Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Baroness Jones of Moulsecoomb

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.

Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.

If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?

Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.