Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Kennedy of Shaws and Lord Thomas of Gresford

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, there are obvious flaws in any authorisation procedure in which the main safeguard against a public body carrying out unjustified surveillance, for example, or committing serious crime, is a senior official from the same organisation. It just does not make good sense. Even the most diligent individual would struggle to remain objective, particularly if the organisation was under pressure to meet targets, to achieve results or to get the job done. I remember all too painfully as a counsel in the Guildford Four appeal when there was undoubted pressure on the police to produce results and this led to misconduct and very bad judgments.

The Government and supporters of the Bill put forward an argument that prioritises operational need over independent assessment. It is not convincing. I remind the House that there is a significant difference with regard to authorising a CHIS—a covert person in place—who has worked in a factory, as was suggested, and who might have seen unlawful activity or whatever, whistle-blows but stays to give a better account of his or her observations to the authorities. That observing of criminal activities and then reporting on them is very different from the situation where someone is actively involved in criminal activity but is turned by the authorities and made into an agent on their behalf inside a criminal organisation. They may be proactively involved in criminal acts and involved in planning and encouraging them. It is a marked, simple movement for them to cross that line and to go out and commit crimes with other members of the gang. This is a clear, profound and immensely qualitative difference, for which the Government have yet to account.

Some Members have proposed that a form of retrospective authorisation might suffice, and I want to explain why this does not work in practice. Unlike other covert powers, such as bugging a property, the potential harm caused in those circumstances is difficult, if not impossible, to undo. Some harms are difficult to undo once they have been done. If you place a listening device, it can be removed. If you have unlawfully recorded private conversations, they can be destroyed.

But let us think of the example of somebody who is in a county lines drugs gang, pushing heroin into the hands of the young. That heroin is sometimes of the purest form, which will be highly damaging, potentially to someone’s life, or it is contaminated, so that it goes further and makes more money for the criminal gangs, with substances that can be noxious and lethal. Suppose those drugs get into the hands of a vulnerable teenager who ends up dead. It is not a happy thought, but that is what criminal actions are about when you are involved in gang activity.

What if somebody is involved on the periphery of terrorist activities and is informing, but is required to secure items that might be used in the creation of an explosive device—a bomb? How does that make Members of this House feel? How does one undo the damage to innocent individuals, often vulnerable victims who might come into the firing line of gang members or terrorist groups who are armed with a criminal conduct authorisation, as the Bill proposes? What can we say to them if they have their synagogue blown up, or their child physically harmed, or, heaven forbid, people lose their lives? I say to the noble and learned Lord, Lord Mackay: when does that kind of crime stop being a crime?

It is regrettable to me that the Government are persisting with this policy, but given that they want to go ahead it is vital that independent, prior judicial approval is built into the process to avoid and to mitigate the potential for tragic mistakes or abuses of power. I was very moved and affected by what the noble and learned Lord, Lord Thomas, said. His view as an experienced senior judge is that, in the end, they will have to come back to prior judicial oversight. His preference, like mine, is for prior judicial approval. I do not agree with the noble Lords, Lord Hain or Lord Blunkett, that the appropriate people are Ministers. My preference would be for it to be the judges. I echo what the noble Baroness, Lady McIntosh, said: if the judges who are dealing with other covert activities are considered good enough for that, what is so special about this?

I therefore urge this House to stick with the amendments that have been put forward. I will go with any of the collection of them that involve prior judicial authority. Of course, as a secondary position, I will support the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas, with his add-on amendment, which would ensure that it is done in real time. However, my preference is that it is done beforehand. Nothing else will make police officers and those who seek to do this kind of work with people embedded in organisations think carefully about the arguments for doing so.

I laugh when I hear my noble friend Lord Blunkett reiterating something that he has held true, which is his suspicion that the judiciary do not know how the real world works. Today we have a judiciary that is very different from the old one that operated. Happily, it is a different kind of judiciary, which is well aware of the problems and is used to making judgments in these kinds of cases.

What is being suggested in having judicial oversight is not radical but common sense. The European Court of Human Rights in many instances has spoken to the necessity of prior judicial authorisation. In one case, the court held that it offers

“the best guarantees of independence, impartiality and a proper procedure.”

This is particularly pertinent with surveillance, which, according to the court, was a field where “abuses are potentially easy” in individual cases to the extent that it

“could have harmful consequences for democratic society”.

The court concluded that

“it is in principle desirable to entrust supervisory control to”

the judiciary. I will say only that as a practitioner I can speak to the quality and speed with which our judges can handle time-sensitive and critical cases. Like other noble Lords who have mentioned it, I have had on occasion to make applications to judges late into the night, and our judges are well capable of making decisions in that way.

We have to get this right. It is incumbent on us to consider the gravity of the powers that Parliament is being asked to create, and we have to strive to ensure that they are exercised responsibly and with sufficient checks and balances. I therefore commend to your Lordships the amendments, which require prior judicial authorisation.

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is always a delight to follow my friend, the noble Baroness, Lady Kennedy of The Shaws.

There are three sides to this argument. What makes this debate so interesting is that they cross party boundaries. The noble Lord, Lord Dubs, argues the powerful JCHR case for prior authorisation by a judge, while on the other hand the noble Lord, Lord Anderson, is of the view that a judge or a Secretary of State does not have the expertise to task or to supervise a CHIS, a sentiment echoed by my noble friend Lord Carlile and argued more stringently by the noble Lord, Lord Naseby.

The noble Lord, Lord Anderson, supports post-authorisation notification. My criticism of that process, as I advanced it in Committee, was that this was a solution without teeth, an argument adopted in an excoriating speech by the noble and learned Lord, Lord Thomas of Cwmgiedd, in support of his Amendment 34. If the commissioner says on a post-the-event inquiry, “This should not have happened”, what then? The authorisation must stop. But what about any crime that has been committed before that judgement is given? The noble Lord, Lord Rosser, made that point.

What in the Bill as it stands would prevent the authorising officer on the ground from simply shrugging his shoulders? He might ask, “Why should the judge have greater expertise post the event than he had before?” But can the authoriser be acting lawfully if he goes on in the face of a decision deploring the deployment of the CHIS? Does the commissioner’s adverse view of the department have to be disclosed at trial? That is very important. Suppose the CHIS is a witness at a trial and gives crucial evidence in person, or, more likely, evidence which he has obtained by committing a crime is relied on. The prosecutor would have to disclose the decision of the commissioner that he should never have been deployed to get that evidence in the first place.

The noble Lord, Lord Anderson, suggests that prior judicial authorisation does not match the operational requirements. He argues that it lacks agility, in the words of the noble Lord, Lord Butler. But is his solution practical—the test of the noble Lord, Lord Rooker?