Investigatory Powers Commissioner (Oversight Functions) Regulations 2022
(1 year, 5 months ago)
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Lord Sharpe of Epsom
That the Grand Committee do consider the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I beg to move that the Grand Committee consider the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022, laid before the House on 19 October 2022, and the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022, laid on 18 October 2022.
Protecting our national security and keeping the public safe remains a top priority for the Government, as does ensuring that public trust and confidence in the exercise of investigatory powers are maintained. These two sets of regulations are concerned with the exercise of investigatory powers, and in particular with the important safeguards and oversight. The investigatory powers with which they are concerned are set out in the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000, which I will henceforth refer to as RIPA.
We are concerned with three key measures today. First, I will turn to amendments to the Covert Human Intelligence Sources Code of Practice. Throughout this debate I will refer to covert human intelligence sources as CHIS, and the code of practice itself as the CHIS code.
The CHIS code sets out the processes and safeguards governing the use of CHIS by public authorities and provides detailed guidance on how CHIS powers should be exercised and duties performed, including examples of best practice. The draft regulations before the Committee today will bring into force changes to the CHIS code. These changes have been made following amendments made to RIPA by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which I will refer to as the CHIS Act throughout today’s debate.
The amendments made to Part II of RIPA by the CHIS Act ensure that there is a clear and consistent statutory basis to authorise CHIS to engage in conduct that could otherwise be criminal, where it is necessary and proportionate to do so, having regard to the Human Rights Act and the UK’s obligations under the European Convention on Human Rights.
The draft revised CHIS code enhances the protection for children and vulnerable adults where they are to be authorised as CHIS in exceptional circumstances. There has been substantial consultation with charities and interest groups, and we have given due consideration to the valuable feedback they have provided on the changes we have made to the CHIS code.
The investigatory powers regulations will also make necessary changes to the Interception of Communications Code of Practice, which I will now refer to throughout the debate as the interception code. The draft revised interception code provides further guidance on the use of interception by public authorities that exercise such powers, also known as intercepting authorities.
The amendments to the draft revised interception code will reflect the Government’s long-standing position on serving interception warrants on cloud service providers and the enterprise services they provide to customers. These changes will provide much-needed clarity to relevant UK and US companies impacted by enterprise service issues. By enterprises, we mean companies, academic institutions, not-for-profit organisations, government agencies and similar entities that pay cloud service providers to store and/or process their organisations’ electronic communications and other records. When a cloud service provider is providing such services to an enterprise, the enterprise is responsible for providing accounts to its users and determining the reasons for which data is retained and processed.
A public consultation on the proposed changes was carried out between July and October. After further cross-governmental engagement on the draft revised interception code, three additional changes to the proposed revisions were made to provide further examples of the circumstances under which a warrant may be served on a cloud service provider instead of an enterprise customer, and to outline the obligations imposed by the Investigatory Powers Act regarding unauthorised disclosure to help protect national security.
Finally, I turn to the changes to the Investigatory Powers Commissioner’s oversight functions, as proposed in the Investigatory Powers Commissioner regulations. I will refer to the Investigatory Powers Commissioner as the IPC throughout.
These regulations place two areas on a statutory footing: first, the IPC’s oversight of the GCHQ equities process; and, secondly, compliance by members and civilian staff of SO15 at the Metropolitan Police Service and officers of the National Crime Agency with the guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas. These areas have previously been overseen by the IPC and his office on a non-statutory basis.
The IPC has made it clear, and the Government agree, that he considers formalising his oversight responsibilities as being in the best interests of transparency and robust oversight. As a statutory authority, the parameters of the IPC’s remit are set by Parliament. These changes will provide greater public accountability and enable the effective discharge of the IPC’s responsibilities.
These regulations are vital for keeping the public safe by providing clarity and transparency around the use and oversight of powers. I hope the Committee will be able to support these measures and their objectives. I commend the draft regulations to the Committee. I beg to move.
Baroness Chakrabarti (Lab)
My Lords, I apologise for coming in when the Minister was already on his feet. I declare an interest as a council member of Justice, the all-party law reform group that took a significant interest in the CHIS Bill when it was going through the House. It was a very strange time: it was during lockdown when we had Zoom Parliament and so on, as the Minister will recall.
All noble Lords will appreciate that the legislation was—and remains—controversial. Whatever the arguments for and against its necessity, it is controversial to grant advance immunity from prosecution not only to police officers or direct officials and agents of the state but to those whom they run in the community, including in criminal fraternities. We have had the arguments in relation to the legislation itself. None the less, we all need to recognise the dangers that exist with that kind of advance immunity from criminal prosecution, including for quite serious crimes.
During the passage of the legislation the Government said that the Human Rights Act would be a safeguard, and the Minister has repeated that. But we are constantly told that the Human Rights Act is in jeopardy and, with the return of Mr Raab to the Office of the Deputy Prime Minister and as Justice Secretary, that remains in the balance. That needs to be on our minds when we consider these powers and the codes of practice made thereunder.
I will make one further point, about the consultation around the CHIS codes of practice. Justice informs me and other noble Lords that the consultation took place between 13 December 2021 and 6 February 2022—an eight-week period that included Christmas and serious restrictions because of the rise of the omicron variant. That was of concern not only to Justice but to other charities and NGOs that had concerns about the legislation and about victims’ rights in particular. One of their substantive concerns is that there is not enough in the current codes of practice to encourage victims to seek compensation in the event that they are harmed as a result of advance criminal immunity being given to CHIS.
Christmas is a problem for people who work in the sector in any event, because staff are on holiday and so on, but lockdown made it harder still. What Justice says about that is if the Home Office had compensated for the short festive period by going out proactively to consult potential interested parties, that consultation deficit could have been met. But that, I am told, did not happen. As a result, both Justice and the Centre for Women’s Justice, which of course had been very involved in supporting the female victims of the spy cops scandal, made their views known to the Home Office. That has not been a satisfactory engagement.
I know there is a limit to what can be done about this at this point but I intervene today to put this to the Minister. He perhaps was not the Minister responsible at the time of the consultation but might, none the less, keep this under review and possibly open up a line of ongoing communication with Justice and the Centre for Women’s Justice. Although these regulations are of course going to pass, these codes of practice need to be kept under review, as does the operation of this legislation with the codes of practice. I know from my dealings with him that the Minister is a reasonable person. After the regulations pass, I hope that he will perhaps meet these people to keep that conversation going and ensure that the operation of these provisions and vital codes of practice is monitored, and that the monitoring from the Home Office actively encourages involvement from those who work on victims’ rights and in the sector.
Lord Paddick (LD)
I thank the Minister for introducing these draft statutory instruments. As he said, the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022 cover highly controversial changes made to the Regulation of Investigatory Powers Act 2000 by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 which enable the police, security services and other public bodies to task informants or agents to commit crime, where it is necessary and proportionate, for which they will be immune from prosecution and civil damages. As the noble Baroness, Lady Chakrabarti, has just said, that is not just the officers who task the individuals or authorise that tasking, but the individuals involved in the criminal acts themselves.
Taking up the point made by the noble Baroness, my understanding is that victims who have suffered as a result of the participation of CHIS in crime cannot make claims because the agents and CHIS are immune from being sued in the civil courts, as well as from criminal prosecution. In relation to the spy cops issues, can the Minister clarify whether that immunity from civil claims is not retrospective and that where undercover officers were inappropriately engaging in relationships with protesters and activists, they may therefore still be liable for civil damages?
