Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Blower Excerpts

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

[Baroness Blower (Lab) [V]]

My Lords, the Bill before your Lordships today has a great many flaws. A case could be made that the Government should simply look at it again and think again. It has been said that the Bill is merely, but importantly, to put on a statutory footing practice which has hitherto operated in the shadows. Alas, as currently framed, the Bill does not fulfil that function, as the Minister himself said. Rather, it seeks to confer immunity from prosecution for criminal conduct. Other noble Lords have argued this point with distinction, in particular the noble Lord, Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lady Chakrabarti.

I preface my remarks today by stating that I do, of course, wish to live in a well-regulated society. I therefore accept the need for elements of covert activity in some well-defined circumstances. However, I also want to live in a society in which a high priority is placed on concern for people who are vulnerable, possibly due to a range of circumstances, one of which is the simple fact of being a child.

The UK Government signed the UN Convention on the Rights of the Child in April 1990, and it came into force in January 1992. In 2010, the then Government published a report on how legislation underpins the implementation of the UN convention, given that all policy and practice must comply with it.

Children are not the only vulnerable people who may become CHIS, as outlined by the noble Baroness, Lady Bull. However, I propose to confine myself simply to remarks about children. Such children as are recruited will have engaged in risky and quite possibly illegal behaviours, and will therefore be in need of help, support and protection. On this, I agree with the right reverend Prelate the Bishop of Durham. I am aware that the High Court has determined that it may be appropriate to use children where the welfare of the child could be protected, though it is hard for me to see how putting children in harm’s way could be considered to comply with Article 3 of the UNCRC, which provides that

“In all actions concerning children, whether undertaken by public or private … welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”


It is indeed extremely difficult to see how authorities as listed would be able to fulfil the obvious duty of care owed to children if authorities themselves are authorising, or perhaps thereby encouraging, children to commit criminal offences, notwithstanding the reference by the Minister to the safeguards in the uprated guidance. I concur entirely with the briefing from Justice in the view that CCAs for children should be explicitly and expressly excluded. Unless such exclusions are in place, there is the risk of violating both domestic and international law.

CHIS will continue to be necessary in well-defined circumstances. However, this Bill does not put on a statutory footing existing practice, and it does allow for the continuing use of children. The Bill is in serious need of amendment. It should also be the opportunity to put beyond doubt that children should not be used as CHIS, and in this I agree with the noble Baroness, Lady Young.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

My Lords, the noble and learned Lord, Lord Judge, has withdrawn from this debate, so I call the noble Baroness, Lady McIntosh of Pickering.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Blower Excerpts

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

[Lord Hendy (Lab) [V]]

My Lords, it is a particular pleasure for me to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, and support the amendment moved by my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie and Lady Warsi. Without that amendment or another to the same effect, I shall have no alternative but to vote against this Bill. As a matter of conscience, I cannot support a Bill that gives the state the power to grant immunity for future crimes committed by agents on its behalf. This is contrary to the rule of law, as so many noble Lords have said.

The rule of law prescribes that all are bound equally to observe the law, not least the criminal law. Giving the state the power to exempt prospectively its agents from criminal law is the contrary of that principle. The rule of law is an easy phrase; it has a particular poignancy to someone like me, who has 48 years of practice at the Bar. But the fact is that it is a foundation stone of democracy, a point made so eloquently by the noble and learned Lord, Lord Judge, in the debate on the internal market Bill. Without respect for the rule of law, we face the dark prospect of anarchy or, worse, fascism.

Let me make my position clear through a number of propositions. First, I accept that every state necessarily deploys undercover agents to protect itself and the rule of law. Secondly, I accept that in the course of their work, on occasion, it will be found necessary to break the law, including the criminal law. Thirdly, I have no problem with the state, through the Director of Public Prosecutions or the CPS, considering after the event whether a prosecution is warranted by applying, as they do, and should do, the public interest, the objective and the proportionality of the crime committed, the possible defences to a prosecution, to the European Convention on Human Rights and their experience and discretion.

