The following Acts were given Royal Assent:
Covert Human Intelligence Sources (Criminal Conduct) Act,
Ministerial and other Maternity Allowances Act.
House adjourned at 7.16 pm.
Consideration of Lords message
After Clause 2
Criminal injuries compensation
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.
I turn to the amendments that are to be considered today. The Government brought forward an amendment in the other place that provides that the conduct authorised under the Bill does not affect a person’s ability to access the criminal injuries compensation scheme where appropriate. Although the Government believe that the amendment is not actually necessary, as the Bill does not in practice impact a person’s ability to access the criminal injuries compensation scheme, we have listened to the view put forward by Parliament that we could be more explicit on that point. The amendment therefore makes it clear in the Bill that, where appropriate, the criminal injuries compensation scheme remains an available route of redress.
The Government also brought forward amendments in the other place providing additional safeguards in relation to the authorisation of juveniles or vulnerable covert human intelligence sources. I pay tribute to Members on both sides of the House and in both Houses who engaged with the Government and our operational partners on this issue and helped to refine these substantive safeguards.
Let me briefly set out what the amendments do. The Government amendments make it clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that the authorisation must be compatible with that duty. That 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 Investigatory Powers Commissioner to keep those enhanced safeguards under particular review, as they relate to children and vulnerable people. In addition, the amendments also put in the Bill the requirement that a juvenile covert human intelligence source be authorised only in exceptional circumstances. Such exceptional 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.
The amendments further clarify in the Bill that an appropriate adult must be in place in any meetings with any individual under the age of 16 years, and there is a presumption that an appropriate adult will attend meetings with 16 and 17-year-olds, with any derogation from that presumption justified in writing. The amendments also add additional safeguards for vulnerable individuals to the Bill. They require an enhanced risk assessment to be carried out, state that the source must be capable of understanding and consenting to the deployment and any associated risks, and state that consideration must be given to the best interests of the source.
These substantive amendments focus on the wellbeing and safety of the juvenile or vulnerable adult. It is right that there be additional safeguards for those authorisations, and the amendments provide them, but we have also ensured that the amendments do not create any unintended consequences that risk the safety of any individual involved in this covert activity. I am pleased that we have been able to reach positions of consensus on this Bill across both Houses and on both sides of the Chamber. I am reassured that the legal certainty that the Bill provides will soon be in place to ensure that our operational partners can continue their important work to keep us safe.
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.
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.
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.
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.
Although the amendments improve the Bill, they do not resolve its fundamental problems or answer the serious questions asked about it. The amendments that tried to do that have been taken out. The Government continue to protest that the Human Rights Act is the answer to those questions, yet at the same time they are undertaking a review of that Act, and, significantly, their own European convention on human rights memorandum and legal submissions appear to cast serious doubt on the extent of the protections offered, and whether they cover the actions of covert agents. The memorandum anticipates that there would
“not be State responsibility…for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct…or where the conduct would take place in any event.”
What does that mean? What is its impact in relation to torture, for example? Is there state responsibility if covert agents commit torture? Is it, or is it not, the Government’s view that such acts could conceivably be justified if they might prevent something more serious, or if the torture would have occurred anyway? Those questions require serious answers.
A failure to provide a suitable oversight mechanism is why the Scottish Government did not recommend legislative consent for the Bill regarding devolved issues, and why the Scottish Parliament, including the Labour party, overwhelmingly agreed with that approach. The protections in the Bill are not enough—for example, the Lord Advocate and Police Scotland were clear that a system of prior authorisation was required. It is welcome that on this occasion the Government have respected the devolution settlement and taken the relevant devolved provisions out of the Bill. That they were required to come out of the Bill was unfortunate, however, because the same system of authorisation for devolved and reserved powers would have made life simpler, and there was extensive and constructive engagement between Governments in trying to make that happen.
Ultimately, but not for the first time on issues relating to intelligence and investigatory powers, I believe the UK Government are failing to get the balance right between giving agencies the powers that we all recognise they need, and giving people the human rights, freedoms and protections that they deserve. The amendments would redress that balance a little, but nowhere near enough, and it will now be for the Scottish Government and Parliament to take forward legislation that gets that balance right.
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.
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.
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.
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.
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.
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.
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.
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.
This House disagreed with Lords amendment 4 on the basis that the provision of its safeguards for juveniles and vulnerable individuals would be unworkable. The other place conceded, and in its place has proposed Lords amendments 4C to 4F. Again, the Government have said that although they agree in principle, they cannot support the amendments in their current form because they would create operational issues that risk unintended consequences for the young person or vulnerable adult.
I agree that the requirement in the proposals risks the viability of the power and, crucially, the safety of the juvenile, but I support the Government’s counter-amendments that put into the Bill the requirement for juvenile criminal conduct to be authorised only in exceptional circumstances. I also agree with the decision to tighten the definition of exceptional circumstances, which is welcome. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation and where it is believed to be compatible with the best interests of the individual, as per Lords amendment 4, with an appropriate adult in place for meetings with under-16s and the presumption that that would be the same for 16 and 17-year-olds.
To conclude, I will support the Government today, but I urge the Minister to be mindful of the recommendations in Lords amendment 3. I also welcome the compromises in Lords amendment 4.
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.
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.
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.
Telecommunications Infrastructure (Leasehold Property) Bill (Programme) (No. 3)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Telecommunications Infrastructure (Leasehold Property) Bill for the purpose of supplementing the Order of 22 January 2020 (Telecommunications Infrastructure (Leasehold Property) Bill (Programme)), as varied by the Order of 4 February 2020 (Telecommunications Infrastructure (Leasehold Property) 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 one hour after their commencement.
(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.—(Scott Mann.)
Question agreed to.
Commons Reasons and Amendment
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
1A: Because the Commons consider that this amendment would cast doubt on whether belief need be reasonable for the purposes of other authorisations under Part 2 of RIPA.
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.
These amendments provide significant additional safeguards for the authorisation of any juvenile or vulnerable adult CHIS but, crucially, ensure that there are no unintended consequences for the safety of the CHIS or the operational workability of the tactic. I pay tribute to all who have spoken on this important issue and hope that I have demonstrated the extent to which the Government have listened and, in response, sought to provide additional reassurance and safeguards.
Finally, Amendment 5 relates to real-time notification to the IPC. The Government support this amendment, but are unable to support the further amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, nor indeed the Motion from the noble Lord, Lord Paddick, which threatens the workability of the regime by giving judicial commissioners the power to unilaterally cancel an authorisation. We maintain that it is the authorising officer who is best placed to consider not only the necessity and proportionality of an authorisation but the live operational environment and safety of the CHIS. They are therefore also able to best consider comments from a judicial commissioner in the context of the safety of the CHIS. However, I reassure noble Lords that this does not mean that an authorising officer would simply ignore the comments of a judicial commissioner; they place great weight on their views and will consider any action to be taken in response to concerns. This is a collaborative process and operational partners and IPCO do, and will continue to, work closely together on issues raised by judicial commissioners.
