Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Fookes Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I understand that the noble Lord, Lord Judd, has withdrawn, so the next speaker will be the noble Lord, Lord Naseby.

[Lord Naseby (Con)]

My Lords, in many ways, subsection (5) of Clause 1 could well be the most important part of the Bill. I should make it clear that I support MI5. Its focus and dedication to working in the national interest is second to none.

Criminal activity has to be limited and defined, but the most difficult area is defining the methodology. Who should give clearance? I am not convinced that a judge, however senior, necessarily has the right experience. In my judgment, we need someone with specific experience in this challenging area. In reviewing this matter, we should look at what other countries do, particularly the USA and Canada, as other noble Lords have mentioned. Both appear to be pretty successful in this area. I am not qualified to make a judgment on that, but I should be interested, too, in what Australia does. Reference has been made to a close friend of mine, the late Desmond de Silva, who carried out marvellous work for the UN in Northern Ireland. In that context, he produced a framework of control, which needs to be looked at because it includes areas that merit serious consideration.

Part of what we are considering is the future security of our country, which brings me to the integrated review of foreign defence, security and development policy announced recently in the other place. I shall quote from the penultimate paragraph, which states:

“I can announce that we have established a National Cyber Force, combining our intelligence agencies and service personnel, which is already operating in cyberspace against terrorism, organised crime and hostile state activity. ”—[Official Report, Commons, 19/11/20; col. 489.]


It is clear to me and, I imagine, your Lordships that life in the 21st century will be quite different from anything we have yet experienced.

Against that background, the control proposed in Amendments 46 and 73 may be the way forward. They need refining and the contributions of my friends, the noble Lords, Lord Butler and Lord Carlile, should be considered. Noble Lords should make no mistake: this is a crucial area for the future security of our country.

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I am grateful to all noble Lords for their contributions.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.

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

My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?

First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?

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[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Lord for his supplementary question. I apologise for having omitted to answer specifically the detailed point that he made in the course of his submission earlier—something I have been guilty of in the past in my appearances in your Lordships’ House.

Amendments 17 and 72 would insert a requirement for the authorising officer to hold a reasonable belief that conduct is both necessary and proportionate. As the noble Lord has identified, the position is that the amendment cannot be accepted as the Bill has been drafted in line with the requirements of the rest of RIPA, including that for the underlying Section 29 use and conduct authorisation. The noble Lord, Lord Anderson, identifies a conflict between the terms of the code of practice that I quoted, at 3.10, and the terms of the Bill, and, more to the point, I think, identifies a potential conflict in what was said in the other place in debating these subjects. In those circumstances, I would be very happy to engage with the noble Lord and write to him on the matter.

I am being reminded just now that we have already included wording in the updated code of practice to set out that it is expected that the belief should be a reasonable one, and that the Security Minister confirmed this during the debate in the Commons.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I am not sure we want exchanges in this manner. Minister, are you complete or are you continuing?

[Lord Stewart of Dirleton (Con)]

With your leave, I was about to indicate that I think it better in the circumstances—and where there has been an exchange across the floor of the House—if I were to clarify my remarks in writing to the noble Lord

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, we need to halt our proceedings before too long so that we can move on to the coronavirus regulations, but the next group of amendments is very small with only a small number of speakers. If noble Lords are willing to keep their contributions as brief as possible, that would assist us in finishing this group before we break for the coronavirus regulations.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

We now come to the group beginning with Amendment 19A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate. I should inform the House that if Amendment 19A is agreed to, I cannot call Amendments 20 and 21 by reason of pre-emption.

Amendment 19A

Moved by

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have written a very long speech, so I hope I will not hold people up for too long.

There are a lot of things in this Bill that I absolutely loathe. In fact, I probably loathe it in its entirety and I wish the Government had never brought it forward. However, my Amendment 19A is about changing the rules for criminal conduct authorisation by statutory instruments. What we have seen again and again with this Government is little power grabs—little bits of erosion of our democracy—through various statutory instruments that they have consistently brought over the past few months. Their majority of 80-plus in the Commons has simply gone to their heads and they feel that they can run the country without your Lordships’ House, which is absolutely ridiculous.

It is a pleasure to introduce the amendments in this group, and I look forward to all the important points that other noble Lords are going to put. The amendment is quite simple—just that the Government should not be able to change the rules without proper parliamentary scrutiny; and let us face it, statutory instruments are not proper scrutiny. We are talking here about the state being able to authorise people, quite possibly criminals, to commit crimes. Even I will accept that that sometimes has legitimate applications, such as taking down terrorist cells or breaking up organised crime. But let us face it, that will not be all that this is about. It creates a set of extreme ethical, moral and legal dilemmas, so much so that it must be Parliament—not the Government, whom I do not trust anyway—that makes the decisions on when and why this is allowed.

I think that proposed new clause 29B(4)(c) in Clause 1(5) is a tacit admission by the Government that there are insufficient safeguards built into the Bill and that they want to backfill that with secondary legislation and a code of practice. That just is not good enough for something of this magnitude. I want a clear confirmation from the Minister that that is not what is intended and that the Government will in some way accept that and make it clear.

When speaking to an earlier group of amendments, the Minister talked about not dwelling on the failures of the past. That is all well and good, but if you do not dwell a little on the failures of the past you are doomed to repeat them. That is exactly what I have been saying all through our consideration. We have seen repetitions of failures and somehow the police, the Government and the security services do not learn fast enough. I am hoping for a very positive response from the Minister, please. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I understand that the noble Baroness, Lady McIntosh, has withdrawn, so I now call the noble Lord, Lord Naseby.

[Lord Naseby (Con)]

I have two short comments. First, Amendment 21 sounds wonderful on the surface, but who will determine who is appropriate, or is it just the Secretary of State? Would it not have happened in any case? Secondly, on Amendment 81, I share the view of the noble Lord, Lord Paddick. There is nothing worse than having a situation where the rules of the game—or the provisions or the instructions—are changed in one area without understanding that it has a knock-on effect in another area. As I understand this amendment, it is basically saying that they must all take place at the same time and not at different times. If that is so then I am totally in support of it.