Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Rooker (Lab) [V]]

My Lords, I too regret the split in this debate and certainly hope that it does not happen again. Members were left high and dry with no knowledge of what was happening on the evening concerned. However, that is in the past.

One minor caveat is that I served briefly as Minister of State both in the Northern Ireland Office and the Home Office, but I was involved purely in domestic matters—never in anything remotely regarding security or policing.

I applied to speak to this group of amendments only for the specific purpose of supporting Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich. I would have considerable difficulty supporting other amendments in this group, as I will if they come back on Report.

We have heard some powerful speeches about events of the past; in no way do I denigrate these, but this Bill is about the future. We have also heard much about the current inquiry into undercover policing. While I share the concern, and am quite appalled at some of the activities that have been disclosed, I do not see a massive connection with this Bill.

At Second Reading I said that, in the main, I think of a CHIS—a covert human intelligence source—as

“someone who is not an employee of the police or security services, but an outside, undercover informer or agent.”—[Official Report, 11/11/20; Col. 1079.]

No one is seeking a free-for-all. Some years ago, I spent a day in Thames House. Much to my surprise, I came away with the impression of liberal—with a small L—attitudes and, above all, a desire to serve and be accountable to Parliament and the rule of law.

The noble Lord, Lord Anderson, said at one point in his speech that, in the past, he was converted to prior judicial review. I took this to be in respect of the issues he was dealing with at that time, and that has, in the main, been accomplished on other issues. I was also struck by the point he made about the FBI and Canada not using judges for prior approval. This point does not come across in some of the briefings received on the Bill.

Handling a covert human intelligence source is real, practical, person-to-person work, and Amendment 46 is a much better alternative than the others in the current circumstances. The noble Lord, Lord King of Bridgwater, reinforced that, making the point that other alternatives do not seem practical. This was reinforced again by the noble Lord, Lord Butler of Brockwell, who spoke about the work of a CHIS as a specific form of intrusion that required a specialist overseer as it was not a specific one-off act. The work of the CHIS is different from other intrusions such as telephone intercepts or surveillance. It involves fast-changing situations and sometimes volatile, or possibly unpleasant, personalities. In such circumstances, a clear duty of care rests with the handler of the covert human intelligence source. Too little attention has been paid to this aspect.

The noble Lord, Lord Carlile of Berriew, speaking in support last week, said that, to date in the debate, there had been some gross distortions of the position of the police. I too think some of the language has been extravagant, and it does not fit the here and now.

This brings me to the speech of the noble Baroness, Lady Manningham-Buller. While earlier speeches in the debate drew on practical experience—in particular, that of the noble Lord, Lord Paddick, as a police officer—we can now draw on the personal practical experience of someone who spent 33 years inside MI5 actually running agents in the field and who accepts that there is a life-long duty of care for the agents. Quite correctly, we do not hear much about this, but it is an important point to appreciate. The noble Baroness made a rather telling point, repeated today by my noble friend Lord Campbell-Savours, about MI5 seeking such legislative accountability for running CHIS 27 years ago, before it was a statutory body. Given what I said at the start about what I consider a CHIS to be, it is clear to me that the noble Baroness made a powerful case for Amendment 46, adding to what the noble Lord, Lord Anderson, said in moving it.

Yes, of course, I accept in principle that prior judicial consent could be supported, but it is simply not practical. We need to think of the position of the agents and their handlers in the current circumstances—of those who are making such decisions today. We need to be supportive of change, accept that the situation is not comparable to telephone intercepts and other aspects of surveillance, and be wholly practical in a way that supports those doing this valuable work for the country. I support Amendment 46, unlike many of the other amendments in this group which are simply not practical.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a great pleasure to follow so many distinguished Members of your Lordships’ House—not least my noble friend Lord Rooker. The fact that this group has taken so long, has had by necessity to be split over two days and has contained so many distinguished contributions, merely highlights the gravity of the step taken in this Bill to create advanced and complete civil and criminal immunity for criminal conduct by CHIS, rather than putting CHIS itself on a statutory footing; I remind noble Lords of this. It also serves as a reminder of the care with which noble Lords approach this kind of dramatic constitutional exercise.

It would be remiss of me not to mention that this is the first sitting of this Committee since the Government announced yesterday that, once more, the Finucane family will not get the independent inquiry that they have sought for so long into the murder of the lawyer Pat Finucane. This seems highly pertinent to consideration of this Bill.