I also reassure the noble Lord, Lord Paddick, that it is already the case that a judicial commissioner would inform a public authority if they felt an authorisation should not have been granted. They may advise the authorising officer that the activity should be reported to the relevant authority—for example, a law enforcement body or prosecutors—and it would then be for prosecutors and a court to determine whether the authorisation was lawful. While the primary responsibility for making that report rests with the public authority, judicial commissioners are also able to refer matters directly to the relevant authorities, including the prosecution services, as per the process set out in Section 232 of the Investigatory Powers Act.
I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for further discussion on this point and recognise that it would be helpful to provide clarity in the code of practice. We will therefore add language to the code which states:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken. Having consulted with a more senior officer, they must, as soon as reasonably practicable, notify the office of the Investigatory Powers Commissioner of the intended action, or where action has been taken, for example in urgent cases, of the action.”
I hope that this provides the necessary reassurance and that noble Lords will support the Government on the amendment
I hope I have sufficiently set out the Government’s position on each of these issues and demonstrated a willingness to seek agreement where possible. The Government seek to put this Bill on to the statute book as soon as possible and I therefore hope we can reach agreement on all issues today. I beg to move.
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.
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.
Finally, with regards to children and vulnerable adults, I appreciate that a lot of people have put a lot of work in to get to this point. The House was very clear, as shown by the substantial majority in the Division, about its concern to safeguard children. Under-18s are technically juveniles, but that sounds diversionary. I admit that, then and now, I am very uneasy that we could not have achieved a complete prohibition, but we welcome the change to the Bill—though I do have some questions.
The first is on the term “exceptional circumstances”, to which the Minister has referred. We believe that any authorisation given to a child should be exceptional, but that does not seem to be quite how the clause works. Can the Minister confirm that, first, the authorising officer will consider whether there are exceptional circumstances requiring the use of a child, and that, if it is reasonably foreseeable that granting an authorisation could lead to harm to the child, it should not be granted? I believe that the same approach should apply to vulnerable adults, because each such adult and each child is an individual with individual characteristics and in individual situations.
Secondly, on the definition of “harm”, the amendment refers to physical injury or psychological distress. I asked the Minister this question privately last week, so I hope that she can help with it: does psychological distress include injury? There may be an authority in case law for that. Certainly, in everyday language “distress” does not cover the damage we know can be caused by an extreme experience. I expect we may be told that there will be a trauma-informed approach, but I would like to understand how this works for both children and vulnerable adults.
Finally, on appropriate adults and appropriate arrangements, the amendment deals with meetings to represent a child’s interests and do whatever is necessary for the child’s welfare—these are the terms used in the amendment. Is it not necessary for there to be more than a presence at meetings? I assume that an adult can intervene at a meeting, but what is the extent of the intervention permitted? Can the adult discuss the situation with the child outside the meeting, or is the term “meeting” expandable? Can the adult advise the child? Can the adult have access to discuss the matter with an authorising officer? I welcome the provision, but I am sorry that it will not apply automatically to all 16 and 17 year-olds. In the case of a child, the authorising officer must believe that the authorisation would be “compatible” with safeguarding the needs and promoting the best interests of the child. In the case of a vulnerable adult, these matters need only to be “taken into account”. The obvious question is, why the distinction? It must be that it is not required to withhold authorisation in the case of an adult if it is incompatible. I am concerned about this because we do not—and I am sure the Government do not—want to see a tick-box exercise.
We remain very uncomfortable with the thought of using any of the individuals I have referred to as spies, but I appreciate that that is not what the Bill is about. My final question to the Minister is this: will the Government consider applying these safeguards to all children used as covert sources and making that a formality, either through secondary legislation or at least through the code of practice?
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.
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.
If the House is not convinced by our failure to understand the Commons reason, it simply needs to look at the experience of Australia, Canada and the United States to see that it does not hold water. We will be supporting the noble Baroness, Lady Chakrabarti, when she divides the House on Motion B1.
The history of Motion E1 is as follows. As the noble Lord, Lord Anderson of Ipswich, just said, he proposed—and the Government accepted—that when a criminal conduct authorisation is granted, the person granting it must give notice to a judicial commissioner as soon as practicable and in any event within seven days. As the noble Lord just said, a judicial commissioner is a current or former High Court judge especially trained to deal with the authorisation of investigatory powers such as this. Indeed, the police and the security services cannot tap someone’s phone, for example, without prior authority from a judicial commissioner and a Secretary of State. In the case of the police and the security services telling a source to commit a crime, no independent prior authority is required from anyone. Anything the police or the security services authorise the source to do is lawful for all purposes. Not only can they authorise someone to commit a crime, they can also grant complete legal immunity to that person. In Committee, my noble friend Lady Hamwee and I asked, “So what? What happens next? Once the judicial commissioner has received notice that a criminal conduct authorisation has been granted, what happens then?” We tabled an amendment in Committee to try to establish the answer.
The noble and learned Lord, Lord Thomas of Cwmgiedd, took up the cause on Report, requiring the judicial commissioner to inform the person who granted the authorisation to cease all further activity if the independent senior judge determined that the authorisation should not have been granted. The noble and learned Lord even allowed for the activity to continue for a while if that was necessary for the purpose of safely disengaging the CHIS. The Commons objected to a judicial commissioner—an independent senior judge—stopping a CHIS committing a crime when that judicial commissioner had decided that such activity was illegal. Let us just think about that for a minute.
Instead, the Government are proposing that it is for the authorising officer in the police or the security services to determine what action, if any, should be taken once he has been told by an independent senior judge that what he has authorised is against the law. The authorising officer is required only to write back to the judicial commissioner to say what he has decided to do, and that is a requirement only in the codes of practice, not in the Bill. Despite what the noble Lord, Lord Anderson says—that because it says that the authorising officer needs to say what action he intends to take and therefore no action is not an option—the action that the authorising officer could decide to take is simply to consult a senior officer and write back to the Investigatory Powers Commissioner to say that they will carry on regardless.
Not only can the police or security services continue to task a source to commit a crime against the independent determination of a senior judge, but that source has complete legal immunity, despite the judicial commissioner saying that the criminal conduct authority should never have been granted. If ever there was evidence of a Government simply giving operational partners whatever they asked for, whatever the consequences, this Bill is it.
Our amendment to Motion E requires that if the judicial commissioner determines that the authorisation should not have been granted, he must inform the person who granted the criminal conduct authority of his decision. He must also inform the relevant prosecuting authority and all further activity that will or might be undertaken under the authority of that criminal conduct authority ceases to be lawful for all purposes. Contrary to what the Minister said, this does not interfere with the operational decision to deploy the CHIS or with tasking the CHIS to commit crime. The judicial commissioner cannot stop the activity but he can prevent further activity being immune from prosecution.
The Minister, I respectfully suggest, has misinterpreted our amendment and it is disappointing that she did not offer an opportunity to discuss it and clarify her understanding of it. In such a scenario, the situation simply reverts to the existing system, whereby the actions of the CHIS are referred to the CPS after the event to decide whether it is in the public interest to prosecute, rather than the CHIS being given prior legal immunity. That would happen if, and only if, the judicial commissioner determines that the criminal conduct authority should not have been given.
I intend to move Motion E1 at the appropriate point to test the opinion of the House.
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.
