Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Hope of Craighead and Lord Rosser

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

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

My Lords, it is a pleasure to follow the noble Baroness, Lady Massey of Darwen, and to express my support for the amendment she has just moved.

I have to say that I am wholly unconvinced by the argument that adherence to the Human Rights Act is all that is needed. The fact is that the convention rights set out in the schedule to that Act were not designed for this situation at all. Their purpose is to define the rights of individuals against the state, as represented by public bodies. It is not a catalogue of what individuals may or may not do to each other. Of course, the sources that the police may use must have these protections against those who use them. But to use the convention rights in the Human Rights Act to define what the sources may do to other people or may be encouraged to do to other people is to take those rights completely out of context.

Furthermore, reference to these rights lacks the precision and clarity that is needed to deal with what a source may or may not be authorised to do. If you look at Article 2 of the list of convention rights—the right to life—what is really dealt with there is the right to life as against the things that a state may do: depriving the individual of his life except in circumstances where that may be absolutely necessary; and the circumstances are set out there. Article 3 deals with the prohibition of torture, although I notice that it omits the word “cruel” before “inhuman”, which is in the Universal Declaration of Human Rights and in the UN convention against torture. Therefore, if one was trying to define the prohibition or the control against the misuse of sources, one would want to put in the word “cruel”, which is more easily understood than the word “inhuman”. Article 4 deals with the prohibition of slavery and forced labour, which is drifting far away from what we need to have as reassurance in the matter we are dealing with here. So it is with Article 5, which is the right to liberty and security, and which really deals with the circumstances in which an individual may be arrested or detained by the police. Furthermore, there is no mention in the convention rights of rape or other sexual offences, no doubt because that is what people do to each other, not what public authorities do to their citizens.

That said, I have to confess, if the noble Baroness will forgive me, that some of the wording of amendment 15 troubles me. The criterion we must apply is that what we have asked to be set out in the statute should be clear and easily understood. Proposed new subsection (8A)(b), which is given in Amendment 15, refers to

“an attempt in any manner to obstruct or pervert the course of justice.”

That is a very wide-ranging crime, and I am not sure that it would be sensible to include it in this list because very often it may be a relatively minor thing to do, with no psychological or physical consequences to anybody; it is just obstructing the interests of justice. Paragraphs (d) and (e) refer to the Human Rights Act, but for the reasons I have given, I would prefer that that reference was omitted. The Canadian example to which the noble Baroness referred is clearer in its wording. For example, when dealing with obstructing or perverting the course of justice, it includes the word “wilfully”, which would be wise if one is trying to strike the right level of balance in dealing with these matters. It refers to the torture convention when defining what is meant by torture, which I would support, particularly because it includes the word “cruel”. As for paragraph (e), when the amendment refers to depriving a person of their liberty, it really means detaining an individual, which is what the Canadian example gives. The Canadian example adds another point: damaging property. It might be wise to think of including something along those lines too. To take the example of committing or participating in arson, that would give rise to a serious risk to individuals who are in the building and it would be as well to include that along the same lines and for the same reasons as the others in the list. I suggest that some matters might have to be looked at again if the amendment is to be taken further.

I wish to emphasise one thing, as I did at Second Reading, which is that great weight must be given to the obligation in the torture convention. That convention does not merely require states to abstain from torturing people. It requires them to do more than that; it requires them to do everything in their power to avoid torture in any circumstances. I would therefore support an amendment which particularly includes the reference to torture as something that would never be authorised in any circumstances whatever.

Despite these misgivings, and extending again my apology to the noble Baroness for criticising her carefully drafted amendment, and because I believe the Government must think again, I support Amendment 15.

[Lord Rosser (Lab) [V]]

Speaking for the Opposition, I reiterate our appreciation of the work that our police and security services do on our behalf to keep us safe and our country secure. We know only too well that what they do makes a real difference.