The evil here is the prospective immunity to be granted based only on an assessment of the possible situation. A decision to prosecute or not should be granted only retrospectively when the facts and circumstances of the alleged crime are known. This is the status quo. As far as is known, it has worked satisfactorily for the last 200 years. I have enormous sympathy and support wholly what the noble and learned Lord, Lord Thomas, said a moment ago and reiterate the question that he posed. What evidence justifies changing this system? Of course, we should bear in mind the point made by the noble and learned Lord, Lord Mackay, at Second Reading—if I do him justice—that if the object of conduct that would otherwise be a crime is to prevent a crime, the conduct will not in any event amount to a crime or be susceptible to prosecution. The noble Lord, Lord Thomas of Gresford, made that point a moment ago more eloquently than me.

My noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi, have reminded us that this Bill does not confine CCAs to professional undercover officers of the state, responsible, trained and alive to the requirements of the rule of law. CCAs are proposed by the Bill to be granted to lay persons, often or usually criminals, deficient in civic responsibility and careless of the demands of the rule of law. Many will have only the weakest grasp of the limits of the criminal conduct authorised by their CCA. They should not be given carte blanche; it is right that they should be in fear of retrospective review and the possibility that the CPS might charge them.

I find myself unable to trust prospectively either the officer granting the CCA or the agent to whom it is given. Only a retrospective review, by a professional prosecutor when all the circumstances are known, is tolerable. A particular source of my lack of trust is the evidence presented to the undercover police inquiry chaired by Sir John Mitting, in which I represent a number of trade unions. The conduct of those who directed the undercover officers was not such as to encourage trust. One thousand groups, campaigns and unions were spied on. So far, it is not evident that any useful information was gleaned to prevent crime. As one undercover officer put it, the only useful information revealed by her infiltration of a women’s liberation group was that it was not likely to be violent, cause disorder or commit a crime.

As has been mentioned by the noble Baroness, Lady Jones, what of the systematic abuse of women, over 30 of whom were groomed into having sexual and intimate relationships with men with fake identities—often those of dead children—fake beliefs and fake personalities? This was not a tactic devised by a couple of rotten apples; it was conduct reported to those in charge and clearly authorised by them. Whether or not this was a crime I leave to the criminal lawyers, but it inspires no trust in the issue of CCAs by such senior officers. The inquiry has revealed that undercover police committed crimes. One, for example, is said to have acted as an agent provocateur in planning to firebomb a well-known store.

I have one final point in support of Amendments 3 and 5. Currently, as I understand it, an undercover officer may not be instructed by superiors to commit a crime. If the Bill becomes law, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained a CCA. That will be a disciplinary offence, potentially justifying dismissal. It is a powerful argument against prior authorisation. I do not think that many rank-and-file officers would wish to be put in that position.

[Baroness Blower (Lab) [V]]

My Lords, it is a great pleasure to follow my noble friend Lord Hendy and the noble and learned Lord, Lord Thomas of Cwmgiedd, who spoke before him, and to support the amendments in the names of my noble friend Lady Chakrabarti, the noble Baronesses, Lady Warsi and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. It is a great pleasure to be in the House and listen to such eloquent speeches on a very significant matter.

The Bill before your Lordships is flawed. It is indeed so flawed that, without Amendments 3 and 5 being accepted, it will find it difficult to see how I will ever vote for it. As I said at Second Reading, of course I want to live in a well-regulated society. I therefore recognise, as I am sure all your Lordships do, that covert operations or information from covert human intelligence sources is sometimes necessary and that it may involve criminal activity.

Having accepted that, I also want to live in a society—in a state—that observes the rule of law, with a legal system in which there is one law for all. At the outset of the passage of the Bill, there were attempts to make the case that the Bill would merely, but importantly, put on a statutory footing practice that had been in place over the years. Such attempts are no longer in play, because the Bill plainly does something entirely other: it creates immunity for CHIS. As we have already heard, immunity is serious: it creates a situation in which criminal conduct is no longer a crime and in which acts, elsewhere considered criminal, are lawful for all purposes. I cannot sign up to this proposition.