The Act’s measures were fiercely debated in this House and, despite the safeguards that were brought in through amendments passed by it, they remain controversial—not least given the potential tasking of children and vulnerable adults to commit crime, and the danger and safeguarding issues surrounding the use of children and vulnerable adults in this way. Since the safeguards introduced in the CHIS Act came into force in 2021, can the Minister explain why it has taken until now to publish these codes of practice, which instruct the police and the security services on how they must comply with the 2021 Act?
The Explanatory Memorandum says:
“It is not considered that relevant public authorities or the IPC need to be provided with additional time to adopt different patterns of behaviour with a delayed commencement date”
as the changes contained in the revised codes of practice have been in force since 2021. If, as the Explanatory Memorandum says,
“the new provisions in the CHIS Act”
provide guidance
“covering the way that Criminal Conduct Authorisations … must be authorised and reflects the changes made to the use of children and vulnerable adults as CHIS”,
what is the point of the revised codes of practice? If they are important, even essential, to ensure the relevant authorities comply with the law, why have those authorities been allowed to operate without them since 2021, bearing in mind that there was no statutory basis for authorising CHIS to participate in crime before the 2021 Act?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak first to the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022. This SI updates the CHIS code of practice, following the 2021 Act, and the interception code of practice. We believe the first duty of any Government is to keep our country safe. The Labour Party recognises the importance of covert intelligence and the necessary, if at times uncomfortable, role of covert human intelligence sources and the contribution they make on our behalf.
The Labour Party supports the CHIS Act but, along with a number of Members from across the House, we pushed for additional safeguards with varying degrees of success. In particular, we pushed to limit the types of criminal conduct that could be authorised and for prior judicial oversight to be sought for an authorisation; we did so without success. However, the House was successful in adding some safeguards to the Bill by securing extra protection for children and young people and ensuring the notification of authorisations to the Investigatory Powers Commissioner. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Kidron, who played a leading role in securing these changes.
We support the regulations but I have a number of questions. The first concerns what the Explanatory Memorandum says about Section 72 of RIPA. It sets out the effect of the code. I will read out the further explanation:
“Failure to comply with the Code does not render that person liable in any criminal or civil proceedings. However, the Code is admissible in evidence in criminal and civil proceedings, and may be taken into account of any court”.
Can the Minister give any information on this? What would be the case if there was a failure to comply with the code? What could or would be the repercussions for those breaking the code?
Further, there is a requirement for public authorities
“to ensure that any criminal conduct to be authorised is compliant with the relevant Articles of the European Convention on Human Rights and the Human Rights Act 1998.”
How will that be impacted by the proposed Bill of Rights Bill? My noble friend Lady Chakrabarti also raised the prospect of rescinding the ECHR even though Dominic Raab repeatedly says that he does not want to do that. Nevertheless, doubts and scepticism persist.
On children, I note that most of the consultation responses focused on protecting children and vulnerable adults. I can see that the Government have reflected on those submissions. It is right that children are authorised as CHIS sources only in exceptional circumstances, and that the duty of care owed to the children in this context is taken extremely seriously.
I have received an extensive briefing from Just for Kids Law, as I am sure other noble Lords have. Although I want to make it clear that I do not agree with its central proposition that children should never be used for CHIS, it raised a number of valid questions that I will repeat for the Minister now. Specifically, paragraph 4.14 of the draft code refers to Articles 8 and 9 of the juveniles order. It is not clear what this refers to: the juveniles order has only six articles. It would assist if the Minister could clarify what is meant by this reference.
Secondly, there is a continued discrepancy between the code and the primary legislation. The juveniles order sets out the protections given to those aged under 18 who are used as a CHIS. It is referenced at paragraph 4.4 of the code of practice. The protections in the order now differ from the protections set out in the code of practice. Will the Government amend the order to reflect the new code of practice?
My third question is about the test for the appointment of an appropriate adult for a young person. A new test has been written—this goes to the point raised by the noble Lord, Lord Paddick—so can we have confirmation that the appropriateness of that test for appointing an appropriate adult for somebody aged under 18 or who is vulnerable will be kept under review? My experience of youth courts is that the guidance for appointing appropriate adults tends to be a bit rigid, so my view is that it needs to be reviewed to see whether it is being used appropriately in all circumstances.