Finally, I would remind the House that we are talking about children who have already been let down by the institutions of state, their families and their peers. These are not children who have a clear idea of where their best interests lie, otherwise they would not be available for this task. The least we can offer, and the most we still have available, is robust and thoughtful guidance that puts the best interests of all children beyond doubt.
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 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.
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.
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.
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.
I also pay tribute to the Minister’s colleague, James Brokenshire, who has been extremely influential in listening very carefully to all these voices. I thank the Bill team, but I also thank the Minister for the very useful initiative that has been brought into action during the passage of the Bill: the meetings with the operational partners. It is extremely helpful for us to listen directly to the experiences of people on the front line dealing with this. Equally, I think it is very effective the other way. It is very good for them to hear from us, unfiltered, why we are concerned and what sort of questions we are asking. It is an excellent initiative and I hope it will continue.
In the meantime, I thank the Government. They are perhaps not very often thanked by the Cross Benches, but on this particular occasion, on behalf of a great many of us, I thank the Government for listening and for acting.
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.
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.
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.
Motion E on Lords Amendment 5 relates to real-time notification to the Investigatory Powers Commissioner. We believe that this safeguard is a major improvement in the Bill and pay tribute to the noble Lord, Lord Anderson of Ipswich, for his work on it. The Commons supported the amendment, with the exception of the additional amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, which stated that if a judicial commissioner determines that the authorisation should not have been granted, the person who granted it must immediately be informed and all further activities that might be undertaken must cease forthwith. As I understand it, it has been confirmed today, following further discussions with the noble and learned Lord, that the Government will add wording to the code of practice stating that
“where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken. Having consulted with a more senior officer, they must, as soon as reasonably practical, notify the office of the Investigatory Powers Commissioner of the intended action, or where action has been taken, for example in urgent cases of the action.”
I understand from what has been said that these words are acceptable to the noble and learned Lord.
On the amendment to Motion E from the noble Lord, Lord Paddick, we recognise the safeguards that he seeks and believe that a mechanism to allow prosecution where an authorisation should not have been granted already exists. The Investigatory Powers Commissioner can, if it is felt that an authorisation has been improperly granted, refer a case to the appropriate authorities, including the Crown Prosecution Service. The CPS could then, if it so decided, invite the courts to decide whether an authorisation was improperly granted; if the courts did so decide, immunity from prosecution would cease in respect of both the covert human intelligence source and the authorising officer or body. In the light of those considerations, we will not support the amendment in the name of the noble Lord.
This is not the Bill that we would have passed but we believe that it is significantly improved by the changes achieved by noble Lords across all Benches.
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.
These have been very thoughtful debates, and I have welcomed the opportunity to engage extensively with noble Lords on the important issues that the Bill raises. I have been consistently clear that the Government have been willing to consider amendments that provide reassurance on the concerns that have been raised while ensuring that the regime remains workable for our operational partners, and I hope that I have demonstrated that approach through the Motions tabled today. Therefore, I ask noble Lords on all sides of the House to support these Motions and ensure that the Bill can enter the statute book and provide this important legal framework for a critical tool that will keep us all safe.
Finally, just before I stood up, I noticed a message from my right honourable friend James Brokenshire. I note the comment from the noble Lord, Lord Russell of Liverpool, and I shall certainly send his regards. I want to thank him for the way in which he has worked with me and other noble Lords to ensure that this Bill has left this place in a very good state.
I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.
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?
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.
Motion A agreed.
2A: Because the Commons consider specifying types of conduct which criminal conduct authorisations could not authorise on the face of Part 2 of RIPA would place sources, and the wider public, at risk.
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)
Motion B agreed.
3A: Because the Commons consider it is inappropriate to create an exception to the effect of criminal conduct authorisations.
3B: After Clause 2, insert the following new Clause—
“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.””
Motion C agreed.
4A: Because the Commons consider aspects of the safeguards for juveniles and vulnerable individuals provided for by this amendment to be unworkable.
4B: Clause 1, page 3, line 14, after “(4)” insert “and sections 29C and 29D”
4C: After Clause 1, insert the following new Clause—
“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).”
4D: Insert the following new Clause—
“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.””
4E: Clause 4, page 5, line 7, after “grant” insert “or renew”
4F: Clause 4, page 5, line 10, insert—
“(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.”
4G: Clause 4, page 5, line 13, after “grant” insert “or renew”
4H: Schedule 2, page 10, line 1, leave out ““; or” and insert “—
“(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”
4J: Schedule 2, page 10, line 2, leave out “an” and insert “any”
Motion D agreed.
5A: Leave out lines 27 to 35.
Motion E1 (as an amendment to Motion E)
5B: Leave out lines 27 to 35 and insert—
“(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).””
Motion E agreed.
Consideration of Lords amendments.
Authorisation of Criminal Conduct
I beg to move, That this House disagrees with Lords amendment 1.
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.
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.
As I previously confirmed in this House to my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), the former Attorney General, it is indeed the case that the belief of an authorising officer should be reasonable. That is, as it were, axiomatic. The revised code of practice confirms this and, in response to concerns raised in the other place, it was further amended to make that clear.
The Government therefore cannot accept this amendment, as it creates problematic inconsistency with the position in other legislation. For example, under the Regulation of Investigatory Powers Act 2000, the belief of an authorising officer that an authorisation for the general use and conduct of a covert human intelligence source is necessary and proportionate must be reasonable. Section 29 of that Act simply states that there must be a belief, but it does not use the word “reasonable”. If the word “reasonable” were to be added before the word “belief” in this Bill, it would cast into doubt whether the belief must be reasonable where it is not specified elsewhere.
However, I make it clear that the legal position is already that the belief must be reasonable, as a matter of public law. I say that clearly from the Dispatch Box, as I have done before in answer to a question from my right hon. and learned Friend the Member for Kenilworth and Southam, the former Attorney General. That is why we cannot support Lords amendment 1.
Lords amendment 2 places express limits on the conduct that can be authorised under the Bill. This House has already discussed the issue in some detail, but I will reiterate the reasons why the Government cannot support this amendment. First, the limits on what could be authorised under the Bill are provided by the requirement that any authorisation must be necessary and proportionate, and must comply with the Human Rights Act. Any authorisation that is not compliant with the Human Rights Act would be unlawful, and nothing in this Bill seeks to undermine the important protections in that Act.
However, were we to place explicit limits on the face of the Bill, it would create a risk to the operational tactics involved and, I might add, to the safety of the covert human intelligence source and the general public at large. This assessment has been put to the Government explicitly by operational partners—the people who are actually operating these tactics. The decisions we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners have experienced in the field, and that is what they are telling us.
By creating a checklist on the face of the Bill, Lords amendment 2 makes it very easy for criminal gangs and others to develop initiation tests. It will certainly be the case that some criminals, in seeking to demonstrate that they are not a covert human intelligence source, will go away and do what is asked of them, and perhaps even commit rape or another serious offence to demonstrate their loyalty to the cause and prove, as it were, that they are not a CHIS—a covert source. Those who do not will instead risk the consequences of wrongly being thought to be a source. Of course, that does not mean that if a covert human intelligence source were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act 1998 and the test of necessity and proportionality already provide limits. It is not as though there are no limits, because the Human Rights Act and the test of necessity and proportionality provide those limits; it is simply that we need to avoid presenting criminals and criminal gangs with a means to test those people they suspect are agents. The consequence of presenting such a checklist would be felt ultimately by the public, because this tactic will not be able to be deployed to the same degree, and so more successful crimes, terrorist attacks and serious crimes would be committed.
