Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Stewart of Dirleton Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Stewart of Dirleton]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) (Maiden Speech)]

My Lords, it is a pleasure to open this debate. I am struck by the importance of the legislation on which I will make my first contribution to the House.

Before commencing, I wish to express my thanks to the House for the warm welcome I have received since taking up my appointment. I owe particular debts to my supporters, my noble friends Lady Goldie and Lord McInnes, for their good humour and encouragement; to Black Rod, Garter and the clerks of Parliament for their patience and tolerance; and to my noble friend Lord Courtown for his wise guidance in the customs and practices of this place. Your Lordships will, I hope, realise that, should I offend against these, the cause lies in my obtuseness rather than in my noble friend’s instruction.

I recognise that I am filling the place of my noble and learned friend Lord Keen of Elie. I am too new in this place to speak of his reputation here, but I can say that his high standing in our profession is a consequence not only of his matchless forensic skills but of the kindness and courtesy that he shows to all and the care with which he led the Scottish Bar as Dean of the Faculty of Advocates.

I hope I will not trespass further on the patience of the House if I take the opportunity given by my maiden speech to make some reference to myself and to the place from which I have taken my title: the village of Dirleton, in East Lothian. It is a place of great beauty. Moreover, there are aspects of its history and geography which may provide your Lordships with matter for reflection.

I know that many of your Lordships are familiar with the area. Some of your Lordships may have tested your skills against the famous golf courses which lie round about. There are other diversions too: yachting and skiff rowing from North Berwick around the islands just off the coast, which fired the imagination of the young Robert Louis Stevenson. The islands may be viewed from the fine beaches, looking across to the Kingdom of Fife at magnificent and ever-changing vistas of sea and sky.

All sorts of sporting clubs and associations of other sorts flourish. At the recreation ground and elsewhere in North Berwick, I played bowls, hockey, football, rugby, highland games, tennis and, not least, cricket—a sport which suffers in East Lothian not so much from want of enthusiasm among its players but from the shortness of the season and the unpredictability of the weather.

Dirleton lies in an area of rich, fertile soil, and we can anticipate that our farmers may soon be able to take advantage of new opportunities arising out of the implementation by this Government of their popular mandate. We can anticipate, too, that more boats may set out along the waters of the Firth of Forth to work fisheries which will be richer, better managed and replenished by the more directed and more sustainable management policies which the policy of this Government will allow to be established.

The village of Dirleton features the castle—set in beautifully landscaped grounds—a village green, a primary school and two hotels, where visitors may regain their strength ahead of more sightseeing. The parish church in Dirleton dates from the 17th century. Inside is a list of the names of those of the parish who fell in two world wars. The church is set in surroundings of especial beauty, north of the village green and north of another smaller green, on which stands the war memorial where, again, the names of those who fell are inscribed.

This 11th day of the 11th month brings to mind those names on the war memorial, so familiar to me from their being called over at Remembrance Sundays. Some are the names of families who flourish in East Lothian to this day. But today calls to mind also those others who lie in the churchyard and the cemetery on the way out of the village—names from the rest of the United Kingdom, the Commonwealth and allied countries. Those graves remind us of service and sacrifice in a common cause to preserve our institutions and to keep alive our common hope for a brighter future. We will remember that the sacrifice in that common cause continued after those great wars were brought to an end, and continues today—sacrifice of life, of mental health and of emotional well-being.

Watching the business of the House and the range of expertise and experience your Lordships bring to the scrutiny of that business, I am conscious of the honour done to me by admission to your number. I am conscious, too, that I have no family history of service in this place, as do some of your Lordships, and that I have been appointed to my place, whereas many of your Lordships come here after having sought and won popular mandates from electors, whether in local or devolved government or in the other place. But I seek to assure your Lordships that in my role as law officer, I will seek not only to uphold the law but to try to maintain the spirit and traditions of your Lordships’ House.

The legislation we bring forward is a necessary piece of legislation; it will ensure that our intelligence agencies, law enforcement bodies and those public authorities that also have vital investigative functions are able to continue to deploy tools they need to keep us safe from harm and to prevent serious crime. The recent incidents in Nice and Vienna, and the increase in the threat level here in the UK, show that the need for robust tools with which to tackle terrorism remains as important as ever.

Covert human intelligence sources—I will use the convenient, if inelegant, acronym, CHIS—are agents: undercover officers who help to secure prosecutions by infiltrating criminal and terrorist groups. This technique has been used to disrupt terrorist plots, including one by Zakariyah Rahman against the then Prime Minister in 2017; drugs offences, including enabling the largest ever seizure of heroin destined for the United Kingdom in 2019; and child sexual exploitation and abuse, including attempts by individuals to take indecent images of children.

It is appropriate to reflect today on the role that our intelligence agencies play in war and conflict. A notable success of the intelligence agencies was the discovery and arrest of German spies in the United Kingdom at the outbreak of hostilities in 1914—a success built on the effective use of what we now call CHIS, alongside other techniques. The courage and ingenuity of the double-cross network, a CHIS network which did much to protect allied lives in the Second World War, often at grave cost, comes to mind also as we pause to remember today.

In order to build credibility and the trust of those under investigation, there are occasions where CHIS may need to participate in criminality themselves. This is an inescapable feature of CHIS use. Without this, it would not be possible to utilise CHIS as an intelligence tactic. The Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to ensure that there is a clear and consistent statutory basis to authorise participation in conduct which could otherwise be criminal, where this is necessary and proportionate to what is sought to be achieved. Let me say at the outset that the purpose of this Bill is not to extend the range of activity which public authorities are able to authorise—the Bill does not do this.

The Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes. I recognise that this is a departure from the existing approach, whereby authorised criminality can still be considered for prosecution by the prosecution services. This approach is a deliberate policy decision. It aligns with other investigatory powers and the approach taken elsewhere in RIPA, including other CHIS authorisations. It also provides greater certainty for CHIS that they will not be prosecuted for activity the state has asked them to commit. We think it is right and fair to provide this certainty, and it may also help to recruit and retain CHIS in the future and maximise the intelligence we can gather through this technique.

Of course, this is not a blanket immunity from any criminal prosecution. Criminal conduct authorisations are tightly bound with strict parameters which are clearly communicated to the CHIS. A CHIS will never be given authority to participate in all or any criminality and were they to engage in criminality beyond their authorisation they could be prosecuted in the usual way.

While it is right to provide this certainty to CHIS and to their handlers, it is of course important—vital—that this is subject to robust and independent safeguards. Let me briefly set out how the Bill ensures this.

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 CHIS. Authorising officers have clear and detailed guidance that they must follow in deciding whether to grant an authorisation. We have published draft updates to the code of practice alongside this Bill that sets out some of that detail. I encourage all noble Lords to read that. The updates to the code will be subject to a full consultation and debate in both Houses in due course.

Authorisations are then subject to robust, independent oversight by the Investigatory Powers Commissioner—the IPC—who conducts regular and thorough inspections of all public authorities and published an annual report of his findings. The IPC sets the frequency of these inspections himself, and public authorities must provide unfettered access to documents and information. The IPC will report on the use of criminal conduct authorisations in his annual report, and this will identify any errors, provide statistics on the use of the tactic and may identify whether there are any training needs. Public authorities must take steps to implement recommendations given by the Investigatory Powers Commissioner’s Office—IPCO—with progress assessed at the next inspection. The IPC also has powers to provide independent remedy; for instance, to inform a person if they have been the subject of a serious error, or to refer a matter to the independent Investigatory Powers Tribunal.

I know that some will think that we need to enhance the role of the IPC in this process. The Government are committed to ensuring that there is robust oversight of criminal conduct authorisations, but that this is not at the expense of ensuring that the tactic remains operationally workable and reflects the live and complex human elements of CHIS, which we do not see in our other investigatory powers. For this reason, we do not think that prior judicial approval is appropriate for this tactic and believe that the authorising role best sits with the highly trained authorising officer within the public authority, as it does at present. The authorising officer will be able to consider the necessity and proportionality of the conduct, but will also consider the safety of the CHIS and the human element of the specific situation. The IPC then provides an important retrospective oversight function, which I have set out.

I want also to draw attention to the additional safeguards in place for vulnerable individuals and juveniles. These safeguards are clearly set out in the CHIS code of practice. It makes clear, for example, that juveniles or those who are vulnerable are authorised as CHIS only in exceptional circumstances. However, there may be occasions when these individuals are able to provide intelligence to disrupt criminal groups. I know that might sound uncomfortable, but it might be necessary to stop criminal groups continuing to exploit those individuals and prevent anyone else being drawn into them. In these instances, significant additional safeguards are in place to ensure that the best interests of the juvenile are a primary consideration in all operations. Those are set out in detail in the code of practice, which has legal force and includes a requirement for an appropriate adult to be present at all meetings where a CHIS is under the age of 16 and to be considered for 16 and 17 year-olds, and the rationale documented if an appropriate adult is not present.

I turn briefly to the upper limits of conduct that can be authorised. These are contained in the Human Rights Act 1998. It is unlawful for any public authority to act in a way incompatible with the European Convention on Human Rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. We have not drawn up a list of specific crimes that may be authorised or prohibited as to do so would place into the hands of criminals, terrorists and hostile states a means of identifying a CHIS, creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public. We have taken this approach in response to a detailed assessment of the specific threats we face in this country. No two countries face the same threat picture or, indeed, have identical legal systems. In particular, we must consider the specific counterterrorist effort in Northern Ireland. However, through the safeguards and the independent oversight that sits alongside an authorisation, there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations or, indeed, activity that is not necessary or proportionate.

Let me, finally, just pause on the list public authorities that can authorise this activity. The number of public authorities able to authorise this conduct has been restricted from those that can authorise the use and conduct of CHIS generally. We expect wider public authorities to be low-volume users of this power because an authorisation can be granted only where it is necessary and proportionate to what is sought to be achieved. However, there will be occasions where CHIS play a critical role in providing the intelligence needed for these wider public authorities to identify and prevent criminal activity. These authorisations will be subject to the same safeguards and independent oversight I have already outlined, including by the Investigatory Powers Commissioner. We have published case studies that give examples of the use of this tactic by wider public authorities. I give the example of where the Food Standards Agency may authorise a CHIS to participate in criminal conduct. This may relate to the relabelling of produce to misrepresent its quality and fitness for consumption. Those are criminal offences, but by authorising a CHIS to participate in this activity the Food Standards Agency might be able to gather intelligence to seize unfit produce and identify those responsible for the fraudulent activity.