If after so long, and if after acceptance—even by a UK Prime Minister—that illegal collusion by state agents took place in that murder, and after so much criticism, including at international level, it is still not considered appropriate to have an independent judicial inquiry, that really does beg the question for the future as to whether any Government, of any stripe, at any moment in history, should be trusted with the ability to authorise a whole host of state agencies to subdelegate the power to grant immunities in relation to criminal conduct to a whole host of currently unspecified levels of authoriser or handler, and to do so without some kind of prior authorisation process. The sheer gravity of that new immunity from civil and criminal suit—which has not been the case up to now—is what I believe has caused such a plethora of alternative suggested safeguards, many of which arise in the group of amendments that we have been discussing in recent hours.

It would be invidious to cite particular interventions, because there have been so many; all have been incredibly expert and thoughtful, coming at the problem of safeguards from a great deal of alternative experience. We have heard from the retired judiciary. We have heard from the noble Baroness, Lady Manningham-Buller, a very distinguished former director of MI5, who of course famously made her maiden speech in your Lordships’ House in defence of civil liberties and against the notion of 42 days’ detention without charge or trial. We have heard from a number of noble Lords who have served at Cabinet level, including my noble friend Lord Hain, who has authorised intrusive activity—necessarily, as a Northern Ireland Secretary—but has also, as he told us quite poignantly last week, been the victim of political manipulation of intrusive power.

My noble friend’s story particularly highlights how a covert human intelligence source is different from other kinds of intrusive power, as has been put eloquently by a great number of noble Lords. A human intelligence source is different because that human is at risk and, as a human, is therefore more precious than a bugging device when at risk. A human intelligence source is also more intrusive and dangerous to those being spied on, because that human will affect behaviour, not just monitor or record it.

In this group, there is a number of alternative authorisation processes and safeguards pre- and post-criminal activity, judicial and political—which, of course, makes me wince slightly. That menu is comparable to the other powers catered for in the Regulation of Investigatory Powers Act 2000.

I remind noble Lords that the scheme of this Bill has essentially been grafted on to a pre-existing scheme in the 2000 Act. Any suggestion that there is currently no regulatory framework for CHIS is not the case—there is. Undercover operatives or agents are authorised under RIPA. However, they are not subject to external authorisation. That may be one problem at the heart of this debate—it is actually human intrusive surveillance or CHIS per se, before we even enter the territory of criminal conduct, which ought to be subject to greater safeguards. However, that is outside the scope of this Bill. It is unfortunate that, in this case, the Government have grafted something as drastic as granting advanced immunity to agents on to a pre-existing scheme without allowing legislators the opportunity to look at that wider scheme itself—because, of course, the Long Title of this Bill is so narrow in just being concerned with criminal conduct and not the authorisation of CHIS. That is unfortunate.

I hope that, in future, at the earliest possible opportunity, the Government will consider having another look at what safeguards should be applied to the authorisation or post-authorisation scrutiny of these undercover operatives and agents. That would help to deal with some of the complex arguments about whether it is appropriate for a judge or judicial commissioner to give a pre- or post- or real-time authorisation or scrutiny of actions that, ultimately, lie in the hands of the CHIS themselves. It is very difficult indeed, because of the fast-moving situations that were described by a great many noble Lords, properly to regulate such activity without regulating the operating mind, drive and ethic of the undercover person.

That brings me to my final point: it would be a great deal simpler if, ultimately, as is the status quo and the mechanism that has been so successful and has saved so many lives, we did not leave open what should be a remote possibility that an undercover operative will have their conduct examined after the fact, when it is criminal conduct, by an independent prosecutor and judge in the normal way, with all the defences that public interest will allow.

--- Later in debate ---

[Lord Naseby (Con)]

My Lords, I listened to my noble friend opposite and his detailed, and quite persuasive, contribution. I mentioned competence in the previous group. It is absolutely vital, but I do not need to say anything further on it, because the noble Lord has covered that in great depth.

The other two amendments—Amendments 16 and 17 —both claim to be more objective, and there is a powerful case for clarity. My only other comment is on Amendment 19. I do not want to be too hurtful but frankly, all it does is complicate the whole issue by a huge margin. For anybody to balance

“the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm”,

they really need to be very experienced in the whole of this market. That is not at all possible.

It is difficult for my noble friend on the Front Bench. I can see that there is a need to get more bite into it, if possible, but it is not an easy issue. The contribution on competence from the noble Lord needs to be taken very seriously.

[Baroness Chakrabarti (Lab) [V]]

My Lords, during this sitting of the Committee, I have just discovered about the passing of Lord Kerr of Tonaghmore, one of the first members of our Supreme Court and a former Lord Chief Justice of Northern Ireland. I am sure that all noble Lords will join me in mourning him and sending our condolences to his family. He was a great judge and human being. Being a senior judge in Northern Ireland when he was created a great deal of risk for him and his family, but I will remember him for his humanity and sense of humour just as much as for his courage and intellect.

