Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Thomas of Gresford and Lord Cormack

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

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

My Lords, I have previously today made a case against permitting the authorisation of criminal conduct by an organ of the state without any independent check or oversight. The noble Lord, Lord Dubs, in introducing his amendment, referred to the Finucane case and the strong comments made by Desmond de Silva QC in his inquiry, calling for a strong framework of control.

This group of amendments puts forward alternative approaches. I prefer the approach of the noble Lord, Lord Dubs, which is simple and straightforward in operation. An application to a judge who is always available 24 hours a day for prior authorisation is, in my opinion, far preferable to the giving of notice after the authorisation has been made. The noble Lord, Lord Hain, strongly made that point. He pointed to the fact that the police being out of control in many ways lies behind the institution of the Mitting inquiry. He asks: who is the target, and why?

The noble Baroness, Lady Chakrabarti, referred obliquely in the debate on the second group today to concerns that this involves the judge, if he is approached, in the commission of a crime which has not yet happened. I disagree: the role of the judge—or, as the noble Lord, Lord Hain, would have it, the Secretary of State—is not to authorise the crime but to ensure that all the safeguards are in place against abuse of a necessary but dangerous tool in the detection of crime. That is an important part of the framework for which Desmond de Silva called.

After the event notice given to the Investigatory Powers Commissioner is proposed by the formidable array led by the noble Lord, Lord Anderson of Ipswich. The problem with their solution is that, in my view, it has no teeth. I listened to the noble Lord’s exposition. He thought that a decision referring to the authorisation of a CHIS depended on a close consideration of the character of the CHIS in the very difficult circumstances in which he might find himself. He said that it was too unpredictable and that he would not himself find it an easy decision to make. It would be an uncomfortable position. However, his proposal requires confidence that the security services, the police or other authorities will properly give a full explanation of what they have authorised to the IPC. This was an issue raised by my noble friend Lord Macdonald, as quoted by the noble Baroness, Lady Kennedy.

A case in 2019 showed that the intelligence services kept their errors secret. As Megan Goulding of Liberty said after the judgment,

“they’ve been trying to keep their really serious errors secret—secret from the security services watchdog, who’s supposed to know about them, secret from the Home Office, secret from the prime minister and secret from the public.”

The Investigatory Powers Commissioner, Lord Justice Adrian Fulford, a man of great integrity and experience, as I know, said that MI5 had a “historical lack of compliance” with the law. He said that the Security Service would be placed under greater scrutiny by judges when seeking warrants in future. He compared the service to a failing school which needed to be placed in “special measures”.

Amendment 47 in the names of my noble friends Lord Paddick and Lady Hamwee would indeed give teeth in that, if the commissioner is not satisfied with the authorisation, conduct will not be lawful and ultimately the Director of Public Prosecutions would become involved—that is if the model suggested by the noble Lord, Lord Anderson, received the favour of the Government. The reformulation of the Anderson amendment in Amendment 73 again has no teeth.

The refining of the amendment proposed by the noble Lord, Lord Dubs, put forward by the noble Baroness, Lady Kennedy of The Shaws, to appoint experienced judicial commissioners is preferable. Authorisation would require the approval of a judicial commissioner before it took effect. Further it ensures that the judicial commissioner has to be satisfied that there are reasonable grounds for the authorisation and it specifically contains the safeguard that conduct contrary to the European convention is not authorised. Since the Government suggest that the only control on the authorisation should simply be the convention rights granted by the ECHR, so that they are not broken, I cannot see what objection the Government could have to such a proposal. Of course, I believe it preferable to specify in the Bill the particular offences which cannot be authorised, but that is a matter for later argument.

[Lord Cormack (Con)]

My Lords, this is another fascinating debate. A number of your Lordships are seeking to put forward solutions to what I think is a gaping hole in the Bill. I was glad to add my name to the amendment tabled by the noble Lord, Lord Hain. We have had some powerful speeches not only from the noble Lord, Lord Hain, who speaks with truly unique personal experience as well as experience as a very accomplished Secretary of State, which I saw at first hand in Northern Ireland, but we have other suggestions put forward, most notably by the noble Lord, Lord Anderson, and the very powerful quartet of the noble Lords, Lord Anderson, Lord Butler of Brockwell and Lord Carlile, and the noble Baroness, Lady Manningham-Buller, and we heard a powerful speech a moment or two ago from the noble Lord, Lord Thomas of Gresford.

