Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Bryan of Partick Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Gresford. I love these two amendments because they get to the heart of one of the two biggest problems with the Bill, which is immunity. I take the point from the noble Baroness, Lady Chakrabarti, about using the phrase “undercover operatives”. I have personally been saying “police spies”, which is a more generally understood concept for people outside the Chamber.

The Minister did not answer my questions in the previous debate. He did not address the proceeds of crime or the concept of ongoing crime that is not specifically given immunity but will happen anyway. Is that given immunity as well?

The Government are claiming that the Bill just puts everything on a regular footing and that we can all relax because we know exactly what will happen, but it is in fact nothing to do with that. It is about heading off all the legal uncertainty caused by the current legal challenge—the spy cops inquiry. It is nothing to do with protecting the general public. I find it infuriating that the two groups that are constantly referred to as being vulnerable to this legislation are paedophiles and terrorist organisations when we all know perfectly well that other organisations will be contaminated by this system and have undercover operatives and police spies. It will be unions and political groups, such as campaign groups, as we are seeing at the moment with the spy cops inquiry.

It is obvious that the Bill hugely expands the state’s ability to authorise criminal conduct and grant legal immunity to criminals. It is worrying that criminal conduct will go unpunished because of the Bill, but also, as several noble Peers have already mentioned, that the victims of these crimes will have no legal rights. They are left by the Government as collateral damage, which we have again seen in the spy cops inquiry. We have seen just how badly people have been harmed by undercover policing: innocent women’s lives ruined, children fathered by police officers using fake identities who then run off and avoid all their parental responsibilities because they have another family elsewhere who they want to go back to, and people betrayed by state agents.

The Bill’s provisions will prevent any entitlement to compensation for the damage caused by a police spy. You were tricked into a sexual relationship with a police officer? Too bad. Your house was burgled by a police spy? Too bad. You were beaten up by a gang acting as informants for the police? Too bad. Innocent people will be hit by the Bill. It is so obviously wrong. Innocent lives will be ruined. Surely the Government understand this and can see that it is wrong to try to legislate like this.

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions.

Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state.

At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity?

The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that

“nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act”

and that

“there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations”—[Official Report, 11/11/20; cols. 1046-47.]

but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy.

In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities

“clear and detailed guidance that they must follow in deciding whether to grant an authorisation.”—[Official Report, 11/11/20; col. 1045.]

The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed “serious errors”. It says:

“In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services.”


These were the very criteria used to issue the erroneous CCA in the first place.

I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.

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

My Lords, on the evidence I see great merit in these amendments. Our history of criminal law shows that the state has always gone to considerable lengths to protect those who assist it in the detection of crime. The prosecution service and judiciary have ensured that that works. I echo what the noble Lord, Lord Thomas of Gresford, said a few moments ago—that the system works well. My experience from a different perspective is that is so.

The question for this House is what is wrong with the current law and why it needs to be changed, because it has worked well. [Inaudible.] Of course, if one is going to a system where the authorisation authorises the commission of a crime, it is very important that we know how precisely that authorisation will be drafted. Precision was unnecessary under the present law, but it will be in future, bearing in mind the civil and criminal immunity that it grants. Therefore, I asked whether I could be shown examples of what it was intended to do. I wanted that in particular in areas of substantial difficulty relating to drugs and youth gangs, and I ran into a difficulty.

I understand the position of the officers with whom the noble Baroness put me in touch, who take the view, with which I profoundly disagree, that providing examples, even hypothetical ones, might endanger future operations of the police. That presents us with a difficulty, because we can neither look at what is wrong with the current system nor properly examine the future system.

Of course, we could take matters on trust, but I would be very reluctant to do so. I do not wish in any way to cast any doubt on the good faith, hard work or enormous risks that people take, but errors of judgment and maybe more have been traversed in the past. I need not set out the details of those, although I will if necessary at a later stage in Committee.

Therefore, I have given some thought to how the House deals with a very difficult problem—being satisfied that changes are needed and that the changes will work better. I ran into that insuperable problem on evidence only yesterday and so have not had the opportunity to discuss this more widely with the Minister. But under Standing Order 8.118, a public Bill can be committed to a committee, either in its entirety or in an issue, so that the committee can examine the Bill. This happens rarely; it happened with the Constitutional Reform Act, which is why I happen to know of this process. I have also inquired whether such a committee could take evidence in private, and it can; it can operate without transcripts being taken and, of course, what it publishes will be private. We can see whether this is necessary in the course of examining the Bill, but we ought not to make changes to the law and impose a new regime without proper evidence—and that is the responsibility of the legislature.