An argument may be advanced that, without such complete and blanket immunity, CHIS might be deterred from fulfilling the covert function. I cannot accept that as reasonable, in a state that accepts the necessity of the rule of law. Surely the present status quo, in which the authorisation can be advanced in defence, is sufficient. If CHIS are to be granted immunity without let, hindrance or potential consequences, the notion of safeguards is absent. We have to be mindful that many CHIS are from the criminal community. The status quo provides that necessary and proportionate acts can be carried out to prevent further crime. “Necessary and proportionate”, in conjunction with the CHIS being aware of the potential consequences of their actions, should be the safeguard to ensure that conduct is with due caution, rather than abandon. I am grateful to Justice for its briefing on this and other points.

If the Minister for Security in the other place was correct in saying:

“A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed”,—[Official Report, Commons, 15/10/20; col. 611.]


where is the rule of law and the equality before the law, so that there is one law for all? This proposition is excessive when considered in conjunction with the equivalent legislation in Canada, for example, which affords a defence to prosecution, rather than complete immunity.

There is also the matter of victims. If, legally, no crime has been committed, given the CCA, access to redress is removed, whether through criminal or civil proceedings or by recourse to the Criminal Injuries Compensation Authority, as alluded to by my noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi. Victims must have their rights protected, as they are by Article 13 of the ECHR. If domestic legislation fails to provide an effective remedy, the UK will be in violation of Article 13. I do not believe that noble Lords and noble and learned Lords would find that an acceptable proposition.

Prior to having read the Justice briefing, I was unaware of this from the former Supreme Court Judge Lord Bingham:

“the purpose of the criminal law”

is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

This amendment would provide that, although CHIS may engage in criminal conduct to prevent further crime, it cannot be without caveats. Such criminal conduct must comply with an existing authorisation and that will be relevant to any public interest consideration as regards prosecutions. The safeguard is needed to ensure that the rule of law obtains. As the noble Lord, Lord Thomas of Gresford, said, 800 years of principles of law are potentially at stake.

In conclusion, to ensure that it has been heard by the Minister, I repeat the question posed by my noble friend Lady Bryan: can the noble Lord respond on criminal proceedings taken against CHIS in the past, under the current arrangements—the status quo? The amendments can save us from a Bill that would do immense damage to the rule of law in the UK and I am therefore happy to support them.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Blower Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

As at Second Reading, I wish to add the following, final, point. My understanding is that an undercover police officer may not be instructed by superiors to commit a crime. If the Bill becomes law without the amendments of my noble friend Lady Chakrabarti and her co-signatories, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained a CCA. That will be a disciplinary offence potentially justifying dismissal. In my view, that is a powerful argument against prior authorisation; I think that many rank-and-file officers would not wish ever to be put in that position.

[Baroness Blower (Lab) [V]]

My Lords, it is indeed a great pleasure to follow my noble friends Lady Bryan of Partick and Lord Hendy, and to speak on Amendment 1 in the name of my noble friend Lady Chakrabarti, whose painstaking work, particularly on Amendment 1, both within and outwith the Labour Party, has been an education to me. It comes from a place of absolute lifelong commitment to the rule of law, the necessity of equality before the law, and of course very necessary civil liberties.

I am pleased also to join the noble Lord, Lord Paddick—I congratulate him on an excellent speech—and the noble Baronesses, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, whose names have been added to the amendment.

I am grateful too to Justice, the UK section of the International Commission of Jurists, for its expert and clear briefing, from which I quote. It says that the Bill unamended must fail, given the risk of

“serious violations of the European Convention on Human Rights”,

which could set the UK apart from accepted “international human rights norms”—surely not something that we would wish to do.

As I have said in previous speeches on the Bill, I want to live in a well-regulated society, so I recognise that covert operations and information from covert human intelligence sources are necessary. Accepting that, I also want to live in a society and in a state that fully observes the rule of law—a matter much discussed in your Lordships’ House. I want to live in a state in which we are all equal before the law and in which there is one law for all.

Attempts made before the start of the passage of this Bill to claim that its intention and purpose were simply to legislate for the status quo have been shown to be false, as laid out by previous speakers, including my noble friend Lady Chakrabarti. The guidelines in force since 2011 clearly state that an authorisation

“has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.”

Surely that is the very antithesis of what is proposed in the Bill. They go on to state that

“the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity … come under scrutiny by an external body.”

So the creation of immunity introduced by this Government through the Bill is a deliberate policy decision.

Will the Minister say, in precise terms, how many prosecutions there have been to date of CHIS under the existing guidelines? That question was also asked by my noble friend Lady Bryan of Partick. I associate myself with the attempts of the noble Lord, Lord Paddick, to elicit hard information from the Minister.

Covert human intelligence sources are, in the main, far from being highly trained operatives. Of course some—possibly many—will be, but not all. The individuals to whom I refer are often members of the public, many of whom are seasoned and serious criminals, yet the Bill would have it that such individuals may engage in criminal conduct considered lawful for all purposes. If a covert human intelligence source is granted immunity for any conduct without let, hindrance or potential consequence, the risk to society is indeed grave. Crimes and criminal acts deemed not to be crimes or criminal in advance is a bridge too far—“legal for all purposes” is unacceptable. Where in this is the rule of law, and where is equality before the law?

Further, there is the matter of innocent victims. If, legally, no crime has been committed, given the existence of the CCA, access to redress—whether criminal, civil or through the criminal injuries compensation scheme, which was covered in detail by the noble Lord, Lord Anderson—is removed. It is unacceptable that there is no redress. Victims must have their rights protected, as indeed they are by Article 13 of the European Convention on Human Rights. Amendment 1 would remove immunity and thereby restore access to redress. It would provide that if covert human intelligence sources, under authorisation, carried out criminal activity, they would have a defence and justification, as at present. Such a caveat is necessary. Many noble Lords far better versed in the law than me take this view. I am pleased to stand with them on this issue. Let us hold to the rule of law and equality before it.

Given the lack of clarity on immunity evident in the Bill, as outlined by the noble Lord, Lord Paddick, and as laid out in the plethora of amendments tabled, and given the damage limitation to which the noble Lord, Lord Paddick, referred, the secure route out of the lack of clarity and out of this damage limitation is to accept Amendments 1 and 2, which I absolutely support and for which I will vote.

[Lord McCrea of Magherafelt and Cookstown (DUP) [V]]

My Lords, the Bill is intended to provide a legal framework for the state authorising its agents to commit criminal offences where necessary. It mainly puts existing practice on a clear and consistent statutory footing. It will insert new Section 29B into Part II of the Regulation of Investigatory Powers Act, creating a criminal conduct authorisation. CCAs may be granted, where necessary, for a specified purpose:

“in the interests of national security … for the purpose of preventing or detecting crime or of preventing disorder; or … in the interests of the economic well-being of the United Kingdom.”

Authorisation must be proportionate to what is sought to be achieved. Relevant considerations when considering proportionality include where conduct is part of efforts to prevent more serious criminality and where there are no other reasonable or practical means by which the outcome can be achieved. A covert human intelligence source will never be given unlimited authority to commit any and all crimes. The Bill does not prevent prosecutors considering a prosecution for any activity outside the authorised activity.

The use of agents and informers, including the authorisation of some criminal activity, is a legitimate and necessary tool in the fight against terrorism and serious organised crime. This has been accepted by Sir Desmond de Silva and the Investigatory Powers Tribunal. It is worth noting that in December 2019 the tribunal found that the current practice did not breach human rights or grant immunity to those who participate in serious criminal activity. The courts to date have found no breach of human rights in the current practice operated by the Government, MI5 and police forces. Without such tactics throughout the Troubles in Northern Ireland, the terrorist campaign would have been extended and more innocent lives lost.