Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

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

My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.

It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.

The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.

[Lord Hendy (Lab) [V]]

My Lords, it is my particular pleasure to follow the noble Lord, Lord Carlile, although it is a particular discomfort to me to disagree with him on this occasion. The Bill proposes that the state should have the power to grant immunity for crimes committed in the future by agents on its behalf. I believe that the grant of such immunity is contrary to the rule of law, which prescribes that all are bound equally to observe the law, not least the criminal law. The fact that such immunity will derive from legislation if the Bill becomes law does not alter my belief.

Giving the state the power to exempt prospectively its agents from criminal law is the antithesis of this fundamental principle. A decision to prosecute or not should be granted only retrospectively, when all the facts and circumstances of the conduct at issue are known, including the nature of any authorisation and, above all, whether it is in the public interest to prosecute. The CPS makes such decisions all the time; that is compatible with the rule of law and equality before the law. This arrangement, as far as is known, has worked perfectly satisfactorily for the last 200 years. Instead, the Bill overturns this status quo, challenges the rule of law and gives the state unparalleled powers. I regret that on this occasion I cannot follow the advice of my noble friends on my party’s Front Bench and, as a matter of conscience, I am obliged to vote against the Bill.

Extradition Arrangements: European Union Member States

Lord Carlile of Berriew Excerpts

Wednesday 13th January 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

By chance, I heard the noble Lord, Lord Ricketts, outlining some of his concerns on the radio. I bow to his expertise but there is probably some difference in our interpretation of what he outlined, particularly on access to databases and the sharing of information.

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

My Lords, together with our departure from the Schengen Information System, there appears to be no replacement for the respective instruments on joint investigative teams, the enforcement of fines, the enforcement of non-custodial measures and prisoner transfer. Please will the Minister tell the House how these gaps will be filled?

[Baroness Williams of Trafford (Con)]

The noble Lord will know that the EU maintained that it was legally impossible to offer SIS II to a non-Schengen third country so we have reverted to Interpol, which is a tried and tested mechanism of co-operation. Regarding the joint investigative teams, the UK will be able to continue running and participating in those with EU member states and third countries on a non-EU legal basis. Prisoner transfers are a Ministry of Justice lead. The EU did not want to include arrangements on them in the agreement but we will continue to transfer foreign offenders back to their home states using the existing Council of Europe convention, as well as accepting the repatriation of any British citizen imprisoned by an EU member state who is eligible and wants to return to the UK to serve their sentence.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

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

Amendment 21 would ensure that the Bill did not exclude prosecution for misconduct in public office of those involved in granting a criminal conduct authorisation or in situations where it is later nullified. I recognise the need for authorising officers to act in adherence to human rights principles. However, it is also important that they are not unfairly disadvantaged compared to other public servants or officials just because they are involved in those decisions. I will listen carefully to how the Minister responds to this amendment.

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

My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.

The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.

There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.

The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:

“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”


Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.

To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.

It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.

So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.

Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.

I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.

Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.

Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.

[Baroness Hamwee (LD) [V]]

My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.

The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.

In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.

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[Lord Mann (Non-Afl) [V]]

My Lords, I very much agree with the detail and the general sentiment in the excellent contribution of the noble Lord, Lord Rooker. The word “practical”, which he used several times, is a vital word, to which I would add “mundane”, which I think he used once, referring to the mundanity of many of the orders, and the potential volume of those mundane orders. I speak not as any legal expert, but as someone who was on the receiving end of precisely this. I was on the Economic League blacklist, undoubtedly because of the infiltration of the anti-apartheid movement by an agent of the state.

