Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

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

[Lord Carlile of Berriew (CB) [V]]

My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.

The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.

There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.

The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:

“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”


Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.

To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.

It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.

So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.

Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.

I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.

Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.

Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.

[Baroness Hamwee (LD) [V]]

My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.

The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.

In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.

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[The Deputy Speaker (Baroness Henig) (Lab)]

I have received a request to speak after the Minister and to ask a question from the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, with regard to the criminal injuries compensation scheme, the Minister said that the Bill does not “in practice”—I stress those words—interfere with its operation. Can she confirm that it does not interfere with the scheme either in law, as distinct from practice, or as the scheme is currently drawn; in other words, should we regard the term “in practice” as limiting the scope for application to it, which noble Lords have made clear is something that concerns us?

[Baroness Williams of Trafford (Con)]

I noticed that the noble Baroness mentioned that point in her speech. The practical application of this will not interfere with the operation of the scheme. She is shaking her head—I do not think she is very satisfied.

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After all of which, it is no secret to say that I do not support pre-judicial authority and I certainly do not support the Secretary of State being required to authorise every CCA, but I think we can all accept the practical experience of the noble Lord, Lord Anderson, who, we know, has previously worked extensively in this field, and his constructive approach, which has been much respected in our debate in your Lordships’ House today. His amendments for a workable, effective system that still ensures that we can get the benefits of covert sources for law and order in this country and protection against terrorism and other organised crime are well worth supporting.

[Baroness Hamwee (LD) [V]]

My Lords, it speaks well of the House that there is such concern about safeguards to buttress criminal conduct authorisations while, on the whole, accepting their use. Noble Lords identify the need for external validation and the oversight of the activities of different agents—of course, here we are dealing only with criminal conduct authorisations, not the whole of what they do—who are not identical across all the “public authorities”, as they are called, that fall within the Bill. We need to deal with all of them.

In most amendments, noble Lords identify the importance of someone with the authority of high judicial office, who therefore commands confidence, as well as the need to be practical, putting their arguments in the context of operational demands and realities, and paying attention to the timeframe. Of course, there are different proposals. I recall a discussion in a Select Committee a while ago about how, when you are a Minister, having to sign things off brings home to you that you are accountable—you have to answer for your decisions. We have heard from colleagues who have held high political office—of course, I have not had experience of this or judicial office. We support judicial authorisation.

The noble Lord, Lord Carlile, asked who judges the judges—but there is always that question, in the same way that there is always the question of who scrutinises the scrutineers. I have had the impression that the very experience of considering something after the event equips one for considering issues in advance, and commissioners are judges as well.

My noble friend spoke to all the amendments, including our Amendment 43, which is an outlier, not because it is inconsistent with the others—it is not—but because it is about a review of the regime rather than particular grants of CCAs. We do not suggest that the Investigatory Powers Commissioner is not alert to how CHIS may be used, but Amendment 43 would provide for a review of the regime—or the scheme, if you like—in the round, as distinct from tweaking legislation, which is what we are doing now, in response to court proceedings. As my noble friend said, it attempts to square the circle.

In their response to the JCHR, published this morning, the Government said on the issue of review that the current process

“provides for systemic review of all public authorities’ use of the power and allows for continuous improvement”

and so on. I think that “systemic” is probably not a typo, but I wondered whether it meant “systematic”; maybe it means both. I think the noble Baroness, Lady Manningham-Buller, would say it means “systemic”.

On Amendment 17, my noble friend stood back to consider the process as a whole; if he sets the grant of a CCA in the context of the deployment of the CHIS, it applies to agents used by the police and the intelligence services—not in exactly the same situations, of course—and provides for urgency.

We sought in Committee to answer the question of what follows with our own amendment to that of the noble Lord, Lord Anderson. Amendment 34, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, addresses the need for an outcome. His amendment is clear about determination, and I think that the noble Lord, Lord Anderson, said he would accept it. I was interested in the point made by the noble and learned Lord, Lord Thomas, about how the matter might evolve. We do not oppose Amendments 33 and 34, but notification is not approval, as noble Lords have noted, so they are different issues, and the amendment of the noble Lord, Lord Anderson, and our amendment are compatible. My noble friend Lord Thomas of Gresford was very persuasive on the possible fallout if there is no prior notification. The breadth of his speech has spared me, and therefore your Lordships, having to wind up on that, so I am grateful to him.

