Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Chakrabarti ExcerptsThursday 3rd December 2020
(5 years, 4 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-III(Rev) Revised third marshalled list for Committee - (1 Dec 2020)
Baroness Chakrabarti
“(b) for the purposes of preventing or detecting serious crime.(5A) In subsection (5), “serious crime” means a crime triable only on indictment.”Member’s explanatory statement
The amendment is intended to constrain the use of criminal conduct authorisations by precluding their use for the purpose of preventing or deterring minor criminal activities, non-serious disorder, or non-criminal damage to economic interests.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.
Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.
Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.
My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.
These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.
Amendment 22 is designed also to remove from the Bill use of a CCA purportedly
“in the interests of the economic well-being of the United Kingdom”.
This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.
Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted
“in the interests of the economic well-being of the United Kingdom”
should be removed.
At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.
The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:
“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”
The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.
If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.
Baroness Hamwee (LD) [V]
My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.
To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.
Amendment 22, in the name of the noble Lords, Lord Hendy and Lord Hain, has chosen
“crime triable only on indictment,”
which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.
Baroness Williams of Trafford (Con)
The noble Lord, with whom I am actually good friends, makes a valid point: what is the point in making speeches if points are ignored? I often find that I make the same points over and again, and they are completely ignored because such is the will of people to make their opposite points. However, on this occasion, he is absolutely right. I did not address his point about RIPA and it being confined to serious crime. In the interception of communications, we are dealing with machines. In the deployment of humans, we are dealing with something else. I apologise to him for not answering his point.
Baroness Chakrabarti (Lab) [V]
My Lords, I am grateful to all noble Lords for the care with which they have approached this group, which once more highlights the gravity of the development of this legislation to enable statutory criminal conduct authorisations with total immunity for the first time in our law. I will not rehearse the various arguments, most of which I agree with, but I will respond to the noble Lord, Lord King of Bridgwater, a distinguished statesman for whom I have a great deal of respect, and to the Minister. It is their opposition to these amendments and the thinking behind them that I must address, because the issue is so serious.
At various times in the debates on the Bill, some noble Lords have expressed irritation that one should hark back to past abuses including those in the Undercover Policing Inquiry, or the treatment of my noble friends Lord Hain and Lady Lawrence, as if they belong in a bygone era and would never happen again. Other examples include the treatment of the Greenpeace women and so on. One can cast those abuses aside by saying they would never happen again but, of course, we know that as legislators we have the precious duty—the sacred trust of those who have appointed us to this role—to learn from the past and legislate for the future, informed by the dangers that past activities have exposed. It is right that we take some care and employ forensic precision in refining provisions in legislation as serious as this.
With the greatest respect to the noble Lord, Lord King of Bridgwater, and the Minister, there has been an element of blurring classes of activity that should not be blurred in legislation of this kind. In particular, there has been blurring, as the noble Lord, Lord Paddick, highlighted, on authorising undercover operatives, which is perhaps the most serious kind of intrusive surveillance—because humans are human, not machines, to quote the Minister. Yes, they need more protection but we also need more protection from them because they will change our behaviour and not just record it.
Undercover operatives are important but dangerous, even under the present law. There is a new category of authorisation in this legislation, which is about criminal conduct by those agents and criminal conduct with total immunity after the fact. That is completely novel. It is important to understand how we got here, not just regarding the vital need for these operatives or the abuses of the past but the jurisprudential and legislative train that got us to this station.
Article 8 of the convention on human rights guarantees the right to respect for private and family life, stating that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
But of course there are exceptions. Article 8(2) is crucial in this debate. It states:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
That is a necessarily broad exception. Why? It is because that exception exists in international and human rights law to cover any privacy interference at all. Any camera on a high street or requirement to fill out a tax form is an interference with privacy. It includes any interference on a prisoner’s privacy or the privacy of a schoolchild—any interference at all. Therefore, that category of exception is broad. However, it is too broad for intrusive surveillance, which is why, as the noble Lord, Lord Paddick, said, we start to introduce further restrictions for intrusive surveillance. It is not just about the duty to fill out a tax form any more; we are now talking about much greater intrusions—serious crime rather than just any crime.
