Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[The Lord Bishop of Durham [V]]

My Lords, it is humbling to follow the passion and wisdom of the noble Baroness, Lady Chakrabarti, and the wisdom of the noble Lords, Lord Young of Cookham and Lord Cormack, and the noble Baronesses, Lady Massey of Darwen, Lady Kidron and Lady Hamwee. I associate myself strongly with the points they have made.

I speak in favour of Amendments 12 and 14, in the names of the noble Baroness, Lady Massey of Darwen, and the noble Lords, Lord Dubs and Lord Cormack, to which I have been pleased to add my name. I also speak in favour of Amendment 24, whose sponsoring group, made up of the noble Baronesses, Lady Kidron and Lady Hamwee, and the noble Lords, Lord Kennedy of Southwark and Lord Young of Cookham, is wonderfully cross-Bench.

Therefore, it will be clear that my concerns relate to the situation of those who are children in law because they are under 18. My absolute preference lies with Amendment 12, which would make it illegal for anyone under 18 to be used as a CHIS. However, concerned that this will not be agreed, I wish to ensure that full safeguards are in place for those who are children in law. In doing so, I recognise, as we all do, that the number who are so used is very small and are mainly 16 to 17 year-olds.

I apologise to the House that, due to the time taken in Committee, it proved impossible for me to speak on the two amendments to which I had added my name when they were finally taken, and I am very grateful to my right reverend friend the Bishop of Carlisle for speaking for me.

I am here to reiterate the simple, immovable, moral truth that children must be treated as children, as many of my noble friends argued in Committee. It is not a question of ifs, buts or whens. We, as adults, have a moral obligation to protect children and safeguard their care and well-being in all respects: physical, mental, social and spiritual. Knowingly placing a child in harm’s way and encouraging them to remain in harmful situations or with harmful behaviours may be in our interest, but it is not in the child’s best interests. This is exacerbated by the likelihood that the small number of children recruited as CHIS are from a potentially vulnerable background and are already deeply damaged. We should be seeking their healing, not risking damaging them further.

In Committee, my noble friend the Minister said that

“becoming a CHIS can, potentially, offer a way”

for a child

“to extricate themselves from such harm.”

While this sounds like a laudable thing, before being able to extricate the child, are we not potentially exposing them to more harm by encouraging them at times to remain involved in a criminal situation or behaviour? The Minister also argued in Committee that

“appropriate weight is given to a child’s best interests”,

but being a CHIS is surely never in a child’s best interests. The use of child CHIS was justified in Committee through how it can help to remove them and others

“from the cycle of crime”.

However, is the hypocrisy here not evident in first encouraging the child to continue in criminal behaviours and settings? We rightly condemn the use of child soldiers around the globe for the atrocity that it is. Let us not slip into a dangerous grey space where we permit the use of children to fight our battles against criminal gangs and county lines. Let us protect their vulnerabilities.

The various arguments made in Committee conveying how the use of child CHIS has not yet been abused were exactly what we wished to hear; why not ensure that this will always be the case? I note the remarks of the Minister that

“the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process.”—[Official Report, 3/12/20; col. 937.]

It is reassuring to hear that that has been the case to date. However, the purpose of this Bill is to put the future use of CHIS on a clear and consistent statutory footing. It seems to me that placing in this Bill the most comprehensive safeguards possible when it comes to children is wholly in keeping with the Bill’s overall purpose. It is a necessary step for keeping the welfare and well-being of children as a primary consideration.

I welcome the Government’s recognition in their Amendment 26 of the need to have authorisation in the Bill and not simply in a code of practice. I also welcome the need to protect those aged under 16 more fully than 16 and 17 year-olds. However, I remain concerned that the proposals in Amendment 26 do not go far enough—as already argued by the noble Baronesses, Lady Kidron and Lady Hamwee. I want to see the independence of a judicial commissioner in place for the authorisation of those aged under 18 as CHIS, with the parameters laid out in Amendment 14.

