Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, I join others in welcoming the noble and learned Lord, Lord Stewart, and I say to him that every follower of Lancashire knows the joys of the damp cricket match. I also welcome the noble Lords, Lord McLoughlin and Lord Walney, who bring valuable—if very different—experience to this House.

The Bill is short but raises big issues. Some of them are not new, and we will use the opportunity of the next stage to address whether we are in danger of consolidating provisions that should be reviewed. Some of the issues are new, and my noble friend Lord Paddick has carefully and thoughtfully unpacked the status quo. It has been quite some years since the de Silva review, itself many years after Pat Finucane’s death. Since the announcement of the judge-led inquiry, the Bill is concurrent with the hearings of evidence of that inquiry. I do not need to stress our concern for the rule of law, as the noble Baroness, Lady Chakrabarti, has put it so clearly, and seeking to outflank a forthcoming judgment is, in my view, at best unseemly.

A statutory framework is welcome, but we already have a framework—more than a framework—in prosecutorial independence and the discretion applied. The public interest test serves us well, as noble Lords have said. The Minister said that “lawful for all purposes” is deliberate, and the House will note the authority with which the noble and learned Lord, Lord Thomas of Cwmgiedd, speaks.

I assume that the test will be used in the case of the handlers of CHIS and their controllers. Or does the immunity extend to inciting crime or being an accessory? Presumably, one cannot authorise oneself.

Perhaps, this is the point at which to ask about territoriality. The Armed Forces are mentioned. Inevitably, I started to think about how one would police, and indeed define, criminal conduct overseas. I thought about rendition, but I assume that this legislation does not, and cannot, authorise criminal conduct outside the UK.

Oversight and independent scrutiny are needed, and investigation and accountability before and after—everything that adds up to transparency to the greatest possible extent. I am tempted to say, “so far as is proportionate and necessary,” but like the noble and learned Lord, Lord Garnier, we regard the greatest possible transparency as necessary. These will clearly feature at later stages, and the noble Lord, Lord Rosser, has promised us amendments on this. I dare say he will not be alone. This is all part of the nub mentioned by the noble Lord, Lord Anderson, and I look forward to the amendments he will present to the House.

We must not lose sight of reviews and renewals of authorisations—I am not sure I have heard anyone mention them—or the governance, if you like, of the process. My noble friend Lord Beith made the point about the moral dimension.

Of course, we will consider who are the relevant authorities. My noble friends and I have often made the point about police officers having immigration enforcement added to their role. Today, I say we regard it as the police’s role to enforce the law, whether it is about gambling, food standards or whatever. My noble friend Lord Thomas was clear about that and much else. We are particularly interested in how it is envisaged that a government department should act as a relevant authority. Who within the Home Office will give authorisations? What position does this put the Home Secretary in?

The what as well as the who will certainly feature. On the issue of not providing criminal with a checklist against which a suspected CHIS can be tested, I today ask the Minister: what is envisaged by enabling the Home Secretary, by order, to prohibit the authorisation of, and impose requirements in connection with, conduct? That order will be a public document publicly debated, so its contents will be public. In any event, surely the European Convention on Human Rights and the Human Rights Act provide a checklist. Like the noble Lord, Lord Janvrin, I am troubled by some of the Government’s comments.

It would be helpful if the Minister could explain the Government’s view of the application of the Human Rights Act, as the noble Baroness, Lady Kennedy, has asked. Are CHIS agents of the state, or are they independent of the state? Like the noble Baroness, Lady D’Souza, I find it difficult to reconcile some of the Government’s statements.

As the JCHR points out, authorising criminal conduct has clear potential for engaging human rights, so the Bill must contain effective protections against their violations, including stringent safeguards against unnecessary or abusive authorisations. I look forward to hearing further ideas from the noble and learned Lord, Lord Hope, who rightly raised the issue of torture.

Many noble Lords, including from our Benches my noble friend Lady Doocey, have spoken forcefully of the use or, as the right reverend Prelate said, the abuse, of children—because juveniles are children—and vulnerable adults as CHIS. What does it say about us, as a society, that we contemplate exploiting children—often, as the noble Baroness, Lady Bull, says, disadvantaged children—in this way?

In a debate a few years ago, I recounted an example of the abuse of a child, and I have periodically been asked for more details. Let me say now that I have no more details, so could journalists please stop asking me. Whether that is out of abhorrence or concern or through some enjoyment of sensationalism, I do not know, but I have been asking myself whether recruiting and directing a child as a covert intelligence source is not itself a type of grooming, with all its predictable outcomes for mental health, development and life choices. I think that the same thought has occurred to the noble Baroness, Lady Young. She and the noble Lord, Lord Russell, made very powerful points, and I look forward to working with all noble Lords who share these concerns.

How can acting as a spy, let alone undertaking criminal conduct, ever be in a child’s best interests? I appreciate that the code deals with appropriate adults in some cases, but can a child give informed consent to these activities? Every child is by definition vulnerable, and a child who is in a position to be used and targeted in this way is by definition very vulnerable. We have progressed in our thinking and views on other vulnerabilities, and we will be discussing the issue of mental capacity and the position of, among others, the victims of trafficking, modern slavery and exploitation whom we should primarily protect.

We recognise—as I think the noble Lord, Lord Haskel, pointed out—that in many contexts, perpetrators are victims too. There are also victims who are not perpetrators. The Joint Committee on Human Rights, among the many issues it has raised, has reported its concerns about conduct being “lawful for all purposes” and victims being deprived of civil remedies. In its report, it referred to the Minister for Security, who said that any authorisation found to have been made in breach of Section 6 of the Human Rights Act, which requires public authorities to act compatibly with convention rights,

“would be invalid and the conduct of the CHIS would not be rendered lawful.”

However, the report goes on to say,

“it is not plain on the face of the Bill that this would be the consequence of an authorisation that was inconsistent with human rights. Nor is it clear what would be the consequence of a CHIS carrying out a validly authorised offence in an excessive or disproportionate manner.”

We are grateful to the Minister for circulating the revised code of practice, but—and she will know that this is not a reflection on her personally—how far should we rely on a code? It is not legislation. We have had 54 speakers today and a thoughtful debate on the Bill’s seven pages and two schedules and considerable back- ground. I do not expect subsequent stages to be brief.