My concern is about the competence of the state. A book was written at the time by an extremist, a Stalinist and supporter of the Soviet Union called Denver Walker. The book is called Quite Right, Mr Trotsky! and it was released in the same year that I was having those problems. In it, he starts by saying that this could be Special Branch or MI5 in terms of what he is doing. He exposes every Trotskyist organisation in the country, naming names, citing examples and explaining ideology in minute detail. At the same time all the organisations he named, bar two, were infiltrated. That is now on the public record. The state was spending resources and putting a priority on infiltrating irrelevant, tiny organisations. The Revolutionary Communist Group, one of the two not infiltrated, is described in the book as being presumed by everyone on the ultra-left to be run by Special Branch. That is actually in his book.

Competence is critical. If we are trying to intervene in, for example, terrorist organisations or organised crime, competence is absolute and fundamental. Yet we have this history, in the 1970s and 1980s, of the most appalling incompetence. We had the targeting of irrelevant people, creating consequences for people who were on the side of the state in precisely the terms on which the state was infiltrating these organisations. What conclusions would I draw from that?

I draw the conclusion that the noble Lord, Lord Blunkett, whom I normally agree with, is fundamentally wrong to suggest that the judiciary has the wrong skill set for assessing and authorising such decisions in advance. I would say exactly the opposite. The judiciary has exactly the right skill set, not to know anything about extremist organisations or extremists but to hear and evaluate a coherent case—or an incoherent case, and turn that down if it is—when put forward by one of the agencies to or for which we are giving, clarifying or maintaining powers with the Bill.

If you are incapable, as intelligence services, the police or one of the other agencies, of putting a coherent case together for why you need authorisation, it would seem that the authorisation you need has a rather weak case. If that had happened in the 1970s and 1980s, a lot of that nonsense and wrong priorities would never have got past stage 1. They were based not even on a hunch, but on an irrelevance. If we are to have efficiency in getting into terrorist groups and organised crime, having a system that forces those who wish to do so to explain their rationale for what they plan to do, and why, and having someone able to assess whether that rationale is coherent, seems the right approach. The last people who should do it, therefore, are politicians.

The practicalities and mundanity are what we should be determining these decisions on. Of course there will be cases that are far from mundane in their application, but that does not mean that the same principles are not required in getting an agreement. It therefore seems to me that those amendments which push the Government in that direction should be welcomed by the Government, and those that do not should be rejected—not just by the Government, of course, but by the House.

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

My Lords, the interesting lesson from the noble Lord, Lord Mann, on the history of the left—it is a pleasure to follow him—has shown exactly why the Government are right to make a root-and-branch reform, and introduce a structure based on statute for the handling of covert human intelligence sources. We have heard a lot about what happened in the past, but an awful lot has changed since the 1970s, the 1980s and the 1990s. The major changes in this kind of policing started after 9/11, which was like a massive electric shock to the whole system of detecting various serious crimes, because of the arrival of large-scale terrorism on the streets of Europe and in many other countries. An awful lot has happened, too, since 9/11. The methodology has been sophisticated quite enormously, hence the large amount of legislation since the events of 9/11.

I listened with particular interest, because I agreed with what they said, to my noble friends Lord Anderson and Lord Butler and the noble and learned Lord, Lord Mackay. I am a great believer in the theory of Occam’s razor, that entities should not be multiplied unnecessarily or, as it is sometimes put, “Keep it as simple as you can”. To start with, this is an operational issue. In the decision to make someone a CHIS, there is usually a very long period of assessment, a decision by management in consultation with the proposed CHIS handler and sometimes, as I said in an earlier debate, some behavioural analysis. This is an operational matter.

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

My Lords, on the narrow point just made very clearly by the noble Baroness, Lady Chakrabarti, I would question the way in which she diminishes the importance of codes of practice, which have the force of law. One example of a code of practice that has had the most incredible effect on the fairness of trials is Code C under the Police and Criminal Evidence Act 1984, which in many ways has been the formidable weapon in the hands of the defence advocate, and sometimes in the hands of the prosecution advocate too, to ensure that justice is done.

