Investigatory Powers (Amendment) Bill [HL]

Debate between Lord Carlile of Berriew and Baroness Manningham-Buller

Committee stage
Monday 11th December 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Murphy, who has served with such distinction on the issues we are discussing this afternoon. I do not want to repeat what I said at Second Reading; I spoke in support of the Bill in general terms, and I remain in support of it. The only additional thing I would say is that we should not allow unnecessary amendment of the Bill to create a sort of legislative game of Dungeons and Dragons in which a bureaucratic labyrinth would be created which can be met in a much more practical way. On the whole, the Bill is pretty practical about a modern problem—a more modern problem than existed, say, 10 years ago—which has to be addressed in real time and sometimes with great urgency in that real time.

I want to say something that follows from what the noble Lords, Lord Murphy and Lord West, said about the ISC. I hope that we can tease a little more information out of the Minister, who has been extremely helpful to all of us who are interested in the Bill. I can see, and I would be grateful if the Minister would tell us, that there might be some practical problems relating to national security in the way in which the ISC was informed about problems arising under the provisions in the Bill when it becomes an Act. It would be helpful to the Committee if the Minister were to say from the Dispatch Box that the Government certainly do not exclude the involvement of the ISC in the consideration of the Bill. I should also be very grateful if he would say that the Home Secretary would regard it as a duty to inform the ISC on his personal responsibility if issues arose which ought, in the national interest, to be the subject of information to the ISC. Thus, the ISC might be able to report on these issues without too much bureaucracy being involved and any arguments about what is or is not disclosable in a wider way concerning national security.

[Baroness Manningham-Buller (CB)]

My Lords, I do not know whether I can help the noble Lord, Lord Fox, on his question of urgency. One of the things that the Security Service and the other intelligence agencies do is deal with matters of life and death, of imminent terrorist threats, of states pursuing one of their dissidents. There is many an occasion when moving at vast speed outside the hours when IPCO is available is necessary and proportionate. I am out of date, so it is hard to give lots of current examples, but many a time there is an urgent need to move fast to try to save life.

On the point from the noble Lord, Lord Murphy, about the ISC—we will come on to look at these amendments in more detail—as far as my service is concerned, we did not need to get used to the ISC in that we had been demanding its creation for a number of years, with resistance from the Prime Minister of the day until it actually came into being. And when it did, we very much welcomed it.

I have hardly had more pleasure since I have been in this House than from the amendment in the name of the noble Lord, Lord Fox, on seeking to forget stuff. Like some noble Lords, I have difficulty in remembering things—I am sorry, I should speak only for myself—but if I was legislated to forget something, it is almost certain that I would be capable of remembering it.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Carlile of Berriew and Baroness Manningham-Buller

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

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

My Lords, it is a privilege to follow my noble friend Lord Butler of Brockwell. His clarity and measured critical faculty provide an example to us all at all times.

I speak in support of Amendments 46 and 73, which were moved with such clarity by my noble friend Lord Anderson. I have added my name to each. Because his argument was so cogent and full, I do not need to repeat any of it, and I shall try to make a short speech. I did want to say, near the outset, that I am surprised that so few noble Lords have spoken clearly in support of MI5 and the police of today. I agree with much of the criticism of the authorities of yesteryear, but we are talking about the authorities of today. They protect our country and our citizens, and they deserve our proportionate support, which, I would suggest to your Lordships, Amendments 46 and 73 provide.

I preceded my noble friend Lord Anderson as Independent Reviewer of Terrorism Legislation. Between us, we were independent reviewer for 16 of the last 20 years. Both of us, in our different ways and in different times, have observed, in real time, the operation of CHIS in the terrorism arena. I, as a barrister who has been involved in many criminal cases, have observed the way in which CHIS have brought many serious criminals to justice. We must put aside our prejudices, often formed from anecdote, and we must aim to provide operational practicality together with rigorous scrutiny. That balance must be achieved based on current practice of those services of today to which I referred a few moments ago.

