Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Hunt of Kings Heath and Baroness Clark of Kilwinning

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

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Anderson, in speaking to my Amendment 76. I must apologise because I was not able to be present for Second Reading; it clashed with the Medicines and Medical Devices Bill, to which I had tabled several amendments. If I had been able to speak, I would have supported the intention to place on a statutory basis the covert activity covered by the Bill. Equally, I would have sought that that should have taken place within appropriate boundaries and safeguards. Rather, as the noble Lord, Lord Cormack, said earlier, the debate this afternoon has reinforced in me the need for this Bill to be seriously amended to make sure that those safeguards are in place. It also underpins the importance of the amendments in this group and the role of the independent Investigatory Powers Commissioner, who monitors the use of these powers through inspections, as we have heard, and publishes an annual report.

Amendment 76 is very much probing in nature to ask the Minister about the role of police and crime commissioners. It follows from discussions with the West Midlands PCC, David Jamieson, and has the support of my noble friend Lord Bach, the PCC for Leicestershire, who will speak later to this group of amendments.

As we have heard, police forces are subject to IPCO inspections, yet as I understand it, under current legislation, there is no role for PCCs in relation to covert intelligence. The argument made by PCCs is that as they are responsible for holding the chief constable to account, they should at least have some strategic oversight into the inspection process. Locally, my own force, the West Midlands Police, has previously arranged for briefings from the IPCO in the inspection outcome, and those engagements have been extremely useful in understanding how the force is complying with RIPA and providing reassurance in respect of the powers used. The PCC holds the chief constable to account in a number of ways, but partly through an annual report to the strategic policing and crime board on the use of RIPA. This is presented and discussed in private session in recognition of the highly sensitive nature of the activity.

Looking to the IPCO report of 2018, which is the latest I could find published on the web, there is a specific and lengthy section on law enforcement agencies. It looks at how it has used powers under the Investigatory Powers Act, including covert intelligence sources and surveillance activities under RIPA. The IPCO noted in general that the existence of experienced and specialist teams was important to establishing and maintaining a good level of compliance. It concluded that, although standards vary across law enforcement agencies, the appropriate processes are in place and cases are handled in compliance with the code of practice. This is good to hear, but what if a police force was found to be performing inadequately? What intervention, for instance, would take place with the chief constable and how could that happen without the involvement of the PCC? I would be grateful if the Minister could respond to the question.

The advent of this Bill provides an opportunity to address the issue and formally add a provision that gives PCCs a strategic oversight role in IPCO inspections of local police forces. Of course that has to be strategic, recognising the sensitivity of the work. I am not proposing an exact mirror of the role that PCCs have, for example, in relation to Her Majesty’s Inspectorate of Constabulary and fire and rescue service inspections. As a minimum, I ask that PCCs should be engaged in a debrief following the inspection in order to understand any urgent issues and how the force needs to address them. This is not a major amendment, but it is important that we understand how the accountability of chief constables operates in the process. If the IPCO finds that a police force is not acting satisfactorily, it is important that appropriate action is taken.

[Baroness Clark of Kilwinning (Lab)]

I wish to speak to Amendment 77, which has been put down in my name and that of my noble friend Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb. It has been drafted by the National Union of Journalists. The amendment seeks to ensure that any new powers enshrined in the Bill do not override existing legal protections on press freedom.

The amendment requires a judicial commissioner to give approval for authorisations to identify or confirm journalistic sources, and would require the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the current law.

The Investigatory Powers Act 2016 introduced a requirement that when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. The amendment simply seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to carry out their role. These protections are enshrined in the Investigatory Powers Act 2016, and I understand that they honour a manifesto commitment in the Conservative Party manifesto for the 2015 general election. This followed on from detailed and sustained representations by the National Union of Journalists and others outlining serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, therefore rendering journalists unable to uphold their own ethical commitments to professional privacy.