Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Davies of Gower Excerpts

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

[Lord Davies of Gower (Con)]

My Lords, I too congratulate the noble and learned Lord, Lord Stewart of Dirleton, for his presentation of the Bill this afternoon, while being in at the deep end, as it were, at the Dispatch Box. I also congratulate my noble friend Lord McLoughlin, who I have worked with outside of Westminster on other issues and for whom I have great respect. I congratulate the noble Lord, Lord Walney, for a very passionate speech—as passionate a speech as we will probably ever hear in this House.

I am delighted to have the opportunity to speak at the Second Reading of the Bill, which I strongly support. I am afraid that we live in a very real world of terrorism and organised crime. It is, sadly, omnipresent. Criminals deal in any commodity that will give them a financial return. It can be fraud, drugs, people trafficking—whatever. They have no qualms as to where they make their money so we need to be ahead of the game. It is therefore the duty of Parliament to give our security services and law enforcement agencies as many tools as we can to counter terrorism and organised crime.

I believe that this Bill, which provides an express power to authorise covert human intelligence sources to participate in conduct that would otherwise constitute a criminal offence, is long overdue. I say this as someone who has been a member of the Counter Terrorism Command at the Metropolitan Police. I was also a member of the National Crime Squad, the forerunner of today’s National Crime Agency, where I ran a number of such operations. Some aspects of the Bill are clearly unpalatable to Members of your Lordships’ House but it is a Bill that, at long last, recognises the need to provide a statutory power to authorise CHIS to participate in criminal conduct when it is deemed necessary and proportionate to do so.

Although I support the Bill, I want to highlight a couple of issues that are clearly of concern. Human rights issues are paramount but so is our duty of care to all the actors in any CHIS operation. Any authority in its breadth needs to take notice of the practical issues in order to protect the agent. During an operation, a suggestion by the targets to the operative to commit an offence will come in real time and, in all probability, when he or she is out of contact with their handler. The operative needs to know exactly what the limitations of his or her criminal conduct are. There is no provision for retrospective authority, and that creates real difficulty in that the type of conduct suggested may differ from or exceed what has been authorised. For the operative to maintain his or her cover, authority may therefore need couching in terms that allow some discretion as to the precise scope of the remit. This is not to say that an agent has carte blanche to do whatever he or she wishes but there must, for practical reasons, be a level of flexibility built into the system. At present, I am unable to detect that in the Bill or, indeed, the codes of practice. Any illegal conduct will, of course, require justification at a later criminal trial, and it goes without saying that any breach of the absolute rights contained in the ECHR can never be permitted.

The use of children has been much exercised today. It is unpleasant—there is no doubt about that—but at times, in this very real world, I contend that it is necessary, particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary. Also much exercised today is the level of authority and why members of the judiciary should not be involved in the process. Some might say that it introduces a new level of unwanted bureaucracy. I agree with that. The Investigatory Powers Commissioner’s Office provides comprehensive independent oversight of the use of investigatory powers as outlined in the Investigatory Powers Act 2016. That oversight includes the inspection and authorisation of the use of these powers.

In conclusion, I have some reservations on the public bodies issue. I agree that police could fulfil some of those actions when required. I very much look forward to Committee and further consideration of the Bill.