Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Thomas of Gresford and Baroness Warsi

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

[Baroness Warsi (Con) [V]]

My Lords, I will speak to Amendments 3 and 5, to which I have added my name alongside those of the noble Baronesses, Lady Chakrabarti and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. As I said at Second Reading, no one can reject the importance of covert human intelligence sources or the need to protect them, and no one can doubt the importance of putting existing practices, the status quo, on a statutory footing. Existing practices, as far as they relate to the security services, have been part of security services guidelines for nearly a decade; they have served and continue to serve us well. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position. These amendments seek to do that without making all conduct lawful for all purposes and without granting absolute immunity, ensuring that victims, often innocent bystanders, are not left without any form of redress.

The amendments would preserve the current legal status quo. Those who are authorised to engage in criminal acts would not be rendered immune from either civil or criminal liability. Instead, the current public interest consideration not to prosecute, existing legal defences and any court considerations as to civil liability will remain. At Second Reading, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and other noble Lords reminded the House of a fact that I hope my noble and learned friend the Minister will acknowledge, because it has been repeated in today’s debate; namely, that large numbers of individuals for whom this immunity and lack of appropriate safe- guards in legislation would operate as a carte blanche to commit offences—these covert human intelligence sources, these agents—are not in fact all trained security agency officers or undercover police, as the Bill has presented them. Many are criminals who are still engaged in criminality, because that is what allows them to inhabit the spaces where they can go unnoticed. They include, as was said at Second Reading,

“extremely troubled, volatile and vulnerable people, including children.”—[Official Report, 11/11/20; col. 1071.]

Even professional agents are not and should not be above scrutiny. They should remain, as they are now, incentivised to exercise their necessary criminal conduct responsibly. We are of course still in the midst of a public inquiry that is hearing how even professional covert human intelligence sources have succumbed to the abuse of authority and have even fallen into inciting rather than preventing crime. This Bill in its current format would have far-reaching consequences far beyond professional security services agents and trained undercover police officers. It therefore must not be presented by the Government in narrow terms, even if that is simply to win support for the Bill.

Examples have been given during the passage of the Bill that include criminal damage to premises and the personal property of innocent bystanders by those working, for example, for the Food Standards Agency at the less severe end, through to sexual offences by criminals posing as gang members at the other. Surely we cannot be comfortable about creating a culture of absolute immunity in this space, nor should we easily sweep away the protection currently afforded to victims of crime who currently have access to redress via criminal proceedings brought either through state or private prosecutions and civil action in the civil courts or an application for compensation through the Criminal Injuries Compensation Authority. An absolute immunity would sweep away all these protections, which I believe would leave us in breach of the European convention, which at Second Reading my noble friend said the Government were seeking not to do.

The four people who have put their name to these amendments are very different people, from very different parts of the United Kingdom, and indeed from different communities, different backgrounds and different political parties. This is not a party-political issue but a national interest issue. At any one time we are the custodians of the core values of our country, one of which is that the rule of law is essential. So I encourage my noble friends and colleagues to think again to ensure that the Bill seeks to put the current position on a statutory footing but does not extend ways which the Government have stated in the past are not their intent and would cut across the very British and indeed deeply conservative principle of our commitment to the rule of law.

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

My Lords, it is always a pleasure to follow the noble Baroness, Lady Warsi, and I share her abhorrence of the idea of absolute immunity, to which she spoke so eloquently. Over 800 years, we have evolved a system of dealing with crime in this country where the guilt or innocence of an individual is established by a tribunal of ordinary citizens. In serious crime we rely on a jury, and in lesser, summary offences on a magistracy drawn from the community. The standard of proof is high. So the outstanding feature of the British approach to criminal activity is that the ultimate decision on guilt and on punishment is not in the hands of an agent of a government department. The judge who presides over a trial in a serious case is fiercely independent. The prosecutor, as exemplified by the CPS and the Director of Public Prosecutions, is also independent of government. It is necessary to restate these principles when faced with a Bill such as this, where the proposition is that an agency of the state, whether the security services, the police or a gaggle of government agencies, should authorise criminal activity and can do so without any independent check.

We have to this point had such a check. Authorisation of criminal activity for the purposes of covert intelligence does not of itself relieve the individual of criminal liability. Whether an individual is prosecuted is a matter for the discretion of the CPS and ultimately the Director of Public Prosecutions. There is a further procedure where a covert intelligence gatherer is protected from the results of his criminality. Your Lordships may not be aware of the role of the brown envelope. Very often, when a person is an informer or is otherwise acting on behalf of the security services or the police, it is deemed necessary that he should stand his trial along with the people against whom he has informed, for the obvious reason of protecting his role and his safety. In such circumstances, a brown envelope will be handed to the judge out of court to inform him of the true position of the defendant and his motivation. Sometimes that will result in a reduced penalty and sometimes it results merely in the early release of the individual from whatever sentence of imprisonment is passed on him. To my mind, the system we operate at the moment gives greater protection to the individual and to the public while preserving a proper measure of control.

As for civil liabilities, it is clearly highly undesirable that a victim, whether direct or indirect, of the covert agent should have no remedy. Obviously, where an individual is authorised to engage in certain conduct that causes harm, he does not pay any damages himself; it is the state that stands behind him and pays the price. If this Bill means that no civil liability at all accrues to the covert agent, or to the state behind the covert agent, it is not the agent who will gain anything but the state. We will see when the overseas operations Bill comes before the House that the abolition of civil liability for the individual soldier’s acts benefits not him but the state, which pays the damages.