Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Rosser Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been a lengthy and complex debate, and I blame the noble Lord, Lord Anderson of Ipswich, for that; we tried to split this group to make it more manageable, but his will prevailed.

As the noble and learned Lord, Lord Thomas, said, amendments in this group are on prior authorisation by a judge; by an investigatory powers commissioner; by an investigatory powers commissioner unless it is urgent; by an investigatory powers commissioner if a criminal conduct authority is to be used to identify a journalistic source; and by a Secretary of State. Another amendment requires that an investigatory powers commissioner be notified

“as soon as … practicable, and in any event within seven days”

and that the police authority be involved in holding the chief constable to account as a result of the investigatory powers commissioner’s annual report on the use of CCAs.

It is understandable that noble Lords want prior notification—and why the police should not, as the noble Baroness, Lady Kennedy of The Shaws, said, mark their own homework. On the advice of one noble Lord, I read the code of practice that goes with this Bill. I have held both ranks that could grant a criminal conduct authority under this Bill. In urgent cases, that is an inspector, who can not only grant a criminal conduct authority but also grant immunity from prosecution. I was an inspector at the age of 24. I was also, subsequently, a controller of covert human intelligence sources. I spent 18 years as a uniformed officer. On the Friday I left the office as a uniformed chief inspector and on the Monday morning I was a detective chief inspector in the role of a controller. The Government may say that all the people involved in the matters considered by this Bill will be experienced and highly trained, but that is not always the case in my experience.

We should listen very carefully to the noble Baroness, Lady Manningham-Buller, who articulated why prior authorisation is not practical, a point also made by the Minister for Security in another place and by the noble Lord, Lord Anderson of Ipswich. From my experience I agree, although the description of MI5 handlers and agents as beyond reproach is not, in my experience, universally applicable to police handlers and informants.

Any prior authorisation would instruct CHIS to operate within strict parameters, which may no longer be necessary or proportionate once they are deployed, or may not be adequate once they are deployed, because they are being deployed into rapidly changing scenarios in an uncontrolled environment, often involving chaotic individuals. The most common use of CHIS in policing, for example, is to counter drug dealing. As the noble Baroness, Lady Manningham-Buller, has said, you cannot turn an agent on and off like you can a listening device.

Even the most experienced undercover officer may have to necessarily and proportionately go beyond the strict parameters of a CCA because the situation has dramatically changed in ways unforeseen by the handler. If he were to strictly adhere precisely to a CCA, he could put himself in danger of losing his life. As we will hear in later groups, children are increasingly being used as covert human intelligence sources, some of whom have chaotic lifestyles. Sometimes they are drug users or drug dealers. To expect such people to operate within the strict and precise boundaries of a CCA in such turbulent situations is not only unfair and unreasonable but completely unrealistic. To determine the strict parameters of a CCA to cover every possible scenario, in the middle of a rapidly changing situation, and when the legal immunity of both handler and CHIS depends on it, is unfair and unreasonable to both handler and CHIS.

Those proposing prior authorisation by judges, Investigatory Powers Commissioners and government Ministers may say that any conduct outside the strict parameters of a CCA will be looked at by the prosecuting authorities and a decision made whether to prosecute using the public interest test. In that case, why can the prosecuting authorities not look at all the actions of the CHIS and the handler and decide whether to prosecute?

Amendment 46, for which there seems to be a good deal of support around the House, suggests that the Investigatory Powers Commissioner should be given notice where a person grants a criminal conduct authorisation as soon as practicable and, in any event, within seven days—but, as my noble friend Lady Hamwee and the noble and learned Lord, Lord Thomas, said, so what? What power does the Investigatory Powers Commissioner have to intervene? What happens if the handler corruptly tasks an informant to commit crime? As the authority has already been granted, both CHIS and handler have legal immunity, even if the handler informs the Investigatory Powers Commissioner six days later. A wronged party may be able to claim compensation from an Investigatory Powers Tribunal but criminal offences may have been committed for which the perpetrators should be prosecuted. That is why we have added to Amendment 46, to the effect that legal immunity is dependent on the CCA being approved by the Investigatory Powers Commissioner. If the actions of the handler or the CHIS are not within the limits set out in the Bill, neither are immune from criminal prosecution or from being sued.

I understand completely why noble Lords do not want a criminal conduct authority to be granted without prior judicial or ministerial authorisation because of the potential for abuse. However, as others have said, it is not practical. We believe there is a way to prevent abuse without prior authorisation of a CCA, including protecting journalistic sources, which we will come to in a future group. We have listened very carefully to this debate and have come up with a new amendment; because we were part way through this debate we cannot debate that amendment in this group, but we will come to it in a couple of groups’ time. What must not happen in any circumstances is the granting of legal immunity without judicial oversight. That is what our Amendment 47 attempts to do.

[Lord Rosser (Lab) [V]]

Amendments 14 and 75 in my name and the name of my noble friend Lord Kennedy of Southwark provide that authorisations may not be granted under this section until a warrant has been issued by a judge. An application to a judge must be made in writing and provide details, including the reasons why it is required, who it covers, the length of time it will be active for, and previous applications covering the same individual. Our amendments also provide that a person who grants a criminal conduct authorisation must inform the Investigatory Powers Commissioner within seven days of granting the authorisation. We seek to strengthen both prior and post-authorisation oversight.

