Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, we expect that the duty will provide the right legal basis for improved multiagency working and draw in the correct set of partners to prevent and reduce serious violence effectively. We think it is right, however, to ensure that there are means of securing compliance should a specified authority refuse to play their part—in other words, in adherence of the duty. So we have included provision within Clause 17 for the Secretary of State to issue a direction to secure compliance, should a specific authority, educational institution, prison or youth custody authority fail to meet the requirements of the duty. For publicly managed probation service providers, prisons, young offender institutions, secure training centres or secure colleges, existing mechanisms can be utilised through the relevant Secretary of State to ensure compliance with the duty.

As a result of the amendment to this clause just agreed by the Committee, the Secretary of State must now obtain the consent of the Welsh Ministers before issuing a direction to a devolved Welsh authority, as the noble Lord, Lord Ponsonby, said.

I now take the opportunity to address concerns that were raised previously by the noble Lord, Lord Paddick —it was only on Monday night, but it seems quite a long time ago. Let me be clear: a direction can be issued only to certain specified or relevant authorities and not to individual front-line professionals or practitioners. In addition, directions can be issued only in respect of certain duties, as listed in Clause 17(1). On information sharing, no directions can be issued in relation to the exercise of the powers in Clause 15 or any regulations made under Clause 9, which enable but do not mandate information sharing. I hope that answers the question from the noble Lord, Lord Paddick.

Directions can be made by the Secretary of State in relation to a failure to discharge the mandatory duty in Clause 16 to share information with a local policing body. As I have said previously, the purpose of Clause 16 is to enable the local policing body—that is, the PCC and their equivalents—to request information in order to assist the specified authorities and monitor the effectiveness of local strategies. To reiterate—this may assist the noble Baroness, Lady Chakrabarti—this power would not enable the Secretary of State to directly compel an individual doctor, teacher or social worker to disclose personal information. Additionally, any direction given to an authority cannot require a disclosure which would be in breach of the data protection legislation. If an authority refused to comply with the direction due to concerns that doing so would breach the data protection legislation, the Secretary of State could apply for a mandatory order and the court would then determine the question. I hope that this clarification is helpful.

I assure the Committee that, in any case, we expect these powers to be seldom used and utilised only where all other means of securing compliance have been exhausted. I am sure noble Lords would agree that, in order for this duty to be effective, a system needs to be in place to ensure that authorities comply with the legal regulations we are proposing to help prevent and reduce serious violence.

A direction by the Secretary of State may require the authority in question to undertake specific actions in order to comply under the duty, and directions may be enforced by a mandatory order granted on application to the Administrative Court in England and Wales. Further detail on this process will be set out in statutory guidance, which will be subject to a public consultation following Royal Assent. I commend Clause 17 to the Committee.

[Lord Beith (LD)]

Can the Minister explain subsection (5), which sets out that

“the governor of a prison, young offender institution or secure training centre”

is not covered by these provisions?

[Baroness Williams of Trafford (Con)]

My Lords, the direction power is not available in relation to probation services provided by the Secretary of State or publicly run prisons, youth offender institutions, secure training centres or secure colleges. As I said earlier, existing mechanisms will be available to ensure that they are meeting the requirements of the duty. In addition, as I have already outlined, the Secretary of State must also obtain consent from Welsh Ministers before exercising the direction power in relation to a devolved Welsh authority.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, in moving Amendment 75 I will speak also to Amendments 76 and 77 in this group, all in my name. We now come to offensive weapons homicide reviews and there are two points I will make initially. The first is to point to the evidence that the provisions on this in the Bill were probably, quite rightly and properly, about knife crime. Chapter 2 is about offensive weapons homicide reviews and, predominantly if not almost exclusively, homicides involving offensive weapons are knife crime offences.

Secondly, as with Chapter 1, the primary motive of the Government is to produce the illusion of doing something when the changes in the Bill have little practical beneficial effect. As we argued in Chapter 1, the Government’s approach potentially does more harm than good. Amendment 75 is a probing amendment to ask the Government why, just as Chapter 1 should have strengthened existing crime and disorder partnerships, this chapter should not strengthen the already considerable and comprehensive powers of coroners, if this were necessary, rather than creating a new and separate legal duty to conduct offensive weapons reviews—other than the obvious explanation that the Government could point to it and say they had done something about knife crime.