Amendment 15, so ably moved by my noble friend Lady Massey of Darwen and to which my name is also attached, would put limits in the Bill on the crimes that could be authorised under a criminal conduct authorisation. The serious crimes that could not be authorised would cover murder, grievous bodily harm, torture and degrading treatment, serious sexual offences, depriving someone of their liberty and perverting the course of justice.

The Government have given an assurance that the Bill

“would not allow the public authorities named in the Bill to grant CHIS unlimited authority to commit any and all crimes. To allow this would breach the Human Rights Act 1998”.

In that context, I note the comments that were just made by the noble and learned Lord, Lord Hope of Craighead, about the Human Rights Act 1998. However, the Bill itself contains no explicit limit on the types of criminal conduct that can be authorised. The Government say that to have a list of offences excluded from being given a criminal conduct authorisation would lead to covert human intelligence sources being tested against that list. But placing no explicit limit on the types of crimes that can be authorised is not the approach that has been taken in other jurisdictions, where the same risks of CHIS being tested would apply. As my noble friend Lady Massey has said, the Canadian Security Intelligence Service Act contains a power to authorise criminal conduct similar to that proposed in the Bill, but the legislation provides that nothing in that Act justifies many of the serious crimes also excluded under this amendment.

The FBI in the USA operates under guidelines that do not permit an informant to participate in any act of violence, except in self-defence. In Australia, the legislation provides protection from criminal responsibility and indemnification for civil liability only where the conduct does not involve the participant engaging in anything likely to cause death or serious injury to, or involve the commission of a sexual offence against, any person. The Government maintain that countries which have lists of such offences do not have similar criminality to us, but it is not clear what the established basis is for that assertion.

The Government then say that such a list of serious offences is not necessary, because the Human Rights Act provides all the protection needed against such serious crimes being given a criminal conduct authorisation. But if a criminal or terrorist group was sufficiently conversant with the terms of legislation excluding specific offences from being authorised to be able to test a CHIS, it would almost certainly also be sufficiently conversant with the protections against serious crimes being authorised in the Human Rights Act to test a CHIS if, as the Government presumably believe, those protections are clear-cut.

However, the Bill does not preclude specific criminal conduct being prohibited through a list, since it gives the Secretary of State the power, through secondary legislation, to prohibit the authorisation of any specified criminal conduct. Since it would be secondary legislation, Parliament would not get the right to amend what was put forward by the Secretary of State, as it would with primary legislation. Since the Government, presumably, do not believe that whatever criminal conduct might be prohibited from being authorised through such publicly available secondary legislation could be used by criminals as a checklist against which to test a covert human intelligence source, and put such sources at risk, it is not clear why explicit limits cannot also be set out in primary legislation.

Safeguarding Vulnerable Groups Act 2006 (Specified Scottish Authority and Barred Lists) Order 2019

Debate between Lord Hope of Craighead and Lord Rosser

Wednesday 26th June 2019 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for the explanation of the purpose and content of this draft order, to which we are not opposed. Having said that, I hope that the Minister feels more confident than I do that she fully understands it. Much of what I want to say is taken unashamedly from the recent report from the Secondary Legislation Scrutiny Committee, and also, in part, from the wording of the Explanatory Memorandum. I will also raise a couple of points in the light of what was said when the draft order was considered in the Commons.

The Safeguarding Vulnerable Groups Act 2006 sets out the arrangements under which the Disclosure and Barring Service may bar individuals from certain roles which involve working with children or vulnerable people in England and Wales. It also includes provisions setting out the relationship between the barred lists maintained under devolved legislation in Scotland and Northern Ireland. Section 74 of the Protection of Freedoms Act 2012 amended the 2006 Act to place restrictions on duplication with the Scotland and Northern Ireland barred lists. The purpose of this order, as I understand it, is to implement that statutory restriction with regard to Scotland, so that the barring lists of England, Wales and Scotland do not duplicate each other. The restrictions on duplication under the 2012 Act apparently arise from concerns that double barring might create a further burden on individuals who wish to challenge their inclusion on the barred list, as they would need to pursue separate appeal and review processes in each jurisdiction. Duplication also gives rise to the potential that, if an individual’s challenge was successful in one jurisdiction but not another, he or she would remain barred across the whole of the United Kingdom.

