Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

The relevant section in RIPA is Section 81, which is reproduced, although I apologise to the House, because in Amendment 31, which sets out the tests, I should have had an “or” in between paragraphs (a) and (b) in proposed new subsection (5B). However, they are alternatives. I do not suggest that both have to be satisfied, although I suspect that in practice it is likely they would be. RIPA recognises that intrusive surveillance is a particularly serious form of surveillance, and I do not think it could be denied that criminal conduct is serious. We think this is an appropriate definition which, in the past, has clearly satisfied not only Parliament but the Home Office—I believe an amendment on that was accepted by it—and the Constitution Committee has been concerned about this as well. I hope we will find a way to define the level of crime, whether it is this amendment or not—although we think it is a good way to go about it. I will leave it to my noble friend Lord Paddick to talk about disorder.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.

Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.

If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?

Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.

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

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.

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The noble Baroness talked about the full CHIS function: function, yes, but not the use of powers. As my noble friend Lord Paddick has said, there is a world of difference between deploying a CHIS and granting the right to use criminal conduct with immunity. There is an established statutory purpose, but I refer again to the existing qualification in the Investigatory Powers Act, and that is the threat to national security. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, my name is down to speak on this group of amendments by mistake, but I will take the opportunity to support the noble Baroness, Lady Hamwee, and to point out to the Minister that part of the reason we keep arguing back when she gives us information is that her text rewrites history.

Many of us were there 20 years ago when, to give just one example, we challenged the police about police officers sleeping with—almost exclusively—women to infiltrate campaign groups. I was on the Metropolitan Police Authority for 12 years and challenged successive Met commissioners to say to us that that was not lawful and not something that police officers were encouraged to do. They could not do it because all the police who have leaked and whistleblown about doing that sort of thing have said that they were encouraged to do it. It was implicitly and explicitly seen as one of the perks of the job.

So, if we do not listen, it is not because we do not have a lot of respect for the Minister; it is that we know that what she says is rewriting history. It is not true that police officers were told that it was not lawful to sleep with women on campaigns. I cannot emphasise that enough. I challenged the noble Lords, Lord Stevens, Lord Blair and Lord Hogan-Howe, and Commissioner Stephenson on this very issue and none of them could reply. I hate to attack civil servants but the Minister is getting a rewriting of history from them. That is why we argue back: because we know that it is just not true.

[Baroness Chakrabarti (Lab) [V]]

My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.

This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.

A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as

“like the hole in a doughnut”.

He said that it

“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”

In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.

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[Lord Paddick (LD)]

My Lords, I start by making it absolutely clear that I do not blame the Minister or those who have written her brief. All I am saying to the House is that Members of this House involved in this debate have hands-on experience of these issues. I include the noble Lord, Lord Davies of Gower, and the noble Baroness, Lady Manningham-Buller, in that. I ask the Government to listen very carefully to those with that experience; that is all. I can confirm that the Minister and I are friends.

The amendments in this group seek to prevent the use of criminal conduct authorisations in connection with the activities of trade unions or legitimate political activity, or to compile lists to exclude people from employment because of their involvement with trade unions or their activities. Others seek to ensure that they are not used disproportionately against minorities and to find out how the Government intend to respond to the Undercover Policing Inquiry.

There are difficulties with Amendments 28 and 29. What happens if a trade union, or its members, is involved in criminal or seditious activity, such as, as was suggested earlier, the activities of Arthur Scargill and the National Union of Mineworkers? Who defines what political activity is legitimate? If members of a trade union have been involved in criminal activity, are there not circumstances where they could legitimately be discriminated against by employers?

We have sought to take a more general approach. In an earlier group, I mentioned our Amendment 56A in this group. It might have been better in the group where we discussed prior judicial authorisation, but the amendment did not come to me until midway through that debate. That is why it is in this group. However, it addresses exactly the issues that the noble Baroness just spoke about. Therefore, it is legitimate for it to be in this group.

I believe there is consensus around the House that agents of the state, in particular the police, should not be able to authorise covert human intelligence sources—an informant or agent—to participate in crime, granting everyone involved legal immunity in the process, without more rigorous and independent oversight. Otherwise, the sort of activity that the amendments in this group seek to prevent could take place.