Amendment 3 seeks to confirm that a person who is, at present, able to access the criminal injuries compensation scheme will be unaffected in their ability to access it because of this Bill. As I have outlined, it is dangerous to get into a discussion of the limits of conduct of our operational sources—those that can be authorised—but I will say that, in practice, the operation of the criminal injuries compensation scheme is unaffected by the Bill, and the amendment is therefore unnecessary.
Amendment 4 deals with the safeguards in place for the rare occasions when a juvenile is authorised to participate in criminal conduct. It also deals with the authorisation of vulnerable adults. I recognise that this is an important and emotive issue. None of us likes to contemplate a juvenile being involved in criminal activity. I understand and respect the honourable motivation behind these concerns; it is, no doubt, a desire to protect young people, and Her Majesty’s Government also have that motivation. The Bill does not seek to give public authorities new powers to authorise juveniles as covert human intelligence sources; it simply creates a clear and consistent legal basis for the authorisation of a covert human intelligence source to participate in criminal conduct where that is necessary and proportionate. The Bill also introduces increased safeguards from those that existed before, such as the requirement for all authorisations to be notified to the independent Investigatory Powers Commissioner in close to real time.
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 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.
Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.
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.
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.
Similarly, the requirement for an appropriate adult to be present in all meetings with all vulnerable adults risks unintended consequences. The definition of a “vulnerable individual” in our legislation in this country is deliberately quite broad, to ensure that the additional safeguards apply to a wide group of people. Let me confirm that it includes victims of modern slavery. It is not clear, however, who could be approached to be an appropriate adult for all vulnerable individuals, bearing in mind, as I know the House will want to do, the duty of care that a public authority, be it the police or any other public authority, has to protect the identity of the CHIS—the covert human intelligence source. The fact is that these individuals may not have a parent, guardian or other person who is responsible for their welfare. So widening the number of people who are aware that a person is a CHIS is undesirable, to say the least, and it increases the risk of disclosure of their identity.
However, the Government are listening and I am listening. The Government are continuing to listen to the views of Parliament on this issue. I thank, in particular, the hon. Member for Walthamstow (Stella Creasy) for her detailed engagement on it, as well as colleagues on the Government Benches behind me. The Government recognise and agree with the spirit of the amendments, understanding the motivation behind them. I commit to continuing to work with parliamentarians in advance of the Bill returning to the other place. Her Majesty’s Government are willing to provide further additional safeguards on the authorisation of any juvenile or vulnerable adult, but Members of this honourable House will, I hope, agree that in doing so we need to get the right balance. We have to have the right balance to ensure that the result of the terminology here does not unwittingly create an unintended consequence for the safety of the CHIS or for the operational workability of this important tactic.
Lords amendment 5 would add further independent oversight to the authorisation process. Both this House and the other place considered and voted on the issue of prior judicial approval, and both Houses voted against that, recognising the operational challenge it would have created. The Government do, however, recognise the need for confidence as to the oversight process for this important power. As such, we supported amendments from Lord Anderson of Ipswich in the other place which require all authorisations to be notified to the Investigatory Powers Commissioner as soon as reasonably practicable, and within seven days. That will provide the IPC with real-time oversight of every authorisation. So the Government are bringing back an amendment in lieu of Lords amendment 5 that retains the notification process but removes the power of the commissioner to cancel an authorisation and stop activity. The cancellation provision to Lords amendment 5 rendered the notification process unworkable. Although this House should be in no doubt as to the seriousness with which public authorities hold the views of the IPC and the strong collaborative nature of their interactions to resolve any issues, the authorising officer has to be, and is, best placed to consider not only the necessity and proportionality of an authorisation, but the live operational environment and the safety of that CHIS. It has to be the authorising officer who has that responsibility. 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. We think, therefore, that the existing process of close collaboration to agree a way to resolve outstanding issues is the right approach.
I welcome what the Minister has said, but would that information be contained in the annual report of the Investigatory Powers Commissioner?
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.
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.
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.
Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.
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.
We also welcome Lords amendment 5, which we pushed for in this place on Report, which sets out that people granted criminal conduct authorisations must inform a judicial commissioner within seven days of the granting of the authorisation. That is vital to ensuring the immediate accountability of the authorisation and to enabling the commissioner to undertake proper scrutiny of decisions. There should be no reason why authorisation cannot be registered within that timeframe, and the amendment provides a clear and efficient process of record. It is right that, if a judicial commissioner thinks upon notification that the authority should not have been authorised, those activities cease forthwith. I am glad that the Government have noted that proposal and amendment—again, it was something that my hon. Friend the shadow Home Secretary raised on Second Reading. It gives necessary transparency to the process, and further assurances on the necessity and proportionality of what is being authorised.
Our amendment (a) to Lords amendment 5 builds on that spirit of oversight by ensuring criminal conduct authorisations may not take place until a warrant has first been issued by a judicial commissioner. We very much appreciate the fast pace at which developments move in an operational sense. However, I think it is similarly important to recognise that in many areas of law we have judges available 24 hours a day to give judgments on urgent matters and emergencies. Such prior judicial oversight in this process would provide even higher standards and additional reassurances, while having minimal impact operationally.
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.
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.
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.
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?
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.
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.
The Lords amendments go some way to addressing some of the concerns expressed by my hon. Friends the Members for Gordon (Richard Thomson) and for Glasgow North West (Carol Monaghan), and by me, during the Bill’s passage through this House, and on that basis we will support them. However, by no means do they meet all our concerns.
The speeches from the Front Benchers and others have already addressed in some detail the scope of the Lords amendments, so I shall not waste time by going into that, but given the careful consideration that was given to the matter in the other place, we very much regret that the Government oppose Lords amendments 1 to 4 and seek to remove the second part of Lords amendment 5.
As we have heard already, the remaining Lords amendments remove the Bill’s provisions in relation to matters devolved to Scotland. It is nice, for once, to see what is these days the rare sight of the Sewel convention actually being respected. The reasons why the Scottish Parliament voted to withhold consent to the Bill, on the recommendation of the Scottish Government, were set out in some detail in the Scottish Parliament last week, particularly in the speech of my friend and colleague, the Justice Secretary Humza Yousaf. It is noteworthy that all parties in the Scottish Parliament, apart from the Conservative and Unionist party, shared the Scottish Government’s concerns about the Bill. Notably, the Labour party in Scotland has taken rather a tougher line than its colleagues in this place.
As I said, I outlined the SNP concerns regarding the Bill during its passage through this House. I am afraid to say that although the House of Lords amendments address some of those concerns, they do not go nearly far enough. For a rule of law and human rights-compliant system, we would like to see, among other things, prior judicial authorisation; the removal of the grounds of “preventing disorder” and “economic well-being”; and proper protections for trade union and other activist activities.