On a small preliminary manner, the Minister made a comment on the previous group. Our hybrid proceedings are amazing in so many ways, but they may create confusion on occasion. I apologise to her if I contributed to that because, when we are on Zoom from home, there is no Dispatch Box. There is a metaphorical one but not an actual one. To be clear, in the last group my noble friend Lord Rosser spoke for the Opposition and I spoke for myself. Last time, you heard from my noble and learned friend Lord Falconer of Thoroton and my noble friend Lord Rosser for the Opposition. Shortly, you will hear from my noble friend Lord Kennedy of Southwark, who will speak for the Opposition. That may be easier, because I can see him in the distance via my Zoom; he is physically in the Chamber. I apologise for that—or if the Minister was making a joke at my expense and I have just wasted your Lordships’ time for a couple of minutes.

The amendments in this group are important, not least because of the Minister’s response to the previous group, and particularly to what I will call the Paddick question. Noble Lords will remember a hypothetical put by the noble Lord, Lord Paddick, essentially about what happens when things go wrong. The noble Baroness, Lady Hamwee, has spoken of everyone’s human frailty, and legislators need to consider, despite all the expertise, brilliance and public service principles of those operating legislation, what happens when things go wrong. The noble Lord put the hypothetical of a criminal conduct authorisation that had been corruptly given, but executed by an undercover agent in good faith. What would happen then? The Bill has a three-way relationship at its heart—a triangle, if you like—between the person who authorises criminal conduct, the person who executes it and any victim of that criminality. Your Lordships are considering a crucial legal relationship.

If I am right, the Minister responded to the noble Lord, Lord Paddick, with an answer akin to saying that the person who issued the authorisation—in this example corruptly—would be liable. I think she suggested that there would still be no liability for the undercover agent, because they had acted in good faith, be it on a corrupt authorisation. They had been used, if you like, as the tool of the corrupt authoriser. They would continue to have criminal and civil immunity, but there would be an unspecified liability for the person who issued the authorisation.

--- Later in debate ---

[Lord Naseby (Con)]

I have two short comments. First, Amendment 21 sounds wonderful on the surface, but who will determine who is appropriate, or is it just the Secretary of State? Would it not have happened in any case? Secondly, on Amendment 81, I share the view of the noble Lord, Lord Paddick. There is nothing worse than having a situation where the rules of the game—or the provisions or the instructions—are changed in one area without understanding that it has a knock-on effect in another area. As I understand this amendment, it is basically saying that they must all take place at the same time and not at different times. If that is so then I am totally in support of it.

[Baroness Chakrabarti (Lab) [V]]

To be short, my Lords, I agree with the noble Baroness, Lady Jones. Matters as grave as criminal conduct authorisations for state agents should be regulated in primary legislation and not be subject to delegated powers thereafter.

[Baroness Hamwee (LD)]

My Lords, I am afraid that we have a number of amendments in this group. I have quite a lot of sympathy with Amendment 19A, tabled by the noble Baroness, Lady Jones, but it seems to me that proposed new subsection (4)(c) is not anything like of the same order as proposed new subsection (4)(a) and (b). I read it as being procedural and think that it would not make it more difficult to satisfy the necessity and proportionality requirements. I hope the Minister can confirm that.

Amendment 21 deals with proposed new Clause 29B(4)(c), which provides that the Secretary of State can make an order imposing requirements for the CCA to be authorised, and the person authorising it must believe that there are arrangements which satisfy those requirements. If the Secretary of State believes—if that is an appropriate use of the word, given our last discussion—that further requirements are necessary and would be of wide interest, in the fullest sense of that word, consultation ought to play a part.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I welcome the noble and learned Lord the Minister and congratulate him on his new role, and indeed I welcome the noble Lord, Lord McLoughlin.

Many things are said about your Lordships’ House and about what it is to be a patriot today of all days. I cannot imagine the purpose of either if not to defend the rule of law. It is not a question of left-wing or right-wing, or leave or remain. There can be no freedom, security or even democracy without it, and one of its most fundamental principles is that the law of the land must apply to everyone equally.

If we were to introduce one law for agents of the state and another for everyone else, surely lawlessness and tyranny would not be far behind, and I know that no one in your Lordships’ House would wish for that outcome. Yet the gravest dangers to the rule of law do not politely announce themselves. More often than not, they come under cover and with the best of intentions, not least preserving security and even the law itself.

