Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Judd and Lord Morris of Aberavon

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

[Lord Judd (Lab) [V]]

My Lords, I want to make it perfectly plain that I totally disagree with the arguments put forward by the noble Lord, Lord Carlile of Berriew. Of course, a lot of skilled, professional, operational work has gone in to whatever is being planned. But part of that operational skill, which is professionally done, should be taking full account of what is challengeable under the rule of law. If there is nothing to fear on that front, then there is nothing to fear in terms of the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd.

If I were asked to pick one amendment from this group that had particularly cheered me, it would be that of the noble and learned Lord, Lord Thomas of Cwmgiedd; it seemed to me that he was bringing muscle to bear on the theory and operation of the rule of law. We can all talk about the rule of law, and it is nice to think that in a civilised society we have it, but how can it act in time? We all know what can happen in operations of this kind: so much momentum and impetus build up that one thing leads to another, and it becomes very difficult to reverse. I applaud the amendment tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd.

My support has gone to Amendment 7, because the work that we are discussing should not become a matter of convenience in the operation of government. It has to be serious, and if we are making the rule of law essential to our concerns, it has to be dealing with serious crime.

I am also very glad to be associated with Amendment 17 on the relevance of the Investigatory Powers Commissioner. It may not be everybody’s immediate cup of tea, but I am very glad to see Amendment 43, with its provisions for the review of authorisations over a period of time. In a democracy, we have to keep a political and active eye on what trend seems to be being established if there are trends, and what they might be.

The amendments in this group dealing with the rule of law and judicial approval, which is crucial, have all been encouraging. I cannot have more respect than I do for some of those who were involved in tabling Amendment 46, and I am sorry, because I respect them, but I hope that they have some time for my concern as a layman.

I am doubtful about the whole concept of special arrangements for the appointment of judicial commissioners in this way. How can we be cast-iron certain that this does not become open to manipulation by the Executive? Either people are judicial commissioners, or they are not. We should keep our minds very much on that principle. This is a terribly important group of amendments, and I wish most of them well.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I intervene briefly to support Amendments 5 and 16. The experience of so many noble Lords in this debate has been salutary. In Committee I expressed my views on the need for supervision of authorising conduct under the Bill prior to the event—I emphasise “prior”—preferably by judicial authority. I will not elaborate on what I have already said, save to repeat that from the highest level of the judiciary down, it has been my experience that there is always availability, 24 hours a day, seven days a week. I have never had to make an application in the course of advocation as counsel, but I have had to make emergency applications and judges have always been available. In my experience—limited as it was as a law officer not directly involved—I never had any anxiety that there were no judges available to take decisions.

The noble Lord, Lord Anderson of Ipswich, with his great experience, queried the use of the judiciary, as I understand his speech. I see no difficulty in the Lord Chief Justice selecting a number of High Court judges who, despite the views of the noble Lord, Lord Blunkett, would have had the necessary skills to adjudicate on these matters. They are probably unsurpassed in the range of decision that they must take: quite a few of them are life or death matters, which I will not elaborate on. Members of the judiciary from the highest to the lowest level must make difficult decisions well beyond their training and well beyond what they had thought that they might have to adjudicate on.

This has been a fascinating debate. At this hour I will not go on, save to say that authorising conduct of this kind is a very serious matter. Trying to square authorising breaches of the law with the rule of law is mind-boggling. I shall not attempt it. All I will say is that I support Amendments 5 and 16.