As we have already debated, the problem with the prior judicial authorisation of a criminal conduct authorisation, which has to define very precisely what exactly the CHIS is or is not allowed to do, is that the agent or informant is often being sent into an uncertain, rapidly changing scenario in an uncontrolled environment, often involving chaotic individuals. Straitjacketing the agent into an exact set of actions, stepping outside of which would remove his legal immunity, is not practical, not least if the CCA has to be referred back to a judge, the Investigatory Powers Commissioner or even a Secretary of State before the criminal conduct authorisation can be changed. These are often fast-moving situations, involving complex human interactions that cannot be paused while a decision is made.

It is essential that covert human intelligence sources are not tasked to commit crime in a way that is not legitimate, whether by mistake or corruptly. The draft revised code of practice is not reassuring on this point. For clarity, I will set out what could happen in practice: a handler, who is in in contact with the informant and wants him to participate in crime, makes an application to an authorising officer—in urgent cases, a police inspector or equivalent and, otherwise, a superintendent. Paragraph 5.8 of the draft code of practice says:

“authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible”.

There could be a situation where a drugs squad sergeant investigating a drugs gang gets urgent authority from his own drugs squad inspector to authorise an undercover drugs squad officer to engage in a drug deal in which the sergeant, the undercover officer and, arguably, the authorising officer are all immune from legal action. It is not difficult to see the potential for abuse in such situations. Noble Lords will be able to imagine a similar scenario, where the target of the operation is a legitimate peaceful protest or the proper activities of a trade union.

Amendment 56A in my name and that of my noble friend Lady Hamwee seeks to resolve this conundrum. It seeks to ensure that, if it is intended that an agent or informant is to participate in crime, the

“nature and extent of the deployment have been approved by the Investigatory Powers Commissioner”

in advance, not the precise details of the criminal conduct authorisation. It is pre-approval, if you will: a CCA cannot be granted unless and until the Investigatory Powers Commissioner has agreed to the mission, in general terms, on which the CHIS is about to embark.

The amendment does not require the prior approval of the exact and precise terms of the criminal conduct authorisation. Instead,

“the purpose and extent of the deployment, and … the type of criminal activity”

likely to be involved must be explained, in general terms, to the Investigatory Powers Commissioner, who must approve the use of the agent or informant in the intended way. The Investigatory Powers Commissioner could, for example, approve the deployment of an agent into a terrorist organisation, but would, in all likelihood, refuse the use of a CHIS to spy on the legitimate activities of a trade union.

We suggest that this would provide the reassurance that many noble Lords seek by ensuring that a covert human intelligence source should not participate in crime without prior judicial approval, but without the Investigatory Powers Commissioner becoming involved in trying to understand the personality of the CHIS and those he will interact with, or becoming involved in the exact detail of the criminal conduct authorisation prior to the event. It would give the handler the flexibility he needs, but ensure that the CHIS is deployed only for a legitimate purpose. Such prior approval of deployment would apply only where it is intended that the agent or informant will be authorised to commit crime.

Clearly, there needs to be provision for urgent cases, which the amendment attempts to give, but what constitutes an urgent case also needs to be defined—although there is guidance in the draft code of practice about this. The question of legal immunity needs to be dealt with separately, but I urge the Government to seriously consider this compromise, and I hope that the Minister will undertake to discuss this amendment with me before Report.

As with all activity by the state and its actors, the impact on minorities should be monitored, and we support Amendment 78. However, we feel that it is too early to expect the Government to set out how they will respond to the Undercover Policing Inquiry, as this will depend on its findings.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Paddick, gave a very graceful explanation of his previous intervention. Perhaps I should do the same and at the same time apologise to civil servants. If we accept what the Minister has said —that such actions as sleeping with campaigners to infiltrate those campaigns was illegal then and is illegal now—that still means that four Met commissioners sat in front of the body holding them to account and refused to commit to that. What does that say about our senior officers? We always have to bear this in mind, and I have been involved in this struggle for the past 20 years.