It has been a pleasure to make my maiden remarks on this issue. I am of the strong view that this Bill is both necessary to ensure that our operational agencies are able to keep us safe, and welcome in that it provides legal clarity through an express power and sets out the robust safeguards to ensure that an authorisation is tightly bound, necessary and proportionate. CHIS do a difficult and important job in providing intelligence that other investigatory tools cannot access. This Bill provides certainty that operational agencies can continue to utilise this tactic and that they are able to best ensure that they keep us all safe. I beg to move.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Stewart of Dirleton Excerpts

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

[Lord Rosser (Lab) [V]]

As drafted, the Bill refers to criminal conduct as conduct

“in the course of, or otherwise in connection with”

the conduct of a covert human intelligence source, and as

“conduct by or in relation to the person”

who is specified as the covert human intelligence source. As has been said, the amendments would establish that criminal conduct is conduct by the covert human intelligence source in the absence of any explanation as to why the additional words to which I have referred are needed, and what the consequences would be, and for whom, if they were not in the Bill. A further amendment in this group also puts on the face of the Bill that a criminal conduct authorisation cannot retrospectively give clearance for behaviour that has already happened before the date the authorisation is given.

The Joint Committee on Human Rights also raised these issues in its report on the Bill when it said that the definition of what amounts to “criminal conduct” for the purpose of an authorisation is wider than simply criminal activity by a covert human intelligence source, and referred to the wording which the amendments in this group would delete. The only explanation for this which the Joint Committee on Human Rights could find was in the draft code of practice, which states that

“a criminal conduct authorisation may authorise conduct by someone else ‘in relation to’ a

covert human intelligence source,

“namely those within a public authority that are involved in or affected by the authorisation.”

No doubt the Government will wish to respond in some detail setting out why the words “in connection with” and “in relation to” are essential, what exactly they mean and, giving examples, explaining why it is considered necessary to enable a public authority to authorise criminal conduct by someone other than the covert human intelligence source, which some might feel is rather at odds with the title of the Bill.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, having made my maiden remarks at Second Reading, it is a pleasure now to assist the House in scrutinising the detail of this legislation. I hope to reassure noble Lords with regard to the scope, safeguards and limits to conduct that can be authorised under a criminal conduct authorisation. I recognise the feeling of the House on the last appearance of the Bill as a recognition of the complexities and difficulties which attach to this field of criminal investigation.

With regard to the remarks by my noble friend Lord Cormack, he will perhaps recollect that when I spoke at Second Reading I recognised the inelegance of the expression “CHIS”, and I fully share his concerns about it. However, until such time as we have evolved a suitable replacement, if that is possible, I trust I will not trespass on his patience if I continue to use the expression.

The Bill is drafted to allow things to be authorised which are certainly connected to the conduct of the CHIS but not the same thing as it: actions which are connected to the activities of the CHIS but which are not the CHIS activities themselves. This is deliberate and it is to allow for activity which facilitates and supports the core conduct of the CHIS, most obviously to allow the CHIS to avoid detection in order to remain in place and to provide the intelligence needed. The purpose of the expressions “in connection with” and “in relation to” is to ensure that such activity may be authorised. This language also serves the function of ensuring that the scope of a criminal conduct authorisation is properly limited. It helps to make it clear that it is not the case that any and all criminality by a CHIS may be authorised. It cannot be some private venture that the CHIS has involved himself or herself in. The criminal conduct to be authorised must be connected to the conduct of a CHIS and to the criminal conduct authority.

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Secondly, what is the position in relation to criminal injuries compensation schemes? If it is rendered lawful, does the victim of such a crime have the right to make a claim under the scheme? Thirdly, if it is rendered lawful, that brings to an end the right to civil liability. Why is that not a breach of the obligation on the state to protect victims of crime under the Human Rights Act? Surely, the right course is not to deprive the victims of any remedy but, if necessary and appropriate, to ensure that the CHIS, acting in accordance with a due authority, is indemnified in respect of any liability he or she may have to a victim.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 3 and 5 from the noble Baroness, Lady Chakrabarti, seek, as she said, to maintain the status quo but on a statutory footing. They would maintain the existing legal position whereby an undercover operative, a CHIS— I demur from the noble Baroness’s use of the phrase “police spy”, which, in addition to pejorative overtones, carries an undercurrent of the 19th-century Russian novel—could still be prosecuted for the activity that the state had tasked them to do.

In answer, first, to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, it has been a deliberate decision to draft the legislation in a way which renders correctly authorised conduct lawful in order to provide greater certainty and protection to undercover operatives—CHIS—where they are carrying out activity that they may have been authorised to undertake. To expand that in answer to the matters raised by the noble Baroness, Lady Chakrabarti, this approach is in keeping with other powers in relation to the investigation of crime, such as interference with equipment, interference with property, and the Regulation of Investigatory Powers Act, including an underlying Section 29 covert human intelligence source use and conduct authorisation.

As noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct. That answers a point raised by the noble Lord, Lord Hendy, in his contribution to the debate.

The noble Baroness, Lady Chakrabarti, has framed her argument in terms of an illustration: a passer-by breaking into a house to save a neighbour. The analogy is that, in that position, the passer-by would have had available to them legal defences, and that the undercover operative—the CHIS—should simply rely upon the discretion of prosecutors rather than enjoy at the outset the full protection of the law for activities carried out within the narrow and tightly constrained boundaries of the criminal conduct authorisation.

We consider the analogy drawn by the noble Baronesses inapposite. The CHIS is not a mere passer-by stumbling across wrong-doing, but rather is placed deliberately in the company of wrong-doers by the state to help the state, or is someone who may have come into contact with wrong-doers and gone on to offer assistance to the police or investigating authorities. In so doing, such a person will often be asked to go along with the criminal activity of those people to earn their trust, so that their criminal activity may be frustrated. They do so in the public interest and often at risk of harm. Our position is that if the state thinks that it is right to ask them to act in this way and can consider the matter in advance, it is not comparable to the situation of a member of the public acting as a good citizen, responding to an unexpected event and going to the assistance of a fellow citizen in danger.

