Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Warsi Excerpts

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

I hope that the Minister will respond positively to these amendments. There can be, as the noble Baroness, Lady Chakrabarti, said, only one law of the land that binds every one of us, and we should all be able to adhere to it.

[Baroness Warsi (Con) [V]]

My Lords, I will speak to Amendments 3 and 5, to which I have added my name alongside those of the noble Baronesses, Lady Chakrabarti and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. As I said at Second Reading, no one can reject the importance of covert human intelligence sources or the need to protect them, and no one can doubt the importance of putting existing practices, the status quo, on a statutory footing. Existing practices, as far as they relate to the security services, have been part of security services guidelines for nearly a decade; they have served and continue to serve us well. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position. These amendments seek to do that without making all conduct lawful for all purposes and without granting absolute immunity, ensuring that victims, often innocent bystanders, are not left without any form of redress.

The amendments would preserve the current legal status quo. Those who are authorised to engage in criminal acts would not be rendered immune from either civil or criminal liability. Instead, the current public interest consideration not to prosecute, existing legal defences and any court considerations as to civil liability will remain. At Second Reading, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and other noble Lords reminded the House of a fact that I hope my noble and learned friend the Minister will acknowledge, because it has been repeated in today’s debate; namely, that large numbers of individuals for whom this immunity and lack of appropriate safe- guards in legislation would operate as a carte blanche to commit offences—these covert human intelligence sources, these agents—are not in fact all trained security agency officers or undercover police, as the Bill has presented them. Many are criminals who are still engaged in criminality, because that is what allows them to inhabit the spaces where they can go unnoticed. They include, as was said at Second Reading,

“extremely troubled, volatile and vulnerable people, including children.”—[Official Report, 11/11/20; col. 1071.]

Even professional agents are not and should not be above scrutiny. They should remain, as they are now, incentivised to exercise their necessary criminal conduct responsibly. We are of course still in the midst of a public inquiry that is hearing how even professional covert human intelligence sources have succumbed to the abuse of authority and have even fallen into inciting rather than preventing crime. This Bill in its current format would have far-reaching consequences far beyond professional security services agents and trained undercover police officers. It therefore must not be presented by the Government in narrow terms, even if that is simply to win support for the Bill.

Examples have been given during the passage of the Bill that include criminal damage to premises and the personal property of innocent bystanders by those working, for example, for the Food Standards Agency at the less severe end, through to sexual offences by criminals posing as gang members at the other. Surely we cannot be comfortable about creating a culture of absolute immunity in this space, nor should we easily sweep away the protection currently afforded to victims of crime who currently have access to redress via criminal proceedings brought either through state or private prosecutions and civil action in the civil courts or an application for compensation through the Criminal Injuries Compensation Authority. An absolute immunity would sweep away all these protections, which I believe would leave us in breach of the European convention, which at Second Reading my noble friend said the Government were seeking not to do.

The four people who have put their name to these amendments are very different people, from very different parts of the United Kingdom, and indeed from different communities, different backgrounds and different political parties. This is not a party-political issue but a national interest issue. At any one time we are the custodians of the core values of our country, one of which is that the rule of law is essential. So I encourage my noble friends and colleagues to think again to ensure that the Bill seeks to put the current position on a statutory footing but does not extend ways which the Government have stated in the past are not their intent and would cut across the very British and indeed deeply conservative principle of our commitment to the rule of law.

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

My Lords, it is always a pleasure to follow the noble Baroness, Lady Warsi, and I share her abhorrence of the idea of absolute immunity, to which she spoke so eloquently. Over 800 years, we have evolved a system of dealing with crime in this country where the guilt or innocence of an individual is established by a tribunal of ordinary citizens. In serious crime we rely on a jury, and in lesser, summary offences on a magistracy drawn from the community. The standard of proof is high. So the outstanding feature of the British approach to criminal activity is that the ultimate decision on guilt and on punishment is not in the hands of an agent of a government department. The judge who presides over a trial in a serious case is fiercely independent. The prosecutor, as exemplified by the CPS and the Director of Public Prosecutions, is also independent of government. It is necessary to restate these principles when faced with a Bill such as this, where the proposition is that an agency of the state, whether the security services, the police or a gaggle of government agencies, should authorise criminal activity and can do so without any independent check.