In respect of the speech by the right hon. Member for New Forest East (Dr Lewis), for whom I have the greatest respect, I should point out that the Bill is out of step with international practice, including that of other Five Eyes countries. The Government are being misleading when they seek to reassure the House that the Human Rights Act will provide sufficient safeguards to address concerns about the Bill. I explained in detail in Committee why that is wrong, and furthermore pointed out that the Government are in the course of reviewing that Act, so their arguments about it being a safeguard are far from reassuring.
It has been good to see the Lords address the concern about child covert human intelligence sources, and to see protections for children added to the Bill, which the SNP supports with great enthusiasm. However, our party has always stood up for women’s rights, so I emphasise that in the light of the spy cops scandal there is real concern that the Bill could affect a woman’s right to know the true identity of the man with whom she wishes to form a sexual relationship. I do not see anything to address that in the Lords amendments.
Women Against Rape has signed a statement objecting to the Bill that has the support of more than 50 organisations, including the Haldane Society of Socialist Lawyers, Black Lives Matter groups and disability, women’s and environmental justice campaigners. Of course, such groups worked hard with the Lords to ameliorate some of the Bill’s effects, but I know that the unions will not be completely satisfied with the outcome in the Lords. Nevertheless, all those who worked to achieve the Lords amendments are to be commended. The SNP will support them, and we urge the Government to withdraw their opposition to Lords amendments 1 to 5.
We will support the amendments, but we do not support the Bill. Very real concerns remain in Scotland, and indeed across the four nations, that this Bill could be used to suppress dissent. That is not part of Scotland’s enlightenment tradition, and we will not see it done in Scotland’s name. The Scottish Parliament has withheld its consent, and in so far as the current litigation requires changes to the law of Scotland, we will deal with that ourselves in our own Parliament.
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.
The Solicitor General made the point about the risk of safely unravelling that activity. I understand that point, but that is not the same as saying that the commissioner should not be able to insist on unlawful activity—improperly authorised activity—ceasing to take place. Rather than simply rejecting this in the way that is proposed, would it not be more constructive of the Government to seek a means by which that might be balanced? If an Investigatory Powers Commissioner of the quality of Sir Brian Leveson, arguably the most significant criminal judge of his generation, or one of his deputies were to find that there was an improper authorisation, that would not be done lightly and I would have very great confidence indeed in any such finding and there ought to be action in consequence of it. At the moment, though, the Bill does not provide a satisfactory scheme for that being done. I would have thought that a commitment to upholding the rule of law would require there to be a satisfactory scheme to achieve that, and, given the gravity of the matters, that really ought to be—in some form or another—in the statute. Those are the areas where I hope that the Government will think again about their stance on improving the Bill and perhaps give appropriate assurances to us that could be addressed if the Bill goes back to the other place.
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.
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.
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.
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.
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.
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.
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.
That is particularly the case when it comes to county lines. The Children’s Society estimates that there are 46,000 children involved in such gangs, with 4,000 in London alone. The Government are asking us to treat these often broken and scared young people as capable of consenting to engage in criminal behaviour. We spend so much of our time trying to get children out of harm, but the Government are now trying to argue that, in order for that to happen, we must put them directly in harm’s way. There is almost a risk in what the Solicitor General said of implying that these children have to help the police in order to be helped by the police; I am sure that that is not what he wishes to say. Many of us may argue, why use them at all? There is merit in the simplicity of simply prohibiting children from being CHIS, but we recognise that there may be circumstances—exceptional circumstances—in which we would consider that to be necessary, with careful supervision. That is what Lords amendment 4 does. It writes on the face of the Bill the principle that no child should be asked by the state to commit a crime except in exceptional circumstances, and by “exceptional” we mean when there can be no doubt that the child would not come to harm. It upholds our obligations under the United Nations convention on the rights of the child to treat all people under 18 as children.
Currently, if a child is arrested for shoplifting at the age of 16 or 17, an appropriate adult would oversee their interactions with the police. That is because we recognise that there is a fundamental power imbalance between anybody who is working with the police and a child. Under the Government’s plans, the police will be under no obligation to appoint such a person for those 16 or 17-year-olds. That means that a 16 or 17-year-old could be recruited without anybody knowing—not their parents or a social worker. They could be asked to inform on anyone, including their own parents, or asked to remain in dangerous situations at great personal risk, without any legal advice, independent voice or help to say no if they want to.
Baroness Hamwee set out the case, described by the right hon. Member for Haltemprice and Howden (Mr Davis), of a young girl who was in a sexually exploitative relationship with a man and eventually witnessed a murder as a result of being in that relationship. She was maintained in that relationship in order to provide information to the police. What is crucial to our debate is that that young girl was 17. Under the Government’s proposals, there is no guarantee that there would be an appropriate adult overseeing that relationship with her and raising the necessary questions. The Government say that this is because, by the time a child is 16 or 17, they become increasingly independent and mature. Are we really comfortable with the argument that if a child shoplifts, they are childish and need a guardian when they talk to the police, but if they spy and commit crimes for the police, they are mature and they do not?
Ministers simply cannot have it both ways: there is an apparent presumption of an appropriate adult, so we do not need to write that on the face of the Bill, and having an appropriate adult with a child raises the risk that they will be revealed as a source. When the Solicitor General makes that argument, he fails to explain why we then require an appropriate adult for under-16-year-olds. If having an appropriate adult involved raises the risk of a child being unveiled as a CHIS, that is surely true at any age, so why deny this to a 16 or 17-year-old?
By including Lords amendment 4 in the Bill, we would be in line with our obligations under the UN convention, which defines every person under 18 as a child. I hope Ministers can tell us whether a child rights impact assessment has been carried out on the legislation and, if so, why the Home Office feels that it can ignore those obligations to the UN when the Department for Education has recently said that we must reaffirm them.
Lords amendment 4 also extends the protection of having a second pair of eyes and the principle of exceptional circumstances, so as not to put somebody in the face of foreseeable harm, to vulnerable people and victims of trafficking or modern slavery. Those people may be older than 18 but are no less at risk of being placed in harm’s way, and they, too, may struggle with notions of consent when faced with state authorities.
Lords amendment 4 is not prohibition. It is rooted in the real and dangerous world of criminality in which many of these children and vulnerable people already live. If the Government will not accept it, they must commit today to put on the face of the Bill the protections that they claim exist—the protection of not putting somebody knowingly in harm’s way, the protection of an appropriate adult for all under-18-year-olds and the protection of the presumption that they would have that person. If what the Solicitor General says is true, none of those requirements should be onerous, and then he can understand why his objection and resistance to doing that is so worrying.
The Government argue that these children often want to help, and the more people who know that they are involved, the more at risk they are. But with the police offering them money for their work, and being in the scheme the sole arbiter of what is in their best interests, the conflicts of interest in this are manifest. That is why it is right that MPs should step in. Every one of us has a responsibility, to all the children we know, not knowingly to put them in harm’s way. We act in loco parentis as if they are our child and ensure that their welfare comes first, even if it means that an investigation might be denied their insight. Today, every MP has an opportunity to let children be children, not child spies.
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.
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.
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.
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.
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.
But if my right hon. Friend wants to defeat it, let us hear it.