Economic well-being is vital, for example, for the tax form; but it is too broad a category for authorising agents of the state to commit crimes against me, my friends or my associates. That is the Article 8 wording, which is too easily copied and pasted. Then we have the slightly tighter definitions in the Regulation of Investigatory Powers Act, on to which today’s scheme is going to be grafted. That, serious though it is, is intrusive surveillance, but this is intrusive surveillance plus criminal activity plus total civil and criminal immunity. That is why the justifications in this Bill need to be tighter still than those in RIPA, not broader, and certainly a great deal tighter than the exceptions to Article 8 of the convention. I hope that I have made that clear, and I hope it rings true with most of your Lordships’ House.
To return to the noble Lord, Lord King of Bridgwater, I say that nobody is under any doubt that covert human intelligence sources are absolutely vital tools of public protection. Under the current law, we have no doubt that they have protected many of us and saved many lives. However, that was on the basis of a law where these people acted on the basis of guidance, but without this absolute immunity; but now we are told that they need absolute immunity—not a public interest defence and not what they have had until now. Therefore, it is perfectly reasonable to at least probe the possibility of, if not to insist on, much tighter regulation and safeguards than are currently provided in the Bill. Having had that discussion, however, for today at least I beg leave to withdraw the amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, my name is down to speak on this group of amendments by mistake, but I will take the opportunity to support the noble Baroness, Lady Hamwee, and to point out to the Minister that part of the reason we keep arguing back when she gives us information is that her text rewrites history.
Many of us were there 20 years ago when, to give just one example, we challenged the police about police officers sleeping with—almost exclusively—women to infiltrate campaign groups. I was on the Metropolitan Police Authority for 12 years and challenged successive Met commissioners to say to us that that was not lawful and not something that police officers were encouraged to do. They could not do it because all the police who have leaked and whistleblown about doing that sort of thing have said that they were encouraged to do it. It was implicitly and explicitly seen as one of the perks of the job.
So, if we do not listen, it is not because we do not have a lot of respect for the Minister; it is that we know that what she says is rewriting history. It is not true that police officers were told that it was not lawful to sleep with women on campaigns. I cannot emphasise that enough. I challenged the noble Lords, Lord Stevens, Lord Blair and Lord Hogan-Howe, and Commissioner Stephenson on this very issue and none of them could reply. I hate to attack civil servants but the Minister is getting a rewriting of history from them. That is why we argue back: because we know that it is just not true.
Baroness Chakrabarti (Lab) [V]
My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.
This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.
A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as
“like the hole in a doughnut”.
He said that it
“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”
In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.
Lord Beith (LD) [V]
My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.
There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.
In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?
As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.
The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.
I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.
Baroness Chakrabarti (Lab) [V]
My Lords, I agree with everything that has been said in this group so far. Of course, it comes at the problem from a slightly different angle. We heard in the last group that the purposes for which a CCA may be issued are incredibly broad, with definitions taken from the realms of international law not practicable enough to work at a fairly junior authorising level for something as severe as criminal conduct. This group comes at the same problem from the angle of protecting groups—legitimate political and trade union groups, and so on—which have been, on the evidence, targeted for abusing and intrusive surveillance in the past, and now there is the greater risk that comes with criminal conduct and immunity.
I join others in thanking the Minister for her comments about the victims of undercover police officers who formed intimate relationships, sometimes over many years and sometimes producing children. Her apologies and reassurances will give some comfort to the women in question, but in that spirit of constructive debate and listening, it must be pointed out that there were abuses beyond even those, including the abuses experienced by my noble friends Lord Hain and Lady Lawrence, and others, who were not subject to that sexual intrusion, but were none the less subject to intrusion on the basis of their political views and activities alone. As it stands, there is nothing on the face of the Bill that would protect such legitimate democratic actors from similar or greater abuse in the future, given that what we are talking about now is criminal conduct with total immunity, as we have heard.
I look forward once more to the Minister’s reply to the very constructive suggestions that come in a number of different forms in this group.
Lord Morris of Aberavon (Lab) [V]
My Lords, I wish to speak briefly to Amendment 28, which I support. I was surprised at the breadth of the debate on Amendment 22 and others, as some of the comments on trade unions might have been more appropriate in this debate. Nevertheless, the noble Lord, Lord Paddick, made some worrying points in that debate in comparing RIPA and seeking justification for the words in this Bill. I suspect that he will want to return to them, given the inadequacy of the reply of the Minister, who gallantly recognised the points he made.
