Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Morris of Bolton and Baroness Williams of Trafford

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place.

The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law.

The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct.

I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough.

We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting.

This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse.

I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively.

Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks.

Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, I have received a request to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Morris of Bolton and Baroness Williams of Trafford

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I now call the Minister, the noble Baroness, Lady Williams of Trafford.

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

I thank all noble Lords who have taken part in this debate. I am sorry not to have heard the end portion of the comments of the noble Lord, Lord Rosser, but I am sure he will come back once his wi-fi is restored and I have responded.

Amendments 7 and 9 seek to remove the provision that allows for a criminal conduct authorisation to be granted in relation to conduct that takes place outside of the UK. The activity that will be authorised under the Bill is UK focused, but of course there will be times when the activity begins in the UK and progresses overseas. It does not remove the possibility of criminal prosecutions overseas, but an authorisation will only, and can only, take effect under UK law.

The noble Baroness, Lady Ritchie of Downpatrick, asked if the UK will inform the Irish authorities. I can tell her that, although the content of the Bill is reserved in Wales and Northern Ireland, we have consulted with the devolved Administrations and their respective devolved agencies about their inclusion in the Bill. It is up to the respective devolved agencies to determine whether there is an operational need to be included.

It is important that we do not restrict the ability of our public authorities to tackle what are often international crimes. If we removed this provision, it would hinder our public authorities’ ability to tackle what are often very serious crimes, including drug transportation, human trafficking, et cetera. Noble Lords do not need to be told that crimes do not respect borders.

The noble Lord, Lord Thomas of Gresford, asked if this is a “licence to kill” Bill. The Bill is constrained by both the ECHR and the Human Rights Act, so these are the two constraints on activity. We have heard quite a lot today from noble Lords about undercover police making people pregnant, et cetera. This was never lawful; the sort of activity the noble Lord talked about is not lawful and would not be lawful in the future.

To go back to the case studies that I produced to accompany the Bill, one of them relates to the important overseas work by HMRC to tackle the illegal importation of goods from abroad. In this scenario, an HMRC covert human intelligence source is engaged with an organised crime group to import counterfeit tobacco from overseas. They might be required to travel abroad to meet with members of the group, undertake other preparatory work or even transport the goods to the UK. Without that ability to authorise criminal conduct authorisations for the full scope of the activity, the effectiveness of this and similar operations would be undermined.

Authorising the activity not only ensures that those involved are protected as a matter of UK law but, importantly, means that the safeguards contained in the regime apply consistently and in relation to all CHIS criminal conduct, both in the UK and overseas. If we prohibit the authorisation of activity overseas, we risk displacing activity to these jurisdictions. Criminals might then seek increasingly to conduct part of their activity in other countries, and our ability to tackle it would be constrained.

The amendments risk having serious unintended consequences, including impacting on our public authorities’ ability to keep the public safe from harm, and it is for that reason that we cannot accept them. I forgot to mention: the noble Lord, Lord Thomas of Gresford, talked about the extraterritorial jurisdiction on things like domestic violence; we do exercise that jurisdiction. With that, I ask noble Lords not to press their amendments.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, I think we have managed to re-establish connection with the noble Lord, Lord Rosser.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Baroness Morris of Bolton and Baroness Williams of Trafford

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I thank you all, including the noble Lord, Lord Kennedy, who made a rousing speech, but I fear we will go over old ground here. However, I thank the noble Lords, Lord Oates and Lord Rosser, for providing the House with the chance to discuss the amendments on physical documents. I do not think they are necessary. I would like to reassure noble Lords that we already provide people who are granted settled or pre-settled status with a formal written notification of their leave. It is sent in the form of a letter, by post, or a PDF, by email, and sets out their immigration status in the UK. They can retain the letter, or print it, or electronically store the PDF and keep it as confirmation of their status for their own records and use it if they wish when contacting the Home Office about their status. I must say, it is not proof; it is confirmation. This should reassure individuals about their status when dealing with the Home Office in the future, but it should not be necessary because they will always have online access to information about their status, stored electronically by the Home Office.

Other countries, including Australia, as the noble Lady, Lady Hamwee, mentioned, issue physical documents in the form of biometric cards as they can otherwise be lost, stolen or tampered with.

On the point raised by the noble Baroness, Lady Bennett, about how the EU settlement application works, I had a session on this with noble Lords and I am happy to share that presentation with her. We are developing an immigration system whereby all migrants can demonstrate their immigration status via an online service, which they can access securely via the view and prove service on GOV.UK. It is accessible to them at any time and it allows them to share relevant information with third parties who need to check their status, such as employers and landlords, as noble Lords have mentioned. If necessary, EEA citizens can show third parties their written confirmation of status, so the person checking is made aware that there is an online service. Where there is a checked status, written confirmation must not be accepted by third parties as evidence of immigration status.