It is a credit to the skill of the handlers, and to the commitment and trust of covert human intelligence sources, that they have been prepared to continue with the prospect of prosecution always alive. However, as we understand the situation, we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do. This tension has existed for many years and it is right that we use the Bill to resolve it. In fact, making this legal position clear is likely to help with the recruitment and retention of human intelligence sources.

It would also be undesirable from a legal perspective to create an express power for public authorities to authorise activity which remained criminal. However, I reassure the noble Baroness that where a CHIS, or an undercover operative, commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can of course consider it in the normal way. The Bill does not prevent those impacted by an authorisation seeking redress. I include in that the matter raised by noble Lords in relation to civil redress. The Investigatory Powers Tribunal has the same powers to grant remedy as other courts.

The noble Baroness, Lady Warsi, and the noble Lord, Lord Hendy, were concerned that the Bill may be seen as something which allows a CHIS carte blanche to commit criminal activities. That is not the case. Criminal conduct authorisations are tightly drawn. Persons acting undercover will be working within a relationship with their handler, who is trained and experienced in conducting such work, and subject to a powerful oversight regime. A CHIS will never be granted carte blanche to commit any or all crimes. This is communicated clearly to people finding themselves in that situation, appointed to that position or recruited to that position. Where a covert human intelligence source commits criminality outside the tight provisions of the authorisation, the prosecuting authorities will consider the matter in the usual way.

In response to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Blower, and the noble Lord, Lord Paddick, it is the case—as I think the noble Lord acknowledged, albeit with substantial caveat—that covert human intelligence sources acting outside authorised conduct have been prosecuted in the past. The Bill ensures that that can happen in future if the boundaries of the authority under which they work are transgressed. It is precisely to combat the sort of outrages identified by the noble Baroness, Lady Jones of Moulsecoomb, that the Bill is framed. That is why it seeks to build on the oversight of the commissioner and the Investigatory Powers Tribunal.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about the visibility of authorisation forms and the effectiveness of the regime. I assure him and others in the Committee that there will be oversight of the new regime. That is the role the Investigatory Powers Commissioner’s Office plays in overseeing all authorisations. That body will provide public commentary on the effectiveness of the regime as part of the reports which it prepares. It has access to all documents and all information bearing upon the CCAs about which we were speaking.

The noble Baroness, Lady Blower, spoke about the situation applying according to the law of Canada. We have looked carefully at the provisions applying in countries with legal systems similar to ours. However, similar though the legal system of Canada is, none the less there is a different regime of control, as the security imperatives in Canada are different from ours.

Finally, I shall comment on the observations by the noble Lord, Lord Paddick. We consider that the status quo is not desirable in the current situation. We acknowledge the decisions in the Third Direction case. We look to place the activities of people fulfilling these necessary functions on a statutory basis. I think—if I have gauged correctly the views of the Committee—that placing these powers on a statutory footing is more or less universally considered desirable. Clearly where we will potentially be at odds is in the framing of the terms of the statute. However, my respectful conclusion is to say that the continuation of the status quo is not desirable.

For the reasons that I have identified, we consider it desirable—in spite of the qualifications and concerns raised by the noble Lord, Lord Hendy, and others—to render the situation whereby criminal conduct, tightly defined in individual circumstances, will be identified in advance rather than excused retrospectively.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Paddick.

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Finally, can the Minister address what my noble friend Lord Thomas of Gresford described as the brown envelope issue, where, for example, a member of an armed gang who is an informant appears in the dock alongside the fellow criminals and, out of sight, the judge is tipped off that the informant helped the police and so should be treated more leniently? What happens when that member of the gang does not appear in the dock with all the others, clearly giving away the fact that he is a police informant and placing his life at risk?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord clearly heard what I said about the view that we have lost intelligence and failed to recruit CHIS, and that failing to introduce a power in these terms is likely to impair the recruitment and retention of CHIS. I do not have to hand the figures that he seeks, but I undertake to write to him.

On the “brown envelope” scenario, when it is drawn to the attention of a presiding judge passing sentence that a member of a criminal organisation—a gang, a conspiracy or whatever—has actively assisted the police and the investigating authorities in bringing the prosecution, it is important that we maintain a proper boundary. A person becoming aware that the police are aware of criminal activity, who elects to go to the police in their own interests in order to assist them, and by so doing earns a degree of mitigation, is very different from a person becoming a CHIS in the course of criminal activity, or one who is associated with criminal organisations for that direct and specific purpose. The noble Lord shakes his head, but I insist that we must maintain boundaries. A person who, during or prior to a prosecution, assists the prosecution and the police, is different from a person inserted into an organisation with the purpose of deriving intelligence about its activities.

The noble Lord, Lord Thomas of Gresford, spoke about the appointment of a committee to look into these matters; as he said himself, this was a matter which occurred to him shortly before this debate. I will look into the implications and communicate further with him.

[Baroness Chakrabarti (Lab) [V]]

This Committee has made it a privilege to be a Member of your Lordships’ House, which today I have heard at its best, expressing with great care and detail the sheer strength, depth and wisdom of noble Lords’ concerns about the Bill in its current form. Many other noble Lords have similar concerns, but for various reasons were unable to participate. The noble Baroness, Lady Ritchie, rightly pointed up the Northern Ireland experience, and with all matters of human rights and the rule of law, we ignore that voice and that particular experience at our peril.

The noble Baroness, Lady Warsi, rightly pointed out that supporters of these amendments come from all sides of the House. That should give the Minister pause for thought. So much has been said in these polarised times in our nations about extremism versus moderation. Sometimes I do not even know what these words mean any more, save that the ultimate moderation that holds our nations together is the rule of law. My friend—if not my noble friend—the noble Baroness, Lady Warsi, rightly describes this as a very conservative principle and tradition. However, equally for liberals and progressives, there can be no human rights or even democracy without the preservation of the rule of law.

