Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Debate between Lord Mackay of Clashfern and Lord Ponsonby of Shulbrede

Tuesday 12th October 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness for tabling this regret Motion for debate today. It brings the House back to the detailed, thoughtful and vital discussions which were held on what is now the Act during its passage earlier this year.

The first priority of any Government, and of this Opposition, is to ensure the safety and security of our communities. We pay tribute to those who serve honourably and put themselves in harm’s way to protect us, and to prevent and disrupt serious criminal activity. The Act addresses the necessary, though difficult, use of covert human intelligence sources to combat serious crime. The key purpose was to place the authorisation of CHIS activity on a statutory footing, where previously there was not that underpinning. The version of the Act which was passed was not the draft that a Labour Government would have passed but we did support it, as urgently needed legislation which created that statutory footing and contained some improvements on the status quo.

I recognise the significant contribution that this House made to improving the Act as it passed through Parliament, including securing extra protections for children and vulnerable people, ensuring access to compensation for innocent victims, and increasing oversight mechanisms. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, for his work on securing notification of all authorisations to the Investigatory Powers Commissioner, providing real-time oversight by the IPC.

The order about which today’s Motion is tabled makes a series of changes in secondary legislation which are consequential to the Act. They include: updating requirements to keep records of authorisations granted under the Act, extending some existing safeguards on matters subject to legal privilege to the new authorisations, and updating the designations of the rank of a person able to grant an authorisation with a public authority. Here I should say that I listened with great interest to what the noble Lord, Lord Paddick, said about the relative seniority of police officers needed for particular authorisations. I look forward to the Minister’s response to the questions which he raised.

The Motion, however, deals with a wider issue which was debated as part of our deliberation on the then Bill. During its passage, colleagues from across the House sought a wide array of improvements to the Bill. The Labour Party particularly sought for the Government to look seriously at the possibility of prior judicial authorisation as a gold standard. We also tabled amendments in the Commons and supported amendments in this House, including those tabled by the noble Baroness, Lady D’Souza, on the key issues raised in today’s Motion. These were changes which would have put explicit limits on the type of activity that could be authorised on the face of the Bill itself. As a House, this was one of the issues we sent back to the Commons for further consideration, although we were ultimately unsuccessful.

The Human Rights Act is a proud achievement of the previous Labour Government. It provides safeguards to this Act and to all public authorities that take action under it. Adding explicit limits to the face of the Bill would, though, have provided clarity and reassurance, and positioned the protection of human rights as an integral part of this package. But as the noble Lord, Lord Paddick, said, this argument was had and lost when the Bill was before Parliament.

As has been well rehearsed, the inclusion of limits has been modelled by countries which are our allies and have similar judicial systems to ours, and with which we co-operate on security matters: Canada is the obvious example, a point made by the noble Baroness, Lady D’Souza. While those countries are able to do this, these Benches and our Commons colleagues remained unconvinced by the Government’s argument that we could not.

I will be interested to hear the Minister’s response to the questions put to her by noble Lords across the House today, particularly on what ongoing monitoring there will be of the operation of the Act and whether amendments of any kind are required. Specifically, will oversight of the Act be led by the IPC’s oversight of the practical arrangements? Presumably, any concerns which could be raised will be addressed by the IPC.

[Lord Mackay of Clashfern (Con)]

My Lords, it is worth reminding ourselves that the original Bill contained a restriction in relation to the Human Rights Act. The person operating under this Bill with authority will operate on behalf of Her Majesty’s Government and will therefore be bound by the authority of the Human Rights Act in relation to the activities which they can undertake. That is an important consideration which was raised in the debate on the Bill.