The Secondary Legislation Scrutiny Committee asked why, given that the restriction on duplication was introduced in 2012, it was only now being implemented. The answer from the Home Office was that responsibility for the Disclosure and Barring Service was changed to the Home Office following the passage of the 2012 Act, and the delay in bringing the measure forward was an oversight. What changes in processes or procedures have now been put in place to prevent what appears to be a seven-year oversight happening again in the Home Office? It does not inspire confidence in governance arrangements, which one would have thought might have been of some concern to the Home Office board—assuming that body still exists.

In its report on this draft order, the Secondary Legislation Scrutiny Committee said that the Disclosure and Barring Service did not have the technical capability for the automatic exchange of information with Scotland. The committee went on to say that, while it had no information about the efficiency or effectiveness of the current cross-checking system, it did have concerns that it appeared to depend on the vigilance of officials who operate the lists. Could the Minister comment on that point from the committee about the current arrangements and the efficiency and effectiveness of the current cross-checking arrangements? Also, what assurances, backed up by hard evidence, can the Government now provide?

The Committee also reported that a new IT system is planned, to make such cross-checks automatically. It seems that the current IT contract has been terminated, but that there is an extension notice until January 2020 to ensure continuity of services while the procurement process transitions to new suppliers. The committee went on to say that the Home Office could not offer a clearer indication of when the capability to undertake automatic checking of Scotland's barred list would be in place.

Continuing, the committee suggested that the House might wish to seek assurances, which are what I am now asking from the Government, about what mitigation is in place to offset any risk that information about individuals on a barred list in one jurisdiction may inadvertently fail to be shared with another jurisdiction. Also, will the Government provide further information about when and how the new IT system will achieve compliance with the requirements of Section 74 of the Protection of Freedoms Act 2012, to which I referred earlier?

During the debate on this order in the Commons, the shadow Minister expressed her concern that, if the safeguarding of vulnerable adults and children is to be taken seriously—as I do not doubt for one moment that the Government do—we need to bear in mind that some cases of child abuse, trafficking and rape appear to be being dealt with by out-of-court disposal orders, which apparently means that they are omitted from DBS checks. The Minister in the Commons did not appear to respond to that point. Could the Minister now respond on behalf of the Government? Are there examples of such serious offences being dealt with by out-of-court disposal orders—and, if so, do the Government take the view that there is no potential danger in excluding them from DBS checks?

A further point was raised by a Conservative MP when this order was debated in the Commons. He drew attention to the fact that people posing a risk to children was an international problem and not simply a UK problem, and asked what progress had been made in the exchange of information with other countries. The same MP also asked about the length of time taken to get DBS clearance, and referred in particular to teachers who were new to a school, or newly qualified, because in the past it had led to such teachers not being able to take up their position. He asked for an assurance that the time taken to give clearance to essential public workers in particular was not an ongoing problem. The Minister in the Commons promptly gave that assurance, but gave no information on how long such clearance was now taking, and said that the list was,

“reducing at an acceptable rate”.—[Official Report, Commons, 18/6/19; col. 160.]

That is not the same as saying that clearance times are now deemed to be acceptable. Can the Minister provide information on how long DBS clearance is now taking? If it is above an acceptable time span, what is the target figure?

Finally, the Minister in the Commons said that she would be writing to Tim Loughton, the MP concerned, on the issue he had raised about exchange of information with other countries. I too am interested in that point, and I would be grateful if I could be sent a copy of the Commons Minister’s reply.

[Lord Hope of Craighead (CB)]

My Lords, I welcome this order as achieving the necessary consistency between the two jurisdictions. Nobody doubts the value of the barring system in protecting vulnerable children from abuse in its various forms. The position in Scotland is accurately set out in paragraph 7.6 of the Explanatory Memorandum, which states:

“Existing Scottish legislation does not require Disclosure Scotland to consider individuals for barring where the individual has already been considered by the DBS”,


in England or Wales,

“and the DBS has considered all relevant information. Nor does it require Disclosure Scotland to apply a bar in cases that are barred under England and Wales legislation”.

