Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hendy Excerpts

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

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is a privilege, if not somewhat intimidating, to follow my noble friend Lady Kennedy of The Shaws. But it does give me the confidence to believe that some of the points I am making are probably accurate and worthy of consideration.

We have been told that the purpose of the Bill is to bring the operation of CHIS out of the shadows and put existing practice on a clear and consistent statutory footing. This Bill, however, goes much further than existing practice by allowing prior immunity. The current regulation on “Immunity from Prosecution” in Section 71 of the Serious Organised Crime and Police Act 2005 states that

“immunity notices can only be granted in respect of offences which have already been committed.”

There are many reasons why immunity should only be applicable to offences already committed, and we have not been given convincing reasons why this should change. There are occasions when it is in the public interest not to prosecute someone for a crime they have committed, but that does not change that there was a crime and, almost certainly, a victim. The Bill changes that: by giving prior immunity, it makes what in other circumstances would be a crime no longer a crime. The effect of issuing a CCA will commit the action of an undercover operative to

“be lawful for all purposes.”

There are some principles in law that even a lay person like me can understand. One of them is the rule of law, which the Oxford English Dictionary defines as

“the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

If this Bill becomes law in its current state, it will undermine that basic principle.

As the noble Lord, Lord Paddick, pointed out, some of the amendments in this group attempt damage limitation by mitigating the effect of granting prior immunity. They should be supported, but the key amendments are Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick, who have all spoken persuasively on them.

I think we can predict that, if the Bill goes ahead in its current state, there will be public inquiries in the years to come into the behaviour that it will have permitted, and they will reveal even more horrific stories than those being exposed in the current Undercover Policing Inquiry.

No one is denying that undercover activities are necessary, and that they will sometimes involve using criminals, but that makes it even more important that their actions are constrained rather than given carte blanche. Those of us who are concerned about this are not being awkward or indulging in conspiracy theories; our concerns are based on the actual experience of undercover activities that have resulted, at the most extreme, in murder and rape and, quite commonly, in the destruction of innocent people’s lives. I asked the Minister at Second Reading and again in Committee—and I ask it again today—whether she can give an example of when an undercover operative has been prosecuted after receiving legitimate authorisation.

If we were to read in the daily papers that the director of Amnesty International was hugely worried about a Government introducing deeply dangerous legislation that gave disturbing powers to their secret service, I am sure we would all be concerned and wonder which totalitarian regime she was talking about. However, that is what she said about this legislation going through our own Parliament. These two simple amendments would stop that happening and I will support them in a Division.

[Lord Hendy (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Bryan, in supporting Amendments 1 and 2, moved by the noble Baroness, Lady Chakrabarti, a woman of unimpeachable integrity, as the noble Lord, Lord Cormack, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Kennedy of The Shaws, have pointed out. I do not overlook the other signatories to the amendments: the noble Lord, Lord Paddick, who put a case which appears irrefutable, and the noble Baronesses, Lady Ritchie and Lady Jones, who made powerful speeches, as did the noble Baroness, Lady Chakrabarti. My position is that, unless the amendments are passed or accepted by the Government, I shall have no alternative but to vote against the Bill. This is not a matter of petty factionalism, as was disgracefully suggested in a newspaper today; it is a matter of conscience.

Like the noble Baroness, Lady Kennedy of The Shaws, I cannot support a Bill which gives the state the power to grant immunity for crimes to be committed in the future by agents on its behalf. Such immunity is contrary to the rule of law. The rule of law prescribes that all are bound equally to observe it, not least the criminal law. Giving the state the power to exempt its agents prospectively from criminal law is the antithesis of this fundamental principle.

I accept, of course, that every state necessarily deploys undercover agents to protect itself and, indeed, the rule of law. I accept that, in the course of their work, it may be necessary to break the law, including criminal law, but I cannot accept that state agents should be given prospective immunity to do so, no matter how senior or judicial is the person who authorises that criminal conduct.

The evil here is the prospective immunity to be granted, based only on an assessment of possible future situations. A decision to prosecute or not should be made only retrospectively, when the facts and circumstances of the criminal conduct are known. This is the status quo and, as far as is known, it has worked perfectly satisfactorily, as the noble Lord, Lord Paddick, demonstrated.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hendy Excerpts

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

[Lord Hendy (Lab) [V]]

My Lords, I add my congratulations to the three noble Lords who made their maiden Speeches today and add my welcome to them. I cannot agree to a Bill which authorises the state to grant unlimited immunity for future crimes yet to be committed by its agents. That is not consistent with the rule of law. I have no problem with the CPS discretion to excuse crimes after the event, subject to clear criteria, but today I wish to make four other points.

I begin by declaring an interest. I represent a number of trade unions in the undercover police inquiry. Evidence began yesterday. The inquiry will investigate the practice of undercover policing since 1968. My first point is to ask why the Government cannot wait even for the evidence to be given, let alone for the inquiry to report its conclusions, before introducing this Bill. By failing to wait, they choose to dismiss the obvious contribution the inquiry could make to shaping the Bill.

Secondly, under proposed new subsection (5)(c), a crime can be authorised by a CHIS if it is deemed necessary

“in the interests of the economic well-being of the United Kingdom.”

As my noble friends Lord Rosser and Lord Whitty have observed, this undefined and ominous phrase is clearly capable of being interpreted as encompassing lawful industrial action which, as most industrial action does, has adverse economic consequences. Agents can be authorised to commit crimes to “prevent, minimise or disrupt” legitimate trade union activity. That is totally unacceptable. Trade unions and industrial action ceased to be criminal in this country 150 years ago. Trade unions and their activities are also protected by international law, not least by Article 11 of the European convention.

Thirdly, one justification for the Bill is said to be that it will only regularise present practice. If so, the material so far made public by the inquiry provides no comfort as to such practices. I say no more of the practice by which 30—yes, 30—women were groomed into largely long-term, intimate relationships with undercover police for the purposes of providing them with cover than that those who have so far sued have obtained the admission from the Metropolitan Police that those relationships were

“abusive, deceitful, manipulative and wrong”.

In relation to trade unions, we have learned that Special Branch had an industrial intelligence unit which maintained, for no apparent lawful purpose, files which contained information gathered by undercover officers with the special demonstration squad who penetrated both unions and rank and file campaigners. Some of the information in the unit’s files was then supplied by police to the blacklist maintained by the Economic League, so barring trade unionists from obtaining jobs.

My final point is that, currently, an undercover officer could not be instructed by superiors to commit a crime. If the Bill becomes law, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained authorisation. That will be a disciplinary offence, potentially justifying dismissal. That is a powerful argument against prior authorisation.