Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Lord Kennedy of Southwark

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.

Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.

Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.

Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.

That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.

The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.

The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.

I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.

Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.

For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.

I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.

My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?

Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.

We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.

I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.

I look forward to the Minister’s response. There are a number of areas to cover here for the House.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Kennedy of Southwark

Report: 2nd sitting (Hansard - continued): House of Lords & Report: 2nd sitting (Hansard): House of Lords
Monday 17th December 2018 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, this is an issue that we debated in Committee when an independent review of Prevent was called for. The Prevent programme introduced by the Labour Government in 2003 has undoubtedly done much valuable work. My moving of this amendment should in no way be seen as not recognising that fact. As when we last debated this issue, I pay tribute to all those who work to keep us safe, to divert people away from a life of terrorism and to support people who contribute positively to the community. We should all recognise the good work that has been done. I am not aware of any specific problems that give rise to concern, but that does not in itself negate the fact that it is good practice to review matters.

The amendment does not specify who should carry out the review. I would be happy for it to be placed under the remit of the Independent Reviewer of Terrorism Legislation. It seems preferable to do that rather than appoint another person to carry out the review. Prevent has not been the subject of an independent review; I very much believe that the programme would benefit from that sort of oversight.

Clearly, questions have been raised over the programme’s operation and effectiveness. Some are justified, but other criticisms have been stirred up deliberately to undermine the programme. I see my amendment calling for review not as seeking to undermine the good work that has been done but as a sound, sensible, careful look at an area of policy and a programme that deals with matters of the utmost concern to the country as a whole and to individual communities.

In addition to the review, my amendment calls for a report to be laid before Parliament within 18 months of the Bill becoming an Act, and for the Secretary of State to produce a statement to accompany the report. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, we should have pride in the achievements of the many excellent people who work locally in Prevent, and in the increased transparency that has been a notable feature of the past few years. I have in mind not only the helpful publication of statistics but recent initiatives such as the staging in the West Midlands of simulated Channel panel meetings through which outsiders have been brought in to witness the process of decision-making.

As the noble Lord, Lord West, has indicated, triumphalism about the successes of Prevent would be quite out of place. In its report last month, the Intelligence and Security Committee noted that the failure to pick up attack planning by the Parsons Green tube bomber, Ahmed Hassan, despite him having been an active Channel case, highlighted what the committee called,

“deep-rooted issues in the administration”,

of Prevent. Assistant Commissioner Neil Basu described Prevent in an interview this February, when he was senior national co-ordinator for counterterrorism, as “hugely controversial”. He went on to say:

“Prevent, at the moment, is owned by the Government, but I think it should be outside central government altogether ... Rather than the Government handing over a sum of money and then it becoming state-sponsored with accusations of demonising communities, it should be locally generated. We have gotten all of that messaging the wrong way around, it should be grassroots up”.


I mention this to encourage noble Lords to avoid complacency on this subject and because the Minister quite rightly expressed in Committee her strong respect for Mr Basu’s views. Perhaps it shows that the best of us are not monolithic in our views; with great respect to my noble friend Lord Carlile, that is true also of the noble Baroness, Lady Warsi, whose recent book is both nuanced and constructive in its approach.

The legitimate questions raised by Mr Basu could be multiplied: how should Prevent relate to other safeguarding mechanisms on the one hand and to the Government’s Counter-Extremism Strategy on the other? How robust are the mechanisms for measuring success? To what extent should concerns derived from Prevent contacts be shared with counterterrorism police and others? Decisions as to the future direction of Prevent are of course for Ministers. It was encouraging to hear from my noble friend Lord Carlile that the Prevent oversight board might be showing signs of renewed life. But independent review of the operation of Prevent by a security-cleared person, based on the widest possible engagement with those affected, could help to inform those decisions. It could also provide much-needed public reassurance about an initiative which is so hotly debated that it has been described as “5% of the budget and 85% of the conversation”.

As Mr Basu said in February:

“Government will not thank me for saying this, but an independent reviewer of Prevent … would be a healthy thing”.


I agree, and I hope your Lordships will too.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Lord Kennedy of Southwark

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Anderson of Ipswich]

My Lords, the amendments in this group are in the nature of a tightening up. New Section 58C(4) introduced in Clause 4 provides for designations to be kept under review but no time limit is placed on that process. It is unsatisfactory to put no time limit on this in circumstances where designation constitutes a significant and unprecedented legal impediment to freedom of travel and where there might be political factors which, in the absence of a strict statutory requirement, could militate against the removal of designations.

There are precedents for timed reviews in matters of this kind—for example, in the sanctions field and in the former practice of reviewing the basis for the proscription of terrorist organisations on an annual basis. It is precisely because that practice lacked statutory backing that it most unfortunately fell into disuse after 2014—a point to which I propose to return in the context of Amendment 59. I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 26, in the names of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Judge, would put on the face of the Bill that at least once in every year there must be a review of a designation. This would be far more preferable than simply having the rather less clear and less direct wording currently in the Bill, to “keep under review”. As the noble Lord, Lord Anderson, said, these are very much tightening-up amendments.

Amendment 27 would, again, put on the face of the Bill a much clearer process for reviewing a designation, determining whether it still satisfies the condition for designation in the first place. The amendment would also make provision for changes or revocation to take place and would require each decision to be published and a record to be laid before Parliament. Again, I think that this is a much better way to address these issues. It would provide more clarity and leave less room for confusion than could be the case at present.

Amendment 28, in my name and that of my noble friend Lord Rosser, seeks to require the Government to address whether the regulations are still relevant and appropriate through the regulations automatically lapsing three years after coming into force. Amendment 29, again in my name and that of my noble friend Lord Rosser, would place a duty on the Government to bring these regulations to the attention of the Intelligence and Security Committee and for it to lay before Parliament its report on whether or not they should be approved.