That said, I have no objection whatever to what is intended by Amendments 6 and 36. I suspect that the Minister would want to refer to the code, at least generally, which is peppered with words such as “reasonable”, “proportionate”, et cetera, and would say that reasonableness is imported in any event. However, I agree with the view that in a Bill of this kind, adding the word “reasonable” into the statute as suggested may be comforting and safe, and will make it a better statute.

I disagree with Amendment 18, which is in this group, and a time limit of four months. Running a CHIS is often very arduous and complicated, and many CHIS are run for much, much longer than four months. The noble Lord, Lord McCrea, in an earlier part of this evening’s debate, referred to the information that was obtained concerning the Real IRA, as it was called, which led to the conviction of a number of its operatives. I do not know anything about the facts of that case, but I suspect that in an operation of that kind, many CHIS were run for long periods, and for very good reasons. As the noble Baroness, Lady Manningham-Buller, said very eloquently, those who are running the CHIS are, in any event, these days, doing an extremely good job in great difficulty, and we do not want to add to their bureaucratic burden; they and their CHIS have great difficulties to face. They do not want to be faced with the necessity of reapplying every four months; it is just far too short a period.

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

My Lords, I have little to add to what has gone before. I often wonder whether the Government are concerned about judicial review when they resist placing the test of a decision on a reasonable basis in any legislation. If the test in any case is simply the subjective belief of the official—the government agent involved—it might be hoped that a trip to the divisional court and an application for judicial review would be avoided. The noble Lord, Lord Anderson, did indeed refer to public law tests. The Wednesbury test of reasonableness is now more than 70 years old and it is sometimes forgotten that it was the local picture house that took the town’s corporation to court because the licence it gave prevented children under 15 attending the cinema on a Sunday, whether accompanied by an adult or not—one’s mind flips back to the dim and distant past. That was the factual basis of a very important principle of law.

When considering reasonableness in this context, there are two limbs. In the context the House is discussing, the question would be whether the authoriser had taken into account all the wider implications of the authorisation, including its effect on prospective victims of the crime being committed. He would obviously have to follow the code, which, as the noble Lord, Lord Carlile, has just said, is peppered with instructions, having the force of law, to act reasonably. If the authorisers get beyond the first limb of the test, the second limb is whether the decision they have taken is so outrageous and irrational that, as Lord Diplock put it in a later case, it is

“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Needless to say, cases challenging a decision tend to succeed on the first limb, but I do not see why we have to go to that position. I have been trying to check Hansard, but I think that the Minister referred, in reply to the first group of amendments today, to the decision being reasonable. I cannot see any reason why it would not be reasonable to put “reasonable” on the face of the Bill. I support these amendments.

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[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.

LGBT Community: Domestic Abuse

Lord Carlile of Berriew Excerpts

Tuesday 24th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I wish I had spotted my noble friend when I answered the previous question. He will know that, during the Covid period, the issue of homelessness was paramount, in terms of protecting people. Of course, that will not stop after we have got through the pandemic. I am very aware of the various factors that might lead LGBT people to become homeless and subsequently be unable to get back on their feet, so I totally take his points on board.

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

Can the Minister assure the House that not only the rights, but also the interests of trans victims of domestic abuse will now be recognised, as they are potentially the most vulnerable, and worthy of a speedy and strong response from the police, including the 999 service, which is sometimes less than helpful to them?

[Baroness Williams of Trafford (Con)]

I am glad that the noble Lord has brought this up. I recognise the particular problems that trans victims face in terms of credibility, for want of a better word, from our services. The fact that we now train front-line police officers to be not only sensitive but cognisant of the different types of domestic set-ups and to respond appropriately and sensitively is incredibly important. The noble Lord talked about trans victims. I am also minded of some lesbian victims of domestic abuse whom I have met who feel that, perhaps because some of them look more masculine, they will not be treated as victims and are more likely to be assumed to be perpetrators.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

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

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

My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.

The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.

As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.

No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.

Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,

“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”

I agree.