In Committee, the noble Lord, Lord Carlile, spoke of

“operational practicality together with rigorous scrutiny.”—[Official Report, 24/11/20; col. 210.]

I would summarise amendments on the subject of this debate as indicating that we prize independence, objectivity and respect for the rule of law—the protection of the citizen against the state as well as by it. We particularly support, of course, Amendment 5 and our Amendment 17.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this long but worthwhile debate. First, I pay tribute to the noble Lord, Lord Rooker. I could have just referred noble Lords to his speech then sat down, because he made his points so succinctly and brought out some case examples. My noble friend Lord King talked about the recent NCA operation that managed to yield so much thanks to undercover operatives.

I also echo for a moment the summary by the noble Baroness, Lady Manningham-Buller, and join her in thanking some of the undercover operatives who, as she said, literally risk their lives. I do not know, as I have not met any of them, but she is an expert in this area and, if she says that, I join her in tribute to them. There are no motives ulterior to keeping the public safe. She talked pertinently about oversight combined with the expertise provided for by this Bill and made the point that, when she started, there was no law at all governing the framework of this activity. She also talked about the Independent Reviewers of Terrorism Legislation—the two that were in our House and have contributed so much to this Bill, the noble Lords, Lord Carlile and Lord Anderson—and made the true point that there can be no exact accusation of conflict of interest with them. She talked about the vital role of the IPC—the report he does on a regular basis and the independence of the role. She talked about the double lock and made the point that judges have changed over the years, as the noble Baroness, Lady Kennedy of The Shaws, said, but so have the police and MI5. Noble Lords—the noble Lord, Lord Hain, in particular—will talk about some of the things that happened that under our new legal framework would not be either necessary or proportionate and would be ruled as such.

I shall start with the Investigatory Powers Commissioner: I want to welcome his most recent annual report, which was published during the passage of this Bill. He already plays an important role in providing independent oversight of this activity. But I have always been clear that the Government are willing to listen to the concerns of noble Lords and consider amendments to strengthen the Bill, providing they do not have an adverse effect on the ability of public authorities to do their job and keep us safe.

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Moved by

[Baroness Hamwee]

6: Clause 1, page 2, line 17, after “person” insert “reasonably”
Member’s explanatory statement
This amendment would insert a requirement that belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be

“proportionate to what is sought to be achieved”

and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.

The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.

Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.

I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.

In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,

“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]

Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

The noble and learned Lord told the Committee that new Section 29B was

“drafted to align with the existing Section 29”,

and that the amendment would

“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.]

it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.

The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.

Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be

“relied upon for as short a duration as possible.”

The power should remain “operationally workable”; I think four months fulfils that.

The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.

To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.

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

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

I now call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, I am sorry to hear the news about James Brokenshire, whom I have known for a very long time. If the Minister is able, I hope she will pass on our best wishes to him.

She said that we would cause uncertainty about Section 29 and referred to a rational basis for decisions. That seems to suggest that we would never need to use the word “reasonable”, but it is used both in codes of practice and in statutes. I am grateful to the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas. The House is very lucky to have their expertise, and their clear explanations of the importance of what looks like a small amendment but is actually rather significant, based on how these things are applied by the courts.

The statutory code of practice—I accept that it is statutory—is indeed peppered with the term “reasonable”. It is also peppered with the terms “necessary” and “proportionate”, and of course they will be in the Act when the Bill becomes one. However, to say that something is expected—that it is expected that there should be a reasonable belief—reduces the value of what is in the code of practice.

On Amendment 18, briefly, the four months are extendable; it is late, however, and I do not want to go much further with that. However, I do want to come back to Amendment 6. We have not heard an adequate explanation of the Government’s resistance to this, if I may put it that way. I would like to test the opinion of the House.