Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.

Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.

Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.

My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.

These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.

Amendment 22 is designed also to remove from the Bill use of a CCA purportedly

“in the interests of the economic well-being of the United Kingdom”.

This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.

Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted

“in the interests of the economic well-being of the United Kingdom”

should be removed.

At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.

The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:

“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”


The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.

If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.

To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.

Amendment 22, in the name of the noble Lords, Lord Hendy and Lord Hain, has chosen

“crime triable only on indictment,”

which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.

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Moved by

[Baroness Hamwee]

27: Clause 1, page 2, line 30, at end insert “so far as those interests are also relevant to the interests of national security”
Member’s explanatory statement
This would only allow a criminal conduct authorisation to be granted on economic grounds if it is also relevant to the interests of national security.

[Baroness Hamwee (LD) [V]]

My Lords, we have covered a good deal of the ground of Amendment 27 in the previous debate. I will try not to repeat too much of that. The basis for a criminal conduct authorisation under new Section 29B(5)(c) is the economic well-being of the United Kingdom. Amendment 27 seeks to qualify that with the words,

“so far as those interests are also relevant to the interests of national security”.

I said that I was not going to repeat too much of the previous debate, but I have made a note that I want to echo the wise words of the noble Lord, Lord Judd. Of course, today is not the first time that Parliament has been presented with grounds for doing something that it considers unappetising or justifiable only in quite extreme circumstances or where it is concerned that the grounds are too wide. I am not referring only to today, but the range of public authorities that fall into this Bill is wider than we have seen before by quite some margin.

Under the Investigatory Powers Act 2016, which allows for bulk acquisition warrants to be issued for the acquisition of data, if the Secretary of State considers it necessary in the interests of national security, the warrant is authorised. It is also authorised for the purpose of preventing or detecting serious crime or in the interests of the economic well-being of the UK, and then the words in Amendment 27 follow. Those qualifying words were not in the Bill as it was introduced. They were introduced and added after amendments and debate. I cannot now recall why we did not end up simply relying on the original national security grounds to cover economic well-being as well. These were words that the Government accepted; they were also words to be found in the Counter-Terrorism and Border Security Act 2019, to which the noble Lord, Lord Kennedy referred, in the definition of a hostile act that entitles questioning and detention at the border.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful to those noble Lords who have contributed to this debate. My noble friend Lord Beith posed a number of new scenarios and he is right to prompt us to be thoughtful about these issues.

I have to say that I find it difficult to envisage what economic interests there might be which would justify a criminal conduct authorisation that do not fall within national security interests or the prevention or detection of what we think should be limited to serious crime. I do not want to repeat the arguments that I and others made in the previous debate or indeed in this one, but I will say in response to the Minister that she has introduced an element that perhaps we have not dealt with before: the need to anticipate what might happen. I may have got her words wrong, but that is the meaning I took from them. I would point to the word “preventing” crime as set out in subsection (5)(b).

I am sorry that we have not been able to progress this any further, but clearly at this moment I should beg leave to withdraw the amendment.

Amendment 27 withdrawn.

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[Lord Morris of Aberavon (Lab) [V]]

My Lords, I wish to speak briefly to Amendment 28, which I support. I was surprised at the breadth of the debate on Amendment 22 and others, as some of the comments on trade unions might have been more appropriate in this debate. Nevertheless, the noble Lord, Lord Paddick, made some worrying points in that debate in comparing RIPA and seeking justification for the words in this Bill. I suspect that he will want to return to them, given the inadequacy of the reply of the Minister, who gallantly recognised the points he made.

