hon. Friend the Member for New Forest East (Dr Lewis), said, reiterating the advice from MI5, if it was not for the covert intelligence sources, many of the attacks foiled in recent years would not have been prevented, and dozens of individuals presently alive would have been killed and, with them, loves lost and lives blighted.
The Bill before us is timely and necessary. It is right that the Government have engaged with those in the other place and elsewhere to improve safeguards, but in the end, for all the talk of rights, it is wrongs that ruin lives. The people whom we mission to keep us safe expect of us the legal means and mechanisms that are necessary for them to succeed, and by definition, those tasked with infiltration of organisations intent on wickedness are fraternising with individuals and groups capable of ruthlessness, often rationalised as a means to a desirable end. Not only would abject and inflexible refusal to engage in any and all criminal activity by covert human intelligence sources render it impossible to gain or retain trust, it would place those who are defending our interests in direct danger.
I am grateful, therefore, that this Bill provides our brave operatives with legal protection. While carefully authorised participation in criminality has been, for some time, accepted in the UK courts as a necessary and proportionate means to safeguard the public, there remains at present no formal, single, statutory basis for that. This Bill alters that by providing legal clarity, as previous contributors have made clear. It means that the current authorisation to engage in monitored criminal activity, which confers no immunity from prosecution, will be put to an end. By amending the Regulation of Investigatory Powers Act 2000, we can correct what has, up until now, been an uncertain situation by ensuring that those engaged in preserving and protecting our freedoms and liberties are not themselves treated as common criminals.
Of course, all criminal authorisations by the security and intelligence agencies must be properly circumscribed, absolutely necessary, proportionate, compatible with law, and—most importantly—subject to proper scrutiny, which is what this Bill also does. I am pleased that the Government have added to that scrutiny during the course of the Bill’s consideration and through the amendments they have accepted. Along with other members of the ISC, I have made clear that any and all authorisations must be specifically limited, and any criminal activity outside that expressly approved can, of course, be prosecuted. Moreover, authorisation must be reasonable, and positive and potential outcomes should outweigh criminal conduct. I think all Members of the House will agree that it is essential that criminal conduct authorisations must only be granted by highly trained and experienced authorising officers.
Finally and most importantly, effective scrutiny must underpin the entirety of this legislation. Authorisations must be overseen by the independent investigatory powers commissioner; the ISC should be kept informed of the use of CCAs; and the Investigatory Powers Tribunal will investigate any complaints about public authorities using this power. Lord Anderson’s amendment, accepted by the Government, on the timely referral of these matters to a judicial commissioner is helpful and valuable.
It is the very nature of law enforcement that risks and rewards must be balanced and considered. Few would doubt that access to unique information is essential to the prevention of horrors beyond our dreams but, tragically, not beyond our lived experience. Certain controlled criminal conduct, subject to specific safeguards, is necessary for our protection. This is the pragmatic principle on which the Bill is based, and I am pleased to support it.
This Bill does strike a balance between powers and scrutiny. It strikes a balance between giving those whom we have missioned to defend us what they need, and ensuring that in doing so, they act properly. It clarifies the law protecting operatives, and makes clear the circumstances in which those powers should be used. Its provisions are specific and limited; its purpose is right; and its time is due. It should be supported by all Members across the House.
Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]
First, on behalf of my party, I welcome the amendments that have come from the other place that the Government are accepting. These are important concessions, which certainly improve the Bill. It has be said, however, that the Bill as a whole remains inadequate in the protections that it puts in place, and it bears the hallmarks of its history. Let us not forget that the Government did not bring in this Bill because they had a sudden damascene conversion to the need for scrutiny of this particular area of security and intelligence. They brought it in because they thought that they were at risk of losing a case in the Court of Appeal, having had a very close judgment in the Investigatory Powers Tribunal.
Essentially, in bringing in the Bill in this way, the Government have tried to recreate in statute the very loose and uncontrolled system that they have had prior to this. I suggest to the House that that will not stand the test of time. The right hon. Member for Haltemprice and Howden (Mr Davis) is absolutely right when he says that we need to hear from the Solicitor General at the Dispatch Box tonight clear undertakings in regard to the operation of the Human Rights Act as it applies to this Bill—soon to be an Act, no doubt.