Amendment 24 has also been very carefully worked through by a wide range of organisations and people involved in concerns around the protection of the child. Therefore, I continue to support both these amendments. They recognise that our first and most important duty is to protect and support children and vulnerable people. If the mind of the House is tested on these amendments, I shall vote in favour of them. If the House supports them, I hope that the Government will undertake to accept them.

In relation to the proper protection of children, I reiterate my preference for Amendment 12. It would prevent the granting of criminal conduct authorisations to any child in clear and unambiguous terms. This is the clearest and simplest way of guaranteeing the protection of children and resisting the temptation to use them as assets in the fight against crime. I recognise that many in this House may see that as too absolute, thus I am also glad to put my name to Amendment 14, which would at least establish more effective safeguards for those aged under 18 in ensuring prior judicial approval that explicitly considers the potential for both physical and psychological distress.

I also support Amendment 24, which lays out specific and clear additional safeguards to ensure that children can be used only when there is no foreseeable risk of physical or psychological harm—or, I wish it also said, spiritual harm. It also lays out that the circumstances should occur only as a last resort and with the oversight of an appropriate adult. Combined, they amount to much better protections than those in Amendment 26. It is inherently wrong for those aged under 18 to be used as CHIS, hence my support for Amendment 12. If not that, we need the amendments that protect children most effectively. Let us keep the best interests of children at the fore.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Durham. His speech was passionate, as was the speech made by the noble Baroness, Lady Chakrabarti. I have raised this issue here in your Lordships’ House several times over the years; it has never caught fire in this way. I do not understand. The noble Lord, Lord Young, spoke about public incredulity. If I ever mention this issue to members of the public, they are astonished that it was allowed to happen. This issue has caught fire because a Tory Lord—an hereditary Baronet—raised it in a very principled way. Suddenly, people heard it. I would welcome comments on why it was not heard from a Green. Why is this? Do people think I am too radical? Do they think I am making it up? I have no idea. I am sure that some noble Lords might like to comment on that.

In a previous day of debate this week, the noble Lord, Lord Cormack, corrected my use of “police spies” as being too limited because we are debating spying not only for the police but also for the security services and a host of other organisations. I accept that telling off in good grace. I could just use “spies” in the hope that it does not sound too glamorous.

On the appropriate words to use, the phrase “juvenile CHIS” is a fantastic piece of wordsmithing because it so effectively obscures what we are actually talking about. These are child spies. They are children and young people who have got themselves into some sort of trouble. When they are caught by the authorities, instead of being rescued from that dangerous situation, taken into care and helped to rehabilitate themselves and change their lives, they are being returned to harm’s way. They are put into what could be deadly danger. How is this even conceived of by the Government, the security services and the police? How on earth can they not see, as the noble Baroness, Lady Chakrabarti, said, that this is state-sponsored child abuse—a phrase I have used before.

After years of probing the Government on the use of child spies, I am yet to see or hear a single example of how the risk to the child is justified. I have heard stories of children being used, especially for county lines policing, where gangs use children and young people to extend their networks into smaller towns and expand their reach. However, we all should know that closing down any drug ring or network is a very temporary hitch in the supply of and demand for drugs. A rival or reconstituted gang will be up and running in days, if not hours. We have to understand that using children in this way is unacceptable because, in addition to everything else, it does not work.

That moves us on to drug policy, which needs drastically changing. I will look to the noble Lord, Lord Young, to pick that up in future. We can work together on amending drugs law because that urgently needs work.

I also deeply regret that the scope of this Bill is limited to prevent us banning the use of child spies entirely, but at least we can prevent them being permitted and encouraged by the authorities to commit further crimes. Obviously, I support Amendments 12 and 13, which have my name on. I also support Amendment 14. I am slightly iffy on Amendment 19, but I can see its value. If the noble Lord, Lord Young, does not push his amendment to a Division, I will vote for Amendment 24 in the name of the noble Baroness, Lady Kidron, because it is of value and it is better than nothing—but it is not as good as Amendment 12. I wish that the Labour Front Bench supported Amendments 12 and 13.

I was brought up in a Labour-loving household. My parents voted Labour all their lives, and their perception of the Labour Party was that it would always fight the big battles for the little people and that we could trust it to do the right thing. I would rather see a Labour Government than a Conservative Government, but, quite honestly, I feel that Labour has failed us here and I am extremely sad about that.

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For those reasons and the obvious reasons that the state cannot authorise these sorts of grave crimes in any circumstances and comply with common decency, equality before the law and human rights, I urge all Members of your Lordships’ House to support Amendment 15.

[Baroness Jones of Moulsecoomb (GP)]

I congratulate the noble Baroness, Lady Massey, on tabling the amendment. I am deeply sad that it needed to be tabled. It is staggering that the Government could even try to legislate in such broad terms to permit people to commit murder or any sort of outrage without limits and with blanket legal immunity. I would have used the word “inconceivable”, but obviously at some point somebody has conceived that this would be all right. I very much dispute that.

The Government’s response is also that some sort of ethereal legal soup will magically prevent these powers being used for murder, rape or torture. That just is not good enough. This question has to be put beyond any doubt.

The amendment also covers the issue of obstructing or perverting the course of justice. The people who use the powers in the Bill are the very people entrusted by society to uphold the law and fight for justice. The fact that the Bill even puts into any question that they might obstruct or pervert the course of justice is frankly embarrassing.

I mentioned earlier public incredulity, as the noble Lord, Lord Young, put it, from anyone not involved in day-to-day policing, because when they are told of this practice of advanced immunity, they are frankly horrified. When I was buying a coffee today in my local grocers, I explained this part of the Bill to Maxfield, who was making my coffee. He was shocked and said, “It’s a licence for crime.” It is a licence to kill. It is a licence to commit endless perversions of the law. The rule of law demands that we pass the amendment and insist on it at ping-pong.

[Viscount Brookeborough (CB) [V]]

My Lords, I had not intended to intervene—[Inaudible]—discussed in the context of CHIS operating in non-terrorist criminal organisations and rather less of those in terrorist groups. Because the Bill covers both at once, I feel there is a danger—[Inaudible]—extent that it might seriously inhibit the latter, which is the fight against terrorism. I therefore cannot fully support the amendment as a whole, but I would support proposed new subsection (c) on sexual offences on its own if I could do so.

The major difference between non-terrorist crime and terrorism is that the former—[Inaudible]—of death. Terrorism always has death and destruction as its aim. I know little about the former apart from what I have read in the press and heard in the very excellent debates on the Bill. However, I have some knowledge of—[Inaudible]—we remember the serious nature of the criminality that terrorist groups seek to carry out. The intelligence that CHIS gather prevents large numbers of deaths and serious harm to the public.

There have been, I believe, some misconceptions in these debates about the terrorist world. There has been mention of informer—[Inaudible.] All agents are informers, but not all informers are agents. The single-use informer is a person who is short term only and would probably be paid off or given another life after the operation, such as the dismantling of a drug-dealing gang. This is because he will have been exposed by the arrest—[Inaudible]—operator in a large organisation that provides ongoing information that can go on for years or even decades. The noble Lord, Lord Paddick, suggested that a CHIS operating under one of these authorisations is called a participating informer. Perhaps that was so in the areas of his experience, but it was not so in mine, when—[Inaudible]—these types of agents, strategic agents in a terrorist group or short-term criminal informers.

In Committee, the noble and learned Lord, Lord Stewart of Dirleton, said:

“Let us suppose that in becoming a member of a terrorist organisation, a CHIS is required to fill out a membership form … The handlers may therefore assist”—[Official Report, 24/11/20; col. 151.]


in filling the form out. I hesitate to disagree with such an eminent noble and learned Lord, and while I do not doubt that this might be the case for other groups, I am not aware of any terrorist organisation that produces a membership application—although the IRA had a green book that was given to people once they were inducted.