The state is sometimes minded to intervene in fields where it should not. The words in the clause,

“in the interests of the economic well-being of the United Kingdom”,

may need clarification and, indeed, very close scrutiny. In my view—I think I am quoting Shakespeare—they need to be “cabined, cribbed, confined”. The noble Lord, Lord Thomas of Gresford, also made some pertinent points in rightly parading some historical matters. Can the Minister refer to the precedents for words of this kind? I suspect they may have been used before. If so, it should be looked at very carefully as to whether they should be repeated, because as they stand, they are a licence to do anything. The line is a very thin one, from my past experience, between legitimate activity and activity in which the state is sometimes minded to intervene. In the Bill, there is no qualification of these words, but one is mightily needed.

I have no present interests to declare, but I was for many years a member of APEX, subsequently taken over by GMB, and I was in turn a Member of Parliament sponsored by those unions. As a retired member, I no longer have that interest to declare but, as a practising barrister, I had the privilege of giving legal advice to the south Wales miners during the miners’ strike. My junior counsel was Mr Vernon Pugh, later a very eminent Queen’s Counsel. The circumstances of that particular legal advice escape me—indeed it would not be appropriate to comment any further—but it was during that period that I believe the Thatcher Government crossed the line and intervened in lawful industrial activity. The freedom of the trade unions to assemble, protest, negotiate and represent was a battle that had been won over many years. My noble friends Lord Kennedy—in a very forceful speech—and Lord Judd made reference to these points. Nobody in their right senses would want to return to that and not follow the best practice of ensuring that trade unions are able to do their work.

The amendment seeks, with belt and braces, to protect trade unions from authorisation for a criminal activity. The words are a matter of great concern. It would be a sad day if we in any way return to the state interfering with trade unions and their activities and particularly condoning and authorising criminal offences involving the proper and lawful activities of trade unions. Amendment 28 is a clear warning: keep off the pitch. No normal Government would dream of crossing the line.

Regrettably, we have lived through a period when tempers were frayed, unfortunate incidents occurred and the Government did intervene. What we do not know is how infiltration occurred during that period. It is a fundamental point that we should know more. We are not talking of surveillance; that is the vital difference. Surveillance may be proper in some circumstances, but authorising criminal activity involving trade unions is not. To avoid repetition of what has happened in the past, and with those few words, I support the amendment.

[Baroness Hamwee (LD) [V]]

My Lords, if the noble and learned Lord was referring at the beginning of his contribution to the term “economic well-being”, I hope that the references made during the earlier debate will be helpful. I certainly agree with him about the breadth of what is in the Bill and the distinction between surveillance and authorising criminal conduct.

The amendments in this group raise the issue of whether we are concerned about the activity or the actor. My noble friend Lord Paddick questioned Amendment 29 and the term “legitimate political activity”. I had in fact made a note that that quite attracted me, but he and I have not had the opportunity to thrash this out between us. We may get it on the floor of the House if the noble Baroness brings the matter back at a future point.

On Amendment 78, on the equality impact assessment, frankly, the Government would be ill advised to resist this. I am mindful of the need to avoid the identification of agents. The noble Baroness, Lady Manningham-Buller, was very clear about that the other day but, as the amendment is worded, I do not think that there should be such risks—although of course I am not experienced in this area.

In Amendment 56A, my noble friend has stood back to look at the purpose. Again, it is the broader point of addressing the principle rather than producing a list or a detailed prescription. I hope that the Minister will accept that we are keen to address the problems that the Bill throws up without undermining it. I am sorry that, today at any rate, I will not get the chance to speak after she has responded to my noble friend, but I believe that he has come up with a formula that is well worth pursuing.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.

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Moved by

[Baroness Hamwee]

34: Clause 1, page 2, line 36, leave out “(for example, the requirements of the Human Rights Act 1998)”
Member’s explanatory statement
This amendment would provide that conduct in reach of the Human Rights Act could not be authorised.

[Baroness Hamwee (LD) [V]]

My Lords, we have both Amendments 34 and 36 in this group, the latter being the substantive amendment. I apologise that the explanatory statements as published refer to conduct “in reach” of the Human Rights Act; that should have been “in breach”—or, of course, not in breach. I can spell; it is just that my typing is not very good, though I suppose that “in reach” is what we were aiming at.