I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.

I look forward to Committee, which promises improvement of an already very welcome Bill.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, first, I thank the Minister for the clarity of his opening to this debate. I too pay tribute to the two memorable and entertaining maiden speeches which we heard. I look forward to hearing from both noble Lords frequently in future.

I think people have been trying to tempt me into saying something about Prevent. I will not, save this: I hope my successor as independent reviewer of Prevent will be given access to the very large body of evidence which I was able to collect, and will make his or her mind up quite independently, without any attempt at influence from me.

This Bill’s focus is the protection of the public, and we should not for one moment lose sight of that primacy. I support aspects of the Bill strongly, but at the outset I will refer to one briefly which I do not support: the relegation of the Parole Board. I agree completely with my noble friend Lord Anderson, the noble and learned Lords, Lord Garnier and Lord Falconer, the noble Baroness, Lady Prashar, and others who have spoken about that.

However, I agree with the strengthening of sentences for terrorism-related offences, which are a very specific and unusual group of crimes. What is more important than the protection of the public from those who are released from prison at the end of terrorism offences, or from those who are radicalised in prison and released? In considering that, we should reflect on this: surely, if the release of a terrorist puts the public at risk, the crucial balance between rights and duties must justify properly regulated and proportionately extended detention.

I support the strengthening of TPIMs covered in Part 3. As a former independent reviewer, I had the scrutiny of the full period of control orders. They worked well; they were supported by the courts; the standard of proof was adequate; they were justiciable. For all the years since control orders were replaced with TPIMs by the coalition Government, I have called for their return. In effect, that has now been done, and I think it is correct. As I said, I believe the standard of proof is fair, tested and justiciable.

It is right that the evidential basis for release of terrorist prisoners should be as complete as possible, including psychiatric and neurological assessment. Polygraphs are not magic; they determine little on their own, but in various other areas they have been demonstrably useful as part of the toolkit used in the determination of truth. I see no strong argument against their use in that way in this context.

In the time left to me—in this speech—I want to be clear about the nature of the challenge we are dealing with, by reference to the Fishmongers’ Hall incident, which is very instructive. The perpetrator terrorist, Usman Khan, had been assessed as reformed and deradicalised by external experts, some of whom were present at Fishmongers’ Hall. However, evidence from the prison from which he was released—in my possession and provided to the Home Office some months ago—shows the following. First, almost none of the day-to-day custodial staff who knew him and dealt with him on a daily basis believed he was anything other than extremely dangerous at the time of his release—they were proved right. Also, unknown to the outside experts, in that prison radicalisation was not just in existence but rampant. For example, it included Friday prayers where there was a division into two groups, radical and non-radical, which a perfectly decent imam could not control; and within the prison, sharia courts meted out punishments that included floggings—inside the prison and known to the prison staff. Those are facts.

Before we can be comfortable with advice about release and release decisions, there must be far better management and verification of desistance and disengagement programmes, and of the prisoners who are part of those programmes. This is too important an issue for anything less.

Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Lord Carlile of Berriew Excerpts

Friday 10th July 2020 Lords Chamber

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

My Lords, I am grateful to the Minister for her openly consultative approach to these provisions and for the changes that have been made. I think that we have something that should unite most of the House.

These are important new codes of practice, and they are an improvement on their drafts. Codes of practice were almost unheard of when I was on the Police and Criminal Evidence Bill Committee in 1984. They have become a very important part of policing and of the scrutiny of policing, and rightly so. They have given much more confidence as to how significant powers are exercised. Schedule 7, which I have often seen exercised in practice in ports, is a very effective tool as part of the weaponry against terrorism. It produces significant intelligence that can be used across the board in this area.

It is also very helpful that these codes are not only comprehensive but comprehensible to the police officers and others who are trained to use them. I have sampled the training in the past and have found it to be very good.