[Inaudible]—in Northern Ireland for 23 years of the Troubles. More recently, I am well aware of the agent-handling protocols from the Troubles era and that they have been adapted and improved for use in Iraq and Afghanistan. For centuries, perhaps for all time, there have been spies and intelligence gatherers at state level, where it is basically strategic intelligence within a pyramid of government structure. This is, if you like, the Le Carré world. Spies rarely have to commit crimes, such as planning and carrying out a bombing—[Inaudible]—in the last 60 years is worldwide terrorism and the need to have long-term deep plants or active terrorists who have been turned.

[Inaudible]—that states have. Terrorist organisations are very flat in structure and every person from the top to the bottom is—[Inaudible]—for want of a better word. They are active terrorists. It is also important to realise that it is very difficult to—[Inaudible.] In 40 years of the Troubles, there were only, I believe—[Inaudible]—figures of such people. We saw what happened when Robert Nairac thought he could become a member of a family. As a result, most CHIS are turned terrorists or at the very least members of the same communities. They will have committed and will almost certainly continue to commit crime—[Inaudible]—a big part of the induction process in the first place. There are no convenient forms to sign, and any reluctance to take part, from initiation onwards, is suicidal.

Imposing these legal limits, as laid down in the amendment, could put CHIS in the terrorist world at substantial risk. After being inducted into a terrorist organisation, every part of that individual’s life from then on contributes, one way or another, to the terrorist aims, death and destruction—criminality of the highest order. Becoming a CHIS cannot change that much. However, the outcomes of their provision of intelligence saved many lives.

I shall give a true example of a small event. An agent turned up at a meeting of his IRA ASU—active service unit—in the county where I live. He was told to deliver a car bomb immediately. He could not refuse. He delivered the car and, luckily, the TPU—the timer power unit—gave him time to call his handler from a call box before the bomb was to blow up, thereby avoiding loss of life. If I may say so, that is not the most extreme case.

Of course it is right that CHIS activity should be regulated and the Bill does just that. There are protections in place such as the Human Rights Act. However, there may be times when participation in serious crime is necessary and at short notice. Any refusal to be involved would result in the loss of an agent, and no further information from that source. It may have taken years for him to become so deeply involved. This is real life in that terrifying world. The running of the protection of such people is vital and complex. There has to be a way in which to manage them. Inserting increasingly tight legal limits on what they can and cannot do is not the way forward, as those limits may be largely unenforceable in those circumstances.

I will not go into examples of the protection. However, there is an analogy which shows the value of sources. The Enigma was a provider of intelligence, albeit a machine, rather than a person. When the code was broken, the first signal referred to an immediate attack on a convoy by U-boats. It struck me that that was a similar situation to those of some agents. Turing’s colleagues said quickly, “We must warn the convoy.” He said, “No. We cannot risk such a valuable source for the future, or that will be the end of it.” That is one of the problems for the CHIS.

Terrorism is—[Inaudible]—operations alone. The use of many long-term, deep-intelligence CHIS creates a cancer within the terrorist organisations that does so much damage to them that, although they do not admit defeat, they begin to realise that they cannot win. That turning point is sought after by Governments worldwide, and very much due to CHIS.

In the months prior to the ceasefire in Northern Ireland, over 90% of planned terrorist operations failed or did not take place, largely as a result of long-term deep CHIS. I and my family were among the beneficiaries of such intelligence. I believe that this and some of the other amendments will inhibit the fight against the worldwide terrorist threat.

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A free press is fundamentally hampered if sources fear exposure by giving information to journalists and, for that reason, hold back. It therefore follows that only in a regime underpinned by that other pillar of democracy, an independent judiciary, should such exceptions to the rule of non-disclosure of sources be permitted, if it is in a wider public interest. That is why the amendment specifies a prior judicial role in granting authorisations for disclosure. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I declare an interest as the mother of a journalist and the friend of journalists, even. It is a pleasure to follow the noble Baroness, Lady Whitaker, who laid out the reasons for the amendment extremely well. I would add that because of journalists’ work in reporting important issues and holding power to account, they are often the target of police and state interference, as we have seen many times. Journalists and their sources need extra protection in the Bill. That must be nothing short of judicial oversight and approval. Again, I express my total exasperation that the issue even has to be debated. It seems so obvious that journalists need this protection. State abuses of power and criminal acts will be committed as a result of the legislation, and we must protect journalists.