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[Lord Cormack (Con)]

My Lords, I do not dissent from what the noble Baroness, Lady Hamwee, said, but I shall concentrate my remarks on the amendment in my name, to which the noble Lords, Lord Hain and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, have kindly added theirs. Just so that colleagues are precisely aware, my amendment says:

“A criminal conduct authorisation may not authorise … murder, torture or rape, in any circumstances, or … a person under the age of 18 to engage in criminal conduct”.


I tabled this amendment because, during the debate at Second Reading, a number of people expressed very considerable concern about minors, those under the age of 18, being authorised to commit crimes. A number of colleagues including, perhaps most notably, the noble Baroness, Lady Kennedy of The Shaws, talked about Canada and other countries where there is a specific list of crimes that are definitely not in any circumstances able to be authorised. I regard this as a probing amendment, and I intend to return to the subject on Report, if the Government do not give me what I think is a satisfactory response. It is a probing amendment because I think it may be that the approach of the noble Baroness, Lady Hamwee, is the one that the Government prefer. I do not know, but I think these points should and must be addressed.

I make it absolutely plain at the outset that I listened very carefully indeed to what my noble friend Lord King of Bridgwater said in the earlier debate this afternoon. He talked about the important work that these agents perform in the national interest. I do not dissent from that, nor from the very warm words of approval in a notable speech by the noble Baroness, Lady Manningham-Buller, on Second Reading, where she stressed the bravery of agents. However, we are swimming in murky waters here and, as I have said before, it is important that we recognise the implications of this very far-reaching legislation.

I think it is splendid that we have the noble Lord, Lord Paddick—he is briefly away from his seat—bringing his experience of the Met, but I wish that one or two of the former commissioners who sit in your Lordships’ House would give us the benefit of their advice as we move on to Report. We are very privileged in this House to have true experts with enormous collective experience, and it would be good to hear from them on this very important subject.

What I am seeking to do through this amendment is to achieve a balance between the absolute requirements of a civilised society and making that society safe. There are things that one should not do in any circumstances and still claim the rights of a civilised society. Torture, of course, stands out as perhaps the foremost among those, but I think a civilised society also has to be careful about what it allows its young people to do. One of the tragedies of the last 50 years —the time that I have been in Parliament—is that childhood innocence has been, to a large degree, destroyed. The principal culprit in recent years has been social media. That is something, way beyond the scope of the Bill, that the Government have to give further priority to.

If, in dealing with county lines and so on, we are going to authorise young people under the age of 18—indeed, I understand that some of them are under the age of 16—to engage in criminal conduct, that is really not a hallmark of a civilised society. I appreciate the difficulties, and I would like to hear more about them. That is why I said, a moment ago—and I am glad he is back in his place—how much we welcome the presence and participation of the noble Lord, Lord Paddick, and how helpful it would be if some of the former commissioners of the Met who are in your Lordships’ House took part on Report because, clearly, he and they know far more about this than I do. I try to look at this from a civilised perspective, and it troubles me deeply that young people should be authorised to commit crimes, and sometimes very serious crimes indeed.

I hope the Minister, who has been meticulous in seeking to answer the very legitimate points made by colleagues in this debate, will be able to devote some time and attention to this. I would welcome the opportunity of discussing these things with her before Report. We need the Bill; I accept that. Some of those we will be authorising are, indeed, as the noble Baroness, Lady Manningham-Buller, said, among the bravest of the brave, but there are others who have a criminal background themselves and, while I would not necessarily question the validity of their work, I might question the validity of some of their motives.

I think we have to get this, as we are legislating. Up to now, we have not, although we all know it has happened. As this very important, far-reaching Bill is before your Lordships’ House, and as it was not given the scrutiny in another place that we are giving it, I want us to be able to send it back to the other place significantly improved. I hope that, as in so many cases, the Government, recognising the validity of points made in your Lordships’ House, will themselves introduce amendments that we will be able to welcome and endorse, to create a Bill that is truly workable and that achieves that balance I talked of a few moments ago. I hope it goes back to the other place and does not come back to us after that, because I hope the other place will accept the improvements made to it. I commend this, as a probing amendment, to your Lordships’ House.