The ambiguity is not just inherent in the Bill, as the right hon. Member for Haltemprice and Howden correctly said. Actually, that ambiguity can be seen between the way in which the Government have sought to argue their case in the Investigatory Powers Tribunal and the way in which they have presented their case in relation to this Bill. The Government have sought to claim that acts of torture by covert agents could be justified
“where the intention is to disrupt and prevent that conduct, or more serious conduct…or where the conduct would take place in any event.”
That, in itself, is not consistent with the Human Rights Act. It is clearly wrong and has been described as such by the Joint Committee on Human Rights in its report on the Bill. The Committee found that covert agents could not be authorised to get involved in abuses such as torture and that
“the intention behind that conduct cannot justify the violation.”
It has also been said, I think by the Intelligence and Security Committee, that the Bill is effectively about the Government outsourcing decisions that they could not take for themselves. That approach should provide us with concern and does worry us, because we know that these provisions will not then stand the test of time, and we will be back in the same territory that we have seen in recent years with other legislation, where the Government have to come back with legislation that is retrospective or seeks to amend the law to catch up with the courts.
I fear that we have a Bill that is not the last word on this matter. The Houses have made significant improvements to it, but it remains some distance from what the country needs and what those who do this very dangerous work on our behalf deserve to have.
James Sunderland (Bracknell) (Con)
This Bill is vital and goes to the heart of keeping communities safe from those seeking to do us harm. Covert human intelligence has been essential in disrupting many of the terrorist plots stopped by our agencies, and I was happy to vote the Bill through on Second Reading, the simple reason being that defence of the realm is the primary objective of any Government.
As we know, a criminal conduct authorisation may be granted where it is necessary for one of three purposes: national security, the prevention or detection of crime, or the interests of the economic wellbeing of the UK. From the relative comfort of this place, it is perhaps not for us to reason why, nor should we dare to understand the pressures that our security services are under, but it is for us to give them the tools that they need to do their job and to allow them the freedom of action that they need to keep us safe. There is a clear distinction, for clipping the wings of the Bill could be, and will be, counter- productive.
Lords amendment 3 allows anyone who has been the victim of a crime under a CCA to remain able to claim compensation under the criminal injuries compensation scheme or Northern Ireland’s CICS. That is fine, but as the Minister has outlined, the Government are listening to ways of providing additional resources to Parliament and the public on what safeguards may be possible and operationally workable. That would be achieved by an amendment in lieu that makes it clear that a person can access the compensation scheme where appropriate, so I am sympathetic to Lords amendment 3B on criminal justice compensation and urge the Government to consider it as a concession, as they now are.
Jim Shannon (Strangford) (DUP)
May I say what a pleasure it is to follow the contributions made by right hon. and hon. Members so far? I put on record my thanks to the Minister and the Government for their efforts in bringing forward this legislation. In particular, I put on record my thanks to my hon. Friend the Member for Belfast East (Gavin Robinson) for his knowledgeable contribution to the formation of the Bill.
It is right and proper that a Bill to provide legislation of this magnitude and importance has had the scrutiny that it deserves. The Government’s proposed alternative to Lords amendment 3, providing for access to the criminal injuries compensation scheme, seeks to add a further layer of scrutiny and protection to ensure that there is no exception to the effect of a criminal conduct authorisation. Lords amendment 3B purports to provide for access to the scheme where appropriate.
It is clear from the to-ing and fro-ing that good legislation takes time, and it is my hope that that is what we have achieved today. The Government have set in place a Bill to defeat and disadvantage, internally, criminal and terrorist gangs—as the Minister said, those involved in drugs, guns and weapons and trafficking. I also welcome the direct focus on human rights, to which the Minister and other Members referred. I am greatly reassured that that is in the Bill.
Lords amendment 4 provides for safeguards for children and vulnerable adults—a matter that I have previously raised, along with others. I absolutely agree with and support the Government’s attempt to bring in the desire behind the amendment and, as the Minister said, include significant additional safeguards for authorisation in respect of the relevant groups. The Government have addressed that and brought forward the refinements necessary to safeguard children and vulnerable adults. They have done that in an operationally workable form and I fully support the amendment.