I knew my right hon. Friend would liven up the debate. The test is not the test of authority. It is an empirical test. America, Australia and the other Five Eyes all have these limitations, and their intelligence agencies seem to work perfectly well.
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.
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?
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.
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.
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.
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.
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.
Furthermore, this provision is unnecessary, because we already have statutory powers to authorise criminal acts, where necessary, controlled by the third direction policy and enforceable in court, as was found in respect of the MI5 policy—the two-test policy about things being “necessary” and “proportionate” in terms of the public interest. It is also claimed that the Human Rights Act will somehow protect us, but the Government came in on a manifesto of abolishing or repealing that Act, and a review of it is going on at the moment. Furthermore, during the third direction test case the Government argued that the Human Rights Act did not constitute a basis against the Government for a CHIS offence. Therefore, I do not support the Bill; and I support the Lords amendments.
Lords amendment 2 seeks to exclude murder, grievous bodily harm, sexual violence, torture and depriving someone of their liberty from these authorisations. Even if the amendment is accepted, Ministers can still be empowered to harass political opponents and suppress dissent. I support Lords amendments 1, 5, 12 and 14, which seek to improve judicial scrutiny, so that we have a report to judicial commissioners and objective tests—not just subjective ones—on the basis of reasonable belief, which can be tested, so that judges can rule whether an action is lawful and exercise a power to remove the authority to commit a crime that is not reasonable. But of course the judicial commissioners will be appointed by the Prime Minister—they will not be independent judges—which again blurs the division between the Executive and the judiciary. That is not normal in modern democracies—or in any democracies for that matter.
Amendment (a) relates to the issue of having authorisations in respect of juveniles and vulnerable individuals in only “exceptional circumstances”. I would support that of course, but I fail to imagine where we should be using juvenile and vulnerable individuals—getting them to spy on their parents, be in drug gangs or whatever it is. I do not think that is something we should be authorising. Clearly, if we are, there need to be constraints. For the reasons I have already outlined, I respect the position of Scotland: if it is not bust, don’t fix it.
Lords amendment 3 is on criminal injuries compensation for victims of crimes authorised. Clearly, there should be compensation if crimes are authorised that are disproportionate and unnecessary—and we may never know. On the overall situation, clearly, we have a duty to protect the public, and we must balance security, liberty and human rights. In a democracy, we should certainly support the Lords amendments, to put constraints on the Bill, which other democracies have not adopted and which we would not like to see applied in less liberal environments than our own.
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.
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.
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.
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 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.
Lords amendment 1 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Motion made, and Question put, That this House disagrees with Lords amendment 2.—(The Solicitor General.)
Lords amendment 2 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
Motion made, and Question put, That this House disagrees with Lords amendment 3—(Solicitor General.)
Lords amendment 3 disagreed to.
The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.
More than three hours having elapsed since the commencement of proceedings on consideration of Lords amendments, the debate was interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).
After Clause 2
Notification to a Judicial Commissioner
Amendment (b) proposed to Lords amendment 5.— (Michael Ellis.)
Question put, That the amendment be made.
Amendment (b) made to Lords amendment 5.
Lords amendment 5, as amended, agreed to.
Authorisation of Criminal Conduct
Motion made, and Question put, That this House disagrees with Lords amendment 4.—(Michael Ellis.)
Lords amendment 4 disagreed to.
Lords amendments 6 to 14 agreed to.
Motion made, and Question put forthwith (Standing Order No 83H), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 1 to 4;
That Michael Ellis, Tom Pursglove, Paul Holmes, Mark Tami and David Linden be members of the Committee;
That Michael Ellis be the Chair of the Committee;
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Rebecca Harris .)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.
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.
(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.
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
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.
I call the Minister to make a Statement on legislative consent.
1: Clause 4, leave out Clause 4
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.
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.
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.
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?
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.
The noble Baroness, Lady Hamwee, also asked—rightly so—about cross-border operations. Operational partners will continue to work closely with their counterparts in Scotland, including Police Scotland, where operations take place across the border, to ensure that they remain able to prevent crime and harm to the public in all parts of the UK. Finally, she asked whether the issue was wider than the Bill. Clearly, if there are any legislative consent issues to which Scotland, or indeed Wales, have to consent, these will be considered on a legislation-by-legislation basis, so it is very difficult for me to answer in any theoretical way, but that is the process that goes on for LCMs, as we call them.
The noble Lord, Lord Rosser, asked me whether there would be any adverse impact on national security and economic well-being more broadly. I answered no in my first speech and I will confirm that, because they are, of course, reserved matters.
Amendment 1 agreed.
Clause 5: Oversight by the Investigatory Powers Commissioner
Amendments 2 to 4
2: Clause 5, page 7, line 36, leave out “or (g)”
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.
3: Clause 5, page 7, line 39, leave out from beginning of line 39 to “(criminal conduct authorisations)” in line 40
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.
4: Clause 5, page 8, line 4, leave out from “2000” to “(criminal conduct authorisations)” in line 5
Member’s explanatory statement
Amendments 2 to 4 agreed.
Clause 8: Extent and short title
5: Clause 8, page 8, line 25, leave out subsection (3)
Member’s explanatory statement
Amendment 5 agreed.
Schedule 1: Corresponding amendments to the Regulation of Investigatory Powers (Scotland) Act 2000
6: Schedule 1, leave out Schedule 1
Member’s explanatory statement
Amendment 6 agreed.
Schedule 2: Consequential amendments
Amendments 7 and 8
7: Schedule 2, page 13, line 11, at end insert—
“(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
8: Schedule 2, page 14, line 27, leave out paragraph (b)
Member’s explanatory statement
Amendments 7 and 8 agreed.
“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.”
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
This House has made important changes to the Bill. I should like to take this opportunity, along with my noble friend Lord Kennedy of Southwark and my noble and learned friend Lord Falconer of Thoroton, to thank the Minister and her ministerial colleagues, the Bill team, many other Members of this House and various security agencies and organisations for their willingness to meet us to discuss aspects of the Bill. Those meetings have been most helpful. Finally, we place on record our appreciation of the invaluable and immense support we have received from our own staff on this Bill, particularly Grace Wright.
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.
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.
Bill passed and returned to the Commons with amendments.
Report (1st Day)
Clause 1: Authorisation of criminal conduct
1: Clause 1, page 1, leave out line 17
Member’s explanatory statement
This amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.
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.
Why is that of particular concern? It is certainly not the status quo whereby people are administratively authorised to keep their cover and the fact that they were authorised would be taken into account by any police officer, prosecutor or court looking at this conduct after the fact. Why does the advance and total immunity go so much further and create such a danger? Well, it is because it will make such a difference to the ethical behaviour of the agent of the state in the heat of the moment. The difference between knowing that you are doing your best, doing right, doing it in the community interest and in an authorised fashion but none the less knowing that you will be held to account, or at least that your actions will be examined after the fact, is a very important ethical constraint on all of us, whether ordinary citizens or uniformed police officers, who, by the way, enjoy no such blanket immunity from the criminal law as is proposed here. It is a very important ethical constraint, and ultimately it is incredibly important, because most undercover agents and their criminal conduct will never see the light of day.