The Government are right to introduce legislation as we have before us today that seeks to set out clearly how such authorities should behave. I do not believe anyone in this debate has referred to the code of practice of the handling of CHIS, which, as I said at Second Reading, should be required reading for everybody talking on these issues. We must look at the provisions in the Bill alongside that code of practice, which, as has been said frequently, is legally enforceable. Together, they provide the proportionate support for the process that I mentioned earlier.

It was said at one point in the debate by a noble Lord for whom I have great respect that the police are being given unbridled power. With respect, that is a gross exaggeration. The whole aim behind this Bill and the code of practice has been to dilute police and MI5 powers, such as they are, by bringing them under regulatory control that is strict but proportionate. In my view, this part of the Bill sets out and distinguishes a proper role for the investigators and judges in IPCO respectively. We do not have an investigatory system of justice, with investigating magistrates, in this country. However able judges are, not one of them, as far as I am aware, has ever been an operational investigator in the difficult area we are discussing. But they have experience, often brilliant experience, in after-the-event scrutiny. That is what judges do.

I urge the Government therefore to accept the modifications in the amendments which I support, recognising that some strengthening of the Bill’s provisions as they stand is needed, but to resist a system which would cause delay and would not improve the skills applied to the kinds of operations that we are considering.

[Baroness Manningham-Buller (CB) [V]]

My Lords, I am delighted to speak to Amendment 46 and to say a few general words. I have heard lots of excellent speeches today. Unfortunately, I could not be at Second Reading, but I listened to the debate afterwards, and I am sure that, as with most legislation that comes before your Lordships’ House, we will improve the Bill. I welcome this legislation, for many of the reasons said by other noble Lords, most recently the noble Lord, Lord Carlile. It is long overdue, and I declare a strong interest as a former member of MI5 for 33 years. It is on that experience that many of my comments today are based.

Running agents, as we call them—I draw this to the attention of the noble Lord, Lord Cormack—is a central part of the work of MI5, and always has been. I can remember—I have checked with former colleagues, who have found paperwork going back 27 years to 1993—raising with Governments the need for legislation to cover the activities of what were then called “participating agents”. I do not apologise for reminding the House of a little history; that date was before the Intelligence Services Act, which put SIS and GCHQ on a statutory footing, and before the establishment of the Intelligence and Security Committee. My service’s request always ended up in the “too difficult” tray, but MI5 seeking legislation was part of a pattern of which I am proud. It argued for a security service Act, for a parliamentary oversight body, and for what became RIPA, long before others did.

Why did we want that legislative framework? Because a robust legislative framework provides clarity and confidence for the public, who need to help us in our work, for those members of my old service, for others doing intelligence and security work, and for our agents, our covert human intelligence sources. I do not accept the argument that they are unconcerned by this. I am afraid that it is not true. Legislation also builds in oversight and accountability. The current litigation has led to uncertainty, so there is an overwhelming operational requirement for this legislation.

So why this particular Bill? Although it is good housekeeping, it is not just that, and here I will talk about some of these covert human intelligence sources and agents. Every day, brave men and women, usually members of the public, in my experience, risk violence, and even torture and death, to obtain intelligence which may well save lives. There are extensive examples of thousands of lives that have been saved as a result of their work, although generally that cannot be made public in any detail because we have a moral obligation to look after them for the rest of their lives. I am afraid that I do not accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity. They are brave men and women, and we should all be thankful to them. They should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk. It may be proportionate and necessary for them to commit crimes in order to be trusted or to prevent more serious crime. I absolutely cannot conceive of their ever being authorised to commit the sort of crimes which it is their role to try to prevent.

I note that in its 2018 report, IPCO said that all authorisations by MI5 for its sources to commit crimes were,

“proportionate to the anticipated operational benefits”

and met the high-necessity threshold. Of course I understand the disquiet of the House about authorising crime, although this has happened for decades, and I see the attraction of extending the powers of IPCO by asking that body to give prior authority. I have no objection to that in principle, and doing so might give some comfort to the handlers and the agents. But—and it is a very big “but”—I cannot see that it is practical.