The state is sometimes minded to intervene in fields where it should not. The words in the clause,
“in the interests of the economic well-being of the United Kingdom”,
may need clarification and, indeed, very close scrutiny. In my view—I think I am quoting Shakespeare—they need to be “cabined, cribbed, confined”. The noble Lord, Lord Thomas of Gresford, also made some pertinent points in rightly parading some historical matters. Can the Minister refer to the precedents for words of this kind? I suspect they may have been used before. If so, it should be looked at very carefully as to whether they should be repeated, because as they stand, they are a licence to do anything. The line is a very thin one, from my past experience, between legitimate activity and activity in which the state is sometimes minded to intervene. In the Bill, there is no qualification of these words, but one is mightily needed.
I have no present interests to declare, but I was for many years a member of APEX, subsequently taken over by GMB, and I was in turn a Member of Parliament sponsored by those unions. As a retired member, I no longer have that interest to declare but, as a practising barrister, I had the privilege of giving legal advice to the south Wales miners during the miners’ strike. My junior counsel was Mr Vernon Pugh, later a very eminent Queen’s Counsel. The circumstances of that particular legal advice escape me—indeed it would not be appropriate to comment any further—but it was during that period that I believe the Thatcher Government crossed the line and intervened in lawful industrial activity. The freedom of the trade unions to assemble, protest, negotiate and represent was a battle that had been won over many years. My noble friends Lord Kennedy—in a very forceful speech—and Lord Judd made reference to these points. Nobody in their right senses would want to return to that and not follow the best practice of ensuring that trade unions are able to do their work.
The amendment seeks, with belt and braces, to protect trade unions from authorisation for a criminal activity. The words are a matter of great concern. It would be a sad day if we in any way return to the state interfering with trade unions and their activities and particularly condoning and authorising criminal offences involving the proper and lawful activities of trade unions. Amendment 28 is a clear warning: keep off the pitch. No normal Government would dream of crossing the line.
Regrettably, we have lived through a period when tempers were frayed, unfortunate incidents occurred and the Government did intervene. What we do not know is how infiltration occurred during that period. It is a fundamental point that we should know more. We are not talking of surveillance; that is the vital difference. Surveillance may be proper in some circumstances, but authorising criminal activity involving trade unions is not. To avoid repetition of what has happened in the past, and with those few words, I support the amendment.
Lord Dubs (Lab) [V]
My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.
Baroness Chakrabarti (Lab) [V]
My Lords, like my noble friend Lord Dubs, I can be short in the light of some outstanding contributions that we have heard from Members of your Lordships’ House. The more I listened to those arguments, the more I was convinced that there needs to be some kind of limit on the nature of criminal conduct that can be authorised with—and I repeat—total advance immunity from criminal liability or civil suit. If in Canada, why not here? It was the noble Lord, Lord Anderson of Ipswich, who dealt with the so-called Sopranos argument on testing with particular dexterity.
Lord Sikka (Lab) [V]
My Lords, it is a great pleasure to speak in this debate. My concern is about authorising corporations to commit criminal acts and the consequences for the individuals who have been somehow enrolled to commit criminal acts and subsequently discarded. Through this amendment, I seek to address those issues.
The Bill permits the relevant authorities to enrol and authorise state and non-state actors to commit criminal acts. None of the relevant authorities listed in the Bill is hermetically sealed; they are not self-contained. They use corporations—private organisations—to further their aims. They interact with others, and there is evidence to suggest that over the years corporations have been authorised to commit what some would say were criminal acts, while others might perhaps say those acts were dangerous. Corporations have become an arm of the state, and all Governments in recent years have had an appetite for outsourcing things. I can see nothing in the Bill that would prevent a Government from outsourcing the commission of criminal acts.
There is a fair bit of research into some of these companies. I want to draw attention to an article, dated 20 December 2018, that is easily accessible on the openDemocracy website. I shall quote part of it:
“G4S, one of the UK’s biggest private military companies, provides pivotal ‘operational support’ to Britain’s military in Afghanistan and such incidents bring back into focus the extent that private military and security companies are present – and sometimes directly involved – in combat … Britain has led this privatisation of modern warfare. It leads the world in providing armed contractors to ‘hot spots’, be it combating terrorism in the Middle East or fighting pirates off the Horn of Africa. Some of their biggest clients are governments; since 2004, the British state has spent approximately £50 million annually on mercenary companies.”