This is not just about criminal immunity, as others have described very eloquently. Civil immunity could deprive victims of criminal activity by these undercover agents. Under the legislation as I read it, something as simple as high-speed driving above and beyond the speed limit, causing death or serious injury to a completely innocent third party, would now lead to no civil liability whatever, which means no recompense for someone who was the victim of authorised conduct under this law. That is unnecessary collateral damage; it is collateral damage too far. Under current arrangements, that would be the case.
The Government, Ministers and noble Lords have yet to point to a single example under the current public interest-type approach of an authorised agent being prosecuted for just doing their job in the public interest. Not a single example has been presented in many hours of debate on this Bill, which begs the question as to why such a breath-taking advance immunity from civil liability or criminal sanction should be in place.
As I have said, Amendment 1 would remove the lawful-for-all-purposes total criminal and civil immunity from the measures in this Bill, and Amendment 2 would replace that blanket immunity with, in effect, a public interest defence, so that any police officer or prosecutor looking at the conduct of an authorised agent would see a de facto public interest presumption against prosecution if the person had clearly acted as authorised, necessarily and proportionately.
Under my amendments, if a rogue prosecutor ploughed on in any event, those public interest considerations would then be open to any court that found itself dealing with such dilemmas. As I have said, these cases just have not been brought. The Government are going too far in addressing a problem that simply does not exist. The only answers that I have ever heard as to why they need to go so far is for the purposes of certainty for these undercover agents committing crimes. But a little bit of uncertainty is a very important incentive to ethical conduct when dealing with what are potentially very serious crimes.
This Bill is very dangerous in its current form. It could be improved today, on Report, without doing harm to its overall scheme or to the underlying intention that Ministers have explained time and again. Amendments 1 and 2 are a very easy and simple way in which to improve the Bill. If we allow it to pass unamended today, with this total advance impunity for agents of the state, a great many of them from all sorts of agencies listed in the Bill, we will open the door to countless abuses of power and scandals in relation to criminality, and abuses of human rights, potentially for many years into the future. That is not something that your Lordships’ House ever wants to do lightly.
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.
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.]
[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.]
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.
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.
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.
I am grateful to the noble Lord, Lord Anderson, for tabling Amendment 21, to which my noble and learned friend Lord Falconer of Thoroton added his name. This amendment allows us to seek assurances on what is surely a critical matter: that an authorising officer cannot grant a malicious, corrupt or improper authorisation, and that should they do so, the authorisation is challengeable and they are liable for their actions.
Amendment 22, also in the name of the noble Lord, Lord Anderson of Ipswich, which has our support, would provide that the criminal injuries compensation scheme would still be an available route for a victim who suffers an injury under authorised conduct. It seems a very sensible and straightforward way to proceed. Like the noble Lord, Lord Anderson of Ipswich, I hope to hear a detailed contribution from the Minister in reply on the right to redress that will be open to an innocent person—[Inaudible.] I appreciate the meetings that we have had with Ministers and officials to discuss this vital issue.
Finally, Amendment 32 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would make it explicit in RIPA that a person harmed by conduct under an authorisation—I believe the word used in RIPA is “aggrieved”—would have the right to seek redress from the Investigatory Powers Tribunal. We first raised the issue of victims having redress through the tribunal in the House of Commons and we will support the amendment if it is taken to a vote. I await with interest the Minister’s response, not least to the assurances that the noble Lord, Lord Anderson of Ipswich, seeks.
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.
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.
For example, a drugs informant could be authorised to sell drugs as part of an investigation of those higher up the chain. Can the informant keep the money that they make from selling those drugs? What if somebody involved in a criminal enterprise of slavery and trafficking is authorised to continue their role in order to catch the organisers? Can the informant keep the money that they make from people trafficking—the money that they are paid as a result of what would be criminal activity but for the fact that they have a criminal conduct authorisation? In effect, this Bill would create a back-door, off-the-books way for police, intelligence services and other agencies to fund their spies.
The only answer that I have had from the Government—which is a bit shabby, considering that I asked this question directly several times—was in an all-Peers letter dated 3 December, where the Minister said that criminal conduct which takes place outside of the scope of a criminal conduct authorisation, where as a result a police spy may accrue benefits by continuing to make illicit profits alongside their work as a spy, would still be criminal conduct for the purposes of the confiscation regime in the Proceeds of Crime Act, and unlawful conduct for the purposes of the civil recovery regime, and such benefits could be liable to be recovered under either of those regimes.
That actually does not answer my question: it is quite long but it does not answer my question. I need to know how conduct within a criminal conduct authorisation—or CCA—and any resulting profits will interact with the Proceeds of Crime Act. I need to know whether and how the Government will recover those profits. So far, my question has been totally ignored and the response—because it was not an answer—discussed only conduct that is outside a criminal conduct authorisation. This suggests to me that the Government are happy to allow criminals to benefit; therefore, this issue has to be probed further. Criminals will be allowed to keep any proceeds of a crime if the handler has authorised the crime—surely that is a complete anomaly. I would like to know exactly what the Government are thinking. I would be grateful if the Minister could answer my question about how profits made within a criminal conduct authorisation, which would otherwise be illegal, will be recovered. Otherwise, something quite corrupt is happening here; a handler can authorise a spy who could be an officer or a criminal already to keep money, and profits, from a crime. This has to be exposed and I really want an answer to my question.
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.
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.
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.
I referred in Committee to our swimming in murky waters on this Bill. Nothing brought that home more clearly this afternoon than the impassioned speech of the noble Lord, Lord Paddick, who talked about his personal experience of handing out brown envelopes stuffed with cash to members of the criminal fraternity for what they had done to help solve a greater crime. However, while we accept that, we must also accept—I say this very gently to the noble Baroness, Lady Jones of Moulsecoomb, for whom I have high regard—that we are not just dealing with police spies. We are also dealing, in the very deep waters of international relations, with those whom in an earlier debate the noble Baroness, Lady Manningham-Buller, reminded us are among the bravest of the brave. I do not particularly like the Bill but I utterly accept the necessity for it. I hope we can improve it on Report and that, in the context of these amendments, we can make it abundantly plain that anyone who suffers as the result of an action of a CHIS, deliberate or otherwise, will be adequately and properly compensated.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
On the other hand, I see no problem with the state, through the DPP and the CPS, considering after the event whether a prosecution for such criminal conduct is warranted. In doing so, they will apply their experience, discretion and good sense and consider all the circumstances leading to the crime and the objective sought to be attained by it, the proportionality of it to that objective, and the overall justification for it; they will consider the anticipated and actual consequences of the conduct; they will consider any possible defences to such prosecution, including whether the conduct is criminal if its object was to prevent a greater crime; they will consider the requirements of the European convention; and, above all, they will consider whether it is in the public interest to prosecute.
Noble Members have made the point 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. The Bill will grant CCAs to lay persons, often or usually criminals, deficient in civic responsibility and careless of the demands of the rule of law, as some of the recipients of the brown envelopes described by the noble Lord, Lord Paddick, must have been. 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 fear that their conduct will be scrutinised by the CPS.
