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Royal Assent

(Royal Assent: Lords Hansard)
(Royal Assent: Lords Hansard)
Monday 1st March 2021

(1 week, 1 day ago)

Lords Chamber

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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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

(Ping Pong (Hansard))
(Ping Pong (Hansard): House of Lords)
Tuesday 9th February 2021

(4 weeks ago)

Lords Chamber

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Home Office

Commons Reasons and Amendment

Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee

Motion A

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

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.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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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.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.

While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.

Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?

In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.

However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?

As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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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?

Lord Alderdice Portrait The Deputy Speaker (Lord Alderdice) (LD)
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The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) [V]
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My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.

Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.

I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was

“inappropriate to create an exception to the effect of criminal conduct authorisations.”

I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.

Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:

“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—

not whether any action should be taken, but what action should be taken, which implies that some action will be taken.

IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.

The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.

In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.

Lord Paddick Portrait Lord Paddick (LD) [V]
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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.

Baroness Kidron Portrait Baroness Kidron (CB) [V]
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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.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB) [V]
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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.

Lord Alderdice Portrait The Deputy Speaker (Lord Alderdice) (LD)
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The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.

Lord West of Spithead Portrait Lord West of Spithead (Lab)
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My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.

I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.

It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.

The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.

On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.

The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.

In the other place, the Solicitor-General said:

“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]

This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.

The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.

In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.

Lord Young of Cookham Portrait Lord Young of Cookham (Con)
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My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.

The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.

My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.

Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB)
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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.

Lord Adonis Portrait Lord Adonis (Lab)
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My Lords, the Government have clearly moved on most of the contentious issues. We expect nothing less of the Minister, whom we hold in very high regard. The fundamental issue that is outstanding—you could argue that the use of under-18s is fundamental, but at least the Government have moved on that, although as it happens I agree with the noble Lord, Lord Young, and the noble Baroness, Lady Kidron, that under-18s should not be used—which the Government have not moved on and which we wish to press the Minister on is Amendment 2. I have listened to the debates, but I have not participated in them until now. We are at the crucial moment of whether the House will insist on its amendment, so it is reasonable for people to express a view on this crucial point.

The crucial question is the one put by my noble friend Lady Chakrabarti. We are talking about very weighty matters in Amendment 2 as to whether authorisations can be given in respect of murder, rape and torture. I thought the Minister equivocated on this in the example she gave in opening the debate. Can she say categorically when she replies that murder, rape, torture and their authorisation by agents of the state would contravene the European Convention on Human Rights and the Human Rights Act?

If she is saying that, then it is a complete mystery why the Government will not accept Amendment 2. As my noble friend Lady Chakrabarti so rightly said, Amendment 2 cannot be both dangerous and superfluous. If it is indeed superfluous because the authorisation of murder, rape and torture, even in the circumstances the Minister gave where it might somehow protect an agent’s cover, would itself contravene convention rights and the Human Rights Act, then how can we not be prepared to put it in the Bill? The only reason not to do so is to equivocate on whether murder, rape and torture are indeed against the European Convention on Human Rights and the Human Rights Act. This point seems fundamental.

I so rarely disagree with my noble friend Lord West, even on the need for more frigates; I generally agree with him even on the long list he has of further naval equipment that we need. In this case, I thought that he was in danger of simply parroting the lines of those people who clearly support having no legal safeguards at all in this respect. He said, slightly glibly, if I may say so, that we were talking about a checklist that it would be unreasonable for agents of the state to observe. We are talking not about a shopping list, but about specific exceptions for the most heinous crimes, which I do not believe that my noble friend, whom I know and trust greatly, would grant authorisations for.

The noble Lord, Lord Paddick, gave a very powerful speech; he has himself operated and manged agents and is not coming to this as a kind of naive human rights lawyer. But when he gave chapter and verse on other jurisdictions and how they have dealt with precisely the same issue, my noble friend said that Australia and the United States are—I noted down his phrase—“dangerous and irrelevant.” I was then waiting for him to expand on why they were dangerous and irrelevant, but he stopped at that point; he did not tell us why, somehow, the experience of the United States and Australia—not countries that play fast and loose with their own security—was not relevant to us here.

That leads on to the powerful points made by my noble friend Lady Chakrabarti about the role of the House and, if I may say so, the role of my party, the Labour Party. Those of us who engage in public life do so because we think that our parties express our values. My noble friend pointed out that these provisions were in no party’s manifesto. The Salisbury convention, which rightly governs our conduct, states that we should not insist on amendments in respect of a matter that the governing party has put in its manifesto and on which it has therefore had the explicit endorsement of the people. However, this issue is not covered by those arrangements.

Therefore, there is an important question of judgment as to why we are placed here: whether the House of Lords, as a second Chamber, should seek to insist on amendments concerning an issue in respect of which the Salisbury convention is not operating. Normally, we would not, and normally, I do not, because I am very conscious, as we all are in this place, that we are nominated and the other House is elected. But my noble friend made a very powerful point: that fundamental protections for human rights and the constitution are issues in respect of which, if the Government do not have explicit Salisbury convention mandates, we should be prepared to insist on amendments. The Parliament Acts themselves recognise that, because they except from the power of the House of Commons to override this House Bills to extend the life of Parliament. That was specifically put in to provide a constitutional protection, and in our enlarged understanding of the sphere of proper constitutional protections since the Parliament Act 1911, it is reasonable that fundamental human rights should be a part of that.

If this House does not exist to see that murder, rape and torture cannot be committed by agents of the state, then I am at a loss to understand why we are here at all.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I am not shy about admitting that I am critical of this Government, whose majority in the other place has made them quite shameless. They have, on occasion, asked your Lordships’ House to break the law, and this is another such occasion. Sometimes we are tough and we refuse; I hope that that is what will happen today.

It was superb listening to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Of course, both Greens will be voting for the amendments because this is about the rule of law and human rights. I do not very often agree with the noble Lord, Lord Adonis —probably never, in fact—but on this occasion I agreed with every single word he said, and I wish I had said it first.

On the enhanced protections for children, I understand that the noble Baroness, Lady Kidron, and the noble Lords, Lord Russell and Lord Young of Cookham, feel that something is better than nothing. But quite honestly, this is child abuse. It is child abuse by the Government—using children as spies. I cannot see how any Government who care about the rule of law could put this in legislation. It is obvious that this Government do not care about the rule of law; they protect their own while throwing others to the dogs.

This Bill provides blanket legal protection for undercover police and their informants—who could be criminals—for crimes with pre-authorised immunity. Similarly, the forthcoming overseas operations Bill creates new protections against prosecution for military personnel acting overseas. The Government have fought strongly for these protections against prosecution for the police and the military. They fought against any attempt by your Lordships’ House to reduce or check these protections.

Yet, having granted such broad protections to the police and military, even in cases of fundamental wrongdoing, the Government then refuse what is a comparatively far more limited legal defence for survivors of domestic abuse—usually women. A public inquiry is under way examining the 40-year history of government agents abusing their power while spying on trade unions, green campaigners and those in the black community fighting for justice. Police officers were using sexual relations with women as a deliberate strategy, although we are now told that it was unlawful all the time. We see this Government protecting their own from the law while allowing the abuse of vulnerable people and women. That is what this Government do.

I do not want to pile in on the noble Lord, Lord West, who said that the safety of CHIS should be paramount, but quite honestly, I thought the rule of law and the safety of the realm were meant to be paramount. If you continue to break the law as a Government, you are not increasing the safety of the realm; you are actually making it more dangerous for us all. I very much hope that noble Lords will vote for these amendments today and refuse again to let the Government abuse the law.

Lord Rosser Portrait Lord Rosser (Lab) [V]
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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.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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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.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.

Lord Adonis Portrait Lord Adonis (Lab)
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My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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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.

Motion B

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

Moved by

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.

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.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.

Motion B1 (as an amendment to Motion B)

Baroness Chakrabarti Portrait Baroness Chakrabarti
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Moved by

Leave out “not”.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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[Inaudible]—my noble friend Lord Adonis, in particular with regard to the exchange between them, so I would like to test the opinion of the House.

Motion B agreed.

Motion C

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A, but do propose Amendment 3B in lieu—

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.

Motion D

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, but do propose Amendments 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4J in lieu—

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.

Motion E

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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That this House do agree with the Commons in their Amendment 5A.

5A: Leave out lines 27 to 35.

Motion E1 (as an amendment to Motion E)

Moved by

Lord Paddick Portrait Lord Paddick
- Hansard - - - Excerpts

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 5A and do propose Amendment 5B in lieu—

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).””

Lord Paddick Portrait Lord Paddick (LD) [V]
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My Lords, I have three things to say. First, I beg to move; secondly, I wish to test the opinion of the House; and, thirdly, please take into account my voice when taking soundings in the Chamber.

Motion E agreed.

Covert Human Intelligence Sources (Criminal Conduct) Bill

(Ping Pong)
(Ping Pong: House of Commons)
Wednesday 27th January 2021

(1 month, 1 week ago)

Commons Chamber

Read Hansard Text Bill Main Page
Attorney General

Consideration of Lords amendments.

Clause 1

Authorisation of Criminal Conduct

Michael Ellis Portrait The Solicitor General (Michael Ellis)
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I beg to move, That this House disagrees with Lords amendment 1.

Nigel Evans Portrait Mr Deputy Speaker
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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.

Michael Ellis Portrait The Solicitor General
- Hansard - - Excerpts

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.

Kevan Jones Portrait Mr Kevan Jones (North Durham) (Lab)
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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?

Michael Ellis Portrait The Solicitor General
- Hansard - - Excerpts

The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.

Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.

Bob Stewart Portrait Bob Stewart (Beckenham) (Con)
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Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.

Bob Stewart Portrait Bob Stewart
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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.

Michael Ellis Portrait The Solicitor General
- Hansard - - Excerpts

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.

Kevan Jones Portrait Mr Kevan Jones
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I welcome what the Minister has said, but would that information be contained in the annual report of the Investigatory Powers Commissioner?

Michael Ellis Portrait The Solicitor General
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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.

Kevan Jones Portrait Mr Kevan Jones
- Hansard - - Excerpts

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.

Michael Ellis Portrait The Solicitor General
- Hansard - - Excerpts

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.

Nigel Evans Portrait Mr Deputy Speaker (Mr Nigel Evans)
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Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.

Conor McGinn Portrait Conor McGinn (St Helens North) (Lab)
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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.

Edward Leigh Portrait Sir Edward Leigh (Gainsborough) (Con)
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It is welcome that, under new management in the Labour party, the country can probably rest assured that after an interlude the Labour party have returned to the attitude that prevailed under the Blair and Brown leaderships and can be trusted on security issues. I hope therefore, in that spirit of bipartisanship, the Labour party will think carefully about dividing the House and recognise that many of the arguments promoted by the Solicitor General actually made a lot of sense. We might put our agents’ lives at risk if we were to set limits on what could be authorised, so I hope the hon. Gentleman can give me a reassuring reply on that.

Conor McGinn Portrait Conor McGinn
- Hansard - - Excerpts

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.

Julian Lewis Portrait Dr Julian Lewis (New Forest East) (Con)
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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.

David Davis Portrait Mr David Davis (Haltemprice and Howden) (Con)
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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?

Julian Lewis Portrait Dr Lewis
- Hansard - - Excerpts

I have the advantage of having been present when my right hon. Friend made that very point on Second Reading, and therefore I was entirely prepared for that intervention. I will give a response that is perhaps slightly unorthodox, despite the emphasis put on the Human Rights Act by my right hon. and learned Friend the Solicitor General.

In my previous role as Chair of the Defence Committee, it became more and more obvious that the Human Rights Act, and the European convention on human rights, had had serious, and perhaps largely unanticipated, adverse consequences for the operations of our military. I suspect that if applied too literally, they would have equally adverse effects on the operations of our security and intelligence services. As the years go by, and as experience shows, I fully expect that there will have to be amendments to the Human Rights Act. I believe that although terrorists could indeed read it, they would take rather more seriously a categoric list of forbidden offences in the Bill than they would the rather generalised content of the Human Rights Act. I do not expect my right hon. Friend to be wholly satisfied with that, but it is my honest opinion.

Consequently, terrorist groups whose operations might have been compromised by technical means, rather than by human infiltration, would be likely to ask their genuine members to commit more and more forbidden offences, simply to prove their loyalty. The outcome would inevitably be an increase in murders and other serious offences on their lordships’ list, which would not have happened but for the incorporation in statute of such a collection of prohibited crimes.

As I said earlier, the ISC has had a comprehensive briefing from MI5, explaining how those authorisations are used in practice. We are convinced that the Security Service uses them appropriately and proportionately. We are also reassured that the measures in the Bill legalise only what is specified in each criminal conduct authorisation. That means that any other criminal behaviour not covered by the terms of a CCA may be subject to prosecution—a safeguard that will hopefully encourage the House to reject Lords amendment 2. This is one of those occasions when it is necessary—really necessary—to keep our enemies guessing.

Joanna Cherry Portrait Joanna Cherry [V]
- Hansard - - Excerpts

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.

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con) [V]
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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.

Kevan Jones Portrait Mr Kevan Jones
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May I join colleagues in the House in sending best wishes to the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire), for a speedy recovery?

In his contribution to this debate, my hon. Friend the Member for St Helens North (Conor McGinn) said that we were talking about issues that take place in the shadows. Well, we are, because many of the activities that our security services undertake cannot, quite rightly, be talked about publicly. I wish to put on record my thanks to the men and women of our services who protect us.

The Chair of the Select Committee, the right hon. Member for New Forest East (Dr Lewis), said that covert human intelligence is important. It is, but there is an emphasis these days that, because we have electronic eavesdropping, data collection and everything else, it is a thing of the past. May I recommend that you, Mr Speaker, and other Members read John Ferris’s excellent new book on the history of GCHQ? It was always the case, even during the second world war, that human intelligence along with intercept was the way in which we got the full picture around intelligence. That is important.

Why do people become covert human intelligence sources? Having seen some of the cases, I can say that the reasons vary. In some cases, they are very brave individuals who put their lives at risk to protect others, and the interface with our security services is vital. I said on Second Reading that, sadly, certain labels got stuck on this Bill right from the beginning. It was felt that, somehow, it would allow the state suddenly to authorise everything from torture to murder. Certainly in my party, it is felt that if a Member is a true socialist on the left, they would have to oppose this Bill every step of the way. I am sorry, but I think that that is very unfortunate. People should read what is in the Bill. We should be welcoming the Bill, as my hon. Friend the Member for St Helens North said. What it is doing is putting on a statutory footing what is taking place anyway. If we look at the law as it stands at the moment, certain authorisation of and participation in criminality by CHISs has always been accepted as necessary by UK courts as long as it is proportionate to the safeguarding of the public. However, it is not on a statutory basis, so actually people who have concerns about the operation of our security services should welcome the Bill. Certainly, in MI5’s case there is an implication about this in the Security Service Act 1989, but the Bill, for the first time, puts it on a statutory footing, which we should welcome.

Having said that, there are aspects of the Bill that need to be improved. Will there be situations in which the individuals that we are talking about have to be part of criminal activity? Yes, there will be. I have been a member of the ISC for a number of years now. I have been briefed, along with other Members, by MI5 not just on this Bill but on others. I have also, in a previous inquiry, read the transcripts between handlers and CHISs. I will not divulge their contents; all I can say is that the information and intelligence obtained in the transcripts that I read was vital to disrupt a number of terrorist plots. This will not go away if we just think that it is too hot to handle; it has a real impact on our daily lives in this country in terms of national security.

I understand what those who tabled Lords amendment 1 want. They want some protection in the Bill so that the list of things that can be authorised can be a checklist. As the Solicitor General and the right hon. Member for New Forest East have already referred to, setting that checklist will make the operation of CHISs very difficult. I do not necessarily agree with what the right hon. Member for New Forest East said about the Human Rights Act, but the idea that the Bill will allow murder, rape and everything else is just not true. That assures me that the justifiable and proportional approach in the Bill is important. We also have the cover-all in terms of the Human Rights Act, so I do not accept, for practical reasons, that Lords amendment 2 would either improve the Bill or make it easier for our security services to operate.

Bob Stewart Portrait Bob Stewart
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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.

Kevan Jones Portrait Mr Jones
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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.

David Davis Portrait Mr David Davis
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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.

Kevan Jones Portrait Mr Jones
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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.

David Davis Portrait Mr David Davis
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May I, too, start by paying proper credit to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)? James is a very old friend, a very long-standing colleague and an old protégé of mine. I spoke to him only a few days ago, and I have to tell the House that, given the seriousness of the operation that he is facing, he is both calmer and braver than I would be. We wish him well.

The origins of this Bill are, to say the least, somewhat doubtful. It started out with a circumstance where the state faced the prospect of being taken to the English courts over its current practice of giving many state agencies, including the Food Standards Agency, the right to authorise any criminal activity by their informants or agents, and having that power taken away from it. That is the origin of this Bill; that is where it comes from.

So what did the Government do? They cobbled together all the existing practices of their various police, intelligence and other agencies, good and bad—there were both good and bad—and set out to put them into law. That is not just theoretically problematic; it does not work perfectly today. For example, the Investigatory Powers Commissioner uncovered a case a couple of years ago where an MI6 agent or informant clearly very seriously broke the law, in breach of the guidelines he had been given, and the agency did not even inform the Minister before it carried on and allowed him to do the same again.

I am not prissy about the operation of our intelligence and police agencies. I was one of the Ministers who took through this House the Intelligence Services Act 1994. That is the one with the so-called licence-to-kill clause—the 007 clause, section 7 of that Act—which explicitly permits the action of the agencies to commit crimes under English law, but with restrictions and ministerial oversight built into it.

Nevertheless, this Bill, unamended, in my view goes too far, as is demonstrated by the fact that the amendments in front of us today were voted for in the Lords by a past Cabinet Secretary, a past Home Office permanent secretary, a past Foreign Office permanent secretary, a past National Security Adviser, a past Director of Public Prosecutions and a past reviewer of our counter-terrorism legislation—every single one of them more familiar at a close and tactical level than any Minister serving in Government. That is not meant as an insult; it is just a fact of life.

I have sympathy with many of the Lords amendments, but the business before us today contains, in my view, two vital amendments passed in the other place: Lords amendment 4, concerning the use of children as agents; and Lords amendment 2, placing limits on the type of crime that can be sanctioned. Both are entirely sensible amendments that significantly improve the Bill.

Let me start with child spies. The use of children as undercover informants is, in my view, very largely a morally repugnant policy. It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place. The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs, or continuing victims—continuing: that is the important point—of child sexual abuse, when they are recruited as intelligence sources. We should normally be seeking to move heaven and earth to remove these children from their horrible situations. Instead, the Bill would allow them to be sent back into harm’s way with minimal safeguards in place.

I am speaking from memory here, so I hope I get this exactly right, but in the other place, an example was given of a 17-year-old who was basically sold for sex to a variety of people, along with a number of other young women and children—legally, children—under one of these CHIS arrangements, and this was allowed to continue. The result was that the child involved was the witness to a murder, and not just the witness: she was effectively coerced by her circumstance into helping to cover up the murder, having to hide the evidence and so on. This was a youngster who had been a product of the care system, who had bounced from authority to authority—as we have seen happen in so many terrible cases—yet she was left in these circumstances in pursuit of getting more information about the criminal she was under the control of.

The Bill also raises the possibility of 16 and 17-year-olds being authorised by any of a number of different agencies to spy on their parents. These agencies include police forces and the intelligence services, but it also extends to the others that the right hon. Member for North Durham (Mr Jones) referred to earlier. Do we really want to give such arbitrary and unfettered powers to such agencies? I, for one, do not under any circumstances. Amendment 4 would limit the deployment of child spies to exceptional circumstances, where all other methods to gain information have failed, and only if there is no risk of any reasonably foreseeable harm. We are not talking about MI5 or MI6 here, but about police agencies that are dealing with people, no doubt in county lines operations, sex trafficking operations and so on. Their first duty is to rescue the child, so it is an entirely sensible amendment, which I will support. It introduces real, meaningful safeguards that have been endorsed by the Children’s Commissioner.