For every death where the cause of death is still unknown, where the person might have died a violent or unnatural death or might have died in prison or police custody, a coroner must hold an inquest. Clearly every qualifying homicide, as identified by Clause 23, and every potential qualifying homicide, even if the Secretary of State changed the definition by regulations, as subsection (7) allows, would be subject to a coroner’s inquest. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports to a person, organisation, local authority, or government department or agency, where the coroner believes that action should be taken to prevent future deaths. All reports, formerly known as rule 43 reports, and responses must be sent to the Chief Coroner. In most cases, the Chief Coroner will publish the reports and responses on the Courts and Tribunals Judiciary website. Coroners are very powerful members of the judiciary. Attendance at a coroner’s court takes precedence over an appearance at any other court, if a witness is required to attend more than one court at one time, for example.

Can the Minister tell the Committee what consultation took place with coroners before this chapter was drafted? What was their response? What additional benefit would an offensive weapons homicide review have over a coroner’s report? If benefits were identified, what consideration was given to the coroner, rather than a review partner, being given the power to order a homicide review? Can the Minister also explain what happens if one of the review partners considers that none of the conditions in Clause 23(1) is satisfied, but another review partner considers that the conditions are met? Does the review take place despite the review partner’s objection, and, if it does, does the review partner that objected have to participate if it does not believe the conditions are met? Is there a hierarchy of review partners? So, if the police believe the conditions are met, must the review go ahead? And if a clinical commissioning group believes that a review should go ahead, but the police do not believe the conditions are met, does the review take place and do the police have to participate?

The Government may say that all this will be set out in regulations, but the existing provisions in the Bill are a shell of an idea, where this Committee is left to guess what actually happens in practice; what a qualifying homicide is, because that can be changed by regulation; who the review partners will be, because that will be set out in regulations; and what happens if there is disagreement among review partners about whether the conditions are met.

We already have child death reviews, domestic homicide reviews—on which more in a subsequent group—safeguarding adult reviews, and, now, offensive weapons homicide reviews. With the Bill as drafted, how many of the sadly too many knife crime deaths a year will be subject to a review? According to the Bill, factors that decide whether a review is necessary may include, for example, the circumstances surrounding the death, the circumstances or the history of the person who died, or the circumstances or history of other persons with a connection with the death, or any other condition the Secretary of State sets out in regulations. How many reviews do the Government believe will have to be conducted each year by our overstretched police, local authority and health services? I ask the Minister to not give the answer: “It depends what conditions are contained in the regulations”.

Amendment 76 is intended to ensure, as with the serious violence duty, that professionals, including doctors and counsellors, are not forced to disclose sensitive personal information that is subject to a duty of confidentiality, unless, in exceptional circumstances, it is in the public interest to do so, and in accordance with existing policies and practices, although I accept that these may be less stringent in the case of information regarding the deceased.

As before, Clause 31 says that review partners must have regard to guidance issued by the Secretary of State, but there is no mention of parliamentary scrutiny of such guidance. My Amendment 77 requires the guidance to be laid before Parliament to ensure parliamentary scrutiny. I beg to move Amendment 75.

[Lord Beith (LD)]

My Lords, I am glad to support my noble friend in questioning whether the processes outlined in this clause should be altered so that they protect the procedures that we already have and have had for a thousand years, to use the system of coroners to investigate unexplained deaths of a wide variety of types. Instead, we have the offensive weapons homicide review added to the system. It is unclear how this will relate to the coroner’s duties in a situation where such a death has occurred, because the coroner’s duties do not disappear because we have legislated this system into existence. I hope the Minister will clarify this point.

There was a time when the Government might have felt that the system of coroners was not quite up to the job in some areas. We had problems over the years with inconsistencies in standards of coroner, but considerable attention has been given to that in recent years and I think the system now has much more consistency about it. We are not subject to some of the problems of particular localities which existed in the past. The creation of a Chief Coroner, although in a more limited way than originally envisaged, I think has helped in that process.