We are also developing services to make the relevant immigration status information available automatically through system-to-system checks at the point at which the person seeks access to public services such as healthcare and benefits. This will reduce the number of occasions when individuals need to prove their rights or need a document to do so.

In moving to a digital system, we recognise there are people who cannot access online services and will need additional support. The noble Lord, Lord Greaves, cited cases and others were cited, such as the Roma community or indeed another category of people altogether. The noble Baroness, Lady Bull, spoke about those in coercive or abusive relationships. We are committed to delivering a service that reflects the diverse needs of all users. Help on how to use the online services and share status information is available through our contact centre, and we provide a free assisted digital service where applicants to the EUSS or others making online applications in the UK are unable to get support. The assistance is tailored to an individual’s circumstances.

We provide a telephone helpline for landlords and employers in order to provide guidance on conducting right-to-work and right-to-rent checks. We are exploring additional support for those using our online services to ensure they can demonstrate their rights in the UK.

We will require EEA citizens to use their online evidence of immigration status only after 30 June 2021. We have designed the service to be easy to use, but guidance will be available should it be required. It will include guidance on those who care for vulnerable users and on use by a range of stakeholders working with local groups, including vulnerable groups.

The full package of measures that I have described will be available before EEA passports and national identity cards cease to be valid for proving rights in the UK after 30 June next year. In answer to the point on two systems that was made by the noble Lords, Lord Oates and Lord Paddick, we will replace physical and paper-based evidence of status with digital products for all migrants, starting with EEA citizens, in the next few years. These changes are being introduced gradually in a way that builds confidence for users and provides opportunities for adaptations and improvements informed by user feedback. At the same time, we are developing an extensive package of communications to ensure that everyone, from individuals to employers, landlords and other third parties, is fully aware of the move to digital and how online immigration status can be accessed and used.

Right-to-rent and right-to-work checks are not new. I have double-checked and right-to-work checks have been law since 2007. That is 13 years since they were introduced—14 by the time that online evidence of immigration is mandatory in June 2021—albeit they will now be in an online format. This move to become digital is not new. The UK public has learned to access many government services online, from applying for a UK passport to paying their vehicle excise duty. In July this year, 87% of vehicle tax renewals were made using the digital service, dispensing with the need for a physical disc on your car. The feedback from users indicates high satisfaction. UK driving licence holders are able to share online with third parties, such as car rental companies, whether they have driving-related convictions.

Employers are able to conduct right-to-work checks on foreign national employees remotely, without the need for physical documents to be handed over. Holders of biometric residence cards or biometric residence permits have already been able to prove their right to work to an employer by using an online service, instead of using their card, since January last year—the first step in our journey to make evidence of immigration status accessible online. The “view and prove” service is popular with users. In the last reporting period, from April to June this year, there have been over 400,000 views on the service by migrants. In the same period, there have been over 100,000 views of EU settlement status by organisations checking status. The average user satisfaction is very high, at a positive 88%.

It is hard to imagine how a country would have coped during Covid without the digital technologies which have enabled so many of us to work from home, shop and obtain government services remotely. We have seen a sharp uptake in digital provision by service providers and digital adaptation by the general public. Most visa applications are made online. Providing immigration status information online has enabled us to simplify and standardise the system of checks for employers, by providing information about an individual’s status in a format that is easy to understand and accessible to all users, removing the need for employers and others to interpret myriad physical documents, complex legal terminology or confusing abbreviations.

The EU settlement scheme has been at the forefront of the transition from biometric residence cards to secure online access to immigration status information. The online system is operating in parallel with existing document checks of passports or identity documents. This approach is helping employers, landlords and EEA citizens to transition from using physical documents to online services. Ultimately, all migrants coming to the UK, whether from other European countries or the rest of the world, will have access to online services which will enable them to show their immigration status without needing a document or biometric card.

On resilience, digital services are designed to be highly resilient, with rigorous testing to build assurance before services are seen by a user. Multiple security controls are in place to protect against cyberattacks and we have employed third-party organisations to conduct vulnerability and penetration testing to provide additional assurance that our online services cannot be compromised.

I shall not detain the House much further, other than to say that we will always send a formal written notification of the individual’s immigration status by email, in the form of a printable PDF document, or by post where a paper application has been made. As set out previously, I can assure noble Lords that we are committed to delivering an online service that reflects the diverse needs of all users. We recognise there are vulnerable people, such as the victim of domestic abuse and coercive control that the noble Baroness, Lady Bull, talked about or others in the Roma community that the noble Lord, Lord Alton, talked about, who may need additional support to use our online service to share their status.

Finally, on the policy equality statement that the noble Lord, Lord Oates, asked about—I think the noble Baroness, Lady Lister, mentioned it as well—I am very sorry to say that I cannot add to other Ministers’ comments. The statement will be published shortly as outlined by them.

I hope that with those comments the noble Lord will feel happy to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, I have received requests to speak after the Minister from the noble Lords, Lord Paddick and Lord Kennedy of Southwark.