Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

The very best solution would be to have no Division at all today, but for my noble friend the Minister to hold a round table with all those who have concerns and to try to put down something in her name which reflects those concerns. If that is not done, I reserve my right to move my amendment. I also declare unequivocally that, if she does not do that, I cannot give my vote to government Amendment 26, or withhold my vote from the amendment that seems to be commanding a consensus within your Lordships’ House.

[Baroness Hamwee (LD) [V]]

My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.

Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.

I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.

Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.

On the one hand, we want to support and protect the people described in the amendment

“against significant harm or exploitation”.

On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.

The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.

The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.

I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.

There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.

I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.

The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.

Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.

I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.

I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.

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Moved by

[Baroness Hamwee]

27: Clause 2, page 4, leave out lines 3 to 23 and insert—
“RELEVANT AUTHORITIES FOR THE PURPOSES OF S. 29BPolice forces etcA1 Any police force.B1 The National Crime Agency.C1 The Serious Fraud Office.The intelligence servicesD1 Any of the intelligence services.”Member’s explanatory statement
This amendment would limit the public authorities entitled to grant criminal conduct authorisations.

[Baroness Hamwee (LD)]

We have Amendments 27, 29, 30 and 45 in this group. Amendment 27 is the central amendment. I appreciate that it may not be immediately obvious, but it responds to how the Bill is constructed, so I will try to explain.

The Regulation of Investigatory Powers Act—RIPA—allows for a number of authorities to deploy sources. That number is reduced by this Bill, and we support that. However, at the same time, all authorities that remain on the list are relevant authorities, which are also able to grant criminal conduct authorisations. Our amendment would leave out what is a repeal of the list in RIPA—that repeal follows from the Bill’s new Part A1 of the RIPA schedule—but it puts back the police, the National Crime Agency, the Serious Fraud Office and the intelligence services for the purposes of new Section 29B, which is for new criminal conduct authorisations. In short, amendments 27 and 45 would mean that all the authorities listed in Clause 2 are relevant authorities for the purposes of the sections of RIPA that continue and so can deploy sources, but only the police, the NCA, SFO and intelligence services can grant CCAs. Simply taking out a number of authorities from the Bill does not achieve that, though it took me a while to work out how to get there and we got it wrong in Committee. The Minister was kind enough not to rub that in.

At the last stage, the noble Baroness, Lady Massey, and the noble Lord, Lord Dubs, explained the concerns of the JCHR, and they have tabled their amendment again. Other noble Lords had amendments and spoke to concerns about what the noble Baroness, Lady Chakrabarti, called overreach. The noble Lord, Lord Cormack, proposes leaving off the list the five authorities which have caused the most surprise among a number of noble Lords.

At the last stage and on Monday, I felt several times that those of us who have been putting forward amendments to the Bill, in what I described then as attempts to buttress safeguards to the granting of CCAs, while on the whole accepting their use, were thought to be attacking the use of agents. We were not. We understand the safeguards in the Bill and the draft code of practice—necessity and proportionality, as well as the procedural safeguards. Of course, most of us do not have the direct experience of other noble Lords, and most of us could not do what they do or have done. But I hope they do not regard it as disrespectful of them if I say that one of the attributes of this House is that we blend expertise and experience with, I hope, reasonably informed and intelligent generalism. It would not be good for democracy—I am aware of the irony of an unelected politician making the point—if experience in a particular area were not leavened by other experiences, including life experience.

Questioning the authorities that can grant criminal conduct authorisations is not questioning the use of agents. I understand the argument that it may be better not to split activities and that, if criminal conduct is to be authorised, it is better to authorise an agent already placed in the authority, perhaps even an employee. On Monday my noble friend Lord Paddick made the counterargument that, if the situation is so serious that a CCA is contemplated, it should be a matter for the police. It is a judgment between the two positions. I regard the granting of a CCA—permission to commit a crime for the greater good—as so serious that it should be more limited than the deployment of an agent. I do not dispute that some of what the authorities in contention, if I may put it that way, deal with is extremely serious; but I started to wonder why we would take out of the list of those who can deploy a CHIS the Gangmasters and Labour Abuse Authority and the Marine Management Organisation while retaining, for instance, the Environment Agency.

Our other amendments, which would be pre-empted if Amendment 27 is agreed, are to limit the authority of the Armed Forces to the police of the three services— the reference to the intelligence services is unaffected—as we assume, or hope, that it is not intended that every part of the Armed Forces should be entitled to give agents the authority to commit crime. In the case of the Home Office, we would limit the Home Secretary’s right, in effect, to authorising herself to prevent or detect modern slavery and trafficking, picking up on the Minister’s explanation of the inclusion of the Home Office being specifically related to immigration enforcement—she gave an example. I beg to move.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Hamwee, for her explanation of this set of amendments. I shall be brief in presenting Amendment 28. I am a member of the Joint Committee on Human Rights, which considered the Bill and the issue of granting authorisations. This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.

The recent Joint Committee on Human Rights report considers the wide range of public bodies in the Bill unnecessary and unproductive. Criminal conduct authorisations, from a human rights perspective, must first consider whether the exceptional power to authorise crimes to be committed without redress is truly necessary for all these public authorities.

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We must not create unintended consequences by reducing these public authorities’ tools for keeping the public safe. I hope that the noble Baroness will withdraw the amendment.

[Baroness Hamwee (LD) [V]]

I repeat what I said at the start of this debate: that the reduction in the list is not about reducing the number of authorities which can engage covert human intelligence sources. It is about which of those authorities can grant criminal conduct authorisations—as the noble Lord, Lord Cormack, put it, fighting crime by allowing the commission of crime.

I acknowledge the reduction in the number of authorities that can engage human sources. I had hoped that I had explained that at the start of the debate, when I sought to explain the structure of Amendment 27. I do not dispute that a lot of what all the authorities in question deal with is very serious, including organised crime in some instances, but I have to say that I end this debate far more disturbed and distressed than I was half or three-quarters of an hour ago. We seem to be sliding into an acceptance of the position that, if there can be a CHIS, subject to the safeguards in particular cases that we have spent quite a lot of time on, there can be a criminal authorisation.

Should every public body have what has been described as a tool? It is a tool, but it should be a tool employed and allowed in only the narrowest, most specific and most extreme of circumstances, which is what the agencies that remain on the list of those able to grant criminal conduct authorisations deal with. They deal with extreme circumstances, and that includes the police. If every public body or public authority on this list has a tool, how should we regard the police? How should we think about society’s attitude to using crime to fight crime? I should have thought, for instance, that it should be for the police to deal with the theft of vaccine. I had hoped that I had distinguished very clearly between the two different situations.

I was puzzled by the noble Baroness, Lady McIntosh, saying that she understood that no case studies could be provided for some of the authorities because the provisions were not yet applied. I had thought that the whole Bill was about putting on a statutory basis what had been going on without that statutory basis. However, having said that—quite emotionally, I accept, because I do feel that this is emotional as well as something to which we should apply rigour and judgment, and I had hoped that that was what we were doing—I think it is about how we regard how we run our society, the place of the police in it and the trust that we have in public authorities. However, we have heard Labour say that it cannot support this amendment, so I shall not take the time of the House on a Division and I beg leave to withdraw.

Amendment 27 withdrawn.