What we should consider, which I do not want to propose now but want to raise as an idea, is that at the conclusion of the Committee it may well be desirable, because the evidence cannot be given in public, for a small committee of the House, which can look at the matter, representing all the different interests, to take evidence and report. Immediate objection would be made that it is very difficult to report, but I do not agree. There was a case that concerned a real threat to life, with which I was involved, known as WV. We were able to report in detail the circumstances of that case without in any way compromising the life of the person involved. There are techniques for doing that.

I hope that the Minister will either come to a view that more evidence can be provided openly or, if that is not possible, consider the alternative of having a committee that can look at this and report to the House that, for reasons that cannot be set out, there are deficiencies in the law, and the new system will work well. At the moment, I regret to say that I cannot see this change to the law being necessary, and I foresee tremendous difficulties with going to the new system, particularly bearing in mind the way in which the police have discharged so badly in many cases the crafting of search warrants. That can obviously be put right, but commission of crimes cannot.

Crown Prosecution Service: Rape and Sexual Offences

Baroness Bryan of Partick Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Baroness Bryan of Partick (Lab)]

My Lords, my noble friend Lady Chakrabarti’s question is about the Crown Prosecution Service for England and Wales, but I am going to take advantage of the debate that she has kindly secured to highlight some of the issues that we face in Scotland.

The basic problems are similar. The police and the prosecuting bodies make public statements to encourage victims to come forward, stating that they will support women and men who have been subjected to rape or sexual assault. There has been an increase in reports to the police, but a decrease in the percentage of cases being prosecuted.

In England and Wales, the CPS has been accused of dropping rape cases that appear weak. This failure has been described by the director of the Centre for Women’s Justice as a “human rights failure”. Article 3 of the Human Rights Act requires “effective” police investigation and prosecution of rape cases.

In Scotland, the records show an increase in the number of reported rapes and attempted rapes, which were up 28% in 2016-17 and 20% in 2017-18. The percentage of cases that went on to be prosecuted went up slightly in 2016-17 but was still only 13.7% of complaints. In 2017-18, this fell to 10.1%. The percentage of reported cases that result in convictions is less than 5%. Nearly 20% of prosecuted cases end with a finding of “not proven”—I will come back to this later.

There are two major differences between Scots law and the law in England and Wales. The first is the need for corroboration. As the noble Lord, Lord Carlile, said, this used to apply in England and Wales but continues in Scotland. The second is that a jury has a third verdict as well as guilty or not guilty: not proven. Both differences appear to have an impact on cases of rape and sexual assault.

The requirement for corroboration of evidence in criminal cases is described as,

“an ancient and highly distinctive feature of Scots criminal law”.

It requires that each “essential” or “crucial” fact be corroborated by direct or circumstantial evidence. This requirement remains in place despite an extensive inquiry in 2011 by Lord Carloway which recommended its abolition. Research conducted for the report found that 58% of serious cases not pursued due to lack of corroboration would have had a “reasonable prospect of conviction” in England and Wales. The report concluded that,

“the requirement for corroboration could … make it too difficult to prosecute certain offences, for example those typically committed in private (such as rape)”.

There is one possible way of bringing a prosecution when there is no direct corroboration—the Moorov doctrine, stemming from a case in 1930. This was based on similar fact evidence, which could allow evidence from other offences to be used as corroboration. But that can add to the pressure put on complainants, as their cases are dependent on other victims who may change their mind or may have a weaker case, which could result in a decision not to prosecute or an unsuccessful prosecution.

The second handicap that can impact on successful prosecutions for rape and sexual assault is the option for a jury to find a case not proven, which has the same status in law as not guilty. Juries may use this when they consider that the accused may be guilty but insufficient evidence has been presented by the prosecution. The not proven verdict is used disproportionately in rape cases. Rape Crisis Scotland pointed out that nearly 30% of acquittals in rape and attempted rape cases were not proven, compared with 17% for all crimes and offences.