We have to this point had such a check. Authorisation of criminal activity for the purposes of covert intelligence does not of itself relieve the individual of criminal liability. Whether an individual is prosecuted is a matter for the discretion of the CPS and ultimately the Director of Public Prosecutions. There is a further procedure where a covert intelligence gatherer is protected from the results of his criminality. Your Lordships may not be aware of the role of the brown envelope. Very often, when a person is an informer or is otherwise acting on behalf of the security services or the police, it is deemed necessary that he should stand his trial along with the people against whom he has informed, for the obvious reason of protecting his role and his safety. In such circumstances, a brown envelope will be handed to the judge out of court to inform him of the true position of the defendant and his motivation. Sometimes that will result in a reduced penalty and sometimes it results merely in the early release of the individual from whatever sentence of imprisonment is passed on him. To my mind, the system we operate at the moment gives greater protection to the individual and to the public while preserving a proper measure of control.

As for civil liabilities, it is clearly highly undesirable that a victim, whether direct or indirect, of the covert agent should have no remedy. Obviously, where an individual is authorised to engage in certain conduct that causes harm, he does not pay any damages himself; it is the state that stands behind him and pays the price. If this Bill means that no civil liability at all accrues to the covert agent, or to the state behind the covert agent, it is not the agent who will gain anything but the state. We will see when the overseas operations Bill comes before the House that the abolition of civil liability for the individual soldier’s acts benefits not him but the state, which pays the damages.

Integrated Communities Strategy

Baroness Warsi Excerpts

Tuesday 17th November 2020 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

Some couples have a legally binding religious marriage, while others do not, whether by choice or because they did not know that they could. We need a much better understanding of the factors behind this because, without such real insight into these matters, no solution can change what is happening or be sensitive to the issues facing individuals and the differing voices within communities. That is the Government’s approach.

[Baroness Warsi (Con) [V]]

My Lords, the honourable Member for the Medway area recently introduced the Marriage (Authorised Belief Organisations) Bill in the other place. It would mean that people who wished to be wedded at a humanist ceremony would not to have to attend a registry office afterwards to make the marriage legally binding. Will the Government support this Bill? Secondly, nearly a decade after the issue of unregistered Muslim marriages was first discussed by a Conservative-led Government, how do the Government reconcile their stated support for the rights and protection of women with their failure to act on this issue for over 10 years?

[Lord Stewart of Dirleton (Con) [V]]

My Lords, the Government invited the Law Commission to make recommendations about how marriage by humanist and other non-religious belief organisations could be incorporated into a revised or new scheme for all marriages that is simple, fair and consistent. The Government will decide on provision on the basis of those recommendations. The Law Commission published a consultation paper on 3 September as part of its review, and welcomes responses from all.

Human Rights Act 1998 (Remedial) Order 2019

Baroness Warsi Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Warsi (Con)]

My Lords, I support the remedial order and welcome the Government’s changed position. The draft order originally laid was too narrow. I will make three short points.

First, I believe and hope that this process has not cast doubt on the importance of judicial immunity, a vital bedrock of our system. Judicial independence is a principle that has universal support but, in an area as fundamental as a violation of a person’s right to liberty under Article 5 or to a fair trial under Article 6, as a result of a judicial act, even when done in good faith, it is only right that damages follow in those extremely rare cases where no other remedy is possible, as was the case in Hammerton v UK.

As has already been said, an independent and impartial judiciary is one of the cornerstones of a democracy. However, as was said in the other place, depriving judges of the power to award damages against the state does not strengthen independence. The order that now allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of Article 6 that have led to a person spending time in prison or being detained is an important position, both in principle and symbolically.

Secondly, I pay tribute to the Joint Committee on Human Rights—particularly the noble Baronesses, Lady Ludford and Lady Massey of Darwen, who are taking part in today’s proceedings—for assisting the Government in reaching the right place. It was right to ensure that we maintain a spirit of generosity in embracing the human rights framework.