However, on its own, amendment 4 is not enough. In its current form, the Bill also allows organisations to permit their employees and informants to commit criminal activity, with no express limit on the crimes that can be authorised—a point addressed by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee. In my view, this lack of an express limit is wrong. It can never be right for the state to authorise the gravest of crimes—we are talking about a narrow group of crimes here: torture, murder, or sexual violence—yet that is precisely what this Bill will do if left unamended. I am as sceptical about the human rights protections as my right hon. Friend, but for different reasons, and I will explain why. For a start, allowing this type of behaviour puts us out of step with our international allies. Our Five Eyes security partners recognise the need for limits. Australia, Canada, and nowadays America all have common-sense limits on what their covert agents can do to prevent this line from being crossed. We must now do the same.

Lord Carlile of Berriew, who frankly is a long-standing opponent of mine in these things—he mostly takes the authoritarian state line, despite the fact that he is nominally a liberal—has described this Bill as the most constitutionally dangerous legislation presented in his working life. I agree, which is why I support Lords amendment 2, which places clear, common-sense limits on the crimes that covert agents can be authorised to commit, ensuring that the worst crimes such as murder, torture and rape can never be authorised. It mirrors an amendment I tabled in Committee in the Commons, and if the CHIS Bill becomes law without those limits, it is almost certain to be challenged in the courts and may eventually be overturned. This will not be the first time we have been here: those who have been here for some years will remember the Data Retention and Investigatory Powers Act 2014, which went through the same process. Tom Watson and I took it to court; we won, and the Government had to rewrite it. I hope we do not have to do the same with this Bill—it would be unwise to repeat that experience.

Let me explain why that is a risk. The argument made by some hon. Members, particularly those on the Intelligence and Security Committee—who have close involvement with this issue, and whose experience I recognise—has to be put up against one test: if it is impossible for us, why is it not impossible for Australia, America and Canada? They can operate; why can’t we? The Government have to answer that question, otherwise I think they will find that this Bill will not stand.

There are real risks to providing these powers without limit. At the end of last year, the Investigatory Powers Commissioner reported that he had identified several weaknesses in MI6’s agent-running practices in the UK, leading to several errors, and, even worse, that high-risk covert agents had indulged in serious criminality overseas. Only this morning, MI5 confirmed in court that it would authorise one of its informants to carry out murder as part of its activities. So much, frankly, for the safeguards of the Human Rights Act. If MI5 is willing to say that in court, where in this exercise is the protection of the Human Rights Act, which was the Government’s defence last time and, indeed, the Minister’s defence today?

There is a real need for legislation in this area; I agree about that with pretty much everybody who has spoken. This is better in law than in some standard written inside an agency, with all the influences that being inside an agency brings to bear on it. There is a need for legislation, but this legislation is, bluntly, thrown together. In many ways, it incorporates some of the worst elements of the preceding arrangements, which need to be put right. The Minister kindly said that he will be listening before the Bill goes back to the Lords for amendment. I think there are amendments that could meet most of the concerns of those who have spoken, and that is what I would like to see before it goes back to the Lords.

Stella Creasy Portrait Stella Creasy (Walthamstow) (Lab/Co-op) [V]
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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.

Edward Leigh Portrait Sir Edward Leigh
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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.

David Davis Portrait Mr David Davis
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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.

Edward Leigh Portrait Sir Edward Leigh
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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.

Julian Lewis Portrait Dr Julian Lewis
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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.

Edward Leigh Portrait Sir Edward Leigh
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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.

Edward Leigh Portrait Sir Edward Leigh
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But if my right hon. Friend wants to defeat it, let us hear it.

David Davis Portrait Mr Davis
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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.

Edward Leigh Portrait Sir Edward Leigh
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So he says, but I am no expert.

Julian Lewis Portrait Dr Julian Lewis
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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.

Edward Leigh Portrait Sir Edward Leigh
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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?

David Davis Portrait Mr David Davis
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No. That is why we have the law

Edward Leigh Portrait Sir Edward Leigh
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I am sorry, we already have human rights legislation—my right hon. Friend places a lot of faith in that. Like my right hon. Friend the Member for New Forest East, I think we have seen numerous instances where our armed forces have been treated appallingly in the past. There is great public concern about that. We do not want to put our security services, who are living in an infinitely more dangerous world, in the same position in which we put our armed forces. The Bill as it stands is proportionate and reasonable, and there has to be an element of trust. Personally, I think that it is extraordinarily unlikely in our country that MI5, MI6 or the police forces would act in such a way that if we knew what they were doing we would be horrified and think it was corrupt or that they were somehow abusing children. I suspect that if we use minors who are 16 or 17 in a certain way that is done very carefully. I suspect that we are not initiating any new behaviour at all and we are rescuing young people from cruel fate.

Bob Stewart Portrait Bob Stewart
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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.

Edward Leigh Portrait Sir Edward Leigh
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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.

Alistair Carmichael Portrait Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]
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It is a pleasure to follow the right hon. Member for Gainsborough (Sir Edward Leigh), and I confess that I am slightly frustrated sitting here in my sitting room in Orkney. I suspect that if I were with you on the green Benches, Mr Deputy Speaker, I would have joined the right hon. Members for Haltemprice and Howden (Mr Davis) and for New Forest East (Dr Lewis) in engaging in the debate as it went along. Such is the nature of the times in which we find ourselves.

The thesis that the right hon. Member for Gainsborough offers the House tonight proceeds on the basis that it is necessary to empower those who engage in protecting us through the work of the security services, by offering them unlimited power and leaving everything up to their discretion. The thesis that I offer in rebuttal to that—this is very much in line with what the right hon. Member for Haltemprice and Howden said—is that we best serve the people who put themselves in the way of danger by laying down the limits with which we authorise their activity. It seems to me that to leave everything to their discretion means that we abdicate our duties as parliamentarians, and subcontract them to those who do not have the authority that we have, and who as a consequence are left exposed.

May I add my name to the long list of those who send good wishes to the right hon. Member for Old Bexley and Sidcup (James Brokenshire)? He is a Minister who brings an incredible amount of diligence, care and thoughtfulness to his work in the House, and it was a matter of significant regret and sadness when I heard that he found himself again unwell. No Member of the House would not concur in sending him the very best of wishes.

I thank their lordships in the other place for the manner in which they have further scrutinised the Bill. They did so in a typically thoughtful and reasoned manner, and I invite the Solicitor General to consider the nature of those who have sent us these amendments. They include Lord Anderson of Ipswich, Lord Thomas of Cwmgiedd, Lord Paddick and Baroness Hamwee, a former independent reviewer of terrorism legislation, a former Lord Chief Justice, a former senior police officer, and a distinguished legal practitioner of many decades and experience. This is not some cabal of over-zealous radicals and anarchists. These are people, men and women, who have significant experience in the realities—the practicalities—of those matters before the House. I suggest gently to the Solicitor General that their views require rather more substantial and considered rebuttal than we have heard from those on the Treasury Bench today.

I will canter through the different amendments that come to our House tonight from their lordships. On Lords amendment 1, inserting the word “reasonably” would effectively turn a subjective test into an objective test. This comes back to the point that I made at the start. It is for the benefit and protection of those who are required to engage covert human intelligence sources and send them out into the field that there should be some objective measures that they know their conduct and judgments can be measured against.

Lords amendment 2 introduces a number of limitations —Canadian-style, essentially. I thought that the objections that we heard from those on the Treasury Bench in relation to this were somewhat synthetic. In terms of our standing in the world community and as important protectors of the concept of the rule of law, I suggest again to the Minister that this is something that really requires a bit more care for our reputation on the world stage.

Lords amendment 3 is different from all the others, because all the others relate to the practice and conduct of people who are the sources, whereas this relates to those who are victims. It is entirely right that protections should be put in the Bill for those who are victims—innocent victims, in particular—of this sort of criminality. Again, I ask the Minister to reconsider the position on what is a very modest protection, but an important one none the less for those who will find themselves in that position.

The hon. Member for Walthamstow (Stella Creasy) made a powerful and impassioned case on Lords amendment 4. It is a well-accepted principle throughout the criminal and civil law of this country that we treat children differently. I again suggest that the Government need to be a bit more circumspect in relation to that.

I thought that the hon. Member for Bromley and Chislehurst (Sir Robert Neill) dealt very effectively and eloquently with Lords amendment 5. In the event that conduct is deemed to have been unlawful, even retrospectively, surely that is the point at which it should be stopped. The Government’s case that our intelligence services can serve the national interest by continuing with conduct that has been considered by a judicial authority to be unlawful undermines the force of their arguments.

I want to remind the House of the genesis of this legislation. As the right hon. Member for Haltemprice and Howden and the right hon. Member for North Durham (Mr Jones) touched on, the third direction by the former Prime Minister was being tested in the investigatory powers tribunal. The Government had what I think would be best described as a narrow squeak there, and it was then, as a measure of some panic, that they decided to bring in this legislation in anticipation of the fact, or in fear, that their position would be overturned in the Appeal Court. I think that that was a not unreasonable view to be taken by the Government in all the circumstances. It is worth noting, in relation to the effectiveness of the Human Rights Act as a protection in this area of law, that not only is the Human Rights Act itself under review by the Government, but that the reliance on the Human Rights Act in Parliament stands in very stark contrast to the repudiation of it being applicable in their pleadings in the tribunal. I do not think the Government can have it both ways. The bringing of the Bill is in itself is a good and worthy ideal, but these are matters that should be regulated by Parliament. We realise that this is not done for any sort of Damascene conversion, but that it is, in fact, a panic measure.

The thinking behind the Bill seems to be that the Government accept that there has to be change inasmuch as the regulation of this activity has to be put on to a statutory footing. At the same time, however, they want to do it in such a way that nothing actually changes. It is done on a fairly crude world view, if I may say that. Somehow or other, law enforcement is always about good guys doing good things, pursuing bad guys who have done bad things. Those of us who have worked in the criminal courts and elsewhere know that is often a bit more nuanced than that. The sort of world view that brings this legislation is one which very quickly brings us to the point where the end can be seen always to justify the means. The bottom line is that those who are involved in these difficult areas of judgment very often do get them wrong.

I offer not a directly applicable example here, but one that I think should give the House cause to pause: the operation under the Blair Governments of extraordinary rendition and the cases of Boudchar and Belhaj. Jack Straw, as Foreign Secretary, and Mark Allen were essentially responsible for the rendition of Belhaj and Boudchar to Libya—incredibly, to say it now—and they did so in contravention of every stated Government policy. Ultimately, those cases were required to be settled with non-disclosure agreements and substantial amounts of public money paid in compensation.

Those cases illustrate the fact that there is a need for us as Parliament to put limits on what can be done by those who we charge to operate in this field. It should not be prescriptive, but it should be something that is there to which they can have reference, so that we can have security of knowledge that the work they do on our behalf is done properly. That is what these amendments are about. That is why this Bill has gone so badly wrong. The amendments from the other place seek to improve the Bill and my party will this evening vote in support of maintaining them.

Geraint Davies Portrait Geraint Davies (Swansea West) (Lab/Co-op) [V]
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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.

Imran Ahmad Khan Portrait Imran Ahmad Khan (Wakefield) (Con) [V]
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I would like to take a moment to wish my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) a speedy recovery and thank him for all his hard work in his role as Minister for Security.

This Bill provides our operational agencies with the powers required to enhance our national security, protecting British citizens from those who seek to do them harm. When a story relating to covert intelligence breaks in the news, there follow lazy and ill-informed references to James Bond and a licence to kill. We in Parliament have a duty to keep the discourse on this topic sensible. James Bond is a magnificent manifestation of the United Kingdom’s creative arts. He does not, however, reflect the reality of the serious work that goes on in the intelligence services. Those brave men and women do not have a licence to kill or needlessly commit crimes, but have chosen to put themselves at risk for our common safety. The best way to express our gratitude to those who serve this country is for us to help stop sensationalising this issue. It pollutes the debate and does nothing to help pass effective legislation that simultaneously safeguards security and human rights. I am committed to both, and it is a mistaken belief to maintain that security and human rights are mutually exclusive, for in truth they are mutually reinforcing.

Covert human intelligence sources operations have proven their effectiveness. CHIS-led operations have allowed the National Crime Agency to disrupt over 30 threats to life, safeguard over 200 people and seize 60 firearms from those who may use them to do harm. Between 2017 and 2019, HMRC CHIS have prevented hundreds of millions of pounds in tax loss, including one case that was estimated to have prevented a loss of over £100 million.

I recognise that some of the amendments sent by the Lords wished to safeguard vulnerable and juvenile CHIS and ensure that operatives do not take part in the worst type of crimes, such as rape or murder. Certainly, I understand the thinking behind these amendments, but I do not support them. With regard to juvenile and vulnerable CHIS, Her Majesty’s Government have put forward substantial amendments to the Bill to ensure that robust safeguards are established for the very rare circumstances when juvenile CHIS may be tasked with participating in criminal activities.

The Government amendments leave no doubt that the authorising officer has a duty to safeguard and protect the best interests of the juvenile. This duty is a key factor in any decision for the authorisation of a mission. The amendment proposed by the Lords certainly raises the importance of ensuring that CHIS are adequately protected from harm, but ultimately it would undermine our ability to tackle criminal activities. I have an extract from the report from the Investigatory Powers Commissioner that demonstrates the importance of juvenile CHIS:

“In one such case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group. The juvenile owed money to the group and approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”

With regard to concerns that the Bill allows operatives to get away with the worst types of crimes, let me say this: the Bill has already outlined that authorisation is only granted by highly trained authorising officers, who work within and maintain strict operating parameters. Crucially, there are clear and regulated limits to the types of criminal activities that may be conducted. As part of our obligations under the European convention on human rights, the prohibition of torture and subjection of individuals to degrading treatment is strictly enforced. Further, all activity is overseen by the independent Investigatory Powers Commissioner, who ensures that accountability is maintained throughout the process of any such operation. It is crucial that the ISC and the Investigatory Powers Commissioner have proper oversight and that such oversight is published.

In ensuring greater accountability, more effective oversight should be promoted. I am not alone in taking that view, but share it with those possessed of particular understanding and expertise in these matters. For example, that view is at the centre of the research by Professor Rory Cormac of the University of Nottingham, who is one of the country’s leading experts on covert intelligence. A number of points that I have made are mentioned in his research, including his book “Disrupt and Deny”, which I recommend to colleagues. One point stressed by Professor Cormac is that CHIS have to be able to commit certain crimes in order to be credible, gain information and/or engage in covert operations.

Regulation is certainly crucial to prevent problems such as the collusion in Northern Ireland from ever arising again. Any co-operation with violent non-state actors must be properly regulated to prevent officers and agents from getting ahead of themselves and interpreting their own parameters too broadly. The Bill would make such activity less likely, while allowing those who take risks with their lives to keep us safe the support that they need to be successful. I do not doubt the well-meaning intentions of the Lords amendments or the concerns surrounding the Bill; however, the Bill will ensure that regulations and processes are effectively enforced, preventing officers from acting autonomously or beyond their remit.

As I have said previously, protocols are already in existence that ensure that the interests and safety of juvenile and vulnerable CHIS are maintained; however, I am gladdened that additional measures are being considered to bolster the existing provision. Without such operatives working within strict parameters and with the necessary oversight, as outlined in the Bill, we, and all that we care about most, would be less secure.

Apsana Begum Portrait Apsana Begum (Poplar and Limehouse) (Lab) [V]
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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.

Michael Ellis Portrait The Solicitor General
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With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.

First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.

Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.

The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.

We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.

I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.

Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.

I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.

My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.

Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.

I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.

The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.

Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.

Conor McGinn Portrait Conor McGinn
- Hansard - - Excerpts

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?

Michael Ellis Portrait The Solicitor General
- Hansard - - Excerpts

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.

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.

Lords amendment 5, as amended, agreed to.

Clause 1

Authorisation of Criminal Conduct

Motion made, and Question put, That this House disagrees with Lords amendment 4.—(Michael Ellis.)

Lords amendment 4 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.

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.

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
- Hansard - - Excerpts

In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.

Medicines and Medical Devices Bill (Programme) (NO.3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Medicines and Medical Devices Bill for the purpose of supplementing the Order of 2 March 2020 (Medicines and Medical Devices Bill (Programme)), as amended by the Order of 22 April 2020 (Medicines and Medical Devices Bill (Programme) (No. 2)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement.

Subsequent stages

(2) Any further Message from the Lords may be considered forthwith without any Question being put.

(3) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Rebecca Harris.)

Question agreed to.

Covert Human Intelligence Sources (Criminal Conduct) Bill

(3rd reading (Hansard))
(3rd reading (Hansard): House of Lords)
Thursday 21st January 2021

(1 month, 2 weeks ago)

Lords Chamber

Read Hansard Text
Home Office

Third Reading

Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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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.

Lord McNicol of West Kilbride Portrait The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
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I call the Minister to make a Statement on legislative consent.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I have just done that.

Clause 4: Corresponding provision for Scotland

Amendment 1

Moved by

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.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.

Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.

In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.

First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.

In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.

How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if

“all or some of the conduct … is likely to take place in Scotland.”

If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.

Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.

Lord Rosser Portrait Lord Rosser (Lab) [V]
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I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.

The letter from the Minister of 13 January states that the Scottish Government

“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”

As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?

Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
- Hansard - - - Excerpts

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

Moved by

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

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.

Amendments 2 to 4 agreed.

Clause 8: Extent and short title

Amendment 5

Moved by

5: Clause 8, page 8, line 25, leave out subsection (3)

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.

Amendment 5 agreed.

Schedule 1: Corresponding amendments to the Regulation of Investigatory Powers (Scotland) Act 2000

Amendment 6

Moved by

6: Schedule 1, leave out Schedule 1

Member’s explanatory statement

This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

Amendment 6 agreed.

Schedule 2: Consequential amendments

Amendments 7 and 8

Moved by

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

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.

8: Schedule 2, page 14, line 27, leave out paragraph (b)

Member’s explanatory statement

This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

Amendments 7 and 8 agreed.

Motion

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

That the Bill do now pass.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

My Lords, I beg to move that the Bill do now pass.

Amendment to the Motion

Moved by

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb
- Hansard - - - Excerpts

“Leave out from “that” to the end and insert “this House declines to allow the bill to pass because the bill (1) grants blanket prior legal immunity for otherwise criminal conduct without sufficient safeguards or oversight, (2) provides no system of prior judicial authorisation, (3) does not recover profits obtained under a Criminal Conduct Authorisation which could include proceeds from the sale of drugs, weapons, human trafficking and slavery, (4) fails to provide compensation to victims of crimes authorised under the bill, and (5) represents a significant expansion of undercover policing despite, and without regard to, the ongoing Undercover Policing Inquiry.”

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
- Hansard - - - Excerpts

My Lords, noble Lords can imagine that there is a lot of legislation going through this House that I oppose. In the past, I have exercised restraint and have not been disruptive with procedural Motions, but there are times when we all need to make a stand, and this Bill, for me, is one of those situations. It is a terrible piece of legislation and I cannot be complicit in it, nor in future acts of state oppression that will be the result of our passing it, and I will, therefore, divide the House.

Noble Lords have spent many days trying to improve the Bill, and we have made a few positive steps, but even if the other place does not remove most of those amendments, the Bill is still so fundamentally flawed that it should not be allowed to pass. Scotland has had the sense to refuse the Bill and I wish that we would do the same. I was subject to police surveillance for more than a decade. I did not know about it, it did not affect me, and even when I found out, it really did not affect me very much—but others in your Lordships’ House were subject to similar but much worse surveillance, and many will not even know whether they were observed and under surveillance or not. The Bill does nothing to improve that situation; in fact, it will make things worse by granting total legal immunity to undercover officers, spies and informants.