The Government and the Minister have stepped up, and I am very pleased. I put on record my thanks to the Royal Ulster Constabulary—the Police Service of Northern Ireland—the British Army and MI5 for protecting us. Many of us are here today, alive and breathing, because of their work, and we thank them for it.
Imran Ahmad Khan (Wakefield) (Con) [V]
It is always a pleasure to follow my hon. Friend the Member for Strangford (Jim Shannon). The legislation that we are debating today is an act of avowal that ensures legitimacy, responsibility and co-ordination. Human agents—CHISs —remain a vital source of intelligence gathering, despite the rise of electronic surveillance. Human eyes and ears will always be critical in complementing other intelligence-gathering methods. Sometimes, only a CHIS on the inside can reveal the aims, intentions and actions of groups and individuals who seek to harm society. That view is widely accepted by experts.
Open and clear legislation in this matter will establish a more effective framework and reduce the collusion activities previously seen in locations such as Northern Ireland. Avoiding such situations requires an objective understanding of what went wrong in the past.
Given the importance of this legislation in allowing open and honest debate, it is important to take on board the points raised about safeguarding children. It is therefore vital that training and implementation are taken just as seriously as the legislation itself. Human error is an ever-present reality. We must ensure that systems are established that ensure that people are properly trained, equipped and supported in making difficult decisions and that a continuous improvement system is in place to investigate and learn from mistakes made, so that they are not repeated.
By way of example, let me point to the 2019 annual report of the Investigatory Powers Commissioner. The report highlights some good levels of conformity, including with juvenile CHIS handling. It also highlights good examples of training, as well as areas where training needs to be improved. I recommend that the Investigatory Powers Commissioner’s Office adds to its already good work by attempting to identify the reasons behind errors, including the human factors involved, so that corrective action can be more accurately identified.
This legislation goes to the heart of efforts to safeguard our communities. The Bill will set out a framework to help reduce collusion activities, such as those that happened in Northern Ireland, in which agents ended up complicit in murder. It is important to remember that oversight, training and improvement programmes help protect the safety and wellbeing of CHIS agents, especially those classified as juvenile or vulnerable.
Without these agents, we would all be far less safe. I wholeheartedly support them and thank them for their invaluable work, and I thank the Ministry of Justice for its work. I urge all Members to support this necessary Bill.
The Solicitor General
I thank Members for their contributions to this debate this afternoon. I will be brief in my response, as there has been extensive discussion on these issues during the Bill’s passage. First, in response to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I am happy to confirm that an authorisation of conduct that would breach the Human Rights Act would always be unlawful. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all the authorised activity of undercover agents, alongside the state itself.
The Government have taken a collaborative approach to the passage of the Bill, as the House knows, recognising the seriousness of national security issues, and I thank Her Majesty’s Opposition for their similar approach. Where we have been able to provide greater reassurance in response to concerns raised by Parliament—for example, on oversight—we have done so, either through briefings, amendments to the code of practice or amendments to the Bill itself.
The Bill provides for a substantive oversight role for the Investigatory Powers Commissioner, who is independent, giving him real-time sight of every authorisation. It sets out detailed additional safeguards for the authorisation of juveniles or vulnerable adults, which will all be subject to oversight by the Investigatory Powers Commissioner. The code of practice that underpins the legislation, which will be subject to debate and vote by Parliament, then sets out the detailed processes that support the Bill and this activity.
Our approach to the Bill has been led by the advice and expertise of our operational partners, who will now implement it. We have sought to ensure that, in seeking to provide greater clarity and reassurance on the safeguards and processes, the Bill is both operationally workable and avoids any unintended consequences for the safety of a covert human intelligence source or, indeed, the wider public. I believe, and operational partners agree, that the Bill does that, and it will now move to Royal Assent.
I close by sending my best wishes to the Minister for Security, as many in the House have done, and expressing my gratitude and abiding respect for our security services and covert human intelligence sources in their work to protect the safety of this realm.
Lords amendment 3B agreed to.
Lords amendments 4B to 4J agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I will suspend the House for two minutes, to enable arrangements to be made for the next business.
Royal Assent
Monday 1st March 2021
(3 years, 9 months ago)
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