My noble friend Lady Chakrabarti raised a couple of points. Specifically, as in the Justice briefing, the draft code of practice makes no mention of CHIS acting as agents.
Baroness Chakrabarti (Lab)
I beg your pardon; what I meant was agents provocateurs.
Lord Ponsonby of Shulbrede (Lab)
Right, so the point is about provoking others to commit criminal acts. What would be the view of that?
I remember the original debates when somebody—I am not sure whether it was the noble Lord, Lord Paddick—gave a very evocative example that hit home for me. It was of a 17 year-old girl being run as a prostitute by her older drug-dealing boyfriend. I understand that it was the noble Baroness, Lady Hamwee, who gave that example and spoke about the appropriateness of engaging that girl to effect a conviction of her boyfriend. It was obviously an extremely difficult case but it illustrates the sensitivity and difficulty of the cases with which we are dealing.
The noble Lord, Lord Paddick made another good point, which I will repeat. It was the question of whether the immunity that would be available to CHISs for some action would be retrospective, particularly in the context of women who have been in relationships with officers who were CHIS officers and may well be seeking compensation for those relationships. I would be interested to hear an answer from the Minister on that.
Baroness Chakrabarti (Lab)
On the point about agents provocateurs—that is, CHIS who are not just having to commit criminal acts to keep their cover but are perhaps actively encouraging others to commit crimes—the concern is not just about the 17 year-old girl in the prostitution example. There is a big concern here from the trade union movement and the protest movements that CHIS could be actively encouraging peaceful protest movements to tip into criminal acts. The concern is that the code should at least make it clear that that kind of agent provocateur behaviour would be unacceptable. Will the Minister consider adding that to the code?
Lord Ponsonby of Shulbrede (Lab)
My Lords, if I might move on to the other SI with which we are dealing, we support the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022. This SI provides the commissioner with oversight of compliance by members and civilian staff of the Metropolitan Police Force in relation to counterterrorism legislation, and officers of the National Crime Agency with guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence Relating to Detainees. The regulations take two functions where the Investigatory Powers Commissioner currently exercises oversight on a non-statutory basis and places them on a statutory footing. This change has been requested by the IPC himself; I thank Sir Brian Leveson and his team for the work they do.
The National Security Bill has passed through the other place and will soon start here in the House of Lords. My honourable friend Holly Lynch has sought legal opinion on some of the provisions in this SI in relation to the oversight of GCHQ, in particular that the new regulations stipulate that the oversight functions of the commissioner include keeping under review the exercise of GCHQ processes for whether information about vulnerabilities in technology should be disclosed. I think the Minister made that clear in the other place so, on that basis, I welcome this extension of the oversight powers allocated to the commissioner. It is appropriate that these powers are put on a statutory footing.
Lord Sharpe of Epsom (Con)
My Lords, I thank all three noble Lords for their considered responses on these regulations. As I set out earlier, the changes we are seeking to make through the regulations will ensure that the investigatory powers regime functions effectively, with appropriate oversight and safeguards, to protect our national security and keep the country safe; I welcome the reassurance from the noble Lord, Lord Ponsonby, on that from his side. I will do my best to answer all the questions that have been asked. Obviously, if I miss anything, I will carefully go through Hansard and commit to write to noble Lords.
The noble Baroness, Lady Chakrabarti, asked why the public consultation was somewhat truncated, over Christmas and what have you. When the CHIS Bill was introduced to Parliament in September 2020, the Government also published a draft revised code of practice setting out the changes that it was anticipated would be appropriate, were the Bill to be enacted as introduced. The noble Baroness recalled the lively debates in Parliament during the Bill’s passage and the Government’s collaborative approach to engagement with both parliamentarians and wider stakeholders, during which a broad range of expertise was brought to bear and views were aired in respect of the policy underlying the Bill. The public consultation on the revised CHIS code, which commenced on 13 December 2021 and concluded on 6 February 2022, as noted, concerned not the policy underlying the CHIS Act but the proposed changes to the current code. Many of these changes were set out in the draft revised code, published alongside the Bill, in September 2020. The consultation was originally scheduled to last six weeks but, as much of that period was over the Christmas holidays, we extended the consultation by a further two weeks to accommodate that.
The noble Baroness also asked about compensation for victims of criminal conduct authorisations. Section 27A of RIPA makes it clear that those who have been victims of criminal conduct authorised under a criminal conduct authorisation are entitled to compensation, notwithstanding that the criminal conduct may have been authorised by a CCA. Any person or organisation is able to make a complaint to the Investigatory Powers Tribunal against a public authority if they suspect a public authority of using covert techniques against them, which will be independently considered by the IPT. Additionally, a person is able to make a claim to the IPT under the Human Rights Act 1998 for any suspected breaches of human rights that they believe have been committed against them in connection with conduct where Part II of RIPA is concerned.
I want to go into a little detail on the comments around women’s groups. I reiterate that it is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it be used as a tactic of a deployment. The noble Baroness, Lady Chakrabarti, will know that, in a specific case, the review is ongoing.
We are aware of historical instances in which the authorisation of CHIS has disproportionately disadvantaged women, for example in the case of Wilson v Metropolitan Police. That related to the actions of undercover police officers deployed to gather intelligence on protest groups and people associated with them between 2003 and 2009. The Investigatory Powers Tribunal found that the sexual relationships of an undercover officer with a female member of those protest groups demonstrated that there had been failures in the supervision and management of undercover officers.
Since 2013, steps have been taken by His Majesty’s Government to strengthen safeguards and increase oversight to prevent such activity by law enforcement. Separately, the Undercover Policing Inquiry was established in 2015 to inquire into and report on undercover police operations in England and Wales since 1968. That inquiry is ongoing; the Home Office will consider the report of its findings in due course. I am sorry to answer that point at length, but I think it is worth stressing.
On the question from the noble Lord, Lord Paddick, about the public consultation and the Government’s response to it, Home Office officials carefully considered all the responses received on the revised code as part of the public consultation. The process took more time than expected, but we wanted to ensure that we gave full consideration to the concerns raised. Having a robust code of practice is an important part of maintaining public trust and confidence in the use of the powers to which the code relates.
On operating without a CHIS code, safeguards in the Act and under it were already enforced; the code provides guidance. A draft revised code has been in place since the Bill was before the House.
All noble Lords referred to safeguards. It is of course important that authorisation of CHIS activity is subject to robust and independent safeguards. The CHIS code provides guidance and clarity on the safeguards related to the use of CHIS that are set out in the CHIS Act. For example, all authorisations are granted by an experienced and highly trained authorising officer, who, as noble Lords will recall, is of high rank and will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. In addition, as with other sensitive investigatory powers, the use of CHIS is overseen by the Investigatory Powers Commissioner under the Investigatory Powers Act 2016, thereby providing robust and independent oversight of the power.
When public authorities authorise criminal conduct authorisations, the judicial commissioners within the Investigatory Powers Commissioner’s office, which I will henceforth refer to as IPCO, must be notified of a criminal conduct authorisation within seven days of an authorisation being granted or cancelled. Where an authorisation is granted, such notifications must set out the grounds to which the authorisation relates and specify the conduct that is authorised.
The IPCO also conducts inspections of public authorities that have the power to authorise CHIS and publishes an annual report on the findings from these inspections. Previous annual reports on the management of CHIS have been positive. In 2018 the IPCO annual report found that, in all instances, MI5’s authorisations of CHIS participation in criminal conduct were
“proportionate to the anticipated operational benefits”
and met “a high necessity threshold”.