There is also the fact that the Bill has been brought forward while the Undercover Policing Inquiry is still going on. Not far from here, that inquiry is hearing evidence about police infiltration of peaceful campaign groups and unions, and undercover officers forming sexual relationships with women. The Bill learns no lessons from that inquiry and does nothing to support the victims. It actually grants much broader legal immunity to the wrongdoers.

I am also concerned that I did not get a proper answer to my repeated questions about the proceeds of crimes authorised under the Bill. My conclusion is that the police will be able to authorise people to profit from criminal activities, and that there is no way for the state to recover those profits. I hope there will not be too many miscarriages of justice and abuses of power before we revisit and repeal this legislation. With all that in mind, I am sad that I am in a minority in opposing the Bill, but I cannot in conscience abstain and accept its passage. I beg to move.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) [V]
- Hansard - - - Excerpts

My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.

This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.

I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
- Hansard - - - Excerpts

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB) [V]
- Hansard - - - Excerpts

My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.

It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.

The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.

Lord Hendy Portrait Lord Hendy (Lab) [V]
- Hansard - - - Excerpts

My Lords, it is my particular pleasure to follow the noble Lord, Lord Carlile, although it is a particular discomfort to me to disagree with him on this occasion. The Bill proposes that the state should have the power to grant immunity for crimes committed in the future by agents on its behalf. I believe that the grant of such immunity is contrary to the rule of law, which prescribes that all are bound equally to observe the law, not least the criminal law. The fact that such immunity will derive from legislation if the Bill becomes law does not alter my belief.

Giving the state the power to exempt prospectively its agents from criminal law is the antithesis of this fundamental principle. A decision to prosecute or not should be granted only retrospectively, when all the facts and circumstances of the conduct at issue are known, including the nature of any authorisation and, above all, whether it is in the public interest to prosecute. The CPS makes such decisions all the time; that is compatible with the rule of law and equality before the law. This arrangement, as far as is known, has worked perfectly satisfactorily for the last 200 years. Instead, the Bill overturns this status quo, challenges the rule of law and gives the state unparalleled powers. I regret that on this occasion I cannot follow the advice of my noble friends on my party’s Front Bench and, as a matter of conscience, I am obliged to vote against the Bill.

Lord West of Spithead Portrait Lord West of Spithead (Lab)
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My Lords, I, too, thank the Minister for all the consultation she has gone through, and the Government for their flexibility in adjusting the Bill to the stage it has reached. I am also always pleased to follow the noble Lord, Lord Carlile, and find that I think along the same lines as him, as I did when I was the Government’s Security Minister and he was outside the box, looking in to make sure that we behaved.

I am speaking against the amendment of the noble Baroness, Lady Jones, albeit that she put it eloquently. We should be proud of the Bill. Putting our covert human intelligence agents’ behaviour on a statutory basis is to be praised. As I have said, agents save lives. In working under cover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration to say that they could be killed. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. This has been strengthened in our debates and we should be proud of that. The ISC believes that there is a need for such authorisations. It also supports the Government’s decision not to place limits on criminal conduct in the Bill itself for the reasons that were debated.

I have thought long and hard about the use of children and I have to say that, initially, I was very concerned about it. As an aside, I do not consider 16 to 18 year-olds children, but that is a different issue. As regards the use of those aged below 16, I now believe that they should be used in exceptional circumstances, and appropriate safeguards are in place to ensure that that can be done to maximum gain and with minimum risk.

In summary, as I say, we should be proud that we have put this issue on a statutory basis. The Bill is a necessary and useful piece of legislation.

Lord Marlesford Portrait Lord Marlesford (Con) [V]
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My Lords, in nearly 30 years in your Lordships’ House, I have never seen a piece of legislation that has made me more uneasy than this Bill. To me it is counterintuitive to give anyone the power to pre-empt the application of the criminal law .

I of course support the need to do all that is necessary to protect our national security and to detect and prevent serious crime, but it should have been possible to find other means. To choose this moment to extend in legislation the legality of law-breaking seems most unwise. This, after all, is a time when Russia is without compunction using, both at home and abroad, deadly poisons to eliminate its enemies. When it succeeds, it denies it. When it fails, its leader blithely explains that when it wants to kill, it succeeds.

I give one simple and deliberately irrelevant example. If a burglar is killed by a householder protecting himself or his family, it is unlikely that a jury will convict him of murder or even manslaughter. That does not mean, however, that we should legislate to give ex-ante immunity to householders who kill burglars.

I have one more word on journalists. I tried to persuade your Lordships to require judicial authorisation for any requirement to force journalists to reveal their sources in cases covered by the Bill. The amendment was defeated by seven votes but I was comforted by the fact that three former Cabinet Secretaries voted for it.

The Bill will now pass, and I shall vote for it, but let us agree, at least informally, that its implementation should be monitored with rigour. All societies must defend their security but open societies must take especial care of how they do so. Yesterday, President Biden told the American people that

“we’ll lead not merely by the example of our power but the power of our example.”

Lord Rooker Portrait Lord Rooker (Lab) [V]
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My Lords, the noble Baroness, Lady Jones, is absolutely right to bring forward her amendment to the Motion. I might want to criticise the details, which I do not intend to do, but she is right to do so. In fact, it would have been inconsistent with her rigid approach to the Bill for her not to do so. So, to that extent, I support her right to table the amendment; there is no question whatever about that. It gives me an opportunity to further vote for the Bill because I will not support the amendment to the Motion.

The noble Lord, Lord Marlesford, just made a point about the open society. This is a problem and there is a disquiet here. As an open society, we need to protect our openness. However, when that openness is the very thing used to undermine and smash our open society, we have to say no. We have to have a process that defends our open society and is consistent with the rule of law. The Bill is perfect for that. I have no doubt that in future the Bill will be amended, but the language that has been used about it is extravagant and misleading.

I see that on Twitter it is described as the “Spy Cops Bill”. It has nothing to do with spy cops. It is completely different and that can be misleading. If I was a CHIS in Scotland, I would be a bit concerned at the moment about becoming a whistleblower because I am not sure whether the Scottish Government are fully behind the process.

Perhaps I may briefly also express thanks. I have not been involved in the detail but I took up the Minister’s opportunity for a discussion with the Bill team and some of the advisers, which I found useful. Indeed, as a result, they published more information. The case studies, which I used extensively on Report, should have been deployed even more. There has been a communication issue regarding the Bill, which I find a fault because the Government have not defended and promoted some of its practical aspects as much as they could have.

The Bill protects covert human intelligence sources. It makes sure that they are not put at risk by being tested by the criminal gangs they may have been sucked into involuntarily, as mentioned in some of the examples used in the case studies. It is not the case that all people knowingly go down that route; they get sucked in by their employers. As a non-expert in this area, I found the newly published guidance incredibly helpful.

My final point is on the pejorative language used, such as when quangos are dismissed as not important. Most of the quangos listed in the Bill are non-ministerial government departments and should not be dismissed by saying, “Oh, it doesn’t matter”. I find that kind of language unacceptable among parliamentarians because it deliberately seeks to mislead the public regarding what the Bill is about. It should stop.

Lord Paddick Portrait Lord Paddick (LD) [V]
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My Lords, I have a lot of respect for the noble Baroness, Lady Jones of Moulsecoomb, and we support the spirit of her amendment to the Motion to the extent that we oppose the granting of legal immunity. We believe that the Bill undermines the rule of law—that is, the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes. As a result of the Bill, that is called into question, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hendy, have said.

Where a police officer or member of the security services tasks a covert human intelligence source to commit an act defined in law as a crime, the person tasked will no longer be subject to publicly disclosed legal codes and processes. An existing system that has worked effectively for decades, whereby informants and agents are tasked to commit crime and the decision, almost without exception, not to prosecute is taken by the relevant prosecuting authority, after considering all the facts, will be swept aside.

It is to be replaced with what we consider an unsafe and undesirable power, vested in the hands of the police, the security services and numerous other public authorities, to grant legal immunity with no prior judicial authority. The main issue is not, as the noble Baroness, Lady Jones, says in her amendment to the Motion, that there are insufficient safeguards or oversight, although this is arguably true. It is the fact that immunity can be granted at all, making the illegal legal. That is the fundamental issue for us on these Benches. I expect the legality of this aspect of the Bill to be challenged in the courts. That said, the House fully debated this aspect of the Bill, and without the support of the Labour Party leadership, we on these Benches were unable to remove it.

Contrary to the amendment to the Motion in the name of the noble Baroness, this House has clarified the existing position and improved the Bill, to ensure that innocent victims of crimes committed by those instructed to do so by state agents can seek compensation. Contrary to her amendment to the Motion, undercover policing is not being expanded by the Bill, although the Bill has shone more light on this aspect of policing. The number of public authorities that can deploy covert human intelligence sources has been reduced by the Bill. The directed criminal activity of those informants and agents has been placed on a statutory footing, rather than the Bill enabling it to increase.

From the start, we recognised the need to place the tasking of covert human intelligence sources to commit crime on a statutory basis, which this Bill does. We have improved the Bill in some important respects—the safeguards for children and vulnerable adults, for example, despite our fundamental misgivings over immunity. Therefore, with regret, we cannot support the noble Baroness’s amendment to the Motion.

I thank the Minister and the Bill team for their work on the Bill; our Labour colleagues and their staff for their assistance and co-operation on those aspects that we were able to agree on; and those on the Cross Benches who have liaised with us. I also thank my staff and colleagues for their help with what has been a very difficult Bill for me, personally, because of my previous professional experience of this difficult area of policing and because of my knowledge of the very real opportunities that the Bill presents for corruption and malpractice. The amendments that this House has introduced are the very minimum required and we will resist any attempt to remove any of them.

Lord Rosser Portrait Lord Rosser (Lab) [V]
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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.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who have spoken to this amendment to the Motion. I join other noble Lords in thanking the police, MI5 and other operational partners who will now, I hope, have a clear statutory framework and, as the noble Lord, Lord Carlile, says, the accompanying code of practice, which will also have the full force of law in which to operate.

I hope that the Government have put forward their case, in spite of some of the unique challenges relating to the sensitivity of this tactic and that noble Lords are reassured that I have been listening and will continue to listen to the strength of views that have been put forward on certain issues. I am happy to discuss any issue further and urge noble Lords to take that course of action if they have any remaining concerns, rather than support the amendment in the name of the noble Baroness, Lady Jones, which would cause the Bill to fall.

My noble friend Lord Marlesford talked about the implementation being monitored with rigour and I totally agree. Any legislation brought before Parliament must have that rigorous monitoring behind it. Every time the noble Lord, Lord Rooker, has spoken on the Bill, I felt like saying, “I refer noble Lords to the comments of the noble Lord, Lord Rooker”. He talked about the case studies which were much asked for at the beginning of the debates on the Bill and, once forthcoming, as the noble Lord said, almost forgotten about.

It is also worth considering that, without the power or activity that the Bill provides for, the NCA would have been unable to take almost 60 firearms off the street in 2018 alone and the Metropolitan Police would have been unable to seize more than 400 kilograms of class A drugs between November 2018 and November 2019. MI5 and CT policing would also have been impacted in their ability to thwart some 27 terror attacks since March 2017. I do not think that any noble Lord would want to prevent this criminality being stopped in future, which is what the amendment would do.

I acknowledge the important principles behind much of our debate on the Bill—Parliament needs to reassure itself that there is suitable oversight in place, and we have really interrogated that. While strong and differing opinions have been expressed on how to legislate for this activity, I pay tribute to the quality of the debate, despite fundamental differences, and the passionate and articulate way in which noble Lords have relayed their views.

I hope that, during the course of the debates, I have demonstrated the significant safeguards that exist and some of the additional ones that, as the noble Lord, Lord Paddick, and others have said, have now been inserted. Highly trained and experienced authorising officers must assess that an authorisation is necessary and proportionate. That authorisation must be compliant with the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. The authorisation is then overseen by the independent Investigatory Powers Commissioner, who reports his findings in his annual report and, thanks to amendments supported by noble Lords, will now consider each and every authorisation within seven days of it being granted. The IPT then offers an entirely independent judicial mechanism for anyone who is concerned that they have been subjected to improper action by any user of an investigatory power.

I hope that the Division that I know the noble Baroness is going to call will not succeed, and I hope that the Bill will now go back to the other place so that it can consider the amendments that noble Lords supported on Report. The Government are committed to providing any additional reassurance to command the support of Parliament and, of course, to keep the public and CHIS safe.

I will conclude there because I realise that we have combined speeches from the debate on the amendment with the final concluding remarks, but I join the noble Lord, Lord Rosser, in thanking the Opposition Front Benches, everyone who has contributed to these debates and all the staff who support us. I hope that the noble Baroness will feel able to withdraw her amendment, but I suspect that that is not about to happen.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

(Report: 2nd sitting (Hansard))
(Report: 2nd sitting (Hansard): House of Lords)
Wednesday 13th January 2021

(1 month, 3 weeks ago)

Lords Chamber

Read Hansard Text
Home Office

Report (2nd Day)

Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee

Clause 1: Authorisation of criminal conduct

Amendment 12

Moved by

12: Clause 1, page 3, line 2, at end insert—

“( ) A criminal conduct authorisation may not be granted to a covert human intelligence source under the age of 18.”Member’s explanatory statement

This amendment would prohibit the granting of criminal conduct authorisations to children.

Lord Young of Cookham Portrait Lord Young of Cookham (Con)
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My Lords, in moving Amendment 12, which seeks to prohibit the granting of criminal conduct authorisations to children, I wish to speak to Amendment 13, which does the same for vulnerable adults and victims of trafficking. These amendments build on proposals from me and other noble Lords in Committee. I will then say a brief word about Amendment 24 in the name of the noble Baroness, Lady Kidron, to which I have added my name. It does not offer all the protection of my amendments, but it is a useful advance on where we are at the moment and may provide the basis for consensus. The arguments for Amendments 12 and 13 apply with equal force to Amendment 24.

Let me begin by thanking Ministers for the extensive discussions between Committee and Report, and for facilitating a presentation by those in the Met Police who are at the operational end of the policy and a briefing with IPCO. Both were helpful in getting an insight into the reasons for using underage CHIS and the way the regime is supervised. I am also grateful to my noble friend the Minister for recognising the concerns expressed by me and others in Committee, and for tabling amendments with additional safeguards. As always, she has gone the extra mile to try to reach a compromise; it sounds churlish against that background to say that I still believe it wrong to use children.

Let me briefly summarise the argument for banning the use of children as CHIS—a reform whose time will surely come, when what happens now will be regarded as Dickensian. First, we have the clearly stated view of the Children’s Commissioner, who has a statutory role to advance and monitor the UN Convention on the Rights of the Child:

“The Children’s Commissioner remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS.”

That is pretty unequivocal.

Secondly, we have the Children Act 2004. Section 11 states that public bodies, including the police and other law enforcement entities, must have

“regard to the need to safeguard and promote the welfare of children”.

This red line is embedded in our legal system. We are signatories to the United Nations Convention on the Rights of the Child, Article 3 of which provides:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

How can one promote the welfare of a child or act in its best interests by tasking some of the most vulnerable children in this country—some as young as 15—with infiltrating some of its most dangerous organisations and groups, including drug cartels, sex-trafficking rings and, potentially, terrorist cells? The circle cannot be squared. Either the interests of children are paramount or they are not.

Thirdly, children—often vulnerable, yet to come to terms with adulthood—are unable properly to assess the risk of what they are being asked to do, or even the extent of the mission. Those under 18 are legally children, whom Parliament has decided cannot be entrusted with a vote, get married or, indeed, buy alcohol. How can it be that a child as young as 15 can give their full and informed consent to being placed in a sexually exploitative environment, particularly given the pressures on them to do so from people in authority—and, indeed, the incentives that we have heard are being offered—from people whom they should trust and who might have been expected to save them?

Fourthly, related to that, far from encouraging children to get further entangled in criminal activities, those who have the best interests of children at heart should do precisely the opposite: disengage them from that environment at the earliest opportunity and so help them to rebuild their lives away from crime. The police should be pulling children away from criminality at every turn instead of pushing them further into the arms of serious criminals, often being asked to continue a harmful relationship, commit crimes and penetrate criminal gangs.

Fifthly—and finally—using underage CHIS is risky, as everyone recognises. However careful the authorisation, harm may come to a child. Their cover may be blown; reprisals may be taken. I make one prediction: if, tragically, an underage CHIS were to be killed, the policy would be reversed the next day after a public outcry and incredulity that this was permissible. What is proposed in the Bill is that the state should have immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism expressly to permit the harming of children, and Parliament should stop it.

In Committee, there were 14 Back-Bench speakers, a large majority supporting the amendment and others seeking greater justification for the policy before deciding. I mention one or two contributions from among the many remarkable speeches. There was the noble Lord, Lord Dubs, who, before the debate, believed that there were circumstances when the policy could be justified but, having listened to the arguments, declared himself in favour of an outright ban. There was the noble Baroness, Lady Young of Hornsey, who powerfully asked us to consider putting our own 15 or 16 year-old into the role of a CHIS. Unsurprisingly, my noble friend the Minister acknowledged that this would be very difficult indeed for her to imagine.

In her speech, my noble friend pointed to the judgment of Mr Justice Supperstone, in which he considered this very issue of children’s welfare. She also referred to it in the email that we received at 1.58 pm. Understandably, I have not time to absorb that fully, but the Supperstone case does not apply exactly to the question at hand. Because of the scope of the Bill, the amendment cannot, sadly, prohibit the tasking of children as CHIS; it can only prohibit them being granted criminal conduct authorisations. There is a difference between passively observing criminal activity, as in the judgment, and blessing in advance the commission of a crime, as in the Bill. Further, the court recognised:

“The very significant risk of physical and psychological harm to juveniles from being a CHIS in the contact of serious crimes is self-evident”.

The Bill goes above and beyond what courts have previously assessed by enlarging the scope of activity for underage CHIS.

After the debate, the Minister kindly arranged for the noble Earl, Lord Russell, and me to talk to two police officers from the Met with direct experience of handling underage CHIS. I was impressed by their determination to ensure that the law and guidance were properly followed. Records are kept, decisions and reasons are recorded, and alternatives are considered before authorisation.

I make two comments, which are not criticisms. First, once the case has been closed, there is no way that they would know if there had been any long-term impact on the child, who may by then be over 18, or what they had been through—a point well made by the noble Baroness, Lady Bull, in her speech in Committee. We know that trained police officers going undercover suffer from the consequences. Those who are underage will be even more vulnerable.

Secondly, their interpretation of whether the circumstances are so exceptional that an underage CHIS should be used comes from the perspective of the police. Their very mission is the prevention and detection of crime. Their interpretation may be different from that of, say, the Children’s Commissioner, who, as I have said, believes that there are no circumstances where this is justified. The children’s social workers or parents, none of whom have to be consulted or informed, might similarly come to a different view as to whether the circumstances warranted a CHIS. The decision is essentially a subjective one.

I am grateful to the Minister for listening to the debate and for tabling amendments; it is welcome that the Government have come forward with them. However, it is with some regret that I say that those amendments would not make a material difference to the lives of child CHIS. Indeed, they would make no difference at all to vulnerable individuals or victims of trafficking, since they are not contemplated whatever—something my Amendment 13 would put right.

My concerns with the government amendments in this group are threefold. First, the proposals go no way to tightly defining the exceptional circumstances in which a child can be deployed. As I have said, there is an element of subjectivity about this. What level of risk of harm do the Government consider it appropriate for a child or, indeed, a vulnerable adult to endure? Secondly, the additional “protections” provided appear to be minor additions, or mere reflections, of pre-existing measures already found in the code of practice or the order. Thirdly, the supposed safeguards are provided by way of secondary legislation. My preference would be for any provisions to be detailed in the Bill itself, given the lesser amount of scrutiny provided to such instruments, as well as the fact that it is much easier for future Governments to remove, amend or water them down, should they so desire.

Amendment 13 extends the exemptions to vulnerable adults and victims of trafficking and many of the argument are similar, so I will not repeat them.