It seems to me that the Government are not saying that the coroner system cannot handle this, they are simply legislating for an additional mechanism, because that seems to be a good, visible response to a problem that we all acknowledge is a serious one. But serious problems are not solved by creating more structures and processes, particularly in the circumstance where what is a qualified homicide appears to be so uncertain that the Government have to keep to themselves powers to change the meaning of qualified homicide while the legislation remains in force.

I am very unpersuaded about this system and certainly would like to know what coroners are supposed to do when they find themselves presented with the likelihood of such an inquiry taking place and may have their own duties in respect of the death that has taken place.

--- Later in debate ---

[Lord Beith (LD)]

It is important that we get this matter clear. If the coroner has begun an inquest, does that inquest fall within the limitation that the Minister has described, which would preclude a homicide review being started while that inquest is going on?

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that intervention. As I understand it, yes it does. I expect I will be corrected by my officials later.

--- Later in debate ---

In conclusion, I am happy to consider Amendment 77 further, but I hope that I have persuaded the noble Lord that Amendments 75 and 76 are unnecessary and that, accordingly, he is content to withdraw Amendment 75.

[Lord Beith (LD)]

Before my noble friend does that, can the Minister clear up a mystery? I remain mystified. A person has been stabbed, but no charge has been laid against anyone because the police have not yet identified who might have carried out the stabbing. The coroner opens and adjourns an inquest in those circumstances. What happens then? Is the coroner told that he must close down this inquest? Does the coroner continue to co-operate with the police in the normal way, as they bring to him the information that they have gradually obtained about how this death might have taken place? In passing, I should say that it would be wrong to give the impression that coroners do not, as a matter of course, draw lessons from public bodies and others which arise from any death that they report on.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord. I thought that I had made it clear, and I apologise for obviously not having done so, but no, OWHRs are not precluded by a coroner’s inquest.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part two & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Blencathra (Con)]

My Lords, as chair of the Delegated Powers and Regulatory Reform Committee, I support Amendments 33 and 41 in my name. I intend to speak only once on the whole Bill, unless the spirit moves me via my noble friend the Minister’s reply. She will know that there were quite a few recommendations in the Delegated Powers Committee report, but I have put down just these two amendments.

If the Committee will permit, I will take the first minute to run through the more general criticism we made of the delegated powers in the Bill. I will not return to this subject again. In our response to the memorandum, we said:

“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published.”


That is the subject of the amendments before us today, and that is what I shall major on.

We concluded our general introduction by saying:

“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


That is fairly scathing condemnation, and it is a bit unfair on noble Lords in this Committee and from the Home Office, because they had nothing to do with drafting these provisions.

We all know how it happens. The Bill has come from another place; Ministers who have served in the Home Office and other departments will honestly admit this. I dealt with about 20 Bills when I was in the Home Office. The Bill team and civil servants would come in and say, “Here’s the Bill, Minister”, and we would look at the general politics of it. Then they would say, “Oh, by the way, there are some delegated powers there. When you’re ready to come back again to tweak it, we can deal with it”. We all said, “Yes, jolly good; carry on”, but never paid any attention to them. I am certain that the Bill team in the Commons—the civil servants drafting the Bill—did not, and nor did the Commons Ministers. It came here and this bunch of Lordships have got a bit upset, and I suspect others will too.

I say to my noble friend the Minister to go back, as other Lords Ministers have to do, and explain to Ministers in the Commons and the Bill team—the Bill team thinks it is sacrosanct; it has drafted it and does not like people mucking around with it—that that bunch up the Corridor will want some concessions. My political antennae tell me that on Report there may be a few amendments made by noble Lords on all sides—amendments I might not approve of at all—but if we want to get somewhere, the Commons should make concessions on this, because they are really sensible.

Before I comment on the two amendments, I will give one example. We criticise the provisions on serious disruption; I think the noble and learned Lord, Lord Judge, wishes to remove them from the Bill. We say in our report that the Government have been able to draft a half-page statutory instrument describing serious disruption. If the Government can draft it there, stick it in the Bill, for goodness’ sake, and then it can be amended later.

That is enough general criticism. I apologise to my noble friend as she has to take it all the time, but other departments have been infinitely worse in some of their inappropriate delegations. The Home Office is not the worst offender.