It is said that this Bill seeks to put criminal conduct by covert human intelligence sources on a statutory footing, but in truth—and as the Minister has today acknowledged—it goes a great deal further than that. It replaces our legal status quo, whereby criminal acts in the course of undercover intelligence work are nearly always and rightly forgiven in the public interest, with a complete and advance immunity or licence or golden ticket for a raft of agents against prosecution and civil suit, regardless of the harm caused to our people—including completely innocent people—in the process.

It is important to remember that the overwhelming majority of these agents are not trained officers of our security agencies or police. They necessarily come from the community, including the criminal community. They include extremely troubled, volatile and vulnerable people, including, as we have heard so many times, even children. A public inquiry that has only just begun is hearing how the agents are capable of abuse and even of inciting crime, rather than preventing and detecting it, even under the present arrangements.

We are told not to worry because those issuing these criminal conduct licences, from inside the relevant agencies themselves, must take into account the requirements of the Human Rights Act. I must point out that such an obligation is weaker than the normal obligation on public authorities to comply with them. Further, while human rights bind states and public bodies, they are no substitute for effective criminal law in both protecting and binding individual people by deterring violence—and sexual violence in particular. There is a wealth of case law to that effect.

Some argue that the great dangers in this legislation might be remedied by external or judicial authorisation of criminal conduct, or by limiting the list of agencies or types of crimes. I am far from convinced that anything other than removing the immunity from these authorisations and restoring them to the appropriate position of public interest guidance to agents, prosecutors and courts will suffice. Once more, in the words of former officer Neil Woods:

“As a former ruthless undercover cop, I see many possibilities of this going wrong. This immunity truly changes everything. It invites criminality into a realm uniquely susceptible to it. Once we go down this route, it will be very difficult ever to return.”


I urge your Lordships to heed that stark warning.

Digital Evidence

Baroness Chakrabarti Excerpts

Monday 7th September 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I share my noble friend’s sentiment. While rape and sexual assault are devastating and serious crimes, we expect all investigations to be conducted thoroughly and fairly to ensure equal access to justice for both victims and defendants. We are engaging with partners, including the NPCC, the CPS and the College of Policing, to ensure that the police have the appropriate framework, technology and training to strike the right balance between a victim’s right to privacy and reasonable lines of inquiry.

[Baroness Chakrabarti (Lab) [V]]

My Lords, the important Question from the noble Lord, Lord Hayward, was one of policy, but there is a prior and more fundamental question of legality. Can the Minister tell the House what is the specific legal foundation for taking rape complainants’ phones? She will know that, to comply with the Convention on Human Rights, this kind of intrusion into personal privacy needs not just to be necessary and proportionate; it has to be in accordance with the law, as well. Mere consent will not work, not least when that consent is given in exchange for the right of something as serious as a rape complaint to be taken forward.

[Baroness Williams of Trafford (Con)]

The question of legality is good and pertinent. The ICO found that there is a complex legislative interplay in this area. Officers should be extracting data from victims and witnesses only when it is strictly necessary as part of the investigation. We are working with the police and the CPS to ensure that the proposed framework meets both the requirements of officers to fulfil their lawful duties to pursue all lines of inquiry and to meet their duties of disclosure, as well as providing clarity and transparency about the safeguards and assurances to complainants on their right to privacy.

Serious Fraud Office

Baroness Chakrabarti Excerpts

Wednesday 13th December 2017 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government, further to the Written Statement by Baroness Williams of Trafford on 11 December (HLWS325) announcing plans for a new National Economic Crime Centre hosted in the National Crime Agency, how they intend to safeguard the independence of the Serious Fraud Office.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, first I welcome the noble Baroness to her first Question at the Dispatch Box. The Serious Fraud Office will remain independent and will continue to undertake its own investigations and prosecutions. The new powers will give the National Crime Agency the ability to task the Serious Fraud Office with opening a specific investigation, but only with the agreement of the Attorney-General and the Home Secretary. The Serious Fraud Office will be a key partner in the National Economic Crime Centre.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that Answer. She will understand my rationale as the Conservative manifesto pledged to scrap the SFO by folding it into the National Crime Agency. Therefore, my concern is that the announcement this week is in no way the same policy by stealth, and that the SFO will remain independent and protected so that it cannot be untasked as well as tasked by Ministers and will remain independent from political interference.

[Baroness Williams of Trafford]

I think I made it clear in my first Answer that it will remain independent. In terms of the manifesto, we need to continue to look at all options to improve our response to tackling economic crime—but, yes, the SFO will remain independent.