That sets out what in Scotland is the system to avoid duplication, and also to maintain consistency.

As I understand it, the aim of this order is to achieve the equal position in England, Wales and Northern Ireland, with a view to enabling the authorities on both sides of the border to work together better to protect children and vulnerable adults. I think that every noble Lord in this House would support the broad aims. I am not in a position to join with the noble Lord in the criticisms he made—I do not have that information. As far as I am concerned, the order deserves to be supported because it is achieving what everybody wished it to achieve: consistency to enable the authorities to work together.

Counter-Terrorism and Security Bill

Debate between Lord Hope of Craighead and Lord Rosser

Tuesday 20th January 2015 Lords Chamber

[Lord Rosser]

My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.

This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.

The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.

It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.

Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.

It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.

[Lord Hope of Craighead]

My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.

What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?

These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.

Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hope of Craighead and Lord Rosser

Wednesday 8th January 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.

The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.

The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.

Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.

[Lord Rosser]

My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?

The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?

I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hope of Craighead and Lord Rosser

Wednesday 4th December 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, perhaps it might help if I could balance out the contributions from the Cross Benches by speaking as someone who has never been a police officer or had any responsibility for policing in this country. I approach this amendment by looking at it on its own terms as something which is directed to Clause 126, on the assumption that the clause remains part of the Bill. I make no comment on Clause 126 itself, but I see merit in the amendment for one particular reason.

I have no reason to doubt the proposition that the Government care deeply about considerations of national security and intelligence. Approaching this matter from the sidelines, I would be very surprised if considerations of that kind did not cross the mind of those who were considering making these appointments; let us assume that as a given, in favour of the Government. The value of the amendment is that it counters the suspicion that some may have that these considerations are not in the mind of the Government. It also has a disciplinary effect, because the exercise that is being proposed here will, of course, be carried out in advance of any of these appointments being made. It will help to focus the mind and lay on the table the considerations which one would assume the Government will take into account in making these appointments.

If one thinks of the acceptability of the appointment through the entire police force, the fact that these considerations were on the table and so can be assumed to have been taken into account would add considerable weight to the appointment and the respect in which the appointment-holder would be entitled to be held. Purely from that standpoint, as a former judge and not as somebody who has any experience in the detail of the matter, I respectfully see value in the amendment.

[Lord Rosser]

My Lords, I will resist the temptation to go beyond the amendment that we are principally discussing, Amendment 105. We acknowledge that the Government appear to have a strong wish to bring personnel into the police from overseas, but there is an obvious concern that has been powerfully expressed tonight over the implications for the security responsibilities of the posts mentioned in Amendment 105 and their access to the highest classification of intelligence. The question has been powerfully raised of whether it is appropriate that the positions indicated in Amendment 105 should be held by a non-UK national on national security grounds. The strength of the amendment, as the noble Lord, Lord Hope, has indicated, is that it does not say no, but it requires that written advice be sought from the Intelligence and Security Committee as to whether there are any considerations of national security and intelligence that would need to be examined in relation to the appointment of a non-UK national to the posts mentioned in the amendment. Obviously, there is also the requirement that Section 126 would not come into force until the views of the Intelligence and Security Committee had been obtained and given to the Secretary of State and,

“a copy of those findings has been laid before both Houses of Parliament”.

I always say, “subject to what the Minister has to say, since he might persuade me otherwise”, but it seems to me that, in view of the concerns that have been raised— which seem legitimate—Amendment 105 is eminently reasonable. It is not giving an answer to the question, but it is saying that surely the issue is of sufficient importance that advice should be sought from the Intelligence and Security Committee. We will await the Minister’s response with interest, particularly on whether they have already assessed the security implications of a non-UK national filling one or more of the positions listed in Amendment 105 and have come to the conclusion that there are no national security considerations.