Clauses 7(9) and 8(9)

“make provision for or in connection with the publication and dissemination of a strategy”

to reduce serious violence. Clauses 7 and 8 allow collaboration between authorities and a local government area

“to prevent and reduce serious violence”,

including to

“prepare and implement a strategy for exercising their functions”—

all good stuff.

Under Clauses 7 and 8, a strategy

“may specify an action to be carried out by … an educational authority … a prison authority … or … a youth custody authority”,

and such authorities are under a duty to carry out the specified actions. However, there is no requirement for such a strategy to be published; instead, the Secretary of State has the power, exercisable by regulations subject to the negative procedure, to

“make provision for or in connection with the publication and dissemination of a strategy”.

This power would appear to allow the Secretary of State to provide that a strategy need not be published if she so wished, or even to decide not to make a provision about publication at all. That does not make sense to us. My committee is

“concerned that the absence of a requirement to publish means that a strategy can have legislative effect—by placing educational authorities, prison authorities and youth custody authorities under a statutory duty to do things specified in it—but without appropriate transparency.”

We therefore recommend

“that the delegated powers in clauses 7(9) and 8(9) should be amended”—

that is, tweaked a wee bit—

“to require the publication of any action which is specified in a ‘strategy’ as one that an educational authority, a prison authority or a youth custody authority must carry out.”

That is a minor tweak—actually, so are many of the other things we recommend. We may be scathing in the report, but we are not asking that fundamental bits of the Bill be deleted or rewritten completely; we are merely asking for more transparency. Putting more things on the face of the Bill will save the Government rather a lot of grief in this House later on.

[Lord Beith (LD)]

My Lords, my name is on the amendment, following that of the chairman of the Delegated Powers and Regulatory Reform Committee. I commend the committee’s work in general, with more general comments on this Bill and the two amendments to which it has given rise in this particular case.

I am not persuaded of the merits of having a statutory structure for local co-operation strategies. I am strongly in favour of local co-operation; it should be happening everywhere to deal with serious violence and many other problems in the system. Where that is done and works well—as it has done in youth justice, to some extent—it demonstrates its value pretty quickly.

However, this is a statutory scheme; because of that, statutory obligations are created and there must be accountability for them. I am in a charitable mood so I will suggest that, if not exactly careless drafting, this did not anticipate the question, “What if no provision is made for publication of the strategy?” That is what the two amendments deal with. Perhaps the Government are undiminished in their intention that the strategies will be published and will therefore be accountable to the communities in which they are deployed but, as the Bill stands, it is weak on that point and it would be much better to make it clearer.

This is not by any means the worst delegated power issue to arise in the Bill—I am intrigued that the Home Office got off lightly tonight, with the chairman of the DPRRC calling it not the worst department. However, in this particular case, it needs to be made much clearer that, if statutory obligations are created and strategies have the force of statute, they must be published and must be accountable to the communities in which they operate.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part two & Committee stage
Wednesday 20th October 2021 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that intervention. I think I gave some other examples, though, of things that do not necessarily qualify as police pursuit but are still none the less covered by this: emergency response, armed vehicle interventions and so on. I thought those would cover most of the noble Lord’s points. I take his point, obviously, that if you are under surveillance, you do not necessarily know that anybody is there—that is the whole point. At some point, that could turn into a pursuit; I suppose it depends on the specific circumstances. But I do take his point.

[Lord Beith (LD)]

My Lords, could I ask the Minister if I heard him correctly? I think that, in the early part of the remarks he read out, he used the phrase “pursuit or emergency.” That appeared to me to be quite a helpful definition of what we are talking about here, and excluded things that were neither “pursuit” nor “emergency”. Could that wording not be what the clauses should be based on, and was it not helpful of him to use it in the early part of what he said?

[Baroness Randerson (LD)]

I think I—

[Lord Beith (LD)]

He might be going to answer that.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, there are some valuable things in the Bill but they are dwarfed by things that really should not be in it. Parts of the Bill are dangerous to our civil liberties while other substantial parts add nothing useful to existing law.

I shall concentrate on just four points. To start with, there is the sheer extent of the Bill, which has been referred to. As a former member of the Constitution Committee, I am enthusiastic about its report pointing out that Bills of this size and complexity impede proper legislative scrutiny by Parliament.