Finally, Professor Richard Ekins of Oxford University presented an alternative view in a paper published by Policy Exchange and referred to today by my noble and learned friend Lord Mackay of Clashfern. He made a case for the proposition that the Human Rights Act does not authorise its own amendment in the way that is proposed in this order. It is comforting, however, to hear that the Government continue to remain committed to ensuring that legislation takes effect only in so far as it is in compliance with the convention. It was, after all, the purpose behind the Act to ensure that we were, and continue to remain, convention compatible. It would be an odd outcome of the process designed to ensure compatibility existed with regard to all other legislation that it was cited to prevent the same in relation to the Act itself.

With those comments, I support the order as now drafted.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords—[Inaudible.]

Marriage and Religious Weddings

Baroness Warsi Excerpts

Tuesday 30th June 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, the position is that there is a very real social issue, but not a legal issue, with regard to this matter. It is not possible simply to say that we will acknowledge all religious ceremonies of marriage, of any kind, as legally enforceable. That would actually expose people to greater harm in the long term. I am perfectly content to meet with the noble Baroness and others to discuss this matter. It would be sensible to defer such a meeting until we have the Law Commission’s terms of reference and consultation document in September of this year.

[Baroness Warsi (Con) [V]]

My Lords, I am sure my noble and learned friend accepts that the role of politicians and indeed government is to ensure that the law responds to the needs of a changing community. Therefore, could he explain why, despite 10 years of government policy consensus on religious marriages—that Muslim women in particular deserve the same protection as other married women—the Government still fail to put that protection in place?

[Lord Keen of Elie]

First of all, those who undergo only a sharia ceremony are not in marriage; that is the source of the problem we have to face here. That is more a social issue than a legal one, and it requires education and information more than legislation.

Prisons: Radicalisation

Baroness Warsi Excerpts

Tuesday 3rd March 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, it will not surprise the noble Lord that I do not have the precise statistics he has asked for, in particular the number of days when escorts were not available, but I will take steps to secure the relevant statistics—in so far as they are available—and will write to the noble Lord and place a copy of the letter in the Library.

[Baroness Warsi (Con)]

My Lords, my noble and learned friend will be aware of the well-documented concerns around those who are radicalised in prison. Does he have the statistics for offenders serving time for non-terrorist-related offences who subsequently, on release, have been convicted of terrorist-related offences? If he does not have those figures today, will he agree to write to me and to place a copy of the answer in the Library?

[Lord Keen of Elie]

My Lords, I confess that I am not sure such figures will be available. I will take steps to identify whether they are but, as I say, I express doubts as to whether they are. In the event that such statistics are available, I undertake to write to the noble Baroness and to place a copy in the Library.

Streatham Incident

Baroness Warsi Excerpts

Monday 3rd February 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, it is a matter of regret that these outrageous attacks are not limited to any one section of the community and are not to be attributed to religious belief, but rather to a corruption of that belief.

[Baroness Warsi (Con)]

My Lords, is my noble and learned friend familiar with the 20-plus drivers of radicalisation, factors which are well documented in academic research, in the judgments of courts sentencing terrorism offenders and in documents from our own intelligence services? How sophisticated is the Government’s understanding of those drivers of radicalisation? I raise this issue specifically because, as my noble and learned friend will be aware, many of the recommendations that date back to the work done by the last Labour Government after the attacks of 7/7 and work done after the terrorist attack in 2013 when drummer Lee Rigby was killed on the streets of London have simply been shelved. We may talk about this event—I echo all Front-Benchers in saying that our thoughts are with those who have been injured—but I urge the Government to go back to what we already have on our books: recommendations that would get ahead of this issue, but which have simply not been implemented.

[Lord Keen of Elie]

My Lords, there is diverse research in this area. We are on a learning curve and will remain so; we will never be ahead, as it were, because the terrorist can develop swiftly in diverse ways. We cannot always anticipate what those developments will be. Even if we could, there is a more fundamental issue with this sort of despicable offence and that is protection. We seek to address protection in many ways, but it can never be absolute.

Victims Strategy

Baroness Warsi Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the intention is that the consultation should do that, and I will not pre-empt the consultation process.