Finally, I have co-sponsored Amendment 24, along with the noble Baronesses, Lady Kidron and Baroness Hamwee, and the noble Lord, Lord Kennedy of Southwark. While that amendment would not prohibit the practice entirely, it would serve as a marked improvement on the status quo and ensure that the circumstances in which such groups are deployed are truly exceptional. There would be a guarantee that they could be engaged only where such authorisation is necessary and proportionate, considering the welfare of the source. The practice should be compatible with, and not override, the best interests of sources under the age of 18. Deployment could be granted only after all other methods to gain information have been exhausted, and if the source is not at risk of any reasonably foreseeable harm, both physical and psychological, arising from such deployment.

These requirements should make the deployment of children, vulnerable adults and victims of trafficking very difficult indeed, and impossible where there exists any risk to their physical and psychological well-being—risks that are certainly imposed on many of those currently deployed.

Depending on the contributions to this debate, particularly those of the official Opposition, I reserve the right to test the opinion of the House on Amendments 12 and 13, but I hope that the noble Baroness, Lady Kidron, when the time comes, will press Amendment 24 if it is not accepted by the Government. I beg to move.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen (Lab) [V]
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My Lords, the noble Lord, Lord Young, has spoken passionately and eloquently about protecting children, as he did in Committee. He made an excellent start to this debate.

I shall speak to Amendment 14, which prohibits the authorisation of criminal conduct by children without specific prior judicial approval. I thank the Minister for arranging for my noble friend Lord Dubs and me to meet officials in the Home Office to discuss this amendment. This was useful and informative but my concerns remain about the use of children in criminal circumstances.

The Joint Committee on Human Rights, of which I am a member, reported on the Bill last November. The government response to the report was published on Monday and makes substantial reference to criminal conduct by children, for which I am grateful. I shall refer to those reports.

I come to the Bill as someone who has worked with children—anyone under the age of 18, as defined in the UN Convention on the Rights of the Child—for many years. I am not sentimental about children, but I believe that they have rights as set out in the UNCRC— not just legal rights, although they are important, but moral and ethical rights such as protection, safety, family life and the right to be heard. Societies that nurture, cherish and attend to the total welfare of children are civilised societies. No society should endanger children. They need protection but also empowerment to take responsibility for themselves and others, and to learn to express opinions constructively. I like to think that the UK aspires to these principles of the UNCRC which it has ratified. We are fortunate in this country in having an articulate, dedicated voluntary sector for children that keeps us vigilant to their needs.

I cannot see how a child could be used to commit a criminal offence without there being a risk of danger, physical or psychological. As the noble Lord, Lord Young, said, I would prefer children not to be working as CHIS at all, but if they do we must make the situation as watertight as possible. I and other noble Lords know of cases where children have been let down and exploited by systems, and fallen through the net to physical and psychological harm, sometimes death. That must be prevented at all costs. It is why my amendment seeks high-level judicial approval before a child can take part in criminal conduct. The organisations Justice, Just for Kids Law and the Children’s Rights Alliance for England call that “meaningful safeguards”.

Amendment 24 in the name of the noble Baroness, Lady Kidron, and other noble Lords is very worthy. The noble Lord, Lord Young, referred to it as a useful advancement. I recognise also that she and her co-signatories are people who also care deeply about children’s welfare. That amendment extends additional protection not only to children but to vulnerable adults. That is important but, and this is a big “but”, it does not provide for independent judicial scrutiny of a CCA being made in respect of a child or other vulnerable person. It imposes a requirement that there should be exceptional circumstances before an authorisation is granted and makes it clear that other interests cannot be more primary than the child’s, and that it must have been determined that the child will not be in any danger of foreseeable physical or psychological harm. That amendment also makes compulsory the presence of an appropriate adult for all under-18s when meeting with the investigating authority. It requires any use of a CCA in respect of a child to be reported to the Investigatory Powers Commissioner within 18 days.

Amendment 24 meets most of the concerns of the Joint Committee on Human Rights about the welfare of children under CCAS. However, a major concern is that there is no independent decision-maker—only independent review after the event by the IPC. This system can pick up an abuse of power only when it has happened. Tough, independent assessment of whether a child should be used as a CHIS should be made before the child moves into a dangerous situation. I am sure the people working with these children are caring and professional, but this is such a serious issue for children that a judicial commissioner should look at each case and make the final decision.

I know that the Minister, speaking on different amendments on Monday, said that she could not agree with prior authorisation. I am not sure why. It may be that she can tell me more. There are not that many children in such a position—between 12 and 17 between 2015 and 2018. Undue delay would therefore be unlikely and the children’s cases would have double scrutiny, which is what they deserve, due to the seriousness of what they are being asked to do. If Amendment 24 is accepted by the House, I shall not put my amendment to the test but will suggest further action. The government amendment does not add much to what we have already heard, and we need to go further. That amendment, however, recognises that there are concerns about authorising children as CHIS and makes efforts at reconciliation, as the noble Lord, Lord Young, said.

This issue is not new. The Joint Committee on Human Rights raised concerns in 2018 and 2019 with the Minister for State for Security and Economic Crime and the Investigatory Powers Commissioner. In 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 of the European Convention on Human Rights. The court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was

“liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”

The Joint Committee on Human Rights concluded that the Bill must be amended to exclude children or to make clear that children may be authorised to commit criminal offences in only the most exceptional circumstances. I suggest that those exceptional circumstances should have independent consideration at the highest level.

The Government’s response to the JCHR report gave considerable space to discussion of these issues in relation to chapter 6 of the report. But they came up with, to me, a rather tenuous argument, stating that

“young people may have unique access to information that is important in preventing and prosecuting gang violence and terrorism. This helps remove from the cycle of crime not only the young person … but other young and vulnerable individuals caught in criminality. We should also acknowledge that by universally prohibiting the authorisation of young people to undertake criminality we are increasing the risks to them and placing them in an even more vulnerable position. If criminal gangs … know that a young person will never be authorised by the state to undertake criminality, such groups will be more likely to force young people to engage in criminality, confident in the knowledge that they could never be a CHIS”.—[Official Report, 3/12/20; cols. 937-8.]

I can see absolutely no logic in that statement.

Indeed, a former undercover police officer, with experience of being a CHIS, has said that

“Children recruited as informants are also highly likely to end up getting drawn back into criminality and feeling trapped in their situation.”

I am aware that the noble Baroness, Lady Hamwee, knows something about those situations.

A leading and highly respected child psychiatrist has said that

“the deployment of children as a CHIS could incur significant … emotional damage to the child and could in fact engender the creation of new criminals by placing them in criminogenic environments.”

This is not child protection; it is not respecting children’s rights. It is dangerous and potentially destructive. Every care must be taken, and we have a duty to see that that happens.

I have the greatest respect for the Minister and admire her common sense, sensitivity and practicality. Might I suggest that this whole operation needs to be taken away and looked at again very carefully, with an independent review? This should cover: the types of involvement by children; how children are assessed as suitable for such work; how the views of children, parents if appropriate and those accompanying children are taken into account; what psychological support is offered; and how children are assessed and supported after their involvement as CHIS, and for any long-term effects.

This may result in a recommendation not to use children in this fashion—I would welcome that—or in more stringent methods of prior independent authorisation being employed, as suggested by my amendment. The current situation in which children are used as CHIS cannot remain the same. I hope that the Minister will consider this suggestion. This issue is not going to go away; indeed, it is likely to intensify. I look forward to her comments and thank noble Lords for their time.

Baroness Kidron Portrait Baroness Kidron (CB) [V]
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I speak to Amendment 24 in my name and that of the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. This sets out the safeguards and protections that should exist if we ask a child to commit a crime as a covert human intelligence source. I pay tribute to the work that many have done on this issue, including the noble Lords who support this amendment; the noble Baroness, Lady Young of Hornsey, who raised these concerns so admirably in Committee; the right reverend Prelate the Bishop of Durham, who has left us with no doubt where right lies; and my noble friend Lord Russell of Liverpool, who has taken time to go through the interlocking amendments and considerations with me.

I also acknowledge the tireless efforts of Stella Creasy MP, in bringing this issue forward in the other place, and the children’s rights advocates Just for Kids Law, which brought the court case on this matter last year. I have taken up the baton for this work at their request. As many of your Lordships know, my time, both in the House and beyond its walls, is spent as an advocate for children’s rights online and offline. I have great sympathy for the other amendments in this group, but I speak to Amendment 24 only and will make some points about government Amendment 26. I note and take to heart the words of both the noble Baroness, Lady Massey, and the noble Lord, Lord Young of Cookham; while I have their support for what I propose, it is the absolute minimum that children require and is not ideal, in their view. I declare my interests set out on the register.

Children do not all have the same circumstances. It is simply a fact that some children will not be as well-loved as others, some not as well-cared-for and some not as well-behaved. None the less, whether they are loved, cared for or well-behaved, any person under the age of 18 is a child. In a context where a person under the age of 18 is being asked to be a covert source and do something illegal, we must ensure that they remain a child in the eyes of all who play a part. In every other interaction with the criminal justice system, we try to remove children from criminal activity to take them away from harm and towards safety, but before us is legislation that formalises our ability to do the opposite.

The Government have said that

“Participation in criminal conduct is an essential and inescapable feature of CHIS use, otherwise they will not be credible or gain the trust of those under investigation.”

If, and it is a big “if”, we make this extraordinary demand of a child, we must set a very high bar for the circumstances in which that happens. Amendment 24 does just that. It writes into the Bill the principle that no child should be asked by the state to commit a crime except in exceptional circumstances. It determines that a child can be asked to do so only when there is no possibility that they will come to harm. It upholds our obligations, under the Convention on the Rights of the Child, to treat all children under 18 as children. It ensures that all children get the support of an appropriate adult, currently offered only to children under 16.

If a child is arrested for shoplifting at 16 or 17, an appropriate adult would oversee their interactions with the police on the understanding that there is a fundamental power imbalance between the accused and the police, particularly when the accused is a child. Under the Government’s current plans, there is no such obligation to appoint a person for children who are 16 and 17, meaning that they can be recruited by the police with no one knowing—not their parents or a social worker—and then asked to inform on people, even their own parents, and to remain in dangerous situations, at great personal risk. They have no legal advice or independent voice to question or support.

The Government have suggested that this is because

“a child becomes increasingly independent”

and mature

“as they get older and that parental authority reduces accordingly.”

It is true that children have an evolving capacity as they approach adulthood, but it would be ludicrous if we determine in law that a child who shoplifts is in need of a guardian when they talk to the police, but that a child, under these most extreme of circumstances, who is asked to commit crimes at the behest of the police is deemed sufficiently mature and in no need of such support. This anomaly flies in the face of our traditions and culture and is a failure to uphold the Convention on the Rights of the Child, to which the UK is a signatory.

Amendment 24 also extends the protection of having a second pair of eyes and the principle of exceptional circumstances to vulnerable adults—victims of trafficking or modern slavery who may be older than 18 but are no less at risk of being placed in harm’s way. It complements the amendment of the noble Lord, Lord Anderson, which will ensure that the IPCO needs to be notified of a CHIS authorisation, by ensuring that it is also notified about the exceptional circumstances that justify the use of a child or vulnerable person.

Before turning to the government amendment, I will say something about the circumstances of the children who find themselves in this situation. Most of the children of whom we will demand this extraordinary service, on behalf of the state, are already vulnerable: those 46,000 children in the UK that the Children’s Society estimates are in gangs; those in exploitative relationships; those in criminal families; or those like the 17 year-old girl in the tragic story that the noble Baroness, Lady Hamwee, set out previously, who, while being prostituted by her boyfriend, was asked to continue in that situation to provide the police with information, and did not pull out until after she had witnessed a murder. She was a child in a situation spiralling out of control.

It is true that these children are few—reportedly, 17 children over three years—but even one child deserves the protections I have outlined, and the fact is that, in June 2018, the then Security Minister said that there was “increasing scope” for young people to be used as CHIS, since they are increasingly involved in criminal activity, particularly county lines gangs. This unhappy logic means that, as criminals increasingly exploit vulnerable children, we will demand their involvement in crime, on behalf of the state, more frequently. These are not simply covert human intelligence sources; they are also kids and must be treated as such.

I turn to the differences between Amendment 24 and government Amendment 26, which has been brought forward to tackle the same issue. It is a welcome admission that as it stands the legislation does not offer the safeguards that children require, but for the most part Amendment 26 simply repeats the status quo. It relies on amending the Regulation of Investigatory Powers (Juveniles) Order 2000. While Ministers may argue that it is better to keep all legislation regarding children and intelligence in one place, it can equally be argued that legislation that authorises criminality should also be in one place.

Where Amendment 24 writes into the Bill the principle of “exceptional circumstances”, Amendment 26 offers only secondary protections via an order that has been amended before without the full scrutiny of Parliament. Where Amendment 24 defines “exceptional circumstances” in a way that ensures that there must be no foreseeable risk of harm to the child, Amendment 26 states only that

“the person granting or renewing the authorisation believes that taking the relevant risks is justified.”

CHIS authorisations should involve only justifiable risks; this is not a sufficient test of exceptional circumstances where the CHIS is a child.

Amendment 26 states that children under the age of 16 cannot be used if they are asked to spy on their parent or someone who has parental responsibility. This is not additional; it already forms part of Article 3 of the existing RIPA order. Equally, the amendment says that the risks should be properly explained and understood by the child and that the best interests of the child should be the primary consideration. As we have already heard, this is also not additional; that we should act in the best interests of children is a right that all UK children already have. I have already pointed out at length the failure to consider the entitlements of 16 and 17 year-olds so I will not reiterate that but, given that the Government’s plans do not offer them their entitlements, perhaps the Minister will say whether a child rights impact assessment has been carried out on the legislation, and why the Home Office feels able to ignore our obligations under the convention when the Department for Education has recently reaffirmed them.

Finally, proposed new Article 11 provides for children to be authorised to commit crimes for four months, but this is already the case. More worryingly, there is no limit to the number of times such an authorisation can be renewed—no maximum time limit that a child can spend undercover.

I do not doubt the good intentions behind Amendment 26, and I recognise that the Minister and her team have been active in trying to meet the concerns that so many noble Lords have outlined but, as I have set out the limitations of the Government’s amendment in some detail, I hope that she will agree that it does not go far enough and undertake to take another look. Nothing would make me and my fellow signatories happier than for the Government to adopt Amendment 24. It would bring clarity and transparency to those who demand such a sacrifice from a child, and it would ensure that children who may be in all sorts of trouble are protected in those rare times when staying in a place of danger may help to tackle the source of danger itself.

I have informed the clerk that I intend to test the opinion of the House. I ask for noble Lords’ support on behalf of children who find themselves in this extraordinary situation—children of all ages, children who are already vulnerable, children let down by so many adults and institutions that should have offered them protection but did not. Let us not be counted among them.

Lord Cormack Portrait Lord Cormack (Con) [V]
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My Lords, it is a real pleasure to follow the noble Baroness, Lady Kidron. She spoke movingly, authoritatively and with passionate conviction, as did the noble Baroness, Lady Massey of Darwen, to whose amendment I added my name, and my noble friend Lord Young, who launched the debate on exactly the right note.

It was quite clear in Committee, when I tabled an amendment on this subject, that there was widespread concern in all parts of the House at the use of children. This is the single most serious aspect of the Bill. We are in fact being asked to pass into law something that in any other circumstance would be illegal. This conundrum was referred to by a number of speakers in the debates we had on Monday. Now we come to the nub of the matter.

I am grateful to my noble friend Lady Williams of Trafford for the attempt she has made with her amendment, but I agree emphatically with the noble Baroness, Lady Kidron, that it just does not go far enough. I am also grateful to my noble friend for affording me the opportunity of discussing this matter and my concerns in two hour-long meetings organised by Mr Arthur Lau in her private office. I am grateful to all those who took part. I was reassured on one or two issues. We will come to those at a later stage.

I was to some degree won over by the arguments of a senior police officer—clearly a man of unimpeachable integrity—who talked about the need to employ occasionally young people in tackling things such as county lines and sexual assault of young girls. He convinced me to some degree to table my Amendment 19, which would in exceptional circumstances allow 17 and 18 year-olds to take part as CHIS, but would draw the line at those aged 16. There are precedents for drawing the line at 16, such as the age of consent et cetera.

I am not sure whether I will put my amendment to the vote. It depends on what is said in this debate, particularly by my noble friend the Minister. There is a logic to the age of 16. It is a very sad fact that a great many crimes, many of them violent, are committed by 16 and 17 year-olds. Many of the stabbings in London and in other parts of the country have involved young people of that age and thereabouts. There is no point denying that county lines depend to a very considerable degree on the exploitation, manipulation and abuse of young people. I can see that there is a certain logic in using 16 and 17 year-olds in exceptional circumstances, much as I deplore and regret it.

However, I believe emphatically that the line has to be drawn somewhere. If it is drawn at 18 by the will of your Lordships’ House I shall be entirely content. If it is drawn at the age of 18 but with very real conditions attached, as they are in the amendment from the noble Baroness, Lady Kidron, I will be tolerably satisfied that we have made a step forward, but there is much to be said for being clear and emphatic, and for having a specific age in the Bill below 18 but not below 16 in any circumstances.

It is a very troubling provision of this Bill. The nation has rather lost its moral compass in the last two or three decades, and I believe very strongly that this is not something that we should gently accept. We have to put back into public and private life the standards that, formerly, when I entered the House of Commons in 1970, were more or less taken for granted. I say to my colleagues on the Front Bench that I cannot support the Bill as it is in this regard. Much as I accept totally her utter sincerity, I cannot accept Amendment 26, put down by my noble friend, as being “adequate and fit for purpose”, to quote the noble Lord, Lord Reid of Cardowan—a phrase that has now entered the lexicon.

We are contemplating doing something that is completely against the grain for those of us who believe in the rule of law and a law-abiding society. If we are to do it, with the greatest of reluctance, we must heed the words of my noble friend Lord Young, who has put his name to Amendment 24, the noble Baroness, Lady Kidron, who introduced it so passionately and movingly a few minutes ago, and the noble Baroness, Lady Massey of Darwen. We must not let this Bill leave your Lordships’ House unamended.

The very best solution would be to have no Division at all today, but for my noble friend the Minister to hold a round table with all those who have concerns and to try to put down something in her name which reflects those concerns. If that is not done, I reserve my right to move my amendment. I also declare unequivocally that, if she does not do that, I cannot give my vote to government Amendment 26, or withhold my vote from the amendment that seems to be commanding a consensus within your Lordships’ House.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.

Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.

I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.

Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.

On the one hand, we want to support and protect the people described in the amendment

“against significant harm or exploitation”.

On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.

The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.

The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.

I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.

There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.

I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.

The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.

Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.

I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.

I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.

I will also address the noble Lord, Lord Cormack, his wonderful speech and the principled positions that he has explained throughout the passage of this legislation. He is quite right that, if even 18—the age given in the United Nations Convention on the Rights of the Child —is not good enough, surely 16 would be an absolute line. Is there no absolute when it comes to child protection?

This is a very upsetting part of this debate, and I cannot help but recall that, on an ongoing basis, when it comes to assessing young people in another area of Home Office practice—asylum seekers—the Government take a very different view. When a young person presents as an unaccompanied minor to claim asylum in our country, looking as if they might be under 18 years old, the Government and Home Office take the opposite view to the one they take here: they are very quick to say that, actually, that young person is much older but just looks younger than they are.

When it comes to county lines or any other real and pressing danger to our communities, it would be perfectly possible for state agencies to engage and employ 19, 20 or 21 year-old people who look younger than they are. That would square the circle without doing this terrible injustice—this enormous breach of human rights—and putting our children and young people in danger. So, I urge all Members from across the House to get behind Amendments 12, 13 and 14 and to follow the lead of the noble Lord, Lord Young.