Secondly, the Bill makes bad law. Take the deeply objectionable attempt to reduce rights to protest, in apparent defiance of the European Convention on Human Rights. This gives enormous subjective discretion to police officers—who, so far as I am aware, have not asked for that kind of subjective role—and introduces the concept of “unease” in relation to noise, in the wording

“persons of reasonable firmness … may … suffer serious unease”.

I like to think that I am a person of reasonable firmness and indeed I am caused serious unease by loud noise in shops, restaurants and various places, but it does not usually represent a reason why someone else’s civil liberties should be seriously abrogated. In this context, we really have to avoid such badly worded legislation.

Thirdly, I turn to the Delegated Powers Committee, which the noble Lord, Lord Blencathra, has spoken about. The committee says in its report:

“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill.”


There is the accretion of ministerial power to rule by statutory instrument. The Secretary of State will have power by regulation to prescribe what constitutes “serious disruption”, in Clause 55, and will have the Henry VIII power to alter the meaning of “qualified homicide” and to amend this Act accordingly. The extraction of confidential information from telephones is inappropriately left to regulations that, in the view of the committee, should be in the Bill itself and therefore amendable. The committee also pointed out that the Bill will

“allow the imposition of statutory duties via the novel concept of ‘strategy’ documents”

that in some cases may not even be published at all. There are also the usual wide powers of consequential amendment by regulation, which currently seem to be slipped into many Bills as standard.

Then there is the direct and indirect effect of the Bill’s sentencing provisions and the wider sentence-inflation effect that they, and the rhetoric of longer sentences, will produce. The impact assessment reckons that there will be 700 more prisoners, with 300 new prison places immediately required. Paragraph 43 speaks of

“a risk of having offenders spend longer in prison and a larger population may compound overcrowding (if there is not enough prison capacity), while reducing access to rehabilitative resources and increasing instability, self-harm and violence”.

We have seen that happening in prisons, and if we have 700 more prisoners it will get worse.

Measures to bring about longer sentences are wide in their effects because it is not merely about the inclusion of a long sentence for a particular offence; it is all the campaigns that then follow, saying that the sentence for something else is not enough—“That’s all you get for stealing someone’s pet rabbit”, for example—that could happen if the Government go ahead with this suggested amendment. There is a knock-on effect, and it affects the judiciary. There is no escaping the fact that long periods when much is talked about longer sentences have an effect on what judges do in sentence determination.

This move to longer sentences is a major reallocation of resources, unsupported by any evidence that it is the most effective way to keep the public safe either by deterrence or by rehabilitation during custody. These are resources that are desperately needed to fight crime and tackle the problems that lead people into crime in the first place. It really is time that we corrected this trend.

Daniel Morgan Independent Panel Report

Lord Beith Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord may not have been here for an earlier question, but I said that the Home Secretary is very keen to speak to the families before publishing our response on this duty.

[Lord Beith (LD)]

My Lords, senior police officers, who abhor the corrupt relationships with criminals that are fully illustrated in this report, still find it difficult to accept that they may be guilty of institutional corruption. Is it not important to make it clear that the culture of cover-up, delay and denial is indeed a form of institutional corruption, which makes space for criminal corruption and leads the victims of corruption to believe that there is neither point nor prospect in trying to challenge the police about it?

[Baroness Williams of Trafford (Con)]

As I said, the Home Secretary has written to the commissioner to set out her expectations and has explained that she is taking personal responsibility to make sure that progress is made on the issues outlined in this report. She has also brought forward a review of the IOPC and its governance structures, as well as asking HMICFRS to consider how it feels it can best focus on the issues raised.

Law Enforcement Agencies: Duty of Candour

Lord Beith Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I did not hear all of my noble friend’s question, but I think he was talking about police officers being prosecuted, suspended, forced to resign or sacked. Between December 2017, when the police barred list was established, and 2020, a total of 117 officers and 18 special constables from the Metropolitan Police service were dismissed and added to the police barred list. The College of Policing breaks this down by category, but there is no single category for corruption. We do not intend to collect data on police suspensions, as that is obviously a matter for individual chief officers, but I can tell my noble friend that the Home Office is currently amending its data collection on police misconduct and we intend to publish data in greater detail from this autumn.