[Baroness Warsi (Con)]

My Lords, I take this opportunity to welcome this Statement, and I pay tribute to my noble friend Lady Newlove. I will spare her blushes—we were all speaking about her just before she took her place in the Chamber, but I am sure that she will read Hansard and realise that the whole House pays tribute to the work she has been doing over a number of years. Can my noble and learned friend say something at the Dispatch Box which will send out a message to victims of sexual violence, and specifically to young girls who were children at the time they were subjected to sexual exploitation? We have seen the cases across the country. What will these new measures do for them, how will they be taken seriously, and how will the experience—which, sadly, is sometimes quite horrific—of people subjected to these crimes be different?

[Lord Keen of Elie]

I thank my noble friend Lady Warsi for her observations. With regard to that question, the whole idea is that the victims’ code should first be made more accessible, that victims should be aware of its existence, and that those who engage with the victims should be properly aware, not only of its existence but of the way in which it ought to be implemented. Victims should be able to pause, consider and then come forward, in many instances seeking guidance on how they should go about making their complaints, and those complaints should be received sensibly, reasonably and openly. It is a difficult area, particularly where one is dealing with matters of historic sexual abuse. Nevertheless, we hope to achieve a situation in which people will not feel that any barrier or inhibition prevents them coming forward with those concerns.

Brexit: Human Rights

Baroness Warsi Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Warsi (Con)]

My Lords, I am grateful to the noble Lord, Lord Cashman, for giving us the opportunity to debate the important question of what the Government’s human rights priorities are post Brexit. I hope he will not be too disappointed if I try to address the closely linked question of whether human rights are a priority for this Government.

“Britain has a long history of protecting human rights at home and standing up for those values abroad … However, the present position under the European Court of Human Rights and the Human Rights Act is not acceptable”.


These are not my words but words from my party’s paper, Protecting Human Rights in the United Kingdom. However, all grand statements have to be underpinned. If the European Convention on Human Rights and the Human Rights Act are not acceptable, as that statement says, and the European Union and the human rights framework it provides—despite its shortcomings—is no longer part of the structure of human rights, what will underpin our commitment?

I accept the Government’s assurances, given in the repeal Bill White Paper and subsequently, that,

“legal rights and obligations … should … be the same after we have left the EU as they were immediately before we left”.

I particularly welcome assurances that the Government will not amend or repeal the Human Rights Act or alter the UK’s relationship with the European Convention on Human Rights during the Article 50 period. However, I am afraid that I am not as optimistic as my noble friend Lord Faulks.

I have concerns premised on a number of factors. These include the potential for future legislation that could seek to roll back the current level of protection; political rhetoric feeding the tabloids and the tabloids emboldening the Government on a general attitude of dismissing our strong tradition of commitment to human rights; a disdain for the judiciary; and attacks on the rule of law. I am concerned also by the worrying but honest admission from Sir Simon McDonald, the Permanent Secretary at the Foreign and Commonwealth Office, who before the Foreign Affairs Select Committee said that human rights are not a “top priority” for the Government.

Our approach at the Human Rights Council is another concern, where too often we abstain rather than stand by the values that we espouse. My most recent concern is the approach to the UK’s third universal periodic review, which is, as the noble Lord, Lord Cashman, said, a form of peer review where all nations’ human rights records are put under a spotlight. This year, the UK received 227 official recommendations and, whereas the world average of adoption of recommendations is 73% and other western European states supported an average of 67% of recommendations, the UK supported only 42%. That is less than in previous years, and specifically it did not support recommendations that related to securing the future status of the Human Rights Act.

Each of the concerns I list could be the subject of a debate. Sadly, with only four minutes allocated, I simply raise them and ask my noble friend the Minister to reassure the House that this Government remain committed to the human rights landscape as it currently stands and do not intend to remove protections afforded to British citizens as we remove some of the underpinning that enables these very protections.

Finally, Britain has a strong record in promoting human rights both domestically and internationally. We played a leading role in establishing the post-war international human rights framework. We are right to be proud of our record. But the legacy this Government should strive for is that, at this moment of significant constitutional change, we should set out a positive vision of the kind of country we want to be after we have left the European Union and ensure that the UK remains a global leader on equality and human rights once we have left. The EU may no longer be a priority, but we must all work to ensure that the values that used to bind us as a nation, including human rights, remain a priority.