I support the noble Lord, Lord Harris, on a point that he raised about the definition of a journalist. It is all too easy for people to self-define as journalists, and that is something that we would like to avoid.

It is very important that disclosure of confidential information is being protected so carefully in these provisions, although of course we need to be confident that it is not overprotected. I ask the Minister to confirm that the crime exception remains in force and that information that national security requires should be revealed will be revealed and used in the future.

Policing: Covid-19 Guidance and Legislation

Lord Carlile of Berriew Excerpts

Tuesday 5th May 2020 Lords Chamber

[Baroness Williams of Trafford]

The reason for that protection was the shortage of bats in Europe. We have been working closely with the Bat Conservation Trust, Defra and Natural England’s wildlife teams and international partners on this subject. The BCT has provided advice for bat carers, which we helped to write and which takes a precautionary approach.

[Lord Carlile of Berriew (CB)]

Does the Minister agree that the Director of Public Prosecutions’ very unusual decision to review every single Covid-related prosecution initiated by the police indicates clear overuse of the powers and that new National Police Chiefs’ Council guidance is needed to replace the overcomplex guidance issued by the College of Policing, which many police officers do not even have time to read?

[Baroness Williams of Trafford]

The College of Policing guidance is there not to replace the government guidance but to assist the police as they go about their daily work. As I said to the noble Baroness, Lady Jones, these are new powers and the CPS is therefore reviewing cases charged under both the Coronavirus Act and the public health regulations to make sure that the powers are being applied correctly. Unlawful charges are being withdrawn by prosecutors in court and the CPS is asking for any wrongful convictions to be overturned—but we are in a new world and are having to learn.

Policing and Crime Bill

Lord Carlile of Berriew Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Campbell-Savours]

Oh, she is here. What my noble friend said is very interesting, because she is one of the great lawyers on our side specialising in human rights. Perhaps I may draw attention to her view at the time on anonymity right through to conviction. She said:

“I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged … The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women”.—[Official Report, 2/6/03; col. 1085-6.]

It is quite clear that, at that time, my noble friend at least had some sympathy for the principle behind today’s amendment.

The former Prime Minister, David Cameron, told Parliament that he believed that,

“there was a case for saying that between arrest and charge there was a case for anonymity”.

“I think”, he went on to say,

“this does represent a good way forward”.—[Official Report, Commons, 2/6/10; col. 428.]

My right honourable friend Caroline Flint, speaking on behalf of the Labour Party in the House of Commons, said,

“the serial nature of the crime that we are talking about is important, because when a crime is reported and people hear the name of the person who has been charged, they feel confident to come forward and stand by the victims”.—[Official Report, Commons, 7/6/10; col. 150.]

Even there, from a spokesman from the Labour Front Bench in the Commons, is an admission that, post-charge, people do come forward. I am not claiming that she would support me on this amendment, but I ask the House to judge her view on the basis of the record to which I just referred.

The Home Affairs Select Committee report in 2014 stated:

“We recommend that the … right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence”.

In other words, for the second time the Home Affairs Select Committee of the House of Commons, only two years ago, made the same recommendation—again unanimous.

We then have Sir Bernard Hogan-Howe, a practitioner in the field dealing with these matters. He too says he supports pre-charge anonymity.

Finally, there is the letter of 24 March last year from Theresa May, who is now the Prime Minister, to Keith Vaz, which says:

“The Government accepts the committee’s conclusion”—

that is, the report I just referred to, supporting pre-charge anonymity—

“that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named”.

All these assurances are diluted by the guidance being given to police officers, because that guidance does not work. It is about time that we stood up in Parliament, recognised the deficiency in the way the law is operating and put on the statute book something that requires police officers to operate in a particular way. In this case, as the noble Lord, Lord Paddick, suggests in his amendment, they should at least be required to apply to a judge for permission to release a name.