I would add that lots of details are very rarely provided by government officials to Parliament or the public. Over the years, I have tried to look at some of these companies, but it is almost impossible to track them. They are formed and then very quickly dissolved. It is very difficult to track their operations. The article that I have referred to goes on to say:
“Despite the size of this mercenary industry, the entire sector is marked by secrecy. Men trained in the arts of subterfuge and counter-intelligence dominate this sphere, and the result is an industry that operates from the shadows.”
How will the CHIS Bill make this industry accountable? There is clear evidence that these companies have been used for the commission of criminal acts.
One example of this is that in 2007, employees of Aegis Defence Services, based in London, posted footage on the web showing its guards firing their weapons at what was reported at the time as “civilians”. The company said the shootings were legal within the rules of protocol. That company has also been criticised for allegedly employing former child soldiers from Sierra Leone as mercenaries in Iraq. This is a company that is headquartered in London.
As far as I am aware, there is no central database of private military and security companies operating from the UK, and I do not think that there is even any legal requirement for them to register with a governing body. Yet these companies, both in the past and possibly even now, are authorised to commit criminal acts. There is nothing in the Bill to prevent a relevant authority from authorising such companies to conduct these acts.
My concern is that we must not authorise private profit-maximising corporations to commit criminal acts. You could argue that, the more terror they unleash and the more criminal acts they commit, somehow the higher their profits will be; their executives and shareholders will be that much richer. This is simply unacceptable. Their victims receive virtually no compensation or justice, and Governments have simply pretended that they know nothing about the criminal acts being committed in their name. The murk surrounding them was touched upon in the 1996 report of Lord Justice Scott’s inquiry into the arms to Iraq affair, but there was very little clarity.
Corporations provide not only mercenaries and related services; they also operate much of the local infrastructure, including the operation of prisons. Their employees may be persuaded to go undercover into a prison to learn about drug dealing and much more. Presumably, they would need to be authorised to do so by the Home Office to commit such acts. These undercover agents can, intentionally or unintentionally, injure others. In those circumstances, who exactly is to be held accountable? Is it the corporation which has been authorised to commit the criminal act, or is it the relevant authority? As far as I am aware, the Investigatory Powers Commissioner does not have access to the documents and the personnel of these corporations.
There is also the unedifying scenario of a relevant authority authorising a corporation to commit criminal acts, which in turn holds training sessions for its employees, training them to commit murder, torture and other heinous acts. What would happen to those individuals who refuse to obey the instructions of their employers? Would they be able to say that they cannot go along with that? Would they be able to access an employment tribunal to secure redress? I cannot see anything about that in the Bill.
At the moment, people can refuse to commit criminal acts but if the Bill becomes law certain criminal acts would be normalised, though they would need to be authorised. That presents an enormous danger, and we have not sufficiently discussed the implications of corporations being licensed or authorised to commit these acts. Over the years, government departments have not come clean at all about how they have interacted with such corporations.
Today, and in previous debates, many noble Lords have drawn attention to the fact that children and vulnerable people may be enrolled to commit criminal acts. They can be used by the relevant authority and then discarded, perhaps being paid a small sum. However, many of these individuals will have flashbacks for years. They will have nightmares and suffer mental health problems; where exactly will they be able to turn for help? On the other hand, if these individuals are employees of the relevant authority, the employer will owe them a duty of care. They will then have recourse against the employer—namely, the relevant authority—so that they can be supported and compensated. Again, that is an issue.
Corporations should not be authorised under any circumstances to commit criminal acts. In the UK, we do not even have a regulator to enforce company law, never mind anything else the corporations might do—there is no central enforcer of company law in this country. Another benefit of restricting the commission of criminal acts to persons employed by the relevant authority is that that would protect very young children: children under a certain age cannot be employed at all. This will provide extra protection for those individuals. If the vulnerable people are used, the relevant authority has to be accountable for their action.
