Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Debate between Baroness D'Souza and Lord Paddick

Tuesday 12th October 2021 Lords Chamber

[Baroness D’Souza (CB)]

My Lords, I am very grateful that some noble Lords are still here. That is very nice. I make no apologies for returning to the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which was so thoroughly debated and amended in this House earlier this year. As I said while the Bill was passing through this House, I am truly happy that a previously secret process has been put on a statutory footing. That said, I also wish to have it on record that there remain serious gaps which would allow authorised agents to commit serious crimes with impunity. These gaps have not been adequately addressed in this regulation of investigatory powers statutory instrument and for this reason I have tabled this Motion.

The statutory instrument concerns requirements on the level of seniority for MI5 officers and those of other bodies who are authorised to sanction CHIS participation in crime and to record the criminal conduct authorised. The SI includes the crucial phrase

“including any parameters of the conduct authorised.”

I understand that these parameters will reflect only the conduct being authorised and will not include substantive limits on the crimes which may be committed. This, theoretically at least, enables involvement in serious abuses such as murder and/or torture.

The Government claim that, by introducing the requirement of recording any criminal authorisations, limits are effectively set on the crimes in which the CHIS Act may be involved. However, without hard limits there is nothing to ensure that the criminal conduct authorised does not itself involve abuses. As such, the SI is to my mind incomplete.

The point was argued at several stages during the passage of the CHIS Bill. Despite earnest pleas to tighten up the named crimes, as happens in countries such as Canada and the USA, the Government declined to do so. The argument put forward by the Government that defining more closely forbidden criminal actions, including murder and torture, would represent a risk of exposure to those working under deep cover is one that many other countries have rejected.

The Government are therefore asked once again to reconsider this SI and to include within it express statutory limits on the kind of criminal action that can be authorised. It is of course accepted that the mandatory application of finer points of the law in the potential context of immediate and present danger is a step too far. However, murder and torture are extremely serious crimes and as such need to be expressly forbidden. Furthermore, the fact that the phrase in question in this statutory instrument is left open, without express limits in the main Act, surely conveys the message that both murder and torture are, under certain circumstances, acceptable.

I welcomed the CHIS Act in so far as it placed the process of authorising criminal conduct on a statutory footing, as I said. However, a clearly stated prohibition under any circumstances of murder and/or torture would further assist in clarifying the operational environment and ensure that the UK upholds human rights laws. I beg to move.

[Lord Paddick (LD)]

My Lords, we support the Motion to Regret moved by the noble Baroness, Lady D’Souza, to the extent that we too believe that this statutory instrument does not provide adequate safeguards on the actions of covert agents. However, we believe that the reason given by the noble Baroness in her Motion is not within the scope of the order. However, we feel that this House should regret the order because the authority level for authorising criminal conduct by covert human intelligence sources is not sufficiently high. Indeed, as was made clear in the Explanatory Memorandum, it is only at the same level as it would be if the CHIS were not participating in crime.

As we made clear during the passage of the Bill—now the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which made the main part of this order necessary—we agree completely that there should be stronger safeguards surrounding the deployment of agents or informants in circumstances where they are permitted to commit crime. Agreeing with the noble Baroness, Lady D’Souza, we argued that there should be limitations on the crimes that covert agents can commit beyond the implicit Human Rights Act limitations. However, that issue was debated and decided on when this House considered the primary legislation. We did not win the argument. This statutory instrument does not impact on the types of criminal activity that an agent or informant can commit. We therefore consider that the noble Baroness’s justified concerns are not within the scope of the instrument.

We also maintain that there needs to be clear judicial oversight of such deployments to the extent that judicial commissioners should have the authority to prevent the deployment of—or, in urgent cases, to withdraw safely from deployment—agents or informants authorised by the police, the security services and other authorities to commit crime. Currently, there is a duty only to inform judicial commissioners within seven days of deployment, with no statutory mechanism for judicial commissioners to revoke the authority. Again, we debated this at length during the passage of the then Bill. We did not prevail in our insistence on these safeguards and the issue is not within the scope of this statutory instrument, but we feel that it is important to restate our position in this regard.