Lord Bishop of Durham Portrait The Lord Bishop of Durham [V]
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My Lords, it is humbling to follow the passion and wisdom of the noble Baroness, Lady Chakrabarti, and the wisdom of the noble Lords, Lord Young of Cookham and Lord Cormack, and the noble Baronesses, Lady Massey of Darwen, Lady Kidron and Lady Hamwee. I associate myself strongly with the points they have made.

I speak in favour of Amendments 12 and 14, in the names of the noble Baroness, Lady Massey of Darwen, and the noble Lords, Lord Dubs and Lord Cormack, to which I have been pleased to add my name. I also speak in favour of Amendment 24, whose sponsoring group, made up of the noble Baronesses, Lady Kidron and Lady Hamwee, and the noble Lords, Lord Kennedy of Southwark and Lord Young of Cookham, is wonderfully cross-Bench.

Therefore, it will be clear that my concerns relate to the situation of those who are children in law because they are under 18. My absolute preference lies with Amendment 12, which would make it illegal for anyone under 18 to be used as a CHIS. However, concerned that this will not be agreed, I wish to ensure that full safeguards are in place for those who are children in law. In doing so, I recognise, as we all do, that the number who are so used is very small and are mainly 16 to 17 year-olds.

I apologise to the House that, due to the time taken in Committee, it proved impossible for me to speak on the two amendments to which I had added my name when they were finally taken, and I am very grateful to my right reverend friend the Bishop of Carlisle for speaking for me.

I am here to reiterate the simple, immovable, moral truth that children must be treated as children, as many of my noble friends argued in Committee. It is not a question of ifs, buts or whens. We, as adults, have a moral obligation to protect children and safeguard their care and well-being in all respects: physical, mental, social and spiritual. Knowingly placing a child in harm’s way and encouraging them to remain in harmful situations or with harmful behaviours may be in our interest, but it is not in the child’s best interests. This is exacerbated by the likelihood that the small number of children recruited as CHIS are from a potentially vulnerable background and are already deeply damaged. We should be seeking their healing, not risking damaging them further.

In Committee, my noble friend the Minister said that

“becoming a CHIS can, potentially, offer a way”

for a child

“to extricate themselves from such harm.”

While this sounds like a laudable thing, before being able to extricate the child, are we not potentially exposing them to more harm by encouraging them at times to remain involved in a criminal situation or behaviour? The Minister also argued in Committee that

“appropriate weight is given to a child’s best interests”,

but being a CHIS is surely never in a child’s best interests. The use of child CHIS was justified in Committee through how it can help to remove them and others

“from the cycle of crime”.

However, is the hypocrisy here not evident in first encouraging the child to continue in criminal behaviours and settings? We rightly condemn the use of child soldiers around the globe for the atrocity that it is. Let us not slip into a dangerous grey space where we permit the use of children to fight our battles against criminal gangs and county lines. Let us protect their vulnerabilities.

The various arguments made in Committee conveying how the use of child CHIS has not yet been abused were exactly what we wished to hear; why not ensure that this will always be the case? I note the remarks of the Minister that

“the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process.”—[Official Report, 3/12/20; col. 937.]

It is reassuring to hear that that has been the case to date. However, the purpose of this Bill is to put the future use of CHIS on a clear and consistent statutory footing. It seems to me that placing in this Bill the most comprehensive safeguards possible when it comes to children is wholly in keeping with the Bill’s overall purpose. It is a necessary step for keeping the welfare and well-being of children as a primary consideration.

I welcome the Government’s recognition in their Amendment 26 of the need to have authorisation in the Bill and not simply in a code of practice. I also welcome the need to protect those aged under 16 more fully than 16 and 17 year-olds. However, I remain concerned that the proposals in Amendment 26 do not go far enough—as already argued by the noble Baronesses, Lady Kidron and Lady Hamwee. I want to see the independence of a judicial commissioner in place for the authorisation of those aged under 18 as CHIS, with the parameters laid out in Amendment 14.

Amendment 24 has also been very carefully worked through by a wide range of organisations and people involved in concerns around the protection of the child. Therefore, I continue to support both these amendments. They recognise that our first and most important duty is to protect and support children and vulnerable people. If the mind of the House is tested on these amendments, I shall vote in favour of them. If the House supports them, I hope that the Government will undertake to accept them.

In relation to the proper protection of children, I reiterate my preference for Amendment 12. It would prevent the granting of criminal conduct authorisations to any child in clear and unambiguous terms. This is the clearest and simplest way of guaranteeing the protection of children and resisting the temptation to use them as assets in the fight against crime. I recognise that many in this House may see that as too absolute, thus I am also glad to put my name to Amendment 14, which would at least establish more effective safeguards for those aged under 18 in ensuring prior judicial approval that explicitly considers the potential for both physical and psychological distress.

I also support Amendment 24, which lays out specific and clear additional safeguards to ensure that children can be used only when there is no foreseeable risk of physical or psychological harm—or, I wish it also said, spiritual harm. It also lays out that the circumstances should occur only as a last resort and with the oversight of an appropriate adult. Combined, they amount to much better protections than those in Amendment 26. It is inherently wrong for those aged under 18 to be used as CHIS, hence my support for Amendment 12. If not that, we need the amendments that protect children most effectively. Let us keep the best interests of children at the fore.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham. His speech was passionate, as was the speech made by the noble Baroness, Lady Chakrabarti. I have raised this issue here in your Lordships’ House several times over the years; it has never caught fire in this way. I do not understand. The noble Lord, Lord Young, spoke about public incredulity. If I ever mention this issue to members of the public, they are astonished that it was allowed to happen. This issue has caught fire because a Tory Lord—an hereditary Baronet—raised it in a very principled way. Suddenly, people heard it. I would welcome comments on why it was not heard from a Green. Why is this? Do people think I am too radical? Do they think I am making it up? I have no idea. I am sure that some noble Lords might like to comment on that.

In a previous day of debate this week, the noble Lord, Lord Cormack, corrected my use of “police spies” as being too limited because we are debating spying not only for the police but also for the security services and a host of other organisations. I accept that telling off in good grace. I could just use “spies” in the hope that it does not sound too glamorous.

On the appropriate words to use, the phrase “juvenile CHIS” is a fantastic piece of wordsmithing because it so effectively obscures what we are actually talking about. These are child spies. They are children and young people who have got themselves into some sort of trouble. When they caught by the authorities, instead of being rescued from that dangerous situation, taken into care and helped to rehabilitate themselves and change their lives, they are being returned to harm’s way. They are put into what could be deadly danger. How is this even conceived of by the Government, the security services and the police? How on earth can they not see, as the noble Baroness, Lady Chakrabarti, said, that this is state-sponsored child abuse—a phrase I have used before.

After years of probing the Government on the use of child spies, I am yet to see or hear a single example of how the risk to the child is justified. I have heard stories of children being used, especially for county lines policing, where gangs use children and young people to extend their networks into smaller towns and expand their reach. However, we all should know that closing down any drug ring or network is a very temporary hitch in the supply of and demand for drugs. A rival or reconstituted gang will be up and running in days, if not hours. We have to understand that using children in this way is unacceptable because, in addition to everything else, it does not work.

That moves us on to drug policy, which needs drastically changing. I will look to the noble Lord, Lord Young, to pick that up in future. We can work together on amending drugs law because that urgently needs work.

I also deeply regret that the scope of this Bill is limited to prevent us banning the use of child spies entirely, but at least we can prevent them being permitted and encouraged by the authorities to commit further crimes. Obviously, I support Amendments 12 and 13, which have my name on. I also support Amendment 14. I am slightly iffy on Amendment 19, but I can see its value. If the noble Lord, Lord Young, does not push his amendment to a Division, I will vote for Amendment 24 in the name of the noble Baroness, Lady Kidron, because it is of value and it is better than nothing—but it is not as good as Amendment 12. I wish that the Labour Front Bench supported Amendments 12 and 13.

I was brought up in a Labour-loving household. My parents voted Labour all their lives, and their perception of the Labour Party was that it would always fight the big battles for the little people and that we could trust it to do the right thing. I would rather see a Labour Government than a Conservative Government, but, quite honestly, I feel that Labour has failed us here and I am extremely sad about that.

I am very grateful to the broad coalition of noble Lords who are clearly against the use of child spies. All the amendments are cross-party, which should give the Government some pause for thought. If there is so much feeling about this issue among a mixed bunch of Peers, I think they should go a little further than their attempt with Amendment 26. Therefore, I urge the noble Lord, Lord Young, to push his amendment to a vote, but I shall understand if he objects to doing that, in which case I shall support Amendment 24.

Lord Dubs Portrait Lord Dubs (Lab) [V]
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My Lords, it is a privilege to take part in the debate on this amendment, with the many excellent speeches that we have had so far.

First, I thank the Minister for having arranged for my noble friend Lady Massey and me to meet some of her officials and police officers, and for the opportunity to have a long debate about the issues concerning children.

In introducing Amendment 12, the noble Lord, Lord Young, referred to the fact that I changed my mind in Committee, as though that was a very eccentric thing to do. I thought that the point of debates was to persuade other people to change their minds. He is absolutely right: I did change my mind—from a relative position to an absolute position on children not being used as CHIS—so I thank him for referring to that.

My noble friend Lady Massey set out the ground extremely well, competently and coherently. She and I are both members of the Joint Committee on Human Rights and, in a way, she has spoken for me as well, so I shall make only a few brief comments in support. I also welcomed the very powerful speech of the noble Baroness, Lady Kidron, although her amendment does not go as far as I would like. My preference is to fully support the amendment of the noble Lord, Lord Young.

I have three points to make. The first concerns the safety and well-being of children, the second is to do with mental health and the third concerns informed consent, and I want to say a brief word about each.

First, it is slightly curious that public authorities whose job it is to protect the welfare, well-being and safety of children should also, in a sense, be complicit in authorising or encouraging them to commit criminal offences. I fear that involving children as CHIS can damage their welfare and safety, and cause them harm in their lives many years later. We are subjecting them to enormous pressures by doing this and I am not happy about it.

Secondly, as an extension of that argument, there is the question of mental health. We are talking about young people who must, in the main, be extremely vulnerable. Very often they have deprived backgrounds, they have not had much going for them and they have suffered physically and emotionally. The mental health considerations seem sufficiently serious for us to say that we do not want to use children in this way.

Thirdly, there is the question of informed consent. My understanding is that, before anybody can become a CHIS, they have to give their informed consent. I just wonder whether a young person who is vulnerable, already involved in criminality, not sure of themselves in life and possibly with mental health problems can give their informed consent to taking part in these activities. How can a young person understand the full implications of going along with this? It seems a crucial step and they could be damaged for many years; indeed, they might never recover. It is a dangerous thing to ask them to do and I would prefer that we did not do so.

That is why my first preference, if I may put it that way, is for the amendment in the name of the noble Lord, Lord Young. My second preference is for Amendment 14, in the name of my noble friend Lady Massey. My third preference is to support the noble Baroness, Lady Kidron. I do not think that we can leave the Bill as it is. It is unacceptable that we should subject young people to such a dangerous situation. It is not a healthy or proper thing to do, and I hope that we will agree to one of the amendments—preferably that of the noble Lord, Lord Young.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con) [V]
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My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.

My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:

“The Bill must be amended to exclude children or”—

I agree in particular with this part—

“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”

Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.

One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.

I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.

That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, I am very pleased to take part in this debate. We have already heard some truly excellent speeches and I am sure there are more to come. I support Amendment 24, which has been so ably proposed by the noble Baroness, Lady Kidron, and am very happy to have added my name to it. I have huge respect for the noble Lord, Lord Young of Cookham. I agree with virtually all the points that he made in proposing Amendment 12. I join him in paying tribute to the noble Baroness, Lady Williams of Trafford, who always engages with the House on issues and seeks to find a way forward. It is important that we do that. However, what we have from the Minister at the moment in government Amendment 26 does not go far enough to address the concerns we have heard from around the House, although I accept that considerable efforts have been made to seek a way forward. I know that those efforts are still going on.

I certainly want to seek an improvement and get something detailed into the Bill that provides further protections for children; that is the most important thing for me. If we are to deploy CHIS then, in the very rare and exceptional circumstances where we need to do that, we must have those protections. That is why I support Amendment 24: I believe it sets out the way to get the right balance and, in those exceptional and rare circumstances, allows for that better oversight to be provided. In a way, I will vote for Amendment 24 to give the Government an opportunity to carry on discussions with people around the House and outside it. If we pass it, I hope that a better amendment will come back from the other place on ping-pong that builds on Amendments 24 and 26, and seeks to address the concerns that the Minister can surely hear from around the House, to get something in the Bill that is better than what we have now.

For that reason, I will not be supporting Amendment 12 by the noble Lord, Lord Young; I just do not believe that the Government are going to support that position, so it is a practical consideration that leaving a little room there for the exceptional circumstance, with the right protections, is the way to go. We need to build on the constructive discussions that we have had outside the House, and the debates we have had on this issue in the House, to find the way forward. I want to apply protections for children and vulnerable adults, and the process outlined in the amendment is the way to get them.

I bring my remarks to a conclusion by paying tribute to the many noble Lords around the House who have been engaged in this issue. I thought my noble friend Lord Haskel raised it on an SI some years ago, so I do not know who started it; maybe it was the noble Lord, Lord Young of Cookham, or the noble Baroness, Lady Jones. Certainly a number of people have raised this issue and everyone has been vitally concerned to protect children, put safeguards in place and get us to a better place, so I thank everyone in the House who has been involved in this. I thank the noble Baroness, Lady Kidron, for tabling her amendment and my honourable friend in the other place, the Member for Walthamstow, Stella Creasy, who has been heavily involved.

I believe that this is one of those debates in the House where you can hear the concern on all Benches from numerous highly respected noble Lords. We as a House need to send Amendment 24 to the other place, which will enable us to get something back from the Government that I hope will satisfy all noble Lords and get us to a better place.

Lord Judd Portrait Lord Judd (Lab) [V]
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My Lords, I support Amendment 25 because it seems essential for us to have safeguards in place if we go down this road at all. The noble Baroness, Lady Hamwee, spoke very convincingly on this matter. I am glad to support her on this and I do not suppose it will be the last time in my parliamentary career that I support her in her initiatives. While we are debating this group, I want to say how much I applaud Amendment 12 by the noble Lord, Lord Young of Cookham, and Amendment 19 by the noble Lord, Lord Cormack. In the operation of our society and our legal systems, we need some clear-cut cornerstones about what is permissible and what is not. I like the forthright language that they use in their amendments because it cuts out all the grounds for rationalising and talking ourselves into situations where we should not be at all. The point is that vulnerable people of the kind described in the amendments, and children, should not be involved in this kind of activity.

We are signatories to the conventions on the rights of children, and we have reaffirmed on many occasions our commitment to them. Are we just sentimentalists or are we real? If we are real, and if we want to give muscle to our expressed sentiments in those directions, that becomes very applicable in this kind of activity. We are also signatories to, and have frequently expressed our adherence to, the European Convention on Human Rights. I would always go further in this context and say that what matters even more is the Universal Declaration of Human Rights and the reasons why it was put in place. Again, if we are serious and not just sentimentalists, it is in matters of this kind that adhering firmly to the principles set out in those conventions becomes so important.

All these matters become particularly poignant—it is interesting that we have not dwelt much on this—given what is happening on the other side of the Atlantic. All of us, particularly perhaps in this Chamber, operate in the context of a political family in which it is expected and assumed that certain rules of decency, honesty and integrity will apply. We cannot be certain that will always be the case. I have always felt this about legislation: what matters is not just the people who are in place at the time of the legislation is passed, but how firmly that legislation establishes principles that it would be difficult for anyone who comes afterwards to vary. For that reason, it is significant to look at events in the States and wonder, when we talk about the kind of society that we want to be, whether we are really taking seriously our obligations, duties and concern for children and young people who have perhaps been asked to undertake activity that is very much against so much that is established as the norm for behaviour that is required in our society, for all the reasons that we have discussed on many previous occasions on this legislation. If we take those responsibilities seriously, we need the firmness of Amendments 25 and 19.

I am sure that I must be among many Members on all sides of the House who are deeply fearful about the implications of what is happening on the other side of the Atlantic. At moments such as this, where we still have the context of our own society—thank God—we need to be explicitly clear about what is acceptable and what is not. I cannot say more strongly that it is not acceptable for children to be involved in activity of this kind. That is the point: it is not acceptable; it is not something we can rationalise our way out of by saying that there are exceptions in this particular case. There are not; it is a principle that children should not be involved in such activity. Similarly, when we think of what vulnerable people have been through mentally and physically and all the traumas of their life, it is not acceptable to involve them in any way in activities which may have serious implications for their stability and well-being and for their safety.

From these standpoints, I am very glad that we have this group of amendments before us. I again say that the noble Lords, Lord Young and Lord Cormack, have been exemplary in stating a principle on which the rest of our activity should be founded.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB) [V]
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My Lords, as the speeches that we have been listening to in this debate have made so very clear, this surely is the most difficult part of the Bill and, as we search for a solution, for each of us making up our own minds this group presents a real challenge. The solutions range from an absolute bar—the “clear-cut cornerstones”, as the noble Lord, Lord Judd, has just described it—on granting authorisations to anyone under 18, in Amendment 12, and anyone under 16, in Amendment 19, to which the noble Lords, Lord Young of Cookham and Lord Cormack, spoke so movingly, to the more nuanced and carefully worded procedures proposed in Amendments 23, which would require the prior approval by a judicial commissioner, and Amendments 24 and 26, which have no such requirement.

I entirely recognise the force of the principle that the child’s best interests are paramount, and I appreciate the attraction of a clear and simple absolute bar—a red line—by reference only to a person’s age. That is right when dealing with, for example, the age of criminal responsibility, but I am not so sure that it is right here, where we are being asked to balance the protection of the best interests of the child against the need to protect the public against serious crime, such as that perpetrated by county lines where children are, sadly, so much involved. Recognising that a child’s best interests are paramount does not entirely exclude the possibility of looking at all the circumstances and balancing the interests of the child against other interests, as judges have to do from time to time, but of course it has a crucial bearing on how that exercise is carried out.

Looked at from that point of view, I suggest that one can take account of the fact that children do not all have the same circumstances, as the noble Baroness, Lady Kidron, has said. Also, the facts and circumstances may differ widely as to nature of the case and the extent of any risk of physical and psychological harm to the particular child who may be involved—I was interested in the points made by the noble Baroness, Lady McIntosh of Pickering, based on her own experience of the Scottish Bar. The fact is that we are not in possession of all the information that would guide those taking such decisions. I would therefore prefer to leave the door open for the use of children in strictly and most carefully limited circumstances, taking every possible care in full recognition of all the risks, rather than closing it firmly against their use in any case whatever. Had Amendment 12 been qualified in some way, by reference, for example, to “exceptional circumstances”, I would have found it easier to accept, but, of course, as soon as one adds such words, one has to explain what they mean. That is why I am drawn to Amendment 24, to which the noble Lord, Lord Young, has also put his name. It contains that qualification and then defines what such circumstances are. I pay tribute to the clarity with which it is expressed.

Then there is government Amendment 26. It seems to fall short of what is needed, not only because it lacks that qualification about exceptional circumstances but because it lacks the protection which Amendment 24 would give to vulnerable individuals and victims of modern slavery, whom we must also consider. I look forward to listening carefully to what the Minister has to say in support of her amendment, but, for the moment, my preference is for Amendment 24 and for supporting it if the noble Baroness, Lady Kidron, presses it to a vote.

Lastly, I am grateful to the Minister for her letter of today’s date about territorial extent. As she may tell us later on, she informs us in it that the Scottish Government have confirmed that they will recommend to the Scottish Parliament that it should withhold its consent to the Bill. It was for the Scottish Government to take that decision and we must respect it. I am sure that the Minister is right, respecting the Sewel convention, to remove from the Bill the ability to authorise participation in criminal activity for devolved purposes in Scotland. It is not for us to question the decision of the Scottish Parliament and she is right to proceed in that way.