It is with this kind of issues in mind that I have proposed Amendment 53, which suggests that only individuals directly employed by a relevant authority can be authorised to commit criminal acts. We do not have the power to fully look into what corporations do, and, as I said earlier, there is not even a central regulator.
Baroness Chakrabarti (Lab) [V]
I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?
Lord Anderson of Ipswich (CB) [V]
[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS
“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]
Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.
Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.
I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:
“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]
If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.
Baroness Chakrabarti
(d) is not carried out for the primary purpose of—(i) encouraging or assisting, pursuant to sections 44 to 49 of the Serious Crime Act 2007, the commission of an offence by, or(ii) otherwise seeking to discredit,the person, people or group subject to the authorised surveillance operation.”Member’s explanatory statement
This amendment would prohibit the authorisation of criminal conduct where the covert human intelligence source acts as an agent provocateur.
Baroness Chakrabarti (Lab) [V]
My Lords, this amendment is very simple but, none the less, incredibly important to reassure some noble Lords and organisations, which you heard from earlier, about peaceful, legitimate protest and political activity, such as trade unions, environmental movements and so on. This is an important amendment to reassure them against abuses by Governments present and future. No disrespect is intended to a Government of any particular stripe. It has been drafted with some care, because I understand that it is difficult to limit the precise positive purposes of a covert human intelligence source, not least because the Government have chosen in this legislation to cover a wide range of public authorities and their investigatory, regulatory and enforcement work. I have tried to rule out the use of a criminal conduct authorisation for the purposes of agents provocateurs.
I complained on other groups that one of the problems with the legislation, as drafted, is that it grafts criminal conduct—which is much more serious than normal intrusion—on to a legislative scheme designed for intrusion, but not for the greater harms of criminality. It also has a limited Long Title and a limited scope. It is difficult to use amendments to the Bill to improve the RIPA scheme on to which so much weight is now being placed. However, I believe it is possible to do a great deal of good, even within the limited Long Title, in preventing agents provocateurs.
For the avoidance of doubt, and for members of the public watching at home or reading tomorrow, an agent provocateur is a state agent who is placed undercover, quite often in a protest movement, trade union or other innocent, legal, peaceful organisation, for the deliberate purpose either to incite crime on the part of others who would not normally go that far in their protest or for the agent to commit crime, while undercover, to delegitimise the wider peaceful movement in the public’s eyes or to justify a more repressive policing or banning response by the state. This method has been used throughout history and throughout the world, even in the United Kingdom. It was used during the hunger marches and in various trade union activity. We will see what comes from the Undercover Policing Inquiry.
I have no doubt that the Minister does not intend the Bill to allow criminal conduct authorisations—which now come with immunity, as they never did before—to be used to license agents provocateurs. Therefore, it seems to me that she would want to support this amendment, or something like it, which puts it beyond doubt that no CCA is able to authorise agents provocateurs.
The amendment is carefully drafted not to rule out the agent who finds himself or herself joining in with criminal activity to keep their cover or encouraging, assisting or inciting, while in discussions with others, to keep their cover. It prohibits the authorisation for the primary purpose—this is the crucial part of the amendment—of inciting crime, to use the modern definition under the Serious Crime Act 2007, or otherwise seeking to discredit the person or organisation being spied on. That is, they are not inciting it, but they are doing it undercover to discredit that organisation. To me, it seems simple and carefully crafted, if I may say so, but desperately important to reassure those involved in peaceful protest in particular. I beg to move Amendment 41.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Warsi, is not participating in this debate, so I call the next speaker, who is the noble Lord, Lord Paddick.
Baroness Williams of Trafford (Con)
I thank noble Lords. I hope to reassure the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, about why we do not need this amendment.
I have already stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. Article 6 of the ECHR protects the right to a fair trial. The article restates a fundamental principle of English law and, I understand, Scottish law: that a court has a duty to ensure a fair trial. The use of an agent provocateur could be seen as affecting the fairness of a trial, and rightly so. A court already has the requisite power in law—under Section 78 of the Police and Criminal Evidence Act 1984—to consider and exclude such evidence. The relevant entrapment principles are set out in the leading House of Lords case of Loosely from 2001, which also opines on the convergence of English law in this area with our Article 6 commitments. I hope that that provides reassurance.