Fundamentally, what it comes down to is this: what we are doing in the Bill is giving authority for people to commit crimes. We all accept the basic necessity when it is a matter of national security. I am not convinced, and I will need a lot of convincing, that we have to give similar powers to the Environment Agency, the Competition and Markets Authority, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. There are others on this list, such as the Serious Fraud Office, the National Crime Agency and the intelligence services, that one would approve, but wherever one is approving, one is giving potentially a vast range of people the authority to authorise crimes and to launch these agents into a world where they can do great damage to individual innocent people. We touched on this earlier when we talked about compensation.

I believe it is absolutely crucial that these permissions are not granted without the authority of a senior judicial figure or a Secretary of State. The argument in favour of a Secretary of State, made very pointedly by the noble Lord, Lord Hain, is that there is a degree of public accountability to Parliament for decisions that, one would hope, have been taken in good faith, but which may go wrong in a bad way. What we need is for my noble friend the Minister, and, doubtless, some of her ministerial colleagues, to sit down with those who have proposed these various amendments and try to come to agreement on an amendment for Report stage that the Government can back.

This Bill as it stands just will not do. It could be called the “carte blanche Bill”; in this field, that is not acceptable. I urge my noble friend when she replies to share some reflection on that idea. The noble Lords, Lord Anderson, Lord Butler of Brockwell, Lord Hain—all these people and others—have experience that they can draw upon and advice that they can proffer. We cannot have this Bill giving so many bodies authority to authorise the commission of crimes. I keep coming back to that, because that is what we are talking about. This has to be handled with firmness, sensitivity and, above all, the knowledge that the last thing we want to become is a state in which the police have virtually unbridled powers.

Police are public servants. We all honour them; we believe we are extremely fortunate in the quality of our police forces even though there have been some terrible recent examples, some of them talked about in this broad context by the noble Baroness, Lady Jones, a little while ago. At the moment—I have half-joked about this in the House recently—we are living in a benign police state where we can be prevented and fined for seeking to sit down with members of our family. It is all very serious, and underlines the seriousness of what this Bill is about.

I beg my noble friend to listen to those who have spoken with great experience and authority, putting forward ideas that are practical and workable; some doubtless better than others, but we must have a system where a person of real seniority, answerable for his or her decisions, can give the authorisation before the crime is committed.

Queen’s Speech

Debate between Lord Thomas of Gresford and Lord Cormack

Monday 14th May 2012 Lords Chamber

[Lord Cormack]

I am most grateful. A couple of weeks ago, the noble Lord, Lord Morgan, asked his noble friend Lord Thomas of Gresford why Lloyd George—the hero of the noble Lord, Lord Ashdown—did not believe in an elected second Chamber. The noble Lord, Lord Thomas, could not answer that question. Can the noble Lord, Lord Ashdown, do so?

[Lord Thomas of Gresford]

I did answer that question. I said that Lloyd George was for the abolition of the House of Lords. “I am a single Chamber man”, he said—and in that he was assisted by Arthur Henderson and Keir Hardie.

House of Lords: Reform

Debate between Lord Thomas of Gresford and Lord Cormack

Tuesday 21st June 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the noble Baroness, Lady Royall, referred to the Liberal Democrats’ murky waters whose depths she could not fathom on the issue of Lords reform. To me, the waters are as a,

“crystal fountain,

Whence the healing stream”,

of democracy,

“doth flow”.

Noble Lords would expect me to quote a Welsh hymn, I am sure, but I am reminded that in January 1907 Mr Lloyd George, speaking at Caernarfon, declaimed:

“I would say this to my fellow-countrymen. If they find our Liberal Government manoeuvring their artillery into position for leading an attack on the Lords, any Welshman who worries them in attending to anything else until that citadel has been stormed ought to be put into the guard-room”.