Lord Naseby Portrait Lord Naseby (Con) [V]
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My Lords, I want to speak briefly to Amendments 12, 13 and 14. In relation to the first, I have recently done some research on military national service, introduced by a Labour Government with the support of a Conservative and Liberal Opposition in 1947 and lasting for just over 10 years. This recruited at age 18 young men to serve in the forces and possibly to face death. There was an element in that Act which allowed 17 and a half year-olds to be recruited, so it was not a carte blanche cut-off at 18; it actually started at 17 and a half.

Against that background, it seems to me—it is quite a long time ago now, but I was one of those who did my national service—today’s young people are certainly more experienced than we were at that age. Also, there is this great move afoot to give 16 year-olds the vote. That is a conundrum, is it not? If that were to happen—Scotland is in the lead on that—are those who get the vote at 16 still children or are they adults? For my money, on Amendment 13, there should be a cut-off age of 18, but subject to particular exceptions.

I come to Amendment 13. Of course, vulnerable individuals should be exempt; we should not go down that route at all. I am not so sure about victims of modern slavery. I suspect that not too many of your Lordships know very much about that world. I certainly do not claim to know a lot about it. Those who will know a lot about it are some of the 17 year-olds who have one way or another got involved with it. Would not it be better and sounder, in certain exceptional circumstances, to have somebody working there who understands the ropes?

Lastly, Amendment 14 talks about a judicial commissioner. I am none too sure, as we discussed the last time we debated this Bill, whether the judiciary is ideally placed for some of these decisions. At this point, I am going with the Minister. I will listen carefully, but let none of us forget that whatever actions are taken are often taken in the interests of society, given the danger from terrorism and all that area of life.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.

Baroness Bull Portrait Baroness Bull (CB)
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I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.

I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.

We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.

Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.

Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.

Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.

The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.

Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.

Lord Holmes of Richmond Portrait Lord Holmes of Richmond (Con) [V]
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My Lords, I support Amendment 12 in the name of my noble friend Lord Young of Cookham. It is clear, coherent and consistent. It seems to me that my noble friend’s parliamentary career from the outset has been marked out by two great skills. First, he has the ability of get to the essence of the issue in front of him at the time. His second—and greater—skill is the ability to see where things are going, not least in the near and mid future. In his excellent opening speech, he demonstrated both skills perfectly.

I urge him to press Amendment 12 to a Division. A majority of noble Lords have spoken in favour of it. It is a matter of testing the opinion of the House on what is right, rather than what may fit with a particular day’s parliamentary arithmetic. I cannot improve on any of his words in his introduction, save to say that I agree with every last detail, and I urge him, as have a majority of other noble Lords, to press his amendment to a vote.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB) [V]
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My Lords, I will speak to Amendment 24. I am grateful to my noble friend Lady Kidron for taking the lead on this amendment, to Stella Creasy for working with us so effectively from another place, and to a wide range of parliamentarians across all parties in both Houses.

As my noble friend Lady Kidron said in her comprehensive introductory speech, we are dealing with children, a point made forcefully just now by my noble friend Lady Bull—children, physically and mentally; children often abused, vulnerable, confused and frightened; children whose moral compass and sense of what is normal and of what is right and wrong may be tragically awry. Whatever they may have done, and whatever they may have become involved in, they are still children in statute, in international charter and in conscience. They need and deserve protection.

I pay tribute to the Minister, to her colleagues, and in particular to her friend James Brokenshire, who was mentioned on Monday and is in all our thoughts—I reiterate on behalf, I suspect, of everybody speaking today our best wishes for his speedy recovery—to the Bill team, and to the different individuals she has linked many of us up with to deepen our understanding of this complex background. She has made clear from the start that she understands our concerns, is sympathetic in principle and is keen to find ways to build in additional safeguards that will protect the child but also, very importantly, will build greater trust both within and without Parliament. Government Amendment 26 is not a bad start but, for the reasons stated eloquently by my noble friend Lady Kidron and others, I fear it is not good enough. A slightly enhanced re-emphasis of the status quo is not going to make a material difference to these children.

I entirely support the spirit behind Amendment 24 and I am grateful that the Government, even if they feel unable to accept it today, have acknowledged that our concerns are genuine and that there may be further work to be done before the Bill becomes law. In addition to what is stated in Amendment 24, I would like to place on the record four additional ways in which safe- guards and processes might be enhanced and improved. I have already shared these with the Minister. First, I ask the Government to consider involving IPCO from the very inception of the authorisation of a child deployment. I share the confidence of my noble friend Lord Anderson in the capacity of IPCO to oversee these highly sensitive issues, and I suspect that IPCO itself would be broadly receptive to this idea and that it could undertake this using its current resources. This would mean that, with child deployments, IPCO would be being proactive, not primarily reactive.

Secondly, for children in care who may become child CHIS, how can we enable the relevant social worker to be appropriately involved? There are many cases where the social worker is unable to do so for a variety of reasons, personal, organisational or legal, and we have work to do to ensure that there are always effective substitutes to hand. Thirdly, can we commit to a comprehensive audit and review process at the end of every child deployment to assess what went well, what went less well, what we learned and what we are going to do about it? Lastly, do we not have a duty of care to follow up with ex-child CHIS to monitor their welfare, to help and guide as necessary, and to measure the effects, if any, of their experience during deployments? This would truly be putting the interests of the child at the centre of the process and would acknowledge our responsibility to help them ensure a successful transition to adulthood.

I commend Amendment 24 to the House. I applaud the Government for being in listening mode and I urge all noble Lords to agree to this amendment, to send a clear message that we have more to do but that we intend to work with and not against the Government to achieve this.

Lord Paddick Portrait Lord Paddick (LD) [V]
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My Lords, I thank the noble Lord, Lord Russell of Liverpool, for the leading role he has played in achieving consensus around Amendment 24. I start by reminding the House of the contribution of the noble Lord, Lord Young of Cookham, in his summary of a similar group of amendments in Committee. He used the analogy of torture, where the ends do not justify the means, in the same way that using children as informants or agents is difficult to justify under any circumstances. Regrettably, banning the use of children as covert human intelligence sources is outside the scope of the Bill. He went on to recall the contribution of the noble Baroness, Lady Chakrabarti, who suggested as an alternative to using children using people over 18 who look younger, as the acting profession often does, particularly when dealing with adult themes.

My noble friend Lady Hamwee pointed out that there is a very fine line between grooming and persuading children to act as covert human intelligence sources. My noble friend Lady Doocey quite rightly pointed out that these children are already vulnerable and exploited, particularly in the case of county lines, without the need for them to be further exploited by the police. We do not send children into war, so why do we send them into potentially more dangerous situations as CHIS, as a number of noble Lords have asked this afternoon? A very experienced police handler of informants told me that, in his experience, even adult CHIS are open to manipulation, let alone children. If you are a child, a non-documented migrant or a victim of human trafficking caught by the police committing crime, you are likely to look for any available way out. You do not need to be blackmailed in such a situation; you are likely to grab at any opportunity, including being tasked to commit crime as a participating informant, a point made by the noble Baronesses, Lady Jones of Moulsecoomb and Lady Young of Hornsey, in Committee. As the noble Baroness, Lady Kidron, said, we are talking about the power imbalance between the police and these vulnerable people, including children.

The Minister’s response in Committee was to cite a High Court judge, Mr Justice Supperstone, who was convinced by the police that it was okay to use children in this way. They appear to have been less successful in convincing the noble Lord, Lord Young of Cookham. When I was seeking promotion to the most senior ranks in the police service, on a six-month course at the national Police Staff College, we were told that we were moving from superintending ranks, where we had to operate within the existing paradigm, to ACPO ranks, where our responsibility was to change the paradigm. Despite the High Court’s decision, we need to change the paradigm. As the noble Lord, Lord Young, says, the court did not consider the active involvement of children as CHIS in crime.

The Government, in response to our deliberations in Committee, have come up with their own alternative. I am as unimpressed as the noble Lord, Lord Young, with this attempt. First, in relation to authorising the use of children, it amends secondary not primary legislation—much easier for the Government to subsequently change and impossible for us to amend. The only change to primary legislation is on post-event reporting. The government amendments, particularly Amendment 26, prohibit the use of children under 16 to commit crimes against their parent or guardian, but not 17 and 18 year-olds: this is already the case, as the noble Baroness, Lady Kidron, said. It creates the position of a “relevant person” who is responsible for the risk assessment and for ensuring that an “appropriate adult” is present if the child is under 16. This risk assessment and the presence of an appropriate adult are already required in legislation. In the case of 17 and 18 year-olds, the appropriate person has only to consider,

“whether an appropriate adult should be present”.

Again, that consideration is already required.

Saying that a child criminal conduct authorisation should be limited to four months instead of 12 is also not a real change. Child CHIS can only be authorised for a maximum of four months and a CCA cannot be granted unless the child has been authorised to be a CHIS, so a review after four months is already inevitable. Overall, I would summarise the proposed alternatives the Government are putting forward as too little, too late.

Amendment 24, proposed by the noble Baroness, Lady Kidron, has been a long time in the planning. I join with the noble Baroness in thanking Stella Creasy MP and Just for Kids Law. It covers vulnerable adults as well as children—the case for which was made strongly by my noble friend Lady Hamwee this afternoon—which the government amendment goes nowhere near. The presence of an appropriate adult would be mandatory for all children and vulnerable adults under this amendment, instead of being compulsory only for under-16s, as in the Government’s alternative. It sets out the very limited circumstances when a child could be used, where the best interests of the child must be paramount. The child or vulnerable adult is not to be put at risk of physical or psychological harm, and the Investigatory Powers Commissioner must be informed. The Minister may say that these restrictions are so limiting that it may result in children and vulnerable adults not being used at all. That is a risk we should be willing to take.

In the absence of Amendments 12 and 13, we support Amendment 24 as the best of the available options, though I agree with the noble Baroness, Lady Massey of Darwen, that it does not involve the independent prior authorisation contained in her Amendment 14. However, as I have just said, it does include informing the Investigatory Powers Commissioner as soon as possible. If anyone thinks that 16 might be an appropriate age for drawing the line, I would urge them to watch the film “County Lines”, directed by Henry Blake. It brings out the horror of the impact of county lines drug dealing on teenagers, including older teenagers, and powerfully makes the case for immediately removing children from these circumstances. Important points were made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, about the lifelong impact of adverse childhood experiences such as involvement in county lines. Regrettably, contrary to the assertion of the right reverend Prelate the Bishop of Durham, Amendment 12 does not prevent using a child as a CHIS; it only prohibits tasking them to commit crime. As my noble friend Lady Hamwee pointed out, some adults are at least as vulnerable as some children.

Amendment 24 is a compromise, but it is comprehensive in that covers both vulnerable adults and children, and we support it strongly for the reasons so clearly expressed by the noble and learned Lord, Lord Hope of Craighead.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.

Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.

This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.

I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are

“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”

The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can potentially offer a way to extricate themselves from such harm. The decisions to authorise are made only where this is the best option for breaking the cycle of crime and the danger for the individual.

In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.

This means that, for these authorisations in Scotland, public authorities will in the immediate term continue to rely on the existing basis for an authorisation. Were that position to change in the future, it would be for the Scottish Government to bring forward legislation that places this conduct on a clear and consistent statutory basis. The UK Government have worked with operational partners to minimise the immediate operational impact of the legislation not applying UK-wide.

Turning back to the issue of juvenile CHIS, the government amendments make very clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that this must be a primary consideration whenever they are considering whether to authorise a juvenile CHIS to participate in criminal conduct. This reflects the requirements of Article 3 of the UN Convention on the Rights of the Child. It also sets out a statutory requirement for juvenile CHIS to be authorised to participate in criminal conduct only in exceptional circumstances.

In addition to those requirements, we are applying the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requiring the IPC to keep these enhanced safeguards under particular review. These enhanced safeguards include: a prohibition on under-16s reporting on their parent or guardian; requiring an appropriate adult to be present in meetings with CHIS who are under 16, with a requirement to consider this on a case-by-case basis for 16 and 17 year-olds; a requirement for an enhanced risk assessment; and a shorter duration, of four rather than 12 months, for authorisations. Let me also be clear that the notification process, as supported by this House in an earlier vote, will also apply to any deployments of juveniles or, indeed, vulnerable people.

The noble Lord, Lord Young, suggested that the duty of care for juvenile CHIS does not extend beyond the time they are authorised as CHIS. This is simply not true. While an enhanced relationship is in place for the duration of any deployment, the duty of care for that person exists for the lifetime of that individual. There is relevant case law here in Swinney v Chief Constable of Northumbria, to which I refer noble Lords. This also relates to the point made by the noble Lord, Lord Russell, about duty of care beyond the deployment. This package does put in place robust and extensive safeguards for criminal conduct authorisations for juveniles but has been carefully drafted to ensure that there are no unintended consequences which may affect the workability of the power or the safety of the juvenile.

It may sound illogical when I say that sometimes the safest way of extricating the young person from the cycle of crime that they find themselves in is to grant such an authorisation. The duty of care that an authorising officer has to that young person will always be at the forefront of their mind. An authorisation will never be granted for operational benefit alone, but there are some examples where authorising criminal conduct by a juvenile is the right course of action. I will give an example, to demonstrate how authorisations for juvenile CHIS are managed in reality by the police, which is taken from the Investigatory Powers Commissioner’s most recent annual report:

“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.”

I hope that this example illustrates the great care that is taken by the police and the way in which this power can be used to make a positive difference to the juvenile’s life.

I will also provide an example of where, after considering the well-being of the juvenile, an authorisation was not granted. In this case, police became aware of a vulnerable young person who was in a position to provide considerable intelligence opportunities in an extremist network. Those opportunities were balanced against the welfare of the young person and their long-term well-being, with the welfare of the child being a primary consideration. The local authority social services were consulted, and a child protection plan was instigated. However, in the end, it was not considered proportionate or appropriate to authorise that young person as a CHIS, despite the intelligence benefits that could have been gained. The decision to authorise a juvenile to participate in criminal conduct is not taken lightly, nor without consideration of the well-being of that juvenile.

There are robust safeguards in place and the government amendments further enhance these. We think that we have the balance right, and I note that both the High Court and the IPC, when considering this issue, also agree with this assessment. In response to noble Lords who have speculated about individual examples, I note that this creates significant risks to the children that it seeks to protect. What is important here is that IPCO, which has the role of independently scrutinising all juvenile CHIS authorisations, has not raised concerns that match that speculation.

Turning to vulnerable people and those who have been victims of modern slavery and human trafficking, I first reassure noble Lords that the definition of vulnerable people that is included within the CHIS code of practice is deliberately broad, so as to capture a wide range of circumstances, including victims of modern slavery. I recognise the importance of ensuring that appropriate safeguards are in place for all vulnerable people, regardless of age. That is why there is already a requirement for them to be authorised only in the most exceptional circumstances and at an enhanced authorisation level. For example, an authorisation by the police for someone who may be vulnerable must be granted by an assistant chief constable.

On the point made by the noble Baroness, Lady Bull, an individual, including someone who is considered vulnerable, will never be coerced into becoming a CHIS. However, they may decide that they wish to support the process by which their perpetrators can be brought to justice. If they cannot give informed consent, because of their vulnerability, they will never be authorised as a CHIS in the first place. Placing a prohibition on the authorisation of vulnerable people comes with the same risks as it does for children; we must avoid a situation where these people are drawn further into crime because of the requirements that we put in the Bill. The safeguards contained in the CHIS code of practice are the right ones, and there will be a full consultation on the full safeguards applicable to criminal conduct authorisations, followed by a debate in both Houses, in due course.

I turn to the alternative amendments which deal with this issue. I appreciate and understand the spirit of these amendments; they all seek to protect the welfare of young people. However, we think that the Government’s proposal is the right one in this instance. Amendments 12, 13 and 19 seek to place blanket prohibitions on the use of juveniles or vulnerable groups as CHIS. I cannot stress any more strongly that this would actually put children at greater risk. If a criminal gang has the choice of using a 19 year-old, who may or may not be a CHIS, or a 15 year-old who is definitely not a CHIS, then they are going to involve children in their activities in increasing numbers. Amendment 14 requires prior approval before a juvenile CHIS can be granted a criminal conduct authorisation. This again creates risk in that it takes the authorising role away from the authorising officer who is best placed to consider the welfare of the juvenile involved and the specifics of the authorisation.

Amendment 24—tabled by the noble Baroness, Lady Kidron—has a number of similarities to the government amendments, although our amendment includes additional safeguards for juveniles. It also includes some differences, the workability of which means we cannot support this amendment as drafted.

While public authorities are already under a legal duty to protect the welfare of their CHIS, extending the appropriate adult requirement more widely risks making this power unworkable. It is not clear, for example, who could be approached to act as an appropriate adult for all vulnerable individuals, bearing in mind the duty of care of a public authority to protect the identity of the CHIS and the fact that these individuals may not have a parent, guardian or other person responsible for their welfare. This would mean finding someone outside the public authority to act as an appropriate adult, which could be very difficult in practice—particularly in an urgent situation where any risks need to be managed quickly.

The amendment also defines exceptional circumstances as when

“other methods to gain information have been exhausted”.

This requirement jeopardises the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain information but using the juvenile involved as a CHIS can in fact be the best way to extricate them from the situation and lead to the best outcome for them.

The approach of this amendment also takes the decision-making power away from the individual, who may have taken an independent decision to support the police in helping bring their perpetrators to justice. This could take away an important way for that person to seek redress by preventing them supporting the investigation and prosecution of these criminals.

For those reasons, we cannot support the amendment as drafted. I understand the spirit of it, as the noble Lord, Lord Kennedy, knows, and agree with its intent, but it would have a significant impact on the ability of law enforcement to use this tool to protect the public and support the juveniles, other children and vulnerable individuals who are similarly caught up in this activity.

We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con) [V]
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My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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Short and sweet. The next speaker is the noble Lord, Lord Russell of Liverpool.

Lord Russell of Liverpool Portrait Lord Russell of Liverpool (CB) [V]
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My Lords, I have a specific question for the Minister. She mentioned the lifetime duty of care to the CHIS that whichever authority is managing them has after the deployment. In the case of children who have been deployed, if and when the person managing the child CHIS retires from the force or moves on to another role, what mechanism is there to replace the individual or individuals tasked with following up with the CHIS? Secondly, is there any sort of formal reporting mechanism that loops back how those ex-CHIS are doing, so that they can be monitored? Also, is that recorded in any way and can it be reported to Parliament?

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, I thank the noble Baroness for her very detailed response to this long and important debate. I want to push her a bit further. She said that the Government cannot support Amendment 24 in its present form but understand where we are coming from. I equally understand where the noble Baroness and the Government are coming from. However, if the House voted for Amendment 24 and it was sent to the other place, I am sure that she would want to engage constructively with its movers—and other colleagues in this House and elsewhere—so that we could bring back through the ping-pong process something that the whole House could unite behind, taking the best points of her government amendment and the points in Amendment 24 that were carried. It would be useful for the House to know whether that would be possible.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I think that the noble Lord knows me by now. If Amendment 24 is carried, I will of course continue to work with him. The same is true for any other amendment that is successful on Report. I think that most noble Lords come from the same standpoint: they want to protect children but recognise that, sometimes, children may have to be involved in criminal activity. I know that my noble friend Lord Young does not take that view, but I think that most noble Lords recognise it. I will continue to work with the noble Lord, Lord Kennedy, Stella Creasy and others, whatever the outcome of today’s votes.

The noble Lord, Lord Russell, asked what happens if a person retires. That lifetime duty of care would probably necessitate certain people retiring and others taking over, but that does not mean that the duty of care does not extend over the young person’s whole life. On the formal reporting mechanism, we have IPCO and I am sure that there are other such mechanisms through the person tasked with that duty of care to the CHIS. If there are any other formal reporting mechanisms, I will notify the House of them.

Lord Young of Cookham Portrait Lord Young of Cookham (Con)
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My Lords, this Bill has generated a series of debates about the role of the state in protecting society, including where the boundaries lie and the extent to which they impinge on civil liberties. This debate has been no exception, as the noble and learned Lord, Lord Hope, said. I am grateful to all those who have spoken; I will come to some of their comments in a moment.