Baroness Chakrabarti (Lab) [V]
I apologise: I perhaps have not made myself clear enough. It is late and we have all been at this for a while, but I do not think that I explained myself well enough either to my noble friend Lord Kennedy of Southwark or to the Minister.
Agent provocateurs are not limited to the trial process. In fact, the scenario that I have painted could apply where nobody is brought to trial, so Article 6 and evidential rules against entrapment are no protection. I shall try again.
The scenario is like this. Some hours ago, the noble Lord, Lord King, spoke about the possibilities—suspicions or fears perhaps—that in the future environmental or race equality movements might become involved in more militant or violent action against people or property. That is a concern that he already has, and maybe some other people do too. Given that the Bill allows economic concerns to be a justification not just for CHIS but criminal conduct, what would happen if a CHIS were authorised to enter such a protest movement and misbehave in order to discredit it when that movement had not yet, or at all, engaged in that more violent, militant or illegal activity?
In my scenario, it is possible that only the CHIS himself is committing a crime, but because he is doing so within that movement, the organisation is now discredited in the public mind or the Government might choose to prohibit the organisation in some way. It is quite possible that in that scenario nobody will have been brought to court and there will be no Article 6 fair trial issue and no entrapment/evidence issue.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I am afraid that that is not within the rules at present. I apologise to the Minister but we have to let the noble Baroness, Lady Chakrabarti, finish.
Baroness Chakrabarti (Lab) [V]
I apologise. It is hard to see the Minister’s face or responses from this angle on Zoom. Briefly, in my scenario there is no trial, fair or otherwise, and therefore there is no issue of evidence against entrapment. There is just a CHIS who has been authorised for the purposes of discrediting a movement that may be feared to become violent in the future but is nowhere near doing so at the moment. My amendment seeks to ban a criminal conduct authorisation being issued for that primary purpose.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
Would the Minister care to respond to the noble Baroness, Lady Chakrabarti?
Baroness Chakrabarti (Lab) [V]
Forgive me, but in the scenario that I have just painted there is no entrapment because nobody is prosecuted. There is just criminal behaviour by a CHIS for the purpose of discrediting in the public imagination an otherwise peaceful protest movement, for example; it could be an environmental movement. At the moment I see nothing in the Bill that bans a criminal conduct authorisation being made with the primary purpose of discrediting an otherwise peaceful movement that perhaps poses a challenge to some people’s idea of the economic well-being of the nation.
Baroness Williams of Trafford (Con)
I think that we are coming to the end of this debate, but entrapment in and of itself would have been committed.
Baroness Chakrabarti (Lab) [V]
My Lords, we can disagree on that, but perhaps before Report the Minister and her colleagues might reflect on what I am trying to achieve. For the moment, I beg leave to withdraw my amendment.
Lord Young of Cookham (Con)
My Lords, along with the noble Baroness, Lady Chakrabarti, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Bull, I have tabled Amendment 43, to exclude the granting of criminal conduct authorisations to children. I am grateful for the helpful meeting with my noble friend the Minister, James Brokenshire and Home Office officials, who talked me through the need for this provision. I am also grateful to Jennifer Twite of Just for Kids Law and Tyrone Steele from Justice for putting the contrary view.
As it stands, the Bill is silent on the role of children in this aspect of law enforcement. It would have been helpful if the child rights impact assessment developed by the Department for Education in 2018 had been undertaken for this Bill. It would have illuminated our debate. The amendment would not prohibit the use of children as covert human intelligence sources entirely. That would have been my preference, but unfortunately it is outside the scope of the Bill. Therefore, the amendment is narrower, focusing on the prohibition of their involvement in criminal activities, for which the case is even stronger.
The Government are asking the Committee to approve the tasking of some of the most vulnerable children in this country, some as young as 15, with infiltrating some of its most dangerous organisations and groups—drug cartels, sex-trafficking rings and, potentially, terrorist cells. Let me address head on the arguments for allowing children to be used as CHIS. These were set out at Second Reading by my noble friend Lord Davies of Gower, whose views I respect as a former member of counterterrorism command at the Met and a former member of the National Crime Squad, by the Minister in her reply to that debate, and by the Minister for Security in another place. My noble friend Lord Davies said:
“The use of children has been much exercised today. It is unpleasant… particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary.”—[Official Report, 11/11/20; col. 1083.]
