Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Lexden and Baroness Massey of Darwen

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Massey of Darwen (Lab) [V]]

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.

--- Later in debate ---

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.