The argument in favour of the use of underage CHIS has basically been that, in exceptional circumstances, the end justifies the means. Permitting a child to commit a crime and take risks is justified by the prospect of catching criminals. The contrary argument is that the end does not always justify the means, as the noble Lord, Lord Paddick, said; if it did, we would allow the waterboarding of suspected criminals and terrorists to save lives—but we do not. The debate has really been over where the risk/reward ratio, if I can call it that, falls in this case.

I am grateful to all those who have spoken. The noble Baroness, Lady Massey, referred to the UN convention and the inevitability of an element of risk if we go down this road. She also offered some additional safeguards of her own—namely, prior judicial approval.

The noble Baroness, Lady Kidron, along with others, paid tribute to the work of Stella Creasy. I do so as well. She has been heroic in liaising with your Lordships in taking this agenda forward. As the noble Baroness said, the Bill formalises the ability of the state to harm a child. She made the very valid point that a guardian is required if someone underage is charged with shoplifting but that there is no such protection if they become a CHIS. She also analysed the difference between Amendment 24 and government Amendment 26.

My noble friend Lord Cormack came up with a different limit—namely, under 16—but said that he would be tolerably satisfied with Amendment 24, which may indeed be where we end up.

The noble Baroness, Lady Hamwee, again made the important point about how you distinguish between grooming on one hand, which we do not approve of, and using a child as a CHIS, which we, on occasion, do. I think she said that her party’s preference was for Amendment 24 rather than Amendment 12.

I am grateful to the noble Baroness, Lady Chakrabarti, for her kind words. She pointed out that having exceptional circumstances always allows a degree of flexibility and subjectivity which one cannot get away from. She pointed out that, even if the amendment was carried, we still cannot ban the use of underage CHIS. Again, she made the useful point, which I think picks up on a point the Minister made, that many people look younger than they are—they are over 18 but look younger. Could not more use be made of them to avoid the dilemma that some of us find ourselves in?

The right reverend Prelate the Bishop of Durham emphasised the moral imperative of safeguarding a child. I think he said that, while his first choice would be Amendment 12 and then Amendment 14, Amendment 24 ended up as his third choice.

The noble Baroness, Lady Jones, rightly pointed out that people are unaware at the moment of what is going on. She referred to them as “child spies”. Again, if push came to shove, the noble Baroness would support Amendment 24. She seemed amazed that an aristocrat—if I can call myself one of those—should bring forward social reform, but if she looks at the whole history of the 19th century, she will find that a lot of social reform was indeed pioneered by aristocrats.

The noble Lord, Lord Dubs, was the swing voter in the last debate. He remains pro-Amendment 12, and I am grateful for that. Amendment 24 was his third preference. He referred to the long-lasting impact on the mental health of a child and cast doubt on whether they could give informed consent.

My noble friend Lady McIntosh also referred to UNCRC and came down, on balance, in favour of allowing CHIS in the most exceptional circumstances. But she needed convincing that Amendment 26, the government amendment, was better than Amendment 24.

The noble Lord, Lord Kennedy, was in favour of Amendment 24 and felt that Amendment 26 did not go far enough. He was in favour of using CHIS in exceptional circumstances and made it clear that he cannot support Amendment 12. I am disappointed by that, and I will come back to that in a moment.

The noble Lord, Lord Judd, spoke in favour of Amendments 25 and 19, and was against the use of CHIS.

The noble and learned Lord, Lord Hope, favoured the more nuanced approach of Amendment 24, rather than the absolute approach of Amendments 12 and 14.

My noble friend Lord Naseby agreed with the arguments that the vulnerable should be exempted, but he had some doubts about modern slavery.

The noble Baroness, Lady Bull, remains pro-Amendments 12 and 13, and I am grateful for that and for her support. She has not been persuaded by the argument. She made the point that parents who did what the Bill allows the police to do would find that their child would be taken into care. She also made the point that teenagers quite often act on emotion rather than reason.

I blushed when my noble friend Lord Holmes said his kind words about me. The high esteem in which he currently holds me may be lowered by what I have to say in a few moments.

The noble Lord, Lord Russell, has played a key role behind the scenes in trying to find a way through, and I pay tribute to that. He also mentioned James Brokenshire, somebody with whom I served in government for many years; I join those who wish him well and a speedy recovery. The noble Lord made four suggestions as to how we could build on what the Government have proposed, with a view to finding a solution.

The noble Lord, Lord Paddick, was unimpressed by the government amendments and ended up pro-Amendment 24.

I have had a bit of time to read the Minister’s letter. In her wind-up speech, she made the point that Amendment 24 would be unworkable because of the difficulty of finding appropriate adults. But appropriate adults are already there; they have to be there for under-16s and for those who are vulnerable between the ages of 16 and 18. One could draw on the same cohort to meet the requirements of having an appropriate adult for others. I listened to her example, but in it the child is extricated only after the information has been procured. The argument many of us have put forward is that the child should be extricated at the earliest possible opportunity, rather than after they have done their bidding.

In a former life, I was a Chief Whip, and one of the qualities needed in a Whip is the ability to count. I have looked at the fate of amendments to this Bill where the Opposition has withheld support, and they have gone down by three-figure majorities. I also note the reservation of several on the Cross Benches whose views I respect, such as the noble and learned Lord, Lord Hope. I do not believe that dividing the House is a useful use of its time, particularly given the position of the Opposition. Against that background, I will not test the opinion of the House, but I hope that all those who spoke in favour of Amendment 12 will back Amendment 24. I beg leave to withdraw my amendment.

Amendment 12 withdrawn.

Amendments 13 and 14 not moved.

Lord Duncan of Springbank Portrait The Deputy Speaker (Lord Duncan of Springbank) (Con)
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We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.

Amendment 15

Moved by

15: Clause 1, page 3, line 2, at end insert—

“(8A) A criminal conduct authorisation may not authorise any criminal conduct—(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;(b) involving an attempt in any manner to obstruct or pervert the course of justice;(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;(d) subjecting an individual to torture or to inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”Member’s explanatory statement

This amendment establishes a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act 1985.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen (Lab) [V]
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My Lords, I thank my noble friends Lord Dubs and Lord Rosser and the noble Lord, Lord Paddick, for adding their names in support of this amendment.

The bottom line on this amendment is to include a prohibition on the authorisation of serious criminal offences. It establishes a prohibition on such offences listed in my amendment; these are in similar terms to those in the Canadian Security Intelligence Service Act 1985, which I will refer to later.

I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs, and I will refer to its report on the Bill, published last November. The committee had serious concerns about this part of the Bill, and I shall put this amendment to a Division unless I receive a thorough reassurance from the Minister.

In chapter 4 of the JCHR report, four issues are discussed: first, there being no express limit in the Bill on the type of crime that can be committed; secondly, consideration of the approach taken in other jurisdictions; thirdly, the power to prohibit certain conduct by order; and fourthly, the Human Rights Act as an effective safeguard.

In their written response to the JCHR report, published on Monday, the Government give detailed consideration to the recommendations in this amendment. I am grateful for that, but I do not think it covers all our concerns as a committee. The Minister will perhaps reflect these considerations in her response. It is helpful that the Government restate their commitment to human rights in the response at the end of section 3. They say that

“the United Kingdom is committed to human rights and will continue to champion human rights at home and abroad. The United Kingdom is committed to the ECHR.”

But evidence of the commitment to human rights has to be demonstrated and reinforced, and I am concerned that by not expressing limits in the Bill on the type of crime that can be authorised, human rights are not being defended.

The Joint Committee on Human Rights has expressed the concern that:

“The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.”

The Home Office, in its guidance on limits of authorised conduct, consider this necessary because

“to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”

In their joint written submission to the JCHR, the NGOs Reprieve, the Pat Finucane Centre, Privacy International and Big Brother Watch note that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill. However, the Canadian legislation expressly provides that nothing in the Act justifies the issues set out in my amendment. They are, to summarise: causing death or grievous bodily harm; perverting the course of justice; any offence under the Sexual Offences Act 2003 or the 2009 Act in Scotland; subjecting an individual to torture, inhuman or degrading treatment or punishment, as in the meaning of the HRA 1998; or depriving a person of their liberty.

The government position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, paragraph 40 of the Joint Committee on Human Rights report points out:

“Reliance on the HRA as providing an effective limit on the conduct that can be authorised appears inconsistent with the Government’s justification for its refusal to exclude specific offences on the face of the Bill. If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the HRA.”

The Committee did not think it

“appropriate to legislate by providing open-ended powers and relying on the HRA as a safety net.”

Paragraph 42 of the Joint Committee on Human Rights report states:

“The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm. The existence of the HRA does not alter this.”

The Committee noted that the Human Rights Act

“has not prevented previous human rights violations connected with undercover investigations or CHIS. For example, the HRA was in force for much of the period when undercover police officers of the National Public Order Intelligence Unit were engaging in intimate relationships with women involved in the groups they had infiltrated.”

The JCHR states that

“The position taken by the Home Office in the ECHR memorandum is concerning. In respect of criminal conduct that violates absolute rights, such as the right to life and the prohibition on torture, the intention behind that conduct cannot justify the violation.”

One of the witnesses to the JCHR inquiry stated that

“to suggest the state bears no responsibility because the conduct may have taken place even without an authorisation is wholly unconvincing.”

The committee noted—as described in some detail in our report—that other countries with similar legislation, including Canada, the USA and Australia, have expressly ruled out enabling the more serious offences. It concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation. The protections provided by the HRA are important. However, reliance on the HRA to make up for the lack of any specific constraint on the type of criminal conduct that can be authorised is inadequate. A power as exceptional as that provided by the Bill requires careful and specific constraints … The Bill requires amendment to include a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act.”

I beg to move.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB) [V]
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My Lords, it is a pleasure to follow the noble Baroness, Lady Massey of Darwen, and to express my support for the amendment she has just moved.

I have to say that I am wholly unconvinced by the argument that adherence to the Human Rights Act is all that is needed. The fact is that the convention rights set out in the schedule to that Act were not designed for this situation at all. Their purpose is to define the rights of individuals against the state, as represented by public bodies. It is not a catalogue of what individuals may or may not do to each other. Of course, the sources that the police may use must have these protections against those who use them. But to use the convention rights in the Human Rights Act to define what the sources may do to other people or may be encouraged to do to other people is to take those rights completely out of context.

Furthermore, reference to these rights lacks the precision and clarity that is needed to deal with what a source may or may not be authorised to do. If you look at Article 2 of the list of convention rights—the right to life—what is really dealt with there is the right to life as against the things that a state may do: depriving the individual of his life except in circumstances where that may be absolutely necessary; and the circumstances are set out there. Article 3 deals with the prohibition of torture, although I notice that it omits the word “cruel” before “inhuman”, which is in the Universal Declaration of Human Rights and in the UN convention against torture. Therefore, if one was trying to define the prohibition or the control against the misuse of sources, one would want to put in the word “cruel”, which is more easily understood than the word “inhuman”. Article 4 deals with the prohibition of slavery and forced labour, which is drifting far away from what we need to have as reassurance in the matter we are dealing with here. So it is with Article 5, which is the right to liberty and security, and which really deals with the circumstances in which an individual may be arrested or detained by the police. Furthermore, there is no mention in the convention rights of rape or other sexual offences, no doubt because that is what people do to each other, not what public authorities do to their citizens.

That said, I have to confess, if the noble Baroness will forgive me, that some of the wording of amendment 15 troubles me. The criterion we must apply is that what we have asked to be set out in the statute should be clear and easily understood. Proposed new subsection (8A)(b), which is given in Amendment 15, refers to

“an attempt in any manner to obstruct or pervert the course of justice.”

That is a very wide-ranging crime, and I am not sure that it would be sensible to include it in this list because very often it may be a relatively minor thing to do, with no psychological or physical consequences to anybody; it is just obstructing the interests of justice. Paragraphs (d) and (e) refer to the Human Rights Act, but for the reasons I have given, I would prefer that that reference was omitted. The Canadian example to which the noble Baroness referred is clearer in its wording. For example, when dealing with obstructing or perverting the course of justice, it includes the word “wilfully”, which would be wise if one is trying to strike the right level of balance in dealing with these matters. It refers to the torture convention when defining what is meant by torture, which I would support, particularly because it includes the word “cruel”. As for paragraph (e), when the amendment refers to depriving a person of their liberty, it really means detaining an individual, which is what the Canadian example gives. The Canadian example adds another point: damaging property. It might be wise to think of including something along those lines too. To take the example of committing or participating in arson, that would give rise to a serious risk to individuals who are in the building and it would be as well to include that along the same lines and for the same reasons as the others in the list. I suggest that some matters might have to be looked at again if the amendment is to be taken further.

I wish to emphasise one thing, as I did at Second Reading, which is that great weight must be given to the obligation in the torture convention. That convention does not merely require states to abstain from torturing people. It requires them to do more than that; it requires them to do everything in their power to avoid torture in any circumstances. I would therefore support an amendment which particularly includes the reference to torture as something that would never be authorised in any circumstances whatever.

Despite these misgivings, and extending again my apology to the noble Baroness for criticising her carefully drafted amendment, and because I believe the Government must think again, I support Amendment 15.

Lord Rosser Portrait Lord Rosser (Lab) [V]
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Speaking for the Opposition, I reiterate our appreciation of the work that our police and security services do on our behalf to keep us safe and our country secure. We know only too well that what they do makes a real difference.

Amendment 15, so ably moved by my noble friend Lady Massey of Darwen and to which my name is also attached, would put limits in the Bill on the crimes that could be authorised under a criminal conduct authorisation. The serious crimes that could not be authorised would cover murder, grievous bodily harm, torture and degrading treatment, serious sexual offences, depriving someone of their liberty and perverting the course of justice.

The Government have given an assurance that the Bill

“would not allow the public authorities named in the Bill to grant CHIS unlimited authority to commit any and all crimes. To allow this would breach the Human Rights Act 1998”.

In that context, I note the comments that were just made by the noble and learned Lord, Lord Hope of Craighead, about the Human Rights Act 1998. However, the Bill itself contains no explicit limit on the types of criminal conduct that can be authorised. The Government say that to have a list of offences excluded from being given a criminal conduct authorisation would lead to covert human intelligence sources being tested against that list. But placing no explicit limit on the types of crimes that can be authorised is not the approach that has been taken in other jurisdictions, where the same risks of CHIS being tested would apply. As my noble friend Lady Massey has said, the Canadian Security Intelligence Service Act contains a power to authorise criminal conduct similar to that proposed in the Bill, but the legislation provides that nothing in that Act justifies many of the serious crimes also excluded under this amendment.

The FBI in the USA operates under guidelines that do not permit an informant to participate in any act of violence, except in self-defence. In Australia, the legislation provides protection from criminal responsibility and indemnification for civil liability only where the conduct does not involve the participant engaging in anything likely to cause death or serious injury to, or involve the commission of a sexual offence against, any person. The Government maintain that countries which have lists of such offences do not have similar criminality to us, but it is not clear what the established basis is for that assertion.

The Government then say that such a list of serious offences is not necessary, because the Human Rights Act provides all the protection needed against such serious crimes being given a criminal conduct authorisation. But if a criminal or terrorist group was sufficiently conversant with the terms of legislation excluding specific offences from being authorised to be able to test a CHIS, it would almost certainly also be sufficiently conversant with the protections against serious crimes being authorised in the Human Rights Act to test a CHIS if, as the Government presumably believe, those protections are clear-cut.

However, the Bill does not preclude specific criminal conduct being prohibited through a list, since it gives the Secretary of State the power, through secondary legislation, to prohibit the authorisation of any specified criminal conduct. Since it would be secondary legislation, Parliament would not get the right to amend what was put forward by the Secretary of State, as it would with primary legislation. Since the Government, presumably, do not believe that whatever criminal conduct might be prohibited from being authorised through such publicly available secondary legislation could be used by criminals as a checklist against which to test a covert human intelligence source, and put such sources at risk, it is not clear why explicit limits cannot also be set out in primary legislation.

The Government say that the Human Rights Act imposes an effective limit on criminal conduct that could be authorised under the Bill, since all public authorities are bound by the HRA and the need to comply with the European Convention on Human Rights. That does not make it appropriate or desirable to legislate without some key details in respect of serious crimes in the Bill—serious crimes that are surely well above the nature of criminal conduct that one might expect would be authorised for a CHIS—so that a refusal to commit such crimes could hardly be proof of a CHIS, as no doubt many others involved in a gang would have limits on how far they are prepared to go when it comes to the serious crimes we are talking about.

The Bill needs to be clear that certain offences or categories of offences are incapable of authorisation. Powers as exceptional as state-authorised criminality, under the terms of this Bill, must have clearly stated constraints on what crimes can be authorised. This amendment provides such an appropriate safeguard.

Lord Bruce of Bennachie Portrait Lord Bruce of Bennachie (LD) [V]
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My Lords, I have not intervened on the Bill to date. It has been well-served by the wide range of expertise across the House. I am grateful to the noble Baroness, Lady Massey, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Rosser, for their coherent explanations of support for this amendment. My brief intervention now is in the light of the Scottish Government’s current withholding of consent to the Bill. I appreciate that the first response to that action might be to dismiss it, as it is consistent with the Scottish Government’s reaction to other consent issues.

However, while the Scottish Justice Minister Humza Yousaf accepts that there is a case for the law, he is concerned that the Bill is drawn too widely and lacks adequate safeguards. His views are entirely consistent with the concerns expressed across the House. He has explained his preference for prior approval by a judicial commissioner, which has been debated and raised responses, although that consideration is still being argued. This amendment, coupled with that which was carried on Monday inserting an expectation of reasonableness, would go some way to addressing these understandable concerns.

It is widely understood and accepted that undercover agents operate to protect the state and its citizens from hostile actions. This necessitates behaviour that, in normal circumstances, might be considered criminal. Both operatives and citizens need to be reassured that actions will be reasonable and proportionate, and that this is not a gratuitous licence. A number of cases where actions were not deemed appropriate have been mentioned in our debates, but so has an understanding that undercover agents carry out vital work that saves lives. The law needs to protect them in their duties—we are talking of the police and Prison Service, in Scotland—and people who might be directly affected by their actions.

It is also clear, as asserted in all contributions to the debate so far, that the Human Rights Act alone is not an adequate safeguard. As an aside, it does not apply to British sovereign bases in Cyprus, for example. The noble and learned Lord, Lord Hope, despite his reservations about some of this amendment’s wording, clearly recognised the need to have human rights issues summarised and incorporated in the legislation. The noble Lord, Lord Rosser, made the same case and the interesting comparison that, as the Human Rights Act is well known, there is no reason for not putting these specific exclusions in the Bill.

As was said by the noble Baroness, Lady Massey, this amendment’s terms are similar to those in the Canadian Security Intelligence Service Act 1985. Can the Minister indicate whether Canada has experienced any problems with this element of its law, which has been in place for some years? After all, to commit murder, to inflict serious injury deliberately or to perpetrate rape, sexual offences, torture or imprisonment is not what we could reasonably expect of our agents.

I understand that, as of today, the Scottish Minister does not yet consider that the Bill is ready for him to recommend, and this amendment alone will not do it. He is still looking for amendments to the Regulation of Investigatory Powers (Scotland) Act 2000. Can the Minister indicate whether the concerns of the Scottish Minister can be met and the Government’s view about those reservations? I do not believe the citizens of the United Kingdom would argue for a lower standard than that set by a close and valued ally and friend, such as Canada. I am sure that the Minister will want to give assurance that the safeguards are adequate and sufficient, and in so doing ensure that this law secures the consent of all parts of the UK.

In conclusion, I can say only that the balance that the Bill is striving for has raised legitimate questions and concerns about a whole range of issues, of which this is just one. The reservations of both the Government and Parliament of Scotland are, I am told in good faith, a desire to ensure that the Bill is structured in a way that meets the objectives of the Government but also the safeguards being sought by Members of this House and the Scottish Parliament. In those circumstances, I hope the Minister can assure us that it will be possible to bridge that gap, because it would surely be far better for the Bill to be passed with the consent of the Scottish Government and the Scottish Parliament than not.