The Minister basically said the same:
“This may be necessary to stop criminal gangs from continuing to exploit those individuals and prevent others from being drawn into them.”—[Official Report, 11/11/20; col. 1112.]
The Minister for Security, James Brokenshire, stated in a letter to the chair of the Joint Committee on Human Rights on 4 November that
“a young person may have unique access to information or intelligence that could play a vital part in shutting down the criminality, prosecuting offenders and preventing further harm.”
In a nutshell, the argument was that the end justified the means—that the imperative of fighting crime overrode normal standards and justified law-breaking. But I do not buy that.
Let us assume, for example, that it could be shown that waterboarding or sleep deprivation of suspected terrorists to extract information would save lives. On that theme, on the “Today” programme recently, Robert Woolsey, a former director of the CIA, said:
“Would I waterboard again Khalid Sheikh Mohammed … if I could have a good chance of saving thousands of Americans or, for that matter, other allied individuals? Yes.”
Would we condone it in legislation? Of course not. Torture was abolished in 1628 and is prohibited under international law. The utilitarian argument is trumped by the moral imperative; torture is a red line. There are no exceptional circumstances where torture is justified, no matter that it might lead to the saving of innocent lives. It is not a price that civilised society is prepared to pay.
Using children as CHIS is not of course torture, but the analogy is apt, as it shows the vulnerability of the argument that the end justifies the means. I say to my noble friend that, for some of us, using children—often vulnerable, yet to come to terms with adulthood, unable to assess properly the risk of what they are being asked to do or even perhaps comprehend the limits of their mission and often being asked to continue in a harmful relationship, to commit crimes and to penetrate criminal gangs—is also a red line. Those under 18 are legally children, and the law accepts that they cannot make good decisions about their lives, hence the ban on marriage, buying alcohol et cetera—activities otherwise legal. How could 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, people whom they should trust, who might have been expected to save them?
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.”
The Children Act 2004 makes this obligation all the more concrete. 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”.
I do not see how we square the circle. Either we safeguard and promote the welfare of children or we do not. How can it ever be in the best interests of a child to be a spy? Far from encouraging children to get further entangled in criminal activities, those who have their best interests at heart should do precisely the opposite: disengaging them from that environment and so helping them to rebuild their lives free from harm. We should be pulling children away from criminality at every turn instead of pushing them into the arms of serious criminals. How is a child protected from danger if a gang discovers that he or she is a CHIS? What would be the public reaction if, heaven forbid, a child CHIS was murdered by the gang he or she was infiltrating? How can a local authority in loco parentis for a child discharge its duties if a social worker is not aware of what is going on?
I make one final point. Under the Children Act 1989, every local authority has the duty to safeguard children in need. Where a local authority suspects that a child is likely to suffer significant harm, it can seek an order from a court to take the child away from those parents and place them into care. This would certainly cover parents encouraging their children to take actions such as drug trafficking or gang participation. How can the local authority perform those duties when another arm of the state, the police perhaps, is doing precisely the opposite? If a parent were putting children into such risky, harmful situations, we would rightly expect the children to be taken into care.
What is happening is that the state is seeking immunity for conduct for which it regularly takes parents to court. It is creating a statutory mechanism to expressly permit the harming of children. Local authorities already find this unacceptable when undertaken by parents; we must concur when the state does it. Noble Lords will have seen the statement by the Children’s Commissioner issued on Monday:
“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. She is extremely concerned that this practice is not in the best interests of the child and there are insufficient safeguards in place to protect these vulnerable children. To that end, the Commissioner supports the introduction and adoption of the following amendments: amendment 43.”
My objection is one of principle, but there are other issues to be raised, if the principle is set aside, about safeguards. Those will be addressed by others who propose other amendments in the group. I hope that, at the end of this debate, the Government will be persuaded to think again. They say child CHIS are used very infrequently. I believe it would be best if they were not used at all. In the meantime, I beg to move.
Baroness Chakrabarti (Lab) [V]
My Lords, it is an absolute privilege to follow the noble Lord, Lord Young of Cookham, to associate myself with every word he spoke just now and to have signed his amendment. Amendment 43 and, to some extent, the others in the group, go to the heart of who we are as a society and, indeed, to the heart of what dangerous, important law enforcement is all about if not, ultimately, to protect children most of all.