The product of all this law as it currently exists, and the present arrangements, is that reputations are undermined, families are discredited—as I said in my contribution in Committee—there are suicides, public lives and reputations are destroyed, and individuals are sacked from their employment. I have a desk full of letters written over the last 15 years by men all over the country—many of them in prisons; we do not know what happened in those particular cases—objecting to the way the law works.

I implore the House: please give the House of Commons the opportunity to reconsider this matter. If I lose in the Commons, fair enough—but at least give the Commons the opportunity. It is in our hands. If we vote for the amendment tonight, the Commons will reconsider the matter.

[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by the noble Lord, Lord Campbell-Savours, and the amendment tabled by my noble friend Lord Paddick. I apologise for not having been here right at the beginning of the debate. Reflecting something said by the noble Lord, Lord Campbell-Savours, I should state that although this issue affects a number of Members of your Lordships’ House, it affects multiples of ordinary people who are not Members of your Lordships’ House, who have been affected by regional publicity in such cases.

I am almost as dyed in the wool—indeed, dyed in the Welsh wool—a criminal lawyer as the noble and learned Lord, Lord Morris of Aberavon, and I recall two criminal trials in which I appeared that particularly disturb me. In one, which I prosecuted, the defendant was, to my enormous surprise, convicted and sentenced to 12 years’ imprisonment, and had to wait a number of months before the Court of Appeal overturned the conviction on very good grounds. In the second, a case in which I defended, my client was convicted of a number of offences and subsequently, after I had been sacked as his counsel, deservedly won his appeal. Those are just examples of the many cases up and down the country in which local and regional publicity has been a powerful driver.

I want to make two points—they are of quality—which were not covered by the noble Lord, Lord Pannick, either in his speech this afternoon or in the article he wrote on this subject, which I read a little time ago. The first relates to the quality of non-recent sexual offences. In relation to most offences on the criminal calendar, there is no doubt that a crime has been committed and the investigation is as to who committed that crime and whether that person interviewed was involved in that crime. In the case of non-recent sexual offences, it does not need me to persuade your Lordships’ House that there have been numerous allegations of offences which never occurred. The damage that can be done—wherein I move to my second point—when the police work on the assumption that the complainant, often called the victim, is telling the truth means that those cases are quite different. I am not making this up.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us.

Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment.

However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time.

As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need.

We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions.

A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—

[Lord Carlile of Berriew]

I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?

[Baroness Williams of Trafford]

I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.

The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,

“non-disclosure would not impact on … a new trial”.

Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.

We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.

Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.

[Lord Carlile of Berriew]

Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

Terrorist Attack in Nice

Lord Carlile of Berriew Excerpts

Monday 18th July 2016 Lords Chamber

[Baroness Williams of Trafford]

When we look at events around the world, particularly some of the horrors in America over the last few weeks, I personally always feel glad that we are not an armed country. I totally see where the noble Lord is coming from, but—I will disappoint him when I say this—we have some of the best policemen and women in the world. With the national asset barrier, we have ways of containing potential events such as this, but I would not like to see what the noble Lord talks about as widely available.

[Lord Carlile of Berriew (LD)]

Can the Minister confirm that the Joint Terrorism Analysis Centre has as part of its focus the identification and interdiction of the types of semi-lone wolves who were described earlier? Can she also confirm that there are sufficient portable barriers, including where necessary the use of fairly heavy vehicles, to protect from the kind of scenarios in places which might otherwise suffer the same fate as the Promenade des Anglais?

[Baroness Williams of Trafford]

My Lords, I can absolutely confirm that JTAC is constantly monitoring such threats to our people and country. I am sorry, but I cannot remember the second part of the noble Lord’s question.

[Lord Carlile of Berriew]

It was about heavy vehicles and barriers.

[Baroness Williams of Trafford]

I can confirm that we are satisfied that we have the police-led and vehicle-led capability to deal with such large-scale firearm attacks in the UK. The noble Lord will have to forgive me—it is my first hour, never mind my first day.