I shall give two examples of how this has impacted on women. Emma reported a man who had raped and abused her when she was a child. The police explained to her that the key factor in determining whether to take forward a prosecution would be corroboration. Even though there was documentary evidence in social work and medical records, it was not sufficient, as there was no corroboration of each element of the charge. Although another family member had been abused, she did not want to become involved, so the Moorov doctrine could not apply. Emma believes that if the abuse had taken place in England, her abuser would have been prosecuted.

Miss M was raped and her attacker was prosecuted, but the jury gave a not proven verdict. Last year she took her case to the civil courts and succeeded in establishing that she had been raped by the man she had accused. The sheriff accepted that the evidence was cogent, compelling and persuasive. She was, however, made to go through a second court case, at tremendous personal stress and financial cost.

The corroboration requirements should have been abolished following the Carloway report in 2011. The recommendation to scrap it was supported by the Scottish Government, the Crown Office, Police Scotland and campaigners for victims of domestic violence and rape. But it was opposed by all the High Court judges in Scotland, other than Lord Carloway. One of the judges, Lord Cullen, stated:

“It’s very important that”,


corroboration,

“is there and always has been for centuries as a safeguard against wrongful conviction”.

Making particular reference to rape cases, the judges warned that,

“the abolition of corroboration may result in miscarriages of justice”.

But we can be sure that miscarriages of justice are happening regularly in a system where cases are not brought due to lack of corroboration.

In 2014, the Lord Advocate, Frank Mulholland, stated:

“In the past two years, 170 cases of rape have had no proceedings taken in them because of insufficient evidence, which in many instances is a lack of corroboration”.


Another judge-led review into how sexual offences are dealt with in the Scottish criminal justice system is under way. This has been welcomed by Rape Crisis Scotland and other support and campaigning organisations, but we have to hope that, when it reports next year, it is followed by swift action to ensure fairness for the accused but also justice for women and men who have been subjected to rape or sexual assault.

Will the Minister in his role as Advocate-General for Scotland lend whatever weight he can to encourage the abolition of the need for corroboration and an end once and for all of the use of the not proven verdict?

Devolved Administrations: 20th Anniversary

Baroness Bryan of Partick Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Baroness Bryan of Partick (Lab)]

My Lords, I very much welcome the opportunity to mark this historic moment, and I hope my voice will allow me to do so.

Looking back over 20 years of the Scottish Parliament gives us a reasonable perspective from which to consider the impact it has had. In the first Parliament, the Labour Party did its best to achieve equal representation of women by twinning the first past the post constituencies to ensure that 50% of its candidates were women. Even without the same level of commitment from the other parties, 37% of MSPs in the first Parliament were women. To put this in context, more women were elected on that one day than had been elected as MPs from Scotland in the House of Commons since 1918.

There has been much to celebrate but I share the worries of others, particularly about the increase in government centralisation at the expense of local government. In Scotland this centralisation includes police, fire and rescue and now schools. There has been a lack of courage to tackle some of the big problems, such as child poverty and falling life expectancy in some of our cities.

The groundwork for the new Scottish Parliament had of course been done by the Scottish Constitutional Convention, which spent much time trying to define the areas of competence that should be retained by the United Kingdom. They included defence, foreign affairs, central economic and fiscal responsibilities, social security and immigration. It gave the Scottish Parliament powers in relation to the Scottish economy and business, health, education, social welfare and the legal system. What this left out were issues where the European Union had primacy, such as the customs union, the single market—including procurement and competition rules—environmental issues, agriculture, fisheries and consumer protection.

Without the EU’s regulations covering the whole UK, the 1998 Act would have had to specify which of those powers were to be retained and which were to be devolved. The discussion would have moved quickly to seeing the need for a cross-territorial body where the voices of the Scottish Parliament and the Welsh and Northern Irish assemblies could be heard. From there, it is likely that we would have been discussing the possibility of federalism.

While we are marking 20 years of the Scottish Parliament and Welsh Assembly and seeing changes in the Northern Ireland Assembly, it is an opportune moment to consider the constitution of the UK as a whole and how it has been affected by devolution. Since 1999, there have been a series of changes, with more powers being devolved to the Scottish Parliament and the Welsh Assembly. This did not stop in 1998.

