Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB) [V]]

My Lords, I congratulate the noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord McLoughlin and Lord Walney, on their excellent maiden speeches. I had the pleasure of welcoming the noble and learned Lord, Lord Stewart, in my capacity as lord president on the very threshold of his career at the Scottish Bar when he was admitted to the Faculty of Advocates in 1993. He has come a long way since then, further than we would have dared to contemplate on that day. It is a real pleasure for me to welcome him once again and to wish him well now that he takes on his new responsibilities as Advocate-General for Scotland.

It has occurred to me, as I have been reading and thinking about the Bill and the dangerous nature of the activities that it refers to, that I have led a very sheltered life. I have not been involved in any way with supervision of the work of the intelligence services, but I have had something to do with torture. When I was working here as a Law Lord, I was a member of the Appellate Committee in two cases that raised issues about it. One was the Pinochet case, in which we had to consider the reach of the UN Convention against Torture. The other was under Article 3 of the European Convention on Human Rights. The question was whether our courts could rely in terrorism cases on information provided to us by agents from overseas that might have been obtained by torture.

As Lord Bingham said in the latter case, the fundamental nature of the prohibition against torture requires member states to do more than avoid the practice. It is not enough to say that I did not do it, I was not there, I did not see it happening or even that for some very good reason resort to it was necessary. It requires member states to do everything in their power to prevent and avoid it. The torture convention, we must remember, is breached by any act by which severe pain or suffering is inflicted to obtain information or as punishment by or at the instigation or with the consent or acquiescence of a person acting in an official capacity. Article 3 of the ECHR is at least as wide as that.

The reference in new Section 29B to the authorisation of criminal conduct by persons designated for the purposes of that section, and thus acting in an official capacity, seems to fall within the ambit of these provisions. The conditions mentioned in Section 29B(4) and the obligation merely to take account of the Human Rights Act in Section 29B(7) do not go nearly far enough with regard to this particular crime. We need to be very careful—ought it not to be made clear somewhere and somehow that participation in any way whatever in acts of torture will never be authorised? I am not suggesting this should expressly be mentioned as an exception in the statute but somehow, somewhere, a solution to this problem needs to be found.

Of course, to raise that question begs the question of whether we should go further. The right to life in Article 2 of the ECHR is also unqualified. At the very least, clear guidance needs to be read into the code as to when, if ever and for what purposes, participation in murder could be authorised. I also find the idea that children might be authorised to participate in torture or crimes of such gravity—by no means unimaginable given the way county lines operate—deeply disturbing for all the reasons mentioned a moment ago by the noble Lord, Lord Russell of Liverpool. I am sure the Minister will take his comments and his suggestions very seriously.