[Lord Marlesford (Con) [V]]

My Lords, we must consider carefully the extent to which the legitimate functions of the media in a free society may be compromised by requiring journalists to disclose their sources of information. Good government has maximum transparency, subject to national security. Our amendment seeks to maintain at least the present level of such transparency. I refer the Minister to Chapter 3 of the 2012 report into investigative journalism by the House of Lords Communications Committee, which was then chaired by my noble friend Lord Inglewood. I submit that it justifies our amendment.

I must make a clear distinction between the traditional printed or broadcast media and the large number of widespread, rapidly growing—and now, all too often, highly malignant—vehicles of social media. It is from social media that the new concept of fake news emerged. Social media has been weaponised by several authoritarian Governments operating through channels of dark diplomacy and is a threat to western democracies. It is therefore relevant to the objectives of the Bill and I suggest that the Government and Parliament investigate it carefully.

While unregulated social media is by its nature anarchic, traditional media in the UK is already subject to multiple levels of control and invigilation. First, there are the proprietors, who are in business for profit, influence and sometimes vaguer satisfactions. Noble Lords may remember the famous 1931 speech written for him by Rudyard Kipling, when Stanley Baldwin described the press lords as seeking

“power without responsibility—the prerogative of the harlot throughout the ages”.

Since those days, we have moved on. Today proprietors are under financial pressure, with more competition for advertisers, as well as from the views of their editors and journalists and, not least, their viewers. There is much greater awareness and intolerance of media misbehaviour than there was 90 years ago. Any statutory power to compel journalists to disclose sources should be defined clearly, with the key protection of independent judicial review on both the need and proportionality in each case.

This amendment proposes a process of adjudication. It starts from the assumption of there being a public interest in non-disclosure and then suggests the need for another overriding public interest before requiring disclosure. More guidance on the nature of this overriding public interest should be introduced by law, and I suggest that there are a couple of principles which should or should not be included in that definition. Embarrassment of privacy should not be included, while national security and the need to assist investigation of serious crime should, of course, be included. Embarrassment can range from media intrusion into private lives through the behaviour of politicians or Governments. The law as it has developed since the Leveson inquiry should confine itself to seeking identification and penalties for any illegal methods of intrusion in seeking information. Whistleblowers on bad practices of organisations, whether public or private, must be protected from identification and consequent persecution. Nor should any law seek to enforce the disclosure of journalistic sources that are claimed to have resulted in the embarrassment of privacy of individuals, all too often people whose lives are focused on maintaining their celebrity status while merely seeking to control the timing of their own publicity. Many so-called celebs employ a publicist to keep them in the public eye.

When we consider national security, there must be a strict test. Some secrets must be kept, especially those in the world of intelligence and nuclear weapons. Open societies must be sensitive to this. On leaks from government and leak inquiries, in my view it is for Governments to keep their own secrets. In practice, leaking is part of the process of politics and sometimes part of the machinery of government. It is rare that there is a public interest dimension against a leak that justifies compelling journalists to reveal sources. Indeed, leaking, even on sensitive issues, can sometimes be in the national interest. The leaking by Foreign Office officials to an out-of-office Winston Churchill that revealed Hitler’s preparation for war is an obvious example of a fully desirable leak.

The Conservative Party has long had a policy of a specific commitment to protect the freedom of the press. The Investigatory Powers Act 2016 provided important safeguards for that purpose. I at any rate intend to hold the Government to that obligation and to resist any attempt to make life easier for Whitehall to operate inside a cocoon of comforting but excessive security.