As mentioned, across England, there are now nine metro mayors—all of them men—the London Assembly, police and crime commissioners, city deals, unitary authorities, metropolitan districts, county councils, district councils, London boroughs and, of course, the City of London. Since 2015, we have also had English votes for English laws. I appreciate that we do not necessarily want a one-size-fits-all approach, but we can probably accept that we have gone too far the other way.

The much-used quote from Ron Davies—that devolution is a process, not an event—has been proved right. The new powers gained by the Scottish Parliament over the years were not in response to any problem with process, or due to the overwhelming demand from the electorate. Rather, they were a response to political problems. So it happened that more powers were devolved in 2012, when some of the original powers had never actually been used and, in 2016, the Scotland Act introduced extensive new powers when some of the powers provided in the 2012 Act had not even come into effect. We cannot just keep adding to the list of devolved powers without stopping to think of the impact on the UK as a whole.

Whatever the outcome of the withdrawal from the EU turns out to be, there is a need to look at how the parliaments, assemblies and regions of England interact with each other. The aim should be to promote a way of working that is not competitive but co-operative, and where cross-territorial issues can be discussed in an open, transparent and accountable forum, rather than being confined to intergovernmental or joint ministerial meetings.

In our devolved arrangements, we have the basis to give us the shape of a federal UK. I would hesitate to become involved in the discussion over the representation of English regions. Instead, I bow to Billy Bragg, who suggests that the European Parliament constituencies could be used to enable regional representation. Common interests will be found across borders between Scotland and the north of England. Rural communities, fishing communities and industrial centres will all find areas of shared interests and work together to improve their sectors. Such an arrangement would enable the redistribution of wealth throughout the UK, and relationships between the parliaments and assemblies would be based on partnership not hierarchy. I hope noble Lords will agree with me that this House could usefully be replaced by an elected Senate of the nations and regions.

Scottish Government: Discussions

Baroness Bryan of Partick Excerpts

Thursday 2nd May 2019 Lords Chamber

[Lord Duncan of Springbank]

I will very much undertake to write to my noble friend with those statistics—I do not have them to hand.

[Baroness Bryan of Partick (Lab)]

My Lords, we should take this opportunity to congratulate those present who were Members of the first Scottish Parliament. We should go beyond intergovernmental discussions to look into inter-parliamentary contact, and take this opportunity to consider a more federal approach to the UK. Having set that in motion in 1997, we cannot now step back and say that nothing else can change. This is a perfect opportunity to make those changes. I hope the Minister will agree.

[Lord Duncan of Springbank]

It is important that we continue to learn about what is going on. It is also true that, while we have very strong working relationships Government to Government, that might not be as well established Parliament to Parliament. There is no doubt that there would be a benefit in that—the learning of this House could well be useful in informing the Scottish Parliament. Beyond that, it will be difficult to see until we have the results of the intergovernmental review.

Scotland: Transport Policing

Baroness Bryan of Partick Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Duncan of Springbank]

The noble Lord has been dogged in his pursuit of this matter and I am obliged to him for continuing to be so. He is absolutely correct in emphasising again that this could well be a model that could work across a whole range of devolved areas.

[Baroness Bryan of Partick (Lab)]

My Lords, even under devolution there has been increasing centralisation in Scotland, including of Police Scotland, which has resulted in failures to respond to incidents in which there has been loss of life. The idea of that body incorporating British Transport Police as well is very worrying. Does the Minister agree that significant expertise exists within British Transport Police that needs to be kept separate?

Brexit: Legal Position of Withdrawal Agreement

Baroness Bryan of Partick Excerpts

Monday 3rd December 2018 Lords Chamber

[Baroness Bryan of Partick (Lab)]

My Lords, in 2012 in Scotland we faced a huge decision—perhaps not on the scale that we face now—but the then First Minister claimed that he had received legal advice from the Lord Advocate on the question of an independent Scotland’s relationship with the EU. He used the Ministerial Code to refuse to give details of that legal advice. Ruth Davidson, leader of the Conservative Party in Holyrood, said of this excuse that the,

“people of Scotland needed the truth”.

Does the Minister agree that a similar statement could be made on our behalf here today—that we should understand the nature of the advice provided?

[Lord Keen of Elie]

With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.