[Lord Beith (LD)]

My Lords, although the duty of candour has to be organised in ways that do not compromise either national security or police intelligence gathering against serious crime, is it not very important to move in this direction? We have had police officers making a small industry out of selling information to the media, while other police officers were withholding information essential to discovering what had happened in this dreadful murder case.

[Baroness Williams of Trafford (Con)]

What is also important to recognise, as I said to the noble Baroness, is how things have changed. It is 34 years ago; that is an awfully long time for the family to have had to wait, but there has been the introduction of a code of ethics for the police, and Section 35 of the Inquiries Act 2005 makes it an offence to commit acts that have the effect of distorting, altering or preventing evidence being given. I understand that this is obviously not a statutory inquiry, but clear standards of professional conduct for the police have been introduced in relatively recent years.

Criminal Trials: Intercept Evidence

Lord Beith Excerpts

Wednesday 9th June 2021 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what plans they have, if any, to change the law or practice on the use of intercept evidence in criminal trials.

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

My Lords, I first apologise to the Lord Speaker because I stood while he was standing—we are all grappling with masks and other things at the moment.

We continue to assess whether the conclusions of the comprehensive review of 2014, which of course the noble Lord, Lord Beith, oversaw, remain valid. It is not possible to find a practical way to allow the use of intercept evidence in court. The Government will keep this position under review.

[Lord Beith (LD)]

My Lords, hundreds of arrests have been made because of the French police’s hacking of the EncroChat system used by criminal gangs, and more as a result of criminal use of the ANOM communication system, which was secretly controlled by the FBI. A recent Court of Appeal judgment means that much of this material could be used in evidence in UK courts. Does that not make the conclusion of the review to which the Minister referred now seem a little dated? The context has significantly changed, some of the obstacles that we foresaw in being able to make the change have been overcome, and maybe it is time to look again at it.

[Baroness Williams of Trafford (Con)]

My Lords, this is quite a complex area. The information was obtained using an equipment interference warrant rather than an intercept warrant, and there are checks and balances within the criminal justice system to ensure that one route is not used in order to facilitate another outcome. We remain of the view that the review undertaken by the noble Lord is still valid.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

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

[Lord West of Spithead (Lab) [V]]

My Lords, I join in passing best wishes on to James Brokenshire. The noble Baroness, Lady Chakrabarti, talked about the calmness of debate with him. We have been talking now for some hours on an issue which a lot of us feel very strongly about in all sorts of directions, and it is rather good that it is carried out in such a sane and balanced way, with people putting very strong points of view without storming buildings—but enough of that.

I wish to speak to Amendments 8, 9 and 11. These would impose limits, albeit somewhat vague ones, on the types of criminal conduct and activity that could be authorised. The Intelligence and Security Committee supports the Government’s decision not to place limits on criminal conduct or on the activity which can be authorised on the face of the Bill, as this would undermine the effectiveness of future operations and put agents’ lives at risk.

It is unsurprising that there is speculation about the more serious forms of criminality and calls for curbs to the power and for limits to be put in the Bill—I understand that. However, there are clearly concerns, and the committee strongly supports the Government’s decision not to put them in the Bill—although, of course, this places an even greater emphasis on the need for robust safeguards, which we were talking about and voting on earlier this evening.

As a member of the ISC, I can offer some reassurance by saying that we have had full briefings on how MI5, for example, uses these authorisations at a very secure, secretive level, and we are reassured and satisfied that it uses them appropriately. I can also point to the European Convention on Human Rights: all public authorities, including those covered by this Bill, are bound by the Human Rights Act, which commits them to adhere to the ECHR, which includes the right to life and the prohibition of torture. The Bill is clear that all authorisations will be compliant with the ECHR and that the activity being authorised will be “necessary” and “proportionate” to the criminality it is seeking to prevent. On that basis, I will vote against the amendment.

[Lord Beith (LD) [V]]

My Lords, I add my thoughts for James Brokenshire, who was a member of the Justice Committee when I chaired it; I respect him and hold him in the highest regard, and I wish him well, as others have.

It is pleasure to follow the noble Lord, Lord West; I recall taking evidence from him when I was a member of the Intelligence and Security Committee. Now that he has gone from poacher to gamekeeper, I hope he is applying similar zeal to the scrutiny and examination of these very issues. I hope that the ISC will take a continuing interest in this legislation when it is on the statute book.

