Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.

Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.

In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.

First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.

In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.

How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if

“all or some of the conduct … is likely to take place in Scotland.”

If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.

Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.

[Lord Rosser (Lab) [V]]

I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.

The letter from the Minister of 13 January states that the Scottish Government

“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”

As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?

Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?