Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Beith and Lord West of Spithead

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.