During my time on the Intelligence and Security Committee, I was concerned about the unspecific and broad nature of the “economic well-being” justification as a basis for approving various forms of action. Of course, that was in relation to intrusive surveillance powers, not the sanctioning of criminal acts, which we are discussing today; indeed, since that time, the economic well-being justification has been qualified in the same terms as those which Amendment 9 uses.

I raised my concerns in Committee on 3 December, and they echo the concerns expressed by the Constitution Committee, of which I am a member, in its report on the Bill. It was disappointing that, on 3 December, the Minister’s reply did not answer or even refer to the concerns I had raised. She had had a long day, and she has had an even longer one today, but I hope that I can provoke her to make some things clearer.

In that debate, I said that there are obviously threats to the economic well-being of the United Kingdom that are as serious as physical threats to that security. I included

“action by a hostile state or a terrorist ... group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems”—[Official Report, 3/12/20; col. 870.]

as well as government communications and many forms of cyberattack.

I will suggest three other areas which might involve action by hostile states or extremists and might be candidates for authorisation. I do this simply to illustrate how broad the concept of economic well-being is. The current pandemic is, undoubtedly, a threat to the economic well-being of the United Kingdom. Could there be a future pandemic situation in which we believed that the reckless behaviour of other countries or deliberate action by extremists was making the spread of the pandemic significantly more dangerous? Would that qualify if some form of participation by an agent or human intelligence source seemed likely to help us fight the threat? I think it probably would.

I will give another example. The way the Brexit future relationship agreement is implemented could certainly affect the economic well-being of the United Kingdom. Could that justify deploying intelligence resources, including covert human intelligence, involving themselves in criminal acts? That is not quite so clear.

I offer a third example—that of a major overseas defence and civil engineering contract, affecting perhaps as many as 10,000 jobs in Britain, where there are fears of bribery, corruption and money-laundering, and of those distorting the outcome. What if a different British company is involved in the rival bid for this contract—these bids normally come from consortia involving companies from several countries—and that company considers that it would be very adversely affected by action which might have been begun by someone qualified through this legislation? The economic well-being justification is clearly not a simple matter in such a situation.

I am not asking the Minister to comment on those three hypothetical examples individually. What I want her to consider is, first, whether the economic well-being justification should be so broad. Secondly, if it is not to be qualified by reference to national security, as Amendment 9 in the name of my noble friend Lord Paddick requires, how else can we be confident that it is not inappropriately used? The use of this justification for serious criminal action has not really been the subject of much ministerial comment, and its scope will depend heavily on how future CCAs will be viewed in retrospect by the Investigatory Powers Tribunal and by the commissioners. This approach does not give us much confidence that applications to authorise criminal conduct in relation to economic well-being issues will be considered by authorising officers against a well-understood test of what is justifiable. We have to bear in mind that these authorising officers are in a wide variety of organisations, some of which have long experience of intelligence work and some a great deal less.

The Constitution Committee said in its report:

“While we recognise that threats to the ‘economic well-being of the United Kingdom’ may justify a security response, we are concerned about the use of such a broad concept to authorise serious criminal conduct. The House may wish to consider whether the authorisation of criminal conduct should require more specific justification than a general invocation of the need to protect economic well-being.”


That is what we are doing in this short debate tonight. I would like to hear a clear statement from the Minister on how we might establish clear principles against which to test whether authorising criminal action under so broad and vague a headline as “economic well-being” will, in any future instance, be proportionate and justifiable. Would it need to be a threat to economic well-being of a kind that would, in effect, be a threat to the security of the United Kingdom? That is really what the amendment suggests.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I join in the good wishes to James Brokenshire. He has been a superb Minister over many years and never appears to be partisan, whatever he feels inside. He is one of the best listeners among Ministers I have ever seen. He has played a very important part in some significant policy areas, so we hope that he will be much better soon and back in a very senior position.

It is always an enormous personal pleasure for me to follow the noble Lord, Lord Beith. I have admired him in politics for decades. He is one of the best parliamentary debaters that we have, as he has illustrated in the last few minutes.