The noble Lord, Lord Thomas of Gresford, pointed to our legal traditions, but also made a particular point about successful work of his own at the Bar deconstructing the mens rea of someone who had no criminal intent because they were acting in the public interest; that ties in with my amendment very well indeed. The noble Baroness, Lady Jones of Moulsecoomb, may have used colourful language which offended the Minister, but it is how many members of the public will feel about what is being provided for here without the safeguard of the amendments that I have put forward.

My noble friend Lady Bryan was right to point up the excellent briefing from Justice. I neglected to declare an interest as a member of Justice, but I hope that noble Lords will forgive me, because I suspect that many of them, particularly noble and learned Lords, are members of that wonderful law reform organisation. My noble friend Lady Bryan made the crucial point: where are the hard cases of undercover operatives who are just doing their work and doing no more than necessary being prosecuted by rogue prosecutors against the public interest and common sense, because we have not seen them?

Of course, there is only one thing better than one Lord Thomas, and that is two Lords Thomas contributing so eloquently to a debate, particularly when one of them is the former Lord Chief Justice of England and Wales. I will let that hang in the air for a moment, because I know that the Minister will not have ignored that very powerful intervention from the noble and learned Lord, Lord Thomas of Cwmgiedd. What is wrong with the current law? Where is the evidence? How can we do our duty without the ability to examine the case for moving from the status quo that has served our nations so well in this difficult and grey area and held the ring for so long?

My noble friend Lord Hendy was absolutely right to bring up the ongoing Mitting inquiry, in which he represents some of those who have been subject to abuse of power. There have been abuses under the current law; how much greater will the possibility of abuse be if we cross this Rubicon into granting blanket advance immunities to so many agents of the state, including from the criminal fraternity?

What of the victims, as my noble friend Lady Blower so rightly pointed out? She reminded us of perhaps the greatest jurist of my lifetime: Lord Bingham, who articulated equality before the law as a vital rule of law principle. She also reminded us that Article 13 of the ECHR requires an “effective remedy” for victims of crime. I know that the Minister attempted to address this, but how can “lawful for all purposes” possibly square with giving an appropriate remedy to a victim of a crime that is suddenly rendered no longer a crime?

The noble Lord, Lord Paddick, has been a police officer for 30 years, and, as my noble and learned friend Lord Falconer suggested, that gives his practical experience in the field particular weight. I imagine that noble Lords listening and those who will read his intervention tomorrow will be very careful to consider his wholesale dismantling of the argument against maintaining the so-called tension, which operates as a safeguard against the abuse of power. It is good for operating on the mind and ethical framework of any CHIS or undercover operative, particularly one who is not even an officer of the state but is a mere agent and, I repeat, quite possibly from the criminal fraternity.

My noble and learned friend Lord Falconer also rightly took us to the very powerful report from the Joint Committee on Human Rights, which expresses so many concerns about the Bill in its current form. There is so much potential for violations of human rights and abuse if the Bill is unamended. I have tried to engage constructively by way of this amendment, which does minimal violation to the scheme of the Bill and addresses the problem posed by the ongoing litigation but, none the less, preserves the status quo that has served us so well and is about preserving the rule of law.

It is said to be a breach of the rules of theatre to break the fourth wall, but, for all its beauty and glory, your Lordships’ House is not a theatre; it is a legislature. I want to be fair to the Minister, who is new to your Lordships’ House and to this Bill and who cannot possibly have been involved in the earlier stages of the policy formulation that led to its precise drafting. It is very difficult to be in the Chamber for one of these Committees, to listen to all the arguments—particularly when they are so powerful and come from all sides—and to respond on the spot, on your feet and immediately, as he has had to do. None the less, I hope that he will listen to the sheer breadth and depth of concern, which might well be addressed by way of my amendments or something like them.

The noble and learned Lord takes issue with my analogy about other citizens and passers-by. He says that these agents of the state are not mere passers-by, but that argument cuts both ways. The mere passer-by is mostly not from the criminal fraternity and normally does not have a vested interest, of whatever kind, in getting a particular outcome, quite possibly, even as an agent provocateur, as we have seen in the past. Why should an undercover operative, a CHIS, quite possibly a civilian or even someone from the criminal fraternity, have a protection in law that even a uniformed police officer does not have when he or she puts themselves in harm’s way on a daily basis? The so-called tension is a healthy one, and it should not be resolved by way of the absolute immunity that is the ultimate evil in this Bill.

Finally, I am beginning to suspect that the “lawful for all purposes” formulation was not adopted with a great deal of deliberation. I am beginning to suspect that it was used because it was used before and is in the framework of RIPA, where it is, pretty much, appropriate because that is about surveillance. As the Minister has said, it has been used in certain narrow confines before, but this Bill authorises unlimited criminal conduct and, potentially, very serious crimes, as the Joint Committee on Human Rights has pointed out. Therefore, a “lawful for all purposes” advance immunity that is appropriate for bugging, surveillance and minor criminal damage is simply not acceptable or conscionable in this case.

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[Lord Falconer of Thoroton (Lab)]

I am delighted to follow my noble friend Lady Chakrabarti, who has made a real contribution to the quality of the debate in this Committee and will make a real contribution to the changes necessary to the Bill. I shall speak particularly to Amendment 71, in the name of my noble friends Lord Rosser and Lord Kennedy. As the noble Lord, Lord Anderson of Ipswich, previewed, it seeks to make it clear that there is a jurisdiction in the Investigatory Powers Tribunal to give compensation to people.