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Lord, Lord Cormack, whose amendment I have signed. It is a very important amendment about putting limits on what can be authorised, excluding rape, torture and murder. Quite honestly, it is astonishing that this even has to be debated; we really ought to be free of that sort of threat to ordinary people, quite often.

The Government say that amendments such as these are not necessary, because of the complex legal web of proportionality and the Human Rights Act. That argument might carry more weight if the Government were not constantly fighting a culture war against human rights lawyers. However, one does not need to be a human rights lawyer to understand that rape, murder and torture are never justified, so these restrictions have to be in the Bill.

Then there is the Government’s circular argument that we must not ban specific crimes from being authorised, because undercover agents would be tested by the criminals to prove themselves by doing prohibited acts. The circularity of that argument is that if the Human Rights Act already prohibits something, they can already be tested. I would like that cleared up if possible.

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Lord, Lord Judd.

We will go to the noble Baroness, Lady Jones, and if we can reconnect with the noble Lord, Lord Judd, we will bring him in after the noble Lord, Lord Russell. I call the Baroness, Lady Jones.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an issue that I have raised several times in your Lordships’ House: the issue of child spies. We even had a debate on it about 15 or 18 months ago in Grand Committee. Everybody I have ever mentioned it to—either out in the wider world or here in your Lordships’ House—is absolutely horrified at the idea that the police or the security services use children as spies. Other noble Lords have mentioned how damaged these children probably are. The fact is that the police find them when they are committing crimes, so they catch them doing something criminal. Anecdotally, I have heard that the children are given the option of being arrested and taken away, or they can go back into the gang. I have absolutely no way of knowing whether this is true, but it sounds like blackmail to me. So in addition to the police not rescuing these children, the children are sent back into danger.

I said in my Second Reading speech that I would stop this process immediately. Luckily, the noble Lord, Lord Young, was faster in putting the amendment down, because his support is obviously going to carry a lot more weight than mine. It struck me at the time, however, that anyone can be horrified by this. You do not have to be a right-on, woke Greenie. It is horrifying to all of us.

I have put down an amendment about vulnerable people, which I consider children to be as well, and it covers anyone who is a victim of modern slavery. Quite honestly, we have heard from the Government that this whole Bill is all about protecting the country and the people of Britain; but it is not protecting some people. Some people are not getting the protection that the Government are offering to others. If we are not protecting vulnerable people or children, what do we think we are protecting: a way of life that we can be proud of? I really do not think so.

Personally, it is unforgivable seeing these children used as pawns and spies to somehow find out what we think might be useful information about criminal gangs. It is worse than state-sanctioned child abuse: it is state-sponsored child abuse, and the Government should be thoroughly ashamed of trying to put this into legislation. I would like to see the Government more inclined to taking these children out of criminality and actually saving them from the sort of life that they have been leading, rather than pushing them back into greater danger and possibly greater criminality.

I have met police whistleblowers: I think they are astonishing, because they go against their group and their friends; it is incredibly difficult. Two of the whistleblowers I have met suffer from PTSD. The PTSD is not from confessing what they did but from the work they did when they were undercover, because being undercover is highly stressful. The “undercover” I mean is not necessarily to do with drug gangs or terrorist organisations; quite often, when it comes to political groups or campaigns or NGOs, officers are sent in for years. We have heard about relationships lasting seven years, children being fathered and that sort of thing. When you are undercover that long, you do suffer trauma. It is extremely difficult to come out of that and feel normal again, because you have hidden so much of yourself and so much of your life from other people.

One of the whistleblowers I am talking about is absolutely divorced from reality; he finds it extremely difficult to feel any emotion. He told me when his father died, he could not cry, and he still has not been able to cry, some years later, because of the trauma he suffered as an undercover police officer. The other one, who I know quite well, told me he has the opposite problem: he is extremely emotional and cries very easily at all sorts of things because of the trauma he suffered as an undercover police officer. Can anyone please tell me that children are less vulnerable to that sort of trauma than adults? Of course not; children are more susceptible to that sort of trauma. I do not care how many children it is; one is too many. Those children will suffer, possibly for the rest of lives. We as a nation really should not be causing that.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Young of Hornsey.