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With that, I ask the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I will pick up a number of points, if I may. First, the noble Lord, Lord Hodgson, raised important issues, although the whole of this debate is important. I think he will know that I agree with him because I have previously referred to rendition in this context.

Like the noble Lord, Lord Anderson, I cannot believe that crimes in the UK are worse or more intractable than those in other countries that are mentioned—although what do I know? He referred to new subsection (10)(b). I am interested that he reads the word “requirements” as being a prohibition. I find it a difficult word and am quite curious as to why it is not spelled out rather more clearly.

Like the noble Lord, Lord Rosser, I find new subsection (7) curiously expressed, or, if I might put it this way, certainly less than whole-hearted. The Minister says that nothing in it undermines the Human Rights Act, but why is it given as an example of matters

“so far as they are relevant”?

I agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, that it is important to make our legislation accessible and understood by people who do not know the detail of a technicality, but a breach of human rights may be such a nuanced matter that, on this occasion, I have some hesitation about that. The Government refer to training, which I mentioned at the beginning. Although I also put it in a slightly quizzical way, we have been given that assurance.

Perhaps following on from that point, does listing outlawed conduct risk permitting what is not listed? I certainly do not share the view that it would be a checklist, because you could equally well test against the Human Rights Act, or indeed test an individual, without being technical about it, as to how far a suspected CHIS is prepared to go. I think that that really covers most of that issue but others may think that there is more sophistication to the point.

If, as I suspect we might, we gather round the JCHR amendment proposing new subsection (8A), I hope that we might add to it that it does not limit the other provisions of the section. I am looking ahead, of course, to the next stage.

These are not easy issues. On previous Bills, I found myself saying that it is hard to deal with arguments that amount to, “You don’t know what we know about how all this operates”, but I am pretty certain that we will return to this issue at the next stage. As of now, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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[Baroness Chakrabarti (Lab) [V]]

My Lords, it is an absolute privilege to follow the noble Lord, Lord Young of Cookham, to associate myself with every word he spoke just now and to have signed his amendment. Amendment 43 and, to some extent, the others in the group, go to the heart of who we are as a society and, indeed, to the heart of what dangerous, important law enforcement is all about if not, ultimately, to protect children most of all.

It is unconscionable that children should be used as agents per se. Unfortunately, as I have complained before, we cannot do anything about children being used as agents in the Bill, but we can amend it to prevent those children being put in even greater harm’s way by authorising them to commit criminal conduct, which is normally the opposite of the message we send to our children. Indeed, we condemn those who, elsewhere in the world, groom their children for crime or to act as soldiers even in grave situations of war, and such children have often sought refuge in the United Kingdom.

One of my fears in relation to children being used in this way is that many of them are particularly vulnerable children to begin with. Some of them may actually be wards of the state; they may actually be looked-after children who do not have a normal, viable, stable family to protect them. If these children are looked after by the state and then used by the state in this way, that is a double abuse, it seems to me, by all of us as a community.

There must be other ways to ameliorate this problem. There are young people, as I once was, who look far younger than their age well into their early 20s. There must be other, more proportionate ways to do some of the work that needs to be done, exceptionally. It is a very serious human rights violation for any state to put children as young as 15, as the noble Lord, Lord Young has said, into this kind of situation, with long-term consequences for their emotional health and, indeed, for their lives.

[Baroness Hamwee (LD) [V]]

The noble Lord, Lord Young, is very persuasive, and he is right. My noble friends Lord Paddick and Lady Doocey and I have Amendment 52 in this group, and I have also put my name to Amendment 60, because if the outcome of the debates is to restrict but not prohibit the authorisation of under-18s and vulnerable people to commit criminal conduct, then Amendment 60 is the amendment that deals with both groups—I do not really like the term “groups”; they are individuals, but noble Lords will understand what I mean.