Istanbul Convention

Baroness Chakrabarti Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that commitment in principle. These questions no doubt mark White Ribbon Day tomorrow. Does the Minister agree with me that it would be a wonderful statement on the part of the Government if they were to commit to ratifying this important treaty by International Women’s Day next March?

[Baroness Williams of Trafford]

The noble Baroness points to something that both she and the Government would ultimately like to see. I repeat what I said to the noble Baroness, Lady Hussein-Ece: we will seek to legislate when the approach to implementing the extraterritorial jurisdiction requirements in England and Wales is agreed and parliamentary time allows.

Immigration: Overseas Students

Baroness Chakrabarti Excerpts

Thursday 17th November 2016 Lords Chamber

[Baroness Chakrabarti (Lab) (Maiden Speech)]

My Lords, it is after two months of listening and attempting to learn that I utter my first words in your Lordships’ House. In that time, I have been grateful for the warmth of the welcome that I have received from so many on all sides in here, not least from my sponsors, my noble friends Lady Kennedy of The Shaws and Lady Lawrence of Clarendon, and my mentor, my noble friend Lord Dubs—great internationalists all three. Having been a regular visitor, in my case first—dare I say it—as a Home Office lawyer, and then as a human rights campaigner over 20 years does not necessarily make for a less daunting migration, so I am especially grateful for the constant kindness and wisdom of all the staff who make this place work so well.

In recent tumultuous months, I have also found the civility of discourse in this Chamber to be in sharp contrast with what goes on outside it, whether in our country, continent or wider, troubled world. Would that more of your Lordships’ reasoned debate on even the most difficult of questions might escape these walls and take root elsewhere; I have no doubt that all humanity would benefit in the turbulent times ahead.

I am grateful to the noble Lord, Lord Lucas, for the opportunity to make a maiden speech on immigration policy and higher education. I declare an interest as the chancellor of the University of Essex, the former chancellor of Oxford Brookes University and an honorary professor at the University of Manchester and the London School of Economics, among a number of other higher education connections and affiliations over the years. Like so many of your Lordships, I owe every life chance that brings me here to a wonderful British education—including, in my case, a legal education that was free up to degree level and even supported by a full maintenance grant.

For the daughter of migrants to this country—real ones, wonderful people—that education was key, as was the opportunity while at university to rub along with students and teachers from all over the world. Higher education has no borders and, as so many noble Lords put it so eloquently two weeks ago in the debate initiated by my noble friend Lord Soley, an academy that has borders imposed on it simply cannot thrive, let alone maintain its world-class status.

As just one example, the University of Essex is a destination of choice for students within the European Union and is consistently in the top five UK universities for recruitment of non-UK EU students. We are proud to be placed 21st in the world in the Times Higher Education world university rankings for international outlook. That is a measure of the proportion of international students and staff and the volume of scientific papers co-authored with academics from outside the UK. Of our entire student population, 14.4% are non-UK EU students, and to lose them completely would reduce our fee income by 13%, or £17.5 million a year. Reductions of this order, if not matched by an additional intake of non-EU students, would cause major detriment to the university’s sustainability and ongoing ability to contribute nearly £500 million a year to the local and regional economy.

Across the United Kingdom, universities support over 170,000 jobs in local communities and contribute more than £10.7 billion annually to the UK economy. But the effect on UK universities of blocking overseas students and academics cannot be measured in monetary value alone. To echo the noble Lord, Lord Trees, in this shrinking interconnected world both educational experience and research strength are increasingly measured by internationalism. So to diminish the diversity of UK campuses would be to encourage an exodus of student, research and teaching talent from our shores. Given the need for people to invest in their education and plan their working lives in cycles of several years, this danger arises even with perceptions that the UK might become a less welcoming academic environment as a result of Brexit or student immigration policy, or even political rhetoric alone.

International students are visitors, not migrants. They do not take places from young people in the UK, but rather enrich their learning and their lives. When they leave, they often—not always, of course—become instinctive ambassadors for Britain and the democratic values we seek to preserve and promote around the globe. Further, if some go on to live and work here in the future, that is also, I would argue, to the good of academy, economy and society alike.

Your Lordships need no reminding that this House can seem strange to those outside it—even in this country, let alone far beyond. Yet I have seen it bring enormous value and patient scrutiny to the legislative process, not least in defence of rights, freedoms and the rule of law. That role is, no doubt, an enormous primary responsibility, but in difficult times there may be others besides. One could surely be to unite in reminding those who campaigned for and against leaving the European Union that, for all its bitterness, none in that debate argued for disengagement with the world. Such disengagement is especially impossible in education. Britain cannot be open for business if it is not first open for learning.