What is within the scope of this order, and what we do regret, is the authority level of the officer—particularly in the police—who can authorise an agent or informant to commit crime. In urgent cases this can be a police inspector. I was a police inspector at the age of 24. The Government may say that only specially trained inspectors can authorise the deployment of CHISs and that this will be written into the CHIS code of practice, but my understanding is that that is not contained in either primary or secondary legislation. Can the Minister confirm that it would not be unlawful for any police inspector to grant such an authority, even if it were against the code of practice? On that, the Explanatory Memorandum says that

“the formal process to update the Code is under way.”

Can the Minister confirm that, as this statutory instrument is already in force, these changes have already come into effect but the code of practice that underpins it is not yet in place?

The Explanatory Memorandum goes on to say:

“The updated Code will be subject to Parliamentary scrutiny upon the laying of an additional SI in due course”.


Can the Minister confirm whether this has happened, or when it is likely to take place? Will it be subject to the negative or affirmative procedure?

There is a world of difference between deploying an agent or informant benignly into a scenario and authorising that agent or informant to commit a crime; it is a degree of magnitude more serious, no matter what the crime is, yet the authority levels set out in this statutory instrument are the same as for a simple deployment with no authority to commit crime.

I refer back to the debates that we had during the passage of the original Bill. The noble Baroness, Lady Manningham-Buller, referred to the impeccable and courageous agents deployed by the security services, perhaps conjuring up the image of James Bond in the public imagination. I contrasted this characterisation with the fact that most informants employed by the police are criminals. I would go further, and refer to the activities of undercover police officers that have recently been the subject of both a public inquiry and successful action in the courts.

The Government will say—indeed, the Minister said during debates on the Bill—that undercover officers would never be authorised to have sexual relations with activists. In an action brought against the Metropolitan Police Service and the National Police Chiefs’ Council, where the claimant successfully argued that her human rights—her right to freedom from inhuman and degrading treatment, her right to privacy and her right to freedom of expression—had been infringed, the Investigatory Powers Tribunal at the Royal Courts of Justice found:

“We are driven to the conclusion that either senior officers were quite extraordinarily naive, totally unquestioning or chose to turn a blind eye to conduct”—


sexual relationships—

“which was ... useful to the operation”.

According to the BBC report of the case dated 30 September, the tribunal also found that the failure of the Met and the NPCC to guard against the risk of undercover officers entering into sexual relationships with women amounted to unlawful discrimination against women. The tribunal concluded:

“Our findings that the authorisations”—


under the Regulation of Investigatory Powers Act 2000—

“were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’ revealed disturbing and lamentable failings at the most fundamental levels.”

This was not in the era of “Life on Mars”, when I joined the Metropolitan Police in the mid-1970s; this was this century. The officer concerned was not deployed undercover in connection with this case until 2003. This is not ancient history but at a time when the current commissioner and I were both senior Metropolitan Police officers, although neither of us had anything whatever to do with the case that I am describing. I am simply making the point that the senior officer in charge of the Metropolitan Police today was a senior officer in the Metropolitan Police when this happened, in terms of temporal proximity. The Government cannot say with confidence that that was a long time ago and the officers around at that time, who oversaw undercover officers and allowed that sort of thing to happen, are no longer serving.

Trust and confidence in the police have been severely undermined by recent events, as the Government have themselves admitted, yet here we are, allowing relatively junior police officers to authorise criminals and undercover police officers to commit crime with ineffective judicial oversight. The authority levels, as set out in this statutory instrument, are too low, the range of offences that agents and informants can commit is too wide, and the judicial oversight is not stringent enough. The Government are asking us to trust the police to authorise criminals to commit crime by passing this statutory instrument into law, while at the same time telling the public not to trust police officers, particularly lone male officers in plain clothes. We regret this statutory instrument for the reasons that I have set out.