The phalanx who guard the citadel today in this House are largely former Members of the other place, enthusiastically supported by the survivors of the hereditary Peers and the Cross-Benchers. These former Members of Parliament, across party, have enjoyed and fulfilled distinguished careers, many in the heights of government, and I respect them for that. It is true that in the past they walked across Central Lobby once a year to the House of Lords for the opening of Parliament, but otherwise they never came near the place and are surprised to find how potent it is when they arrive. Their main motivation for retaining appointment as the way to membership is expressed as a fear for the primacy of the Chamber where they made their mark—they have their misty memories to preserve. My noble friend Lord Marks of Henley-on-Thames has no doubt soothed their fears on that score and I will not repeat his compelling arguments. The attitude of former Members of Parliament was encapsulated for me by a comment from a noble friend, an ex-Member of Parliament, obviously with warm memories of his local cinema in his youth. He said to me, “You must realise, Martin, that this place is the second feature”.

However, when did noble Lords ever hear it said of a proposal for a government Bill, “This will never get through the House of Commons”? How often, by contrast, have we heard, “That will never get through the Lords”? While we debate each amendment in a Bill and scrutinise each clause, and while we have been able in opposition or even from these Benches to win changes to legislation and even to defeat the Government, the other place has given up and swathes of legislation are presented to us undebated and undigested. The public perception is that debate in the other place has degenerated into point-scoring with half an eye to personal and party advantage at the next election. It is a potent reason for public disillusion. When in ping-pong we finally defer to the so-called elected House, we are deferring not to the elected Members of the other place at all but to the Government of the day who control it completely. The Whips were, and remain, absolute. Government business must be delivered. The other place is no more than an arm of the Executive.

The noble Lord, Lord Hoyle, referred to these proposals to introduce democracy into this House as a dog’s dinner. I was reminded of the words directed by Mr Lloyd George at the House of Lords, which I suggest should now, after the experience of the past 20 years, be directed to the other place. He said:

“This is the loyal and trusty mastiff which is to watch over our interests, but which runs away at the first snarl of the trade unions … A mastiff? It is”,

Mr Balfour’s,

“poodle. It fetches and carries for him. It barks for him. It bites anybody that he sets it on to. And we are told that this is … the safeguard of liberty in the country. Talk about mockeries and shams. Was there ever such a sham as that?”.—[Official Report, Commons, 26/6/1907; col.1429.]

Today, I might suggest that the mastiff has a tendency to run away at the first snarl of the red top press. That other place, the safeguard of liberty, endorsed, in the grip of the Government, the Iraq War, the control order, the special courts, the indeterminate sentence and all the paraphernalia of an intrusive and watchful state.

When the Members of this House exercise its undoubted powers and influence, they do it in the name of the people, but they do not have the people’s mandate to do so. It is a fundamental principle of democracy—the rule of the demos, the people—that parliamentarians should subject themselves to election. Is “election” an inconvenient word? A former Conservative Home Secretary, leader of his party and a recent Member of this House railed against the judges in January of this year. He said:

“More and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the public for what happens”.

The Conservative Benches are currently pushing through elected mayors and elected police commissioners who are to answer to the public for what happens, but they seem—some of them, at least, in this House—to baulk at the idea of elected legislators.

It is argued, and has been argued today, that we will lose all the expertise on the Cross Benches because Cross-Benchers would never stand for election. I am very wary of that argument. There is, of course, expertise enough on the political Benches in this House. We heard today a very funny speech delivered with enormous panache by the noble Baroness, Lady Boothroyd, but when she reads it tomorrow she may recognise that it actually denigrated politicians—those who tramp the streets, who talk to people on their doorsteps, who prepare and deliver leaflets to try to explain their policies and purposes and who listen and respond to people’s concerns.

[Lord Cormack]

My noble friend should remember that the noble Baroness was elected many times to the House of Commons and that there is no one more familiar or adept at electioneering than her.

[Lord Thomas of Gresford]

Of course. She is a highly popular Member of this House and a highly respected person. Yet it is easy and populist to attack politicians. It is almost as easy as attacking lawyers. If Cross-Benchers want to serve the people, they can knock on doors with the rest of us. As the noble Lord, Lord Cormack, has said, the noble Baroness, Lady Boothroyd, did so with success—far more success than I had in the past.