However, let us not forget that the Undercover Police Inquiry, in which I represent a number of trade unions, has revealed that professional law enforcement officers have participated, and were directed by superiors to participate, in conduct which was either criminal or morally reprehensible. One thousand groups, campaigns and unions were spied on. So far, it is not evident that infiltration by police officers acting as covert human intelligence sources gleaned any useful information 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 a group which would be violent or cause disorder.
So far, I am unaware of any justification for the infiltration of campaigns such as that in response to the murder of Stephen Lawrence or that formed to reopen the convictions of the Shrewsbury building workers. What justification can there have been for the systematic abuse of women, more than 30 of whom were groomed into having sexual and intimate relationships with men with fake identities, fake beliefs and fake personalities? This was not a tactic devised by a couple of coppers who were rotten apples; it was conduct authorised by, and reported to, senior officers in the Metropolitan Police and in MI5. This widespread, reprehensible and unjustifiable conduct over decades inspires little confidence in the issuing of CCAs by such senior officers.
The noble Baroness, Lady Ritchie, has drawn attention to very serious crimes committed by state agents. Against that, it may be superfluous to mention that the Undercover Policing Inquiry has revealed that undercover police committed other crimes; one, for example, is said to have acted as an agent provocateur in planning to firebomb a shop.
I find myself unable to accept the Bill while it contains the provision granting criminal immunity prospectively. Only a retrospective review by a professional prosecutor when all the circumstances are known is tolerable.
As at Second Reading, I wish to add the following, final, point. My understanding is that an undercover police officer may not be instructed by superiors to commit a crime. If the Bill becomes law without the amendments of my noble friend Lady Chakrabarti and her co-signatories, 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. In my view, that is a powerful argument against prior authorisation; I think that many rank-and-file officers would not wish ever to be put in that position.
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.
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.
The CHIS remains just as relevant and critical in today’s security environment. Last year, MI5 led a particularly successful operation against the so-called New IRA in Northern Ireland, arresting most of its so-called army council. That was a massive success and it will undoubtedly have been down to so-called covert human intelligence sources.
Of course, I agree that there should be a robust framework under which the authorisation of covert personnel engaging in crime can operate. I do not believe that sexual crime or torture can be authorised in any circumstances. Authorising officers must give due regard to a human rights framework in these areas.
Amendments 1 and 2 would ensure that the nature of and compliance with criminal conduct authorisation would be deemed relevant to any decision about criminal prosecution or civil liability. I believe that those who have acted in compliance with a properly devised criminal conduct authorisation should be protected from prosecution. This amendment may have the effect of wrongly keeping the door ajar for prosecution.
Amendment 3 would mean that, instead of a CHIS being immune from civil liability for authorised crime, the state would indemnify or recompense them. I do not come down strongly either way in relation to this amendment. Sources who have acted in accordance with a CCO should not be financially disadvantaged without fair recourse.
Amendment 21 would ensure that the Bill did not exclude prosecution for misconduct in public office of those involved in granting a criminal conduct authorisation or in situations where it is later nullified. I recognise the need for authorising officers to act in adherence to human rights principles. However, it is also important that they are not unfairly disadvantaged compared to other public servants or officials just because they are involved in those decisions. I will listen carefully to how the Minister responds to this amendment.
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.
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.
We support Amendment 21; it neatly deals with concerns about the responsibilities and liabilities of controllers and handlers, both criminal and civil. It is very helpful to be reminded that our law—some might describe it as our legal ecology—includes the underlying notion of how to conduct oneself in public office, and the offence of misconduct in that office. Civil liability, when looked at from the other end of the telescope, is the right of someone aggrieved, injured, or who has suffered collateral damage, to access compensation. In Committee, my noble friend Lord Paddick referred to an injured security guard, and we have had other examples. We are happy to support any amendment that achieves that, although we have difficulty with Amendment 3 because it accepts the phrase “lawful for all purposes”.
We tabled Amendment 32, which amends RIPA, under which the tribunal has the power to make an award of compensation. RIPA is—or will be—the basis for CCAs and the tribunal is, by definition, familiar with investigatory powers. It can deal with hearings involving sensitive matters in an appropriate way. It seems the right home for this, though I acknowledge the practical considerations that have been mentioned.
Section 29B will be new to RIPA, even though authorisations are not new. We are not happy to rely, for this purpose, on the Advocate-General’s explanation in Committee that,
“An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation”,—[Official Report, 24/11/20; col. 185.]
nor—again for this purpose—that they will be, in the Advocate-General’s words, “tightly bound”. That is not the point.
Unless the issue of redress has been dealt with satisfactorily by the time we reach Amendment 32 in the Marshalled List, I intend to move it and seek the opinion of the House. We tabled it before the noble Lord, Lord Anderson of Ipswich, tabled his Amendment 22. If the criminal injuries schemes include the injuries in question—the amendment uses the words “not excluded”—we welcome that. The Advocate-General indicated in Committee that he did not have information regarding the schemes, and that he would write. My noble friend and I had not heard until publication this morning of the Government’s response to the JCHR’s report—apart from an email which the noble Lord, Lord Anderson, copied to us, in which a Home Office official wrote, “The Bill does not in practice interfere with the operation of the scheme.” I read that as a bit topsy-turvy, and certainly not enough; we want it to be clear in the Bill.
I am with the noble Lord, Lord Anderson: the gift horse needs a bit more to chomp on. We support there being clear provision in the Bill to deal with the problem of “lawful for all purposes”.
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.
I turn to the amendment from the noble Lord, Lord Anderson, on the availability of the criminal injuries compensation scheme for those impacted by a criminal conduct authorisation. The Bill does not, in practice, interfere with the operation of that scheme, which is narrow in scope and available only to a victim of a crime of violence. While I cannot discuss the limits to the conduct that can be authorised under the Bill, I will say again that all authorisations must be compliant with the Human Rights Act. Public authorities cannot act in a way that is contrary to its requirements; for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, it would be unlawful.
There are also protective obligations on the state. Where the state knows of the existence of a real and immediate threat to a person, the state must take responsible measures to avoid that risk. This protective obligation is at the heart of CHIS authorisation. As I said earlier, where a person is a victim of conduct not covered by the tightly drawn authorisation, the authorisation would not offer protection from criminal liability. This includes any claim made under the criminal injuries compensation scheme. I hope that this provides reassurance on both these issues and that noble Lords are content not to press their amendments.
Before I sit down, in responding to this group I also want to take the opportunity to make noble Lords aware of the Government’s ongoing discussions with the Scottish Government, which may affect the ability to authorise criminal conduct in Scotland for devolved purposes. Discussions on support for a legislative consent Motion have been running in parallel to the passage of this Bill. The Government’s preference is for a UK-wide Bill, but it appears that agreement on this may not be possible.
Were the Scottish Government to not recommend consent, then, respecting the Sewel convention, the Government would seek to table amendments at Third Reading which carve out authorisations for devolved purposes in Scotland, and would not move government amendments on Report where they relate to devolved matters. I would appreciate noble Lords adopting a similar position in this scenario, if their amendments relate specifically to RIP(S)A. I have already discussed this matter with the noble Lords, Lord Paddick, Lord Rosser and Lord Kennedy. However, I undertake to write to all noble Lords before the debate on Wednesday outlining the final position, any reasons for the decision and any operational impact that it might have.
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?
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 op