On the safeguarding of children, I stress that the revised code makes clear that children are able to be authorised as CHIS only in exceptional circumstances and subject to the enhanced safeguards, including the risk assessment process set out in Article 5 of the juveniles order. An enhanced level of safeguards also applies to the rare occasions when there is a need to authorise a vulnerable adult to engage in CHIS activity, including criminal conduct. As with authorising children as sources, vulnerable adults should be authorised to act as a CHIS only in exceptional circumstances.
These are substantive amendments to the code of practice that focus on the well-being and safety of the child or vulnerable adult. It is right that there are additional safeguards for these authorisations. These amendments provide this further protection while ensuring that they do not create any unintended consequences that risk the safety of the individual. We have consulted extensively with charities and rights organisations in preparing the draft code to ensure that these safeguards are at the heart of the guidance.
On the limits on CHIS criminal conduct, a CHIS will never be given authority to engage in criminal conduct of any and all kinds. All authorisations must be necessary and proportionate to the criminality they are seeking to prevent, and the authorising officer must ensure that the level of criminality authorised is at the lowest level of intrusion possible to achieve the aims of the operation.
Any authorisation for a CHIS to engage in criminal conduct must comply with the European Convention on Human Rights—the noble Baroness will forgive me for not speculating as to the current state of affairs with that. This includes the right to life, and prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.
The noble Lord, Lord Ponsonby, referred to the fact that the CHIS Act does not list specific crimes that may be authorised or prohibited. The reason is sound: to do so would place in the hands of criminals, including terrorists and hostile state actors, a means of creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public.
As I have already said, a CHIS may be granted only where necessary, proportionate and compliant with the Human Rights Act. The use of agents provocateurs or entrapment undermines a person’s right to a fair trial. That is reflected in the Undercover Policing Authorised Professional Practice, which states in clear terms that an undercover officer
“must not act as an agent provocateur.”
Although agent provocateur is not a defence at law, it is managed through common-law principles, and the updated director’s guidance on charging provides safeguards to ensure that the Crown discharges its disclosure obligations to ensure that an agent provocateur issue does not cause a miscarriage of justice. Furthermore, the criminal courts have developed safeguards to ensure fairness in criminal proceedings, including where entrapment is alleged to have occurred.
I am sorry, I am slightly out of sync. The noble Lords, Lord Ponsonby and Lord Paddick, asked whether the juveniles order will be amended to reflect paragraph 4.4 of the code. We have already amended the juveniles order. We do not intend to amend it again at present.
Finally on this, a failure to comply or to have regard to the code would be a relevant error per Section 231(9)(a) of the Investigatory Powers Act. It is therefore an oversight issue, so it would be a matter for IPCO.
I move on to the interception code, which the noble Lord, Lord Paddick, asked about. We wanted to make these changes as close as possible to the entry into force of the UK-US data access agreement, given that the number of requests to which this existing policy will apply will be significantly higher now that the agreement has entered into force. Additionally, as per Section 260 of the IPA, the Home Secretary will shortly publish a report on the operation of the IPA, in line with her statutory obligations. It would be wrong to pre-empt the outcomes of that report. We will continue to keep all the IPA codes of practice under review.
I must stress that this instrument does not expand the IPC’s remit but simply formalises existing functions. Neither will it provide intelligence agencies or law enforcement authorities with new powers. The regulations to amend IPCO’s functions will ensure that the IPC’s functions are underpinned by statute, increasing public accountability, transparency and robust oversight. These are important powers—again, I join the noble Lord, Lord Ponsonby, in singling out the relevant personnel for our thanks and praise—and will allow our agencies to keep the public safe and to protect national security.
I think I have answered all the questions. I am very grateful for the contributions that have been made, but as I set out in my introduction, these changes we seek to make will ensure the greater efficiency of the IPA and that the Act continues to retain world-leading safeguards and oversight.