I want to speak on Amendments 9 and 11. Like the noble Lord, Lord Beith, I was looking for examples and thought I would ask myself whether I had done any cases as a QC that involved serious economic crime that did not fall within the realms of national security, or clearly so. I was immediately able to think of two examples. One was a money-counterfeiting case in which a ring of forgers was forging very substantial quantities of notes, many of which passed into currency circulation. The other was a fraud relating to the activities of the London Metal Exchange in which over £1 billion-worth of fraud was committed by the simple task of forging bills of lading that referred to metals passing around the world, when the only ones that were really passing around the world were a few containers of pig iron—not the much more valuable metals referred to on the forged bills of lading.

Neither of those cases, obviously, would have any direct relevance to or interest in national security, but they are undoubtedly very serious crimes. I do not know, for I was the defence counsel in both those cases, whether any CHIS were involved in those cases, but it would not surprise me if they were, because there were obvious parts that they could have played. It seems to me that the use of CHIS in those circumstances of economic crime is entirely legitimate and that Amendment 9 is therefore inappropriate and too limiting.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.

This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.

A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as

“like the hole in a doughnut”.

He said that it

“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”

In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.

[Lord Beith (LD) [V]]

My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.

There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.

In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?

As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.

The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.

I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Beith (LD) [V]]

My Lords, speaking from Berwick-upon-Tweed, it is a pleasure to welcome the noble and learned Lord, Lord Stewart, from just up the road in Dirleton. I wish him well in the House.

My interest in this Bill is as a former member of the Intelligence and Security Committee. I am in no doubt at all that human intelligence continues to be essential in preventing terrorist attacks, disrupting violent criminal gangs and tracking down prolific sex offenders. I also accept that law-breaking is inevitably a feature of some of those from whom we get human intelligence. In my mind, there is a distinction to be drawn—the noble Lord, Lord Hain, touched on this—between two different kinds of sources. One is described by intelligence services as an “agent” but, as my noble friend pointed out, by police as an “informant”. This is usually a person already involved in a terrorist, criminal or hostile state activity who has turned, induced to give information that may save lives, but they cannot retain their cover among people involved in that activity if they refuse to participate in anything that is against the law.

The other scenario is the undercover police officer who is sent to infiltrate an organisation but is still accountable to the police force for his or her actions. The noble Lord, Lord Hain, pointed to some of the dangers that arise from the misuse of that sometimes necessary process. However, all these activities require some legislative basis. A nod and a wink that, if the intelligence is good, they might not be prosecuted is not adequate, but a general immunity also presents problems, as my noble friend Lord Paddick made clear. Therefore, the Bill is necessary, but it requires further scrutiny and amendment to deal with some of the issues in it, and I want to pick out some of the main concerns.

First, there is a strong case for prior authorisation by a judge of all but the most urgent cases. If it is needed for interception or for a simple search warrant, how much more is it needed for a criminal act—perhaps a serious criminal act?

Secondly, I am unhappy with the range of organisations in the list. If we have to include bodies such as the Food Standards Agency, which sometimes has a need for human intelligence, then ought they not to have to refer to the police and get authorisation from them or from some other external body? The authorising process is so far from the central nature of their activities that it does not seem to me a satisfactory basis for their inclusion.

Thirdly, I have long had concerns about the term “economic well-being”, which features in the Bill. It is very familiar in intelligence legislation but I do not know of a case in which a court has had to define it. It could include so many things: it can include a systemic threat to our banking and financial system but it can also include a major industrial contract that could account for a lot of jobs in Britain, even perhaps a bid for a major international event to be held here. Where do we draw the line? There is too much uncertainty around that.

My fourth point is that, as well as the Investigatory Powers Commissioner, I would want the Intelligence and Security Committee of Parliament to review on a continuing basis the ways in which these powers are used. It should not be prevented from doing so by an insistence that the issues raised by this work are strictly operational. They are not; they include moral and ethical issues that require parliamentary scrutiny in a secure form, which is what the ISC is for.

I have one final plea. This Bill is a rewrite of RIPA 2000 and the Scottish equivalent legislation. You cannot understand it without a copy of RIPA beside you, so it makes an obvious claim for consolidation as soon as possible. The law really has to be readable and intelligible to those who have to enforce and live by it.