It is unconscionable that children should be used as agents per se. Unfortunately, as I have complained before, we cannot do anything about children being used as agents in the Bill, but we can amend it to prevent those children being put in even greater harm’s way by authorising them to commit criminal conduct, which is normally the opposite of the message we send to our children. Indeed, we condemn those who, elsewhere in the world, groom their children for crime or to act as soldiers even in grave situations of war, and such children have often sought refuge in the United Kingdom.
One of my fears in relation to children being used in this way is that many of them are particularly vulnerable children to begin with. Some of them may actually be wards of the state; they may actually be looked-after children who do not have a normal, viable, stable family to protect them. If these children are looked after by the state and then used by the state in this way, that is a double abuse, it seems to me, by all of us as a community.
There must be other ways to ameliorate this problem. There are young people, as I once was, who look far younger than their age well into their early 20s. There must be other, more proportionate ways to do some of the work that needs to be done, exceptionally. It is a very serious human rights violation for any state to put children as young as 15, as the noble Lord, Lord Young has said, into this kind of situation, with long-term consequences for their emotional health and, indeed, for their lives.
Baroness Hamwee (LD) [V]
The noble Lord, Lord Young, is very persuasive, and he is right. My noble friends Lord Paddick and Lady Doocey and I have Amendment 52 in this group, and I have also put my name to Amendment 60, because if the outcome of the debates is to restrict but not prohibit the authorisation of under-18s and vulnerable people to commit criminal conduct, then Amendment 60 is the amendment that deals with both groups—I do not really like the term “groups”; they are individuals, but noble Lords will understand what I mean.
Lord Paddick (Lab)
My Lords, this amendment is in my name and that of my noble friend Lady Hamwee. As we have debated at length, authorising a CHIS to commit crime and granting immunity to that CHIS and maybe others involved is a far more serious thing to do than simply deploying a CHIS. We felt that to expect such an authorisation to last for 12 months—and, in the code of practice, with no mandatory review within that 12-month period but purely at the discretion of the authorising officer—was too much; it is far too long for a criminal conduct authorisation to be in place and not be reviewed.
We cast around for what a reasonable period might be and went back to what I referred to before: the Regulation of Investigatory Powers (Juveniles) Order 2000, amended by the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018. The initial order changed the period for authorising a juvenile CHIS from one year to one month. The 2018 order amended that to four months with a monthly review, recognising how much more serious it is to deploy a juvenile CHIS than an adult CHIS. Therefore, bearing in mind how serious a CCA is compared with the deployment of a CHIS in other circumstances, we felt that a four-month cut-off for a CCA with monthly reviews was the appropriate limitation to be placed on a CCA in line with the authorisation for juvenile CHISs. I beg to move.
Baroness Chakrabarti (Lab) [V]
I will speak briefly in full-blooded support of the noble Lord, Lord Paddick, and an amendment that seems to me like a no-brainer. The worst abuses of undercover policing, as are emerging in the inquiry, have related to people who have been embedded for a long time without adequate review, and obviously the risk of abuse is greater the longer a person builds their legend and is embedded without proper review.
Given that all time limits are arbitrary, it is right that we look for something relatively short, given the gravity of the line that is being crossed with this legislation for criminal conduct. The noble Lord has come to a very decent compromise with the monthly review and the four-month maximum on licensing people to commit crime.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I will be brief. I see the point that the noble Lord, Lord Paddick, is making on the need for review, but I am not convinced that it needs to be in the Bill. I am not persuaded that it is the right thing to do, although I see the point of a review. When the noble Baroness responds, maybe she can tell us about the detail of future authorisations. Would it be built into the authorisation itself? That would seem the better place for it, but I will wait to hear what the noble Baroness says. As it is, I am not convinced by the amendment or that the issue should be in the Bill.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Chakrabarti ExcerptsTuesday 1st December 2020
(5 years, 4 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-III(Rev) Revised third marshalled list for Committee - (1 Dec 2020)
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.
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.
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 ExcerptsWednesday 11th November 2020
(5 years, 5 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 October 2020 - (15 Oct 2020)
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(5 years, 7 months ago)
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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(8 years, 4 months ago)
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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(9 years, 4 months ago)
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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(9 years, 4 months ago)
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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.