Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness D'Souza Excerpts

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

[Baroness D’Souza (CB) [V]]

Most of what I wanted to say has been said, and eloquently said. I will merely emphasise two points before I metaphorically sit down. The Government justify the absence of limits on the potential criminal activity that the Bill enables by saying that to do so might serve to expose active agents. Furthermore, HMG argue that there is no need to include such limitations in the Bill, as has been the case in similar legislation in Canada and the USA, on the basis that the UK is party to the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, and is therefore bound by the terms of the convention. However, at the same time and in almost the same breath, the Government said, in legal filings, that they do not believe that covert agents should be bound by the terms of the Human Rights Act. Additionally, since the Human Rights Act specifically precludes murder, torture or other degrading behaviour, which surely covers sexual violence, the argument that naming limits might endanger agents rather falls to the ground. Will the Minister clear up these ambiguities?

Secondly, the Bill relies heavily on oversight by the Investigatory Powers Commissioner, the right to lodge any complaint with the tribunal and additional oversight —oh, I fear I have lost my text. Forgive me. What I was going to say is basically that dependence on the Investigatory Powers Commissioner, when there are no fewer than 14 authorising authorities bound to ensure that any criminal activity undertaken must be proportionate, necessary and at the lowest level possible to achieve the aims of the particular operation, is surely too much to ask. One could rely on the ISC, but we all know that too often the ISC has not received full or timely information to fulfil its function, and the tribunal itself will obviously take place after the criminal act has been committed. For that reason, I ask the Minister to clear up what seem to me to be ambiguities.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We are going to make a final attempt to return to the noble Baroness, Lady Whitaker. We hope that, on this occasion, the gremlins have finally been removed from the system.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness D'Souza Excerpts

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

The Committee so far has explored CCAs working within the geographical confines of the United Kingdom. Once one moves to different countries, with different time zones and different patterns of law and custom, the potential problems and challenges to their proper supervision becomes greater, and that is why I have tabled Amendment 45.

[Baroness D'Souza (CB)]

My Lords, Amendment 55 in my name is in this group. The amendment seeks to place on the face of the Bill a clear prohibition on three grave criminal acts, namely murder, torture and sexual violations. It is narrower in its application than other amendments in this group, to avoid any confusion about the scope of these prohibitions. Therefore, references to “too broad” and “too open to interpretation”, such as threats to economic well-being and damage to property, are omitted. An added clause, referring to the discretion of the state not to prosecute the commission of even these major crimes, provides a further lack of restriction in exceptional cases.

Of course, there is no doubt of the need for the Bill to protect informants in their often dangerous but vital work. But the Bill as it stands puts the executive authorities and their agents above the law, a concern widely expressed at Second Reading. No state should authorise serious crime without limits. The Government’s justifications for allowing these grave crimes have still not been fully dealt with—for example, why the Human Rights Act, according to previous statements on the part of the Government, would not apply to informants’ criminal actions, or why listing prohibitions would somehow expose informants to additional danger. These are among the remaining ambiguities in the Bill.

We might learn from the original RIPA legislation, which necessitated later additional amendments to prevent its scope inexorably increasing over the years. The law must be accessible and clear. There is an opportunity here and now to make this Bill fit for purpose by incorporating the three main prohibitions limiting the sanctioning of grave crimes which are themselves contrary to the terms of the ECHR, to which the UK is party. To omit these limits, the Bill damages the integrity of criminal law and suggests that the state may tolerate, or even encourage, the most serious offences in the UK law.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.

First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.

As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.

What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.

It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.

I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.