Lord Dubs Portrait Lord Dubs (Lab) [V]
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My Lords, I welcome the opportunity to speak to the amendment. I speak, of course, as a member of the Joint Committee on Human Rights, a position I share with my noble friend Lady Massey, and her amendment reflects very effectively the concerns of the committee about this issue—although the committee was, of course, also concerned by a whole range of other aspects of the Bill.

I can be very brief, but it can surely never be right for the state to authorise the gravest of crimes: torture, murder or extremes of sexual violence. That is the basis of this amendment, which I therefore fully support.

The Government have said that if we set limits on the offences to be covered by the Bill, that will risk that agents could be tested by the groups that they have infiltrated—in other words, that they would then challenge the CHIS, if they suspect them to be a CHIS, to commit one of those offences and therefore he or she would be revealed. As has already been said, other countries have the same safeguards: the United States, Australia and Canada. They already place express limits on the crimes CHIS can commit. If that works for the security services in Australia, the United States and Canada, it can surely apply to us.

The Government have said that the limits can be safeguarded by the Human Rights Act. Frankly, that is not certain at all. The Government have been hesitant about the Human Rights Act anyway, and I believe—the Minister may confirm this—that the Human Rights Act does not apply to abuses committed by agents of the Government. There is concern that this aspect of the Bill may be relevant to criminal conduct authorised overseas. That is a very dangerous situation indeed, and again I would welcome the chance to hear from the Minister whether or not that is so.

The Government produced comments on the report of the Joint Committee on Human Rights, and in particular said that we cannot go down the path of Canada, the United States and Australia because they are not under the European Convention on Human Rights and we are. That is not a straightforward argument. Canada has its own version of the European Convention on Human Rights and the United States has its own Bill of Rights, so it would be wrong to say that they are not protected by a human rights convention such as covers us. That is not a very good argument. In any case, in the United States, the FBI, as we are learning from the events of last week, has thousands of agents each year operating within terrorist and mafia groups which pose grave threats to the public, yet the United States places express limits on what crimes the FBI’s covert agents can commit.

The amendment is a proper one; it is a proper safeguard; it is something that those of us who believe in human rights would say ought to be there. We need the extra protection of the amendment: the Human Rights Act itself is not sufficient.

Lord Cormack Portrait Lord Cormack (Con) [V]
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My Lords, like the noble and learned Lord, Lord Hope of Craighead, I believe the amendment could be improved; nevertheless, like him, I support it. I support its basic principle. I support what the noble Baroness, Lady Massey of Darwen, said.

I was very glad the noble Lord, Lord Rosser, began by paying tribute to the police and those who keep us safe, following that splendidly spirited speech from the noble Baroness, Lady Manningham-Buller, on Monday, when she talked about the bravery of many who serve in the Secret Service. All that I endorse, but it cannot be right for the state to connive at the committing of heinous crimes: rape, murder or torture. I tabled an amendment in Committee specifically citing those crimes. When I saw the amendment of the noble Baroness, Lady Massey, on the Order Paper, I decided not to resubmit mine because she seemed to have covered it.

The noble and learned Lord, Lord Hope, made a wonderful forensic demolition of the Government’s citing support for resisting amendments such as this from the Human Rights Act. That really does not wash. I am bound to say that, in the various conversations I had with officials in the Home Office—I again thank my noble friend for making them possible—the only area where I felt the defence was very weak was in the opposition to an amendment along these lines. We have heard colleagues cite Canada and Australia, and again surely we cannot say that what has worked for almost 40 years in Canada without any apparent obstacle could not work here.

We are a civilised country that always proclaims its belief in the rule of law, the prime requirement of which is to defend all our citizens—hence this unpleasant but necessary Bill—and I submit to your Lordships that it would be completely wrong not to have a brake on the powers that a CHIS can be given. We have seen in the rather unpleasant stories that have come out in the recent inquiry, where women have been seduced when organisations that do not place the state in danger have been infiltrated, that things can get out of hand. I do not want to be part of any endorsement of the commission of murder, rape or torture. That is why, although I believe the amendment can be improved during ping-pong, if it is put to the vote, I will support it.

Baroness Morris of Bolton Portrait The Deputy Speaker (Baroness Morris of Bolton) (Con)
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My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I now call the noble Baroness, Lady Chakrabarti.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab) [V]
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My Lords, I will be short on this, not just to please my friend the Government Whip but because I want us to move to a vote as soon as possible—certainly before the black dog that is conjured in my mind as a result of our not being able to improve the Bill so far overwhelms me. It almost certainly will if we do not achieve some improvement pretty fast. I completely associate myself with the eloquent remarks of my noble friends Lady Massey, Lord Rosser and Lord Dubs in particular, but the noble Lord, Lord Cormack, has once more spoken from such a principled position in his constructive criticism of the Bill.

Briefly, the Human Rights Act is not enough to prohibit criminal offences. The European convention and the Human Rights Act require states to have effective criminal law, but if the Act or the convention were enough by themselves, we would need no criminal law at all. Clearly that is a nonsense. These are high-level, international protections that must be implemented in detail by criminal law; otherwise, there will be violations of the very convention rights on which the Government seek to rely.

Secondly, the checklist argument—I think it was referred to in the other place as the “Sopranos” arguments—on which the Government rely in opposition to suggestions of the kind in Amendment 15 is both circular and hollow. If the authorising officer and the undercover CHIS agent being authorised understood in all circumstances, for example, that rape or GBH are contrary to Article 3 of the convention, I put it to your Lordships that so would sophisticated organised criminal gangs and terrorist organisations. The convention, if it were so effective for these purposes, would be its own checklist.

For those reasons and the obvious reasons that the state cannot authorise these sorts of grave crimes in any circumstances and comply with common decency, equality before the law and human rights, I urge all Members of your Lordships’ House to support Amendment 15.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I congratulate the noble Baroness, Lady Massey, on tabling the amendment. I am deeply sad that it needed to be tabled. It is staggering that the Government could even try to legislate in such broad terms to permit people to commit murder or any sort of outrage without limits and with blanket legal immunity. I would have used the word “inconceivable”, but obviously at some point somebody has conceived that this would be all right. I very much dispute that.

The Government’s response is also that some sort of ethereal legal soup will magically prevent these powers being used for murder, rape or torture. That just is not good enough. This question has to be put beyond any doubt.

The amendment also covers the issue of obstructing or perverting the course of justice. The people who use the powers in the Bill are the very people entrusted by society to uphold the law and fight for justice. The fact that the Bill even puts into any question that they might obstruct or pervert the course of justice is frankly embarrassing.

I mentioned earlier public incredulity, as the noble Lord, Lord Young, put it, from anyone not involved in day-to-day policing, because when they are told of this practice of advanced immunity, they are frankly horrified. When I was buying a coffee today in my local grocers, I explained this part of the Bill to Max, who was making my coffee. He was shocked and said, “It’s a licence for crime. It’s a licence to kill. It’s a licence to commit endless perversions of the law.” The rule of law demands that we pass the amendment and insist on it at ping-pong.

Viscount Brookeborough Portrait Viscount Brookeborough (CB) [V]
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My Lords, I had not intended to intervene—[Inaudible]—discussed in the context of CHIS operating in non-terrorist criminal organisations and rather less of those in terrorist groups. Because the Bill covers both at once, I feel there is a danger—[Inaudible]—extent that it might seriously inhibit the latter, which is the fight against terrorism. I therefore cannot fully support the amendment as a whole, but I would support proposed new subsection (c) on sexual offences on its own if I could do so.

The major difference between non-terrorist crime and terrorism is that the former—[Inaudible]—of death. Terrorism always has death and destruction as its aim. I know little about the former apart from what I have read in the press and heard in the very excellent debates on the Bill. However, I have some knowledge of—[Inaudible]—we remember the serious nature of the criminality that terrorist groups seek to carry out. The intelligence that CHIS gather prevents large numbers of deaths and serious harm to the public.

There have been, I believe, some misconceptions in these debates about the terrorist world. There has been mention of informer—[Inaudible.] All agents are informers, but not all informers are agents. The single-use informer is a person who is short term only and would probably be paid off or given another life after the operation, such as the dismantling of a drug-dealing gang. This is because he will have been exposed by the arrest—[Inaudible]—operator in a large organisation that provides ongoing information that can go on for years or even decades. The noble Lord, Lord Paddick, suggested that a CHIS operating under one of these authorisations is called a participating informer. Perhaps that was so in the areas of his experience, but it was not so in mine, when—[Inaudible]—these types of agents, strategic agents in a terrorist group or short-term criminal informers.

In Committee, the noble and learned Lord, Lord Stewart of Dirleton, said:

“Let us suppose that in becoming a member of a terrorist organisation, a CHIS is required to fill out a membership form … The handlers may therefore assist”—[Official Report, 24/11/20; col. 151.]

in filling the form out. I hesitate to disagree with such an eminent noble and learned Lord, and while I do not doubt that this might be the case for other groups, I am not aware of any terrorist organisation that produces a membership application—although the IRA had a green book that was given to people once they were inducted.

[Inaudible]—in Northern Ireland for 23 years of the Troubles. More recently, I am well aware of the agent-handling protocols from the Troubles era and that they have been adapted and improved for use in Iraq and Afghanistan. For centuries, perhaps for all time, there have been spies and intelligence gatherers at state level, where it is basically strategic intelligence within a pyramid of government structure. This is, if you like, the Le Carré world. Spies rarely have to commit crimes, such as planning and carrying out a bombing—[Inaudible]—in the last 60 years is worldwide terrorism and the need to have long-term deep plants or active terrorists who have been turned.

[Inaudible]—that states have. Terrorist organisations are very flat in structure and every person from the top to the bottom is—[Inaudible]—for want of a better word. They are active terrorists. It is also important to realise that it is very difficult to—[Inaudible.] In 40 years of the Troubles, there were only, I believe—[Inaudible]—figures of such people. We saw what happened when Robert Nairac thought he could become a member of a family. As a result, most CHIS are turned terrorists or at the very least members of the same communities. They will have committed and will almost certainly continue to commit crime—[Inaudible]—a big part of the induction process in the first place. There are no convenient forms to sign, and any reluctance to take part, from initiation onwards, is suicidal.

Imposing these legal limits, as laid down in the amendment, could put CHIS in the terrorist world at substantial risk. After being inducted into a terrorist organisation, every part of that individual’s life from then on contributes, one way or another, to the terrorist aims, death and destruction—criminality of the highest order. Becoming a CHIS cannot change that much. However, the outcomes of their provision of intelligence saved many lives.

I shall give a true example of a small event. An agent turned up at a meeting of his IRA ASU—active service unit—in the county where I live. He was told to deliver a car bomb immediately. He could not refuse. He delivered the car and, luckily, the TPU—the timer power unit—gave him time to call his handler from a call box before the bomb was to blow up, thereby avoiding loss of life. If I may say so, that is not the most extreme case.

Of course it is right that CHIS activity should be regulated and the Bill does just that. There are protections in place such as the Human Rights Act. However, there may be times when participation in serious crime is necessary and at short notice. Any refusal to be involved would result in the loss of an agent, and no further information from that source. It may have taken years for him to become so deeply involved. This is real life in that terrifying world. The running of the protection of such people is vital and complex. There has to be a way in which to manage them. Inserting increasingly tight legal limits on what they can and cannot do is not the way forward, as those limits may be largely unenforceable in those circumstances.

I will not go into examples of the protection. However, there is an analogy which shows the value of sources. The Enigma was a provider of intelligence, albeit a machine, rather than a person. When the code was broken, the first signal referred to an immediate attack on a convoy by U-boats. It struck me that that was a similar situation to those of some agents. Turing’s colleagues said quickly, “We must warn the convoy.” He said, “No. We cannot risk such a valuable source for the future, or that will be the end of it.” That is one of the problems for the CHIS.

Terrorism is—[Inaudible]—operations alone. The use of many long-term, deep-intelligence CHIS creates a cancer within the terrorist organisations that does so much damage to them that, although they do not admit defeat, they begin to realise that they cannot win. That turning point is sought after by Governments worldwide, and very much due to CHIS.

In the months prior to the ceasefire in Northern Ireland, over 90% of planned terrorist operations failed or did not take place, largely as a result of long-term deep CHIS. I and my family were among the beneficiaries of such intelligence. I believe that this and some of the other amendments will inhibit the fight against the worldwide terrorist threat.

Lord Paddick Portrait Lord Paddick (LD) [V]
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My Lords, we support the amendment in the name of the noble Baroness, Lady Massey of Darwen. I have added my name to it.

The noble and learned Lord, Lord Hope of Craighead, seems to have blown the Government’s reliance on the European Convention on Human Rights out of the water. Even if he was wrong, which I very much doubt, I fail to understand the difference between a list of offences that can be deduced from the convention and an offence listed in the Bill. The Government’s argument seems to be solely based on the danger of the CHIS being tested by asking them to perform prohibited acts. Yet as the noble Lords, Lord Rosser and Lord Cormack, have said—the amendment being based on the Canadian Security Intelligence Service Act 1985—the Canadians seem to have had no such qualms or difficulties.

In any event, is the cat not out of the bag already? Do criminals read Hansard? That is about as likely as they are to read primary legislation, in my experience. We have the list of prohibited offences published as a proposed amendment. The Minister is saying that those offences would be prohibited anyway under the ECHR, so what is to be lost? I understand the reservations of the noble and learned Lord, Lord Hope of Craighead, about the wording of the amendment, but if the Government do not give an undertaking to bring this matter back at Third Reading, it can be approved on ping-pong, as the noble Lord, Lord Cormack, said.

I go back to what the Minister said in a different context in Committee:

“We have been consistently clear that we want this important legislation to command the confidence of Parliament and the public”.—[Official Report, 1/12/20; col. 651.]

Here is an excellent opportunity to achieve that. I urge the Government to accept the amendment.

My noble friend Lord Bruce of Bennachie talks about the concerns of the Scottish Government and their call for prior judicial authorisation. After we have considered the amendment, we will come to the previously debated Amendment 17. It is this House’s last chance to insert prior judicial authorisation into the Bill, and I will be testing the opinion of the House on that amendment after we have, I hope, agreed to this one.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place.

The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law.

The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct.

I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough.

We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting.

This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse.

I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively.

Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks.

Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.

Baroness Morris of Bolton Portrait The Deputy Speaker (Baroness Morris of Bolton) (Con)
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My Lords, I have received a request to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con) [V]
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My name was down due to a fault of mine; I apologise for interrupting.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen (Lab) [V]
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I have reservations about some of the issues the Minister raised in summing up this excellent debate—most of them have been addressed by noble Lords. I thank all noble Lords for their varied and incisive comments and useful examples in this valuable, interesting and important debate.

I am particularly delighted that the noble and learned Lord, Lord Hope of Craighead, immediately followed me in this debate; he raised many issues and provided excellent analysis and clarifications. I accept his comments and am delighted that he feels he can support what he has called an imperfect amendment. He is also right in saying, as did the noble Lord, Lord Cormack, and others, that great weight must be given to the issue of torture, which should never be authorised.

Other noble Lords have contributed varied arguments on my amendment. The noble Lord, Lord Bruce of Bennachie, made a useful contribution from the point of view of Scotland, where, interestingly, the Bill was found to be inadequate, as he said. That has been a theme throughout the debate, especially when discussing the Human Rights Act as an inadequate safeguard to prevent criminal offences. The noble Baroness, Lady Chakrabarti, among many others, raised this issue, saying that we cannot legislate in such broad terms; it is not all right to do so.

In thanking noble Lords for participating in this debate, I note that, although I understand what the Minister is saying, the consensus is that there are too many inadequacies. Given those inadequacies, I beg to test the opinion of the House.

Amendment 16 not moved.

Lord Alderdice Portrait The Deputy Speaker (Lord Alderdice) (LD)
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We come now to Amendment 17 in the name of the noble Lord, Lord Paddick. Does the noble Lord wish to move his amendment?

Amendment 17

Moved by

17: Clause 1, page 3, line 2, at end insert—

“(8A) Where a criminal conduct authorisation has been granted, the covert human intelligence source so authorised cannot be deployed unless the conditions under subsection (8B) have been fulfilled.(8B) The conditions are that—(a) notification has been given to the Investigatory Powers Commissioner of—(i) the purpose and extent of the deployment, and(ii) the type of criminal activity it is anticipated the covert human intelligence source would participate in, and(b) the Commissioner has considered the likely operational dividend against the likely intrusive effects, including the potential for collateral damage or injury, and has approved the deployment.(8C) In the event of urgency, prior approval is not required but notification must be given to the Investigatory Powers Commissioner as soon as reasonably practicable and in any event not later than seven days after the deployment.(8D) A notification under subsection (8B) or (8C) must be given in writing or transmitted by electronic means.”

Lord Paddick Portrait Lord Paddick (LD) [V]
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I beg to move and I wish to test the opinion of the House.

Amendments 18 to 21 not moved.

Amendment 22

Moved by

22: Clause 1, page 3, line 16, at end insert—

“( ) Notwithstanding section 27, injury sustained by any person shall not be excluded from the scope of the Schemes provided for by the Criminal Injuries Compensation Act 1985 and the Criminal Injuries Compensation (Northern Ireland) Order 2002 by virtue of the fact that the conduct causing such injury was authorised under this section.”Member’s explanatory statement

This amendment seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) [V]
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I beg to move and I wish to test the opinion of the House.

Amendment 23 not moved.

Amendment 24

Moved by

24: Clause 1, page 3, line 16, at end insert—

“29C Criminal conduct authorisations: granting to children and vulnerable sources (1) This section applies when the source is—(a) under the age of 18,(b) a vulnerable individual, as defined in subsection (5), or(c) a victim of modern slavery or trafficking, as defined in subsection (6). (2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.(3) Where a criminal conduct authorisation is granted for a source to whom subsection (1) applies, the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.(4) In subsection (3) “appropriate adult” means—(a) the parent or guardian of the source;(b) any other person who has for the time being assumed responsibility for his or her welfare; or(c) where no person falling within paragraph (a) or (b) is available and deemed appropriate, any responsible person aged 18 or over who is neither a member of nor employed by any relevant investigating authority.(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015 (human trafficking), or exploitation as defined by section 3 of that Act (meaning of exploitation).(7) The “exceptional circumstances” in subsection (2) are circumstances—(a) where authorisation of the criminal conduct authorisation is necessary and proportionate considering the welfare of the covert human intelligence source;(b) where, if the covert human intelligence source is under 18, the relevant investigating authority has determined in its assessment that the criminal conduct authorisation remains compatible with and does not override the best interests of the covert human intelligence source;(c) where all other methods to gain information have been exhausted; and(d) where the relevant investigating authority has determined in its assessment that the source to whom subsection (1) applies will not be at risk of any reasonably foreseeable harm (whether physical or psychological) arising from the criminal conduct authorisation.(8) Where a person grants a criminal conduct authorisation to anyone specified in subsection (1), that person must give notice of that authorisation to the Investigatory Powers Commissioner.(9) A notice under subsection (8) must—(a) be given in writing;(b) be given as soon as reasonably practicable, and in any event within seven days of the grant; and(c) include the matters specified in subsection (10).(10) Where a person gives notice under subsection (8) in respect of the granting of a criminal conduct authorisation, the notice must specify—(a) the grounds on which the person giving the notice believes the matters specified in section 29B(4) are satisfied;(b) the conduct that is, or is to be, authorised under section 29B(8); and(c) the reasons for believing that “exceptional circumstances” as set out in subsections (2) and (7) apply.”

Amendment 25 not moved.

Lord Alderdice Portrait The Deputy Speaker (Lord Alderdice) (LD)
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Would the noble Baroness, Lady Williams of Trafford, like to move Amendment 26 formally?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.