This group concerns compensation for innocent victims. It seems to me that innocent victims can take two forms. One is somebody who is completely innocent and, pursuant to a crime authorised by a CHIS, gets beaten up, for example, by the CHIS. What remedy does that person have? Secondly and separately, there is the person who is a target of CHIS activity; for example, somebody who, it is thought, might be about to commit a crime and their premises might be burgled, pursuant to an authorisation under the Bill. What remedy does that person have? Let us assume, particularly, that the whole authorisation was wrongheaded from the start because, as everybody accepts in this process, errors get made. So, there is the innocent victim of crime on one hand and, on the other, the target of CHISery who is the wrong target and a judicial review would be allowed in relation to that.

On the face of the Bill, if it is all lawful, then there is no remedy at all. Will the Minister please explain what remedy there is? The noble Lord, Lord Anderson of Ipswich, made it clear that he thinks activities under Part II of the Regulation of Investigatory Powers Act 2000, which this is amending, already provide a remedy. Indeed, in the Commons in answer to this amendment, the Security Minister replied:

“Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.”—[Official Report, Commons, 15/10/20; col. 613.]


It would be helpful to have, first, a repetition of the assurance that the IPT covers judicial review-type relief—on the basis, presumably, that the original authorisation is unlawful—and therefore the reference to the fact that whatever is done under the authority is lawful does not apply to the original grant of the authority.

Secondly, will the noble and learned Lord deal with the issue of the innocent victim of the crime when there is a lawfully authorised criminal conduct authorisation, and the consequence of that is that somebody is, for example, severely beaten up? What remedy does that totally innocent victim have in such circumstances? The effect of the Bill is to say that the conduct is rendered “lawful for all purposes”. It cannot mean that. It cannot mean that the totally innocent victim, who has other remedies, is deprived of all those remedies because it is authorised under a criminal conduct authorisation: it cannot have intended that.

As the noble Lord, Lord Anderson of Ipswich, said, it may be key that we focus on the public authority which provided the authorisation and do not lose sight of the person giving the authority by focusing on the liability of the CHIS themselves. This point was clearly considered by the Joint Committee on Human Rights in suggesting its amendment to try to deal with this.

People are very concerned about the innocent victims. I strongly invite the noble and learned Lord to deal also with the practical issues referred to by the noble Lord, Lord Anderson of Ipswich. For all the remedies in the world you create, if you can never tell the victim what has happened, how does that person get a remedy? That is an important point.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.

I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.

I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.

The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.

I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.

A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.

Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.

These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.

The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.

On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received a request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.

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[Lord Stewart of Dirleton (Con)]

The remedy lies in the approach to the tribunal and the obligation on the commissioner to notify a person who is wronged of their right.

[Lord Falconer of Thoroton (Lab)]

Can the Minister confirm that the totally innocent victim can go to the Investigatory Powers Tribunal and make a claim for damages for assault and battery?

[Lord Stewart of Dirleton (Con)]

I am happy to confirm that.

[Lord Paddick (LD) [V]]

My Lords, I am grateful to all noble Lords who have spoken in this debate. In speaking to the comments of the noble Lord, Lord Anderson of Ipswich, I do not want to get into an argument over who has more respect for whom, but I have the utmost respect for him and his experience as a former Independent Reviewer of Terrorism Legislation. There is a fundamental disagreement he has surfaced with the noble Baroness, Lady Chakrabarti, and me over what was described in a previous group as the tension in the fact that a CHIS committing a crime is potentially subject to criminal prosecution and being sued for civil damages. I note that the noble Lord does not believe that is right, whereas the noble Baroness and I think it is.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Stewart of Dirleton Excerpts

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

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I have looked carefully at the amendments in this group. Amendment 16 moved by the noble Baroness, Lady Hamwee, and consequential Amendments 18 and 20, all seek to remove the reference to “belief” in relation to a criminal conduct authorisation to make clear that it must be necessary and proportionate. I understand the point that she is making, including on consistency in the Bill and accompanying guidance; I know what she is seeking to do and have sympathy with it. However, I looked carefully also at Amendment 17 from the noble Lord, Lord Anderson of Ipswich, which seeks to insert “reasonably”. I concluded that that is probably a better way to achieve what the noble Baroness seeks.

These are matters of judgment at the end of the day, and we have all been careful in our consideration. However, in this case, I found the amendments of the noble Lord, Lord Anderson, more persuasive and likely to find more favour with the Government, if, as they say they are—and I have no reason to doubt them—they are seeking to reach agreement with the Committee on these very difficult issues and ways in which we can all improve the Bill. For me, reasonable belief would be a belief that an ordinary and prudent person would hold in the circumstances, judging the situation in the light of the law and the information before them. That is the right way forward.

Amendment 19 in the names of my noble friend Lord Rosser, myself and the noble Baroness, Lady Jones of Moulsecoomb, simply seeks to place in the Bill the proposals advised in the code of practice, including determination of proportionality. It is important to provide that certainty in order to allay concerns raised across the Committee. I take on board the concerns of the noble Baroness, Lady Hamwee, on this matter but they are covered in the guidance, and placing those matters in the Bill is the right way to go. I hope that that provides the reassurance noble Lords are looking for. We would be interested to hear from the noble and learned Lord, Lord Stewart, where he thinks he can go on these issues if he cannot accept the amendments in their present form.

In his response, will the noble and learned Lord address the point made by the noble Lord, Lord Thomas of Gresford, on the motivation and experience of those authorising such activity? There has been some suggestion that although it may be very senior officers, in some cases, in the heat of the moment, those involved perhaps would not be so experienced. That is a fair point and we need to address who is authorising this conduct.

Amendments 32 and 33 from the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have been tabled to ensure that the necessity and proportionality tests are not weakened. I understand the points being made, and we deserve a full explanation from the noble and learned Lord, Lord Stewart.

It was good to hear from my old and dear friend, the noble Lord, Lord Mann, who made some very effective points about trade unions, following his work in the trade union movement, to which I can attest. He referred to the nonsense of infiltrating groups that are no threat to the national security of our country but are a bit of a nuisance. There are plenty of those about, but they are not a threat to national security and, frankly, are probably more a threat to themselves than anyone else. They can be a bit of a nuisance around the factory gate or power station gate, but investing time and money on these people is a complete and utter waste of time. Who would authorise activity in relation to those groups? That is worrying. Some senior people have authorised others to waste their time going into those organisations.

On the other side of the coin are the appalling and disgraceful abuses that have taken place. Equally, we need to ensure that that will never happen again. We need reassurance on those matters. The inquiry will have to consider how we deal with them in the future.

My noble friend Lady Chakrabarti asked the important question of where people go to when their rights have been abused. We of course hope that that never happens again, but where would people go if it did? We need to know that people will be protected when they find themselves in a situation that has gone wrong. If there has been proper authorisation but an offence has been carried out, how do people seek redress?

I look forward to the Minister answering those points and others raised in the debate.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one.

New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.

Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to “belief” risks introducing inconsistency and casting doubt as to how other provisions should be interpreted.

It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective “robust” has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment.

Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function.

I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.

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[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Lord for his supplementary question. I apologise for having omitted to answer specifically the detailed point that he made in the course of his submission earlier—something I have been guilty of in the past in my appearances in your Lordships’ House.

Amendments 17 and 72 would insert a requirement for the authorising officer to hold a reasonable belief that conduct is both necessary and proportionate. As the noble Lord has identified, the position is that the amendment cannot be accepted as the Bill has been drafted in line with the requirements of the rest of RIPA, including that for the underlying Section 29 use and conduct authorisation. The noble Lord, Lord Anderson, identifies a conflict between the terms of the code of practice that I quoted, at 3.10, and the terms of the Bill, and, more to the point, I think, identifies a potential conflict in what was said in the other place in debating these subjects. In those circumstances, I would be very happy to engage with the noble Lord and write to him on the matter.

I am being reminded just now that we have already included wording in the updated code of practice to set out that it is expected that the belief should be a reasonable one, and that the Security Minister confirmed this during the debate in the Commons.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I am not sure we want exchanges in this manner. Minister, are you complete or are you continuing?

[Lord Stewart of Dirleton (Con)]

With your leave, I was about to indicate that I think it better in the circumstances—and where there has been an exchange across the floor of the House—if I were to clarify my remarks in writing to the noble Lord

[Lord Kennedy of Southwark (Lab Co-op)]

I want to make just a couple of points. I do not accept the noble and learned Lord’s point that, if you put things in the Bill, you risk leaving things out. It is possible to craft an amendment, to go on the face of the Bill, that covers those eventualities. There is always a concern that, when things are left to guidance and codes, sometimes they do not have the certainty and force of legislation. I think that an amendment can be crafted that covers both: you get the certainty of the main things but leave the door open, accepting that things can change. Both can be done, and that is a better way forward rather than leaving it all to guidance.

The noble and learned Lord also made the point that we should be looking forward and not back. I get the point of looking forward, and I accept it, but, equally, in looking forward, we are informed by what has happened previously. It is important that we take that on board as well. We need to ensure that the Bill is doing the job it needs to do, and that is addressing issues that happened in the past; not just the issues mentioned by the noble Lord, Lord Mann—which were, frankly, ridiculous—but, more importantly, the real issues of wrong-doing, abuse and great hurt that have taken place. We need to ensure that the Bill stops that in the future.

The other point that we will keep coming back to is the whole issue of what will happen if the CHIS has immunity and someone has something wrong done to them. Where do they get redress? That is a fundamental issue: how do they get redress if the person who has done something wrong has immunity? That is a question we need to answer in the next few days.

[Lord Stewart of Dirleton (Con)]

I am obliged to the noble Lord for that final submission. We do, I acknowledge, need to address these matters over the next period of time, as the Bill moves forward. I acknowledge to the noble Lord, and others who have contributed, that mistakes were made in the past around blacklisting and the penetration of bodies that need never have been penetrated, or of bodies that were engaging in legitimate activities. Acceptance of that will inform the manner in which we proceed further.

[Baroness Hamwee (LD) [V]]

My noble friend Lord Paddick has been using his experience of the past—experience is, by definition, the past—to inform and improve the future. That was rather what my noble friend Lord Thomas of Gresford was talking about, with his reference to the range of organisations from which authorisations for criminal conduct may come. He mentioned people entitled to give authorisations who will not have the same experience as those in the police and intelligence services.

I hope noble Lords will forgive me if I do not refer to every contribution that has been made, though I am grateful for all of them. However, I want to pick up the point about considering the position if things go wrong. That is a very large part of our task in this House, in scrutinising legislation, and it will necessarily mean positing hypotheticals. I will certainly want to pick up the points made by the noble Lord, Lord Mann, when we come to consider the term “economic well-being”.

I remain concerned about Section 29B(6). We have the test of necessity; you cannot really strengthen necessity but you could weaken it. If subsection (6) is to have any meaning, then I am worried that it must weaken it.

To go to the heart of all this, the argument from the noble and learned Lord is that we should be consistent with Section 29 of RIPA, which is about the authorisation of covert human intelligence sources. New Section 29B is about criminal conduct authorisations. I would regard that, as other noble Lords have said during the Bill’s passage, as much more serious than what is covered by the current provisions of RIPA in terms of covert intelligence and intrusive investigation as well. Yes, it will be a fast-moving, live environment, but I do not think that that is an excuse not to act reasonably. I really feel that we have to get the Bill right, and that means importing objectivity.

I have still not understood the points made in response to the noble Lord, Lord Anderson, about why we should not have the term on the face of the Bill. I think that the noble and learned Lord said that it would not be appropriate, but I might not have noted that down correctly. He did say that it would not be efficient. I hoped that he might develop that point, but we will have to pursue that after this afternoon’s debate. We are clearly gathering round Amendment 17 in the name of the noble Lord, Lord Anderson, and I think that Amendment 72 is its Scottish equivalent. My noble friend and I are very happy to cede the ground to those amendments; we went a bit far, but I cannot conceive of an answer to the points made by the noble Lord, Lord Anderson. We have not heard one so far, so would be delighted to support him if he pursues the matter at the next stage of the Bill, which we very much hope that he will. It will soon be 5 pm, so I beg leave to withdraw Amendment 16.

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[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.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who have contributed to this debate, even those who did not agree with me. It was lovely and very heart-warming to hear the noble Lord, Lord Naseby, agree with a Lib Dem Peer, the noble Lord, Lord Paddick. I thank the noble Baroness, Lady Chakrabarti, for her support, and the noble Baroness, Lady Hamwee, for her sympathy and exposition of the whole group, which I perhaps should have done myself. I felt that the noble Lord, Lord Rosser, made an extremely good point in asking why there should not be greater detail in the Bill now.

The Minister made a very nice and emollient response, but there is always the problem, not in distrusting the Ministers we have here, in your Lordships’ House—we trust them to have good will and be ethical—but in distrusting the Government, as many of us do. I imagine that possibly a majority in the country distrust the Government at the moment. So I do not feel completely reassured, and will think about bringing this back on Report. In the meantime, I beg leave to withdraw the amendment.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Stewart of Dirleton Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.

So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.

We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.

The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.

As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.

The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.

The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.

I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.

[Lord Davies of Gower (Con) [V]]

My Lords, I am very grateful to those who have contributed to this short debate and am very grateful to the noble and learned Lord, Lord Morris, for the points he made. As he says, it is a narrow but very important issue. I am grateful to the Minister for responding to that. I accept that it is a matter of balance, but I am also very grateful to the noble Lord, Lord Paddick, who speaks with authority on this matter and has great experience of such issues. For the time being, I am content with the Minister’s response. Therefore, I beg leave to withdraw my amendment.

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[Lord Rosser (Lab) [V]]

First, I wish the noble Lord, Lord Hodgson of Astley Abbotts, well in his campaign against skeleton Bills, as that issue is getting worse, not better.

The Bill provides that the Secretary of State may, by order, prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given. As the noble Lord, Lord Hodgson, said, Amendments 57 and 74, in his name, would remove those provisions and, as he confirmed, their purpose is to probe the extent to which the operation of criminal conduct authorisations can be amended by regulation.

Earlier in Committee, the noble and learned Lord, Lord Stewart of Dirleton, stated that the order-making provisions in the Bill

“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.”

He continued:

“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 ... The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they are contained in secondary legislation.”—[Official Report, 1/12/20; col. 676.]


When the noble and learned Lord said that the order-making powers could not be used to remove any of the existing safeguards, did the Government mean that the wording in the Bill would make it contrary to law to do that, or did they mean only that the intention was not to use the order-making powers to remove any of the existing safeguards? That, of course, is a very different thing, as intentions can change.

No doubt in their response the Government will address that point and give specific examples of the purposes or intentions for which these order-making powers to prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given would—and, equally, would not—be used by the Secretary of State.

[Lord Stewart of Dirleton (Con)]

My Lords, these amendments have been tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.

As I set out in response to the amendments to the order-making powers tabled by the noble Lord, Lord Paddick, there are good reasons why these powers have been included. I do not wish to repeat the detail of what was said on group 7 of the amendments, other than to highlight again that the provisions have been drafted to resemble closely the terms of Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for CHIS use and conduct.

To answer the point raised by the noble Baroness, Lady Hamwee, I repeat what I said earlier and provide the Committee with reassurance that these powers could be used only to impose further safeguards and not to remove them. That point was raised also by the noble Lord, Lord Rosser.

My noble friend Lord Hodgson of Astley Abbotts posed the question of whether the Secretary of State can add bodies to, or remove them from, the list of authorising bodies. The addition of bodies can be accomplished only through the affirmative procedure. The changes to the bodies listed will reflect changes over time in investigative functions and the threats that the country faces. The rank of authorising officers is set by secondary legislation and will be dealt with in line with Section 29 authorisations.

The noble Lord, Lord Rosser, posed the question of whether the terms of the provision are such as to make it impossible for the powers to be extended rather than removed, or whether that is merely the intention of the Government. He correctly remarked on the fact that the persons occupying posts will change from time to time. As I see it, the legislation will not simply rely on the intention of the Government but will have force beyond that. I think that I also addressed the matter when answering the point raised by the noble Baroness, Lady Hamwee. She focused on the meaning of the words “conduct” and “requirements”. I am able to confirm that her understanding was correct. Indeed, as a consequence of what I have said, the interpretation of those words restricts, and does not permit addition to, the provisions in the Bill.

[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.

I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.

I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?

[Lord Stewart of Dirleton (Con)]

I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.

The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.

[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.

I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.