Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Gresford Excerpts

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

[Lord Judd (Lab) [V]]

My Lords, I declare an interest as a member of a trade union ever since my undergraduate days in my first job, during a long vacation, as a garden labourer for the LCC. I joined a trade union as a young man and have remained convinced about the unions’ role in society ever since. They are fundamental to the kind of free society in which we want to live, a society with checks and balances and in which the rights of individuals, whoever they are, can be protected. In the struggles of the trade union movement over many years, we can see how those rights have been hard-won by brave and courageous people who stood up for justice and fairness as they understood it.

I said on the last amendment that the dividing line between a free society and a police state is not always absolutely clear. In our society, while the majority of employers are responsible people, with a sense of responsibility towards their workforce and to all who are involved in their industry, we know that too many employers and people in the private sector are ruthless. They are prepared to do anything to further their profit and financial gain. I add in parenthesis that I always see a correlation between lasting industrial and commercial success—and responsible leadership of industry—with the recognition that the role of trade unions has been central to ensuring that success in the future. I always think people who deny these rights and freedoms, and the importance of organised labour, are in one way or another destined to have a sticky end.

In the kind of society in which we are living, it is therefore crucial to take our responsibility towards the protection of trade unionism and the protection of the rights of workers within our society as fundamentally important. We must not drift into a situation in which, by an inappropriate use of police powers, less savoury elements in our commercial system can exploit the situation for their own good. I always saw the blacklist of people who had been involved in what was regarded as unacceptable activity as pernicious. How many employers are on a blacklist from participation in the economy because of totally unjustifiable things that they have done? That is where we come down to the fundamental fairness and justice in our society. For those reasons, I am very glad that my noble friends have moved this amendment, and I express my strong support for what they have said.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I support Amendment 56A in particular. In the earlier debate on the issue of prior judicial authorisation, I made the point that notification of an authorisation of criminal conduct to the IPC, as suggested by the noble Lord, Lord Anderson, and other noble Lords, lacked teeth. In response, the Minister argued that the oversight role of the Investigatory Powers Commissioner has teeth. She said that it includes ensuring that public authorities comply with the law and follow good practice. She added that public authorities must report relevant errors to the IPC office; for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards, saying that the role of the IPC was to make recommendations to public authorities in areas that have fallen short of the required standard. This all may happen after a criminal event has taken place. The so-called safeguards would then bite on nothing.

Alternatively, the Minister relied on a framework in which the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice. Like the noble Lord, Lord King of Bridgwater, I have looked at this, but cannot find any guidance as to the areas in which it is appropriate for all these public authorities to deploy CHISs. It says simply that the deployment must be

“necessary and proportionate to the intelligence dividend that it seeks to achieve”

and

“in compliance with relevant Articles of the European Convention on Human Rights”.

The authoriser himself or herself is charged with considering whether the activity to be investigated is an appropriate use of the legislation, which rather begs the question of what, when and where is appropriate. It is entirely the subjective opinion of that individual authoriser. He may object to the secret cultivation of leeks in Dorset, for all that the noble Baroness, Lady Jones, might know.

Examples of the deployment of covert agents, as outlined by the noble Lords, Lord Hain and Lord Mann, and the noble Baroness, Lady Jones, herself, and in the case of the Lawrence family, are dismissed as errors of the past, and that in the bright future under the provisions of this Bill, they would not happen. I agree entirely with the noble Baroness, Lady Chakrabarti, that we learn from the past, and that in this Bill there is a blurring. This bright future includes a novel element: the authorisation of crime with complete and total immunity against prosecution, or against civil suit. The Bill envisages that covert human intelligence sources will be employed in the future by a wide variety of public authorities in a wide variety of unknown situations and areas. Let us consider the areas referred to in these debates: protests against apartheid in South Africa, protests involving the cooling towers of electricity stations, and protests up trees. As for the Lawrence family, I cannot imagine what public interest was being pursued.

I recall prosecuting a case in which the defendants were charged with sending letter bombs. It emerged in the evidence at the trial that a covert security service officer was happily waving a banner in a protest march through Caernarfon in support of the aims of the bombers, shortly before the trial took place. Waving a flag may not be an offence outside Northern Ireland, but the case involved a serious crime that resulted in a 12-year sentence of imprisonment. As prosecutor, I received a knock on my door at home from the local policeman from Rhosllanerchrugog, warning me about my personal security during the trial, and telling me not to open any large letters. Two days later, I was contacted for the same purpose by the security services, who presumably did not feel the same urgency or concern for my safety as my local bobby.