Amendment 77 in the name of my noble friends Lady Clark of Kilwinning and Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb, calls for prior judicial approval before an authorisation can be granted

“for the purposes of identifying or confirming a source of journalistic information”,

and is in line with our amendment providing that authorisations may not be granted until a warrant has been issued by a judge. Amendment 46 in the names of the noble Lords, Lord Anderson of Ipswich, Lord Butler of Brockwell, Lord Carlile of Berriew, and the noble Baroness, Lady Manningham-Buller, is very similar to our Amendment 75 requiring a person who grants a criminal conduct authorisation to inform the Investigatory Powers Commissioner within seven days of granting the authorisation. However, all the amendments we have been discussing in this group reflect a strong feeling that the oversight arrangements set out in the Bill for the statutory power by public authorities to grant criminal conduct authorisations are inadequate and do not provide reassurance that the likelihood of this power being misused or exceeded is reduced to a minimum.

What exactly has been happening under the present arrangements is far from clear, although we are assured that they have enabled threatened terrorist atrocities and other serious crimes to be thwarted and our safety to be secured. We have no reason at all to doubt that. However, we do not know the extent to which powers have or have not been misused or exceeded since there is no means of that information consistently coming to light. Without proper oversight to act as a firm check there is a risk that some may become somewhat overzealous in how they exercise and interpret the powers they are given under the Bill, including what might be regarded as acceptable covert human intelligence activity, and against what and whom.

We believe there should be prior judicial authorisation, with authorisations not being granted until a warrant has been issued by a judge. Having to obtain a warrant before action can be taken is nothing new. Bearing in mind the potential gravity of the decision to authorise criminal conduct, the necessity to obtain a warrant beforehand seems even greater than it is in relation to other existing actions or activities requiring a warrant at present. It is a prior safeguard and check to minimise the likelihood, in what is self-authorisation by an agency or other body, of a potentially ill-judged or just plain wrong authorisation of criminal conduct, with all the consequences that might have.

Objections have been raised that sometimes authorisations are needed in a hurry but equally, access to a judge, as happens in some other spheres, can be arranged in a hurry—a point made by my noble friend Lady Kennedy of The Shaws. Urgency can arise because of a rapidly developing situation that could not have reasonably been foreseen, but it can also arise because a public authority has left things later than it should have done before seeking the criminal conduct authorisation. Perhaps the Government can, in their response, give some indication of roughly how many such authorisations are currently granted on average each year, how many are needed urgently and what the definition is of urgently. Can the Government also give a general indication of the extent to which authority to commit criminal conduct is given, in a typical year, to those who have been previously involved in or who are currently engaged in unauthorised—[Inaudible]—said that all authorisations

“are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the”,—[Official Report, 11/11/20; col. 1045.]

covert human intelligence source. The phrase “experienced and highly trained” sounds fine, but what do the Government intend it to mean in practice in relation to the granting of criminal conduct authorisations under the Bill? What is the definition of an

“experienced and highly trained authorising officer”,

a description the Government were happy to use at Second Reading? How much experience is meant, and in what? How much training is meant, and in what? How many experienced and highly trained authorising officers will there be in each authority that will have the power to grant criminal conduct authorisations, and how frequently are they likely to determine whether to grant such authorisations?

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In short, I hope that the Minister can give us examples justifying Clause 6(2) and Section 29B(4).

[Lord Rosser (Lab) [V]]

My Lords, the amendments in this group would variously remove the power for the Secretary of State to impose requirements restricting when a criminal conduct authorisation can be granted, require the Secretary of State to consult with such persons as are appropriate before imposing requirements, and require regulations in which the Secretary of State imposes additional requirements that must be satisfied before a criminal conduct authorisation is granted to be subject to the affirmative procedure. There is also an amendment in this group which would restrict the power of the Secretary of State to bring different provisions of the Bill into force at different times and in different areas, to ensure that all the safeguards provided in the Bill always apply.

We will await with interest more detail from the Government in their response as to the nature, extent, purpose, reasons for and frequency of the requirements that the Secretary of State might wish to impose by order before a criminal conduct authorisation can be granted, and why it would not have been possible to include this greater detail on the face of the Bill to reduce the possibility of this power being exercised at any time in the future in an inappropriate manner. We also want to hear the Government’s response to the concern about safeguards always being applicable, which has led to the amendment restricting the power to bring different provisions into force at different times.

[Lord Stewart of Dirleton (Con)]

My Lords, turning first to the order-making powers, addressed first by the noble Baroness, Lady Jones of Moulsecoomb, the ability of Parliament to scrutinise statutory instruments is a broader topic than this debate permits me to go into. As to the order-making powers in this Bill, these powers allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited. I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards. I particularly seek to assure the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Rosser, on that point. The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they be contained in secondary legislation.

The noble Baroness, Lady Hamwee, asked whether there was a precedent for such powers to be subject to the negative procedure. The equivalent powers in Section 29 of RIPA are both subject to the negative procedure. Taking similar powers in respect of criminal conduct authorisations to those already contained in Section 29 will allow the Secretary of State to make equivalent provision for Section 29 authorisations and criminal conduct authorisations, where appropriate, so that similar arrangements are in place for both. There is a high degree of interrelationship between the two provisions. While the Government do not have any particular safeguards or limits in mind, such requirements may arise in the future that will need to be legislated for.

An example of the past use of the Section 29 powers is the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010, which imposes specific additional requirements that must be met regarding the authorisation of a CHIS in connection with material subject to legal professional privilege. Were any changes proposed in the future, the relevant persons would of course be consulted prior to those changes being made. Amendments 21 and 58 are therefore not considered necessary.

Turning to Amendment 81, the Bill contains provision to commence the Act for different areas on different days, to allow time to make any necessary secondary legislation, issue guidance, undertake appropriate training and put the necessary systems and procedures in place, as appropriate. I assure the Committee that this power will not be used to delay commencing those sections relating to safeguards. The power could not lawfully be used to frustrate the will of Parliament in this way.