Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Jones of Moulsecoomb Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Adonis (Lab)]

My Lords, the Government have clearly moved on most of the contentious issues. We expect nothing less of the Minister, whom we hold in very high regard. The fundamental issue that is outstanding—you could argue that the use of under-18s is fundamental, but at least the Government have moved on that, although as it happens I agree with the noble Lord, Lord Young, and the noble Baroness, Lady Kidron, that under-18s should not be used—which the Government have not moved on and which we wish to press the Minister on is Amendment 2. I have listened to the debates, but I have not participated in them until now. We are at the crucial moment of whether the House will insist on its amendment, so it is reasonable for people to express a view on this crucial point.

The crucial question is the one put by my noble friend Lady Chakrabarti. We are talking about very weighty matters in Amendment 2 as to whether authorisations can be given in respect of murder, rape and torture. I thought the Minister equivocated on this in the example she gave in opening the debate. Can she say categorically when she replies that murder, rape, torture and their authorisation by agents of the state would contravene the European Convention on Human Rights and the Human Rights Act?

If she is saying that, then it is a complete mystery why the Government will not accept Amendment 2. As my noble friend Lady Chakrabarti so rightly said, Amendment 2 cannot be both dangerous and superfluous. If it is indeed superfluous because the authorisation of murder, rape and torture, even in the circumstances the Minister gave where it might somehow protect an agent’s cover, would itself contravene convention rights and the Human Rights Act, then how can we not be prepared to put it in the Bill? The only reason not to do so is to equivocate on whether murder, rape and torture are indeed against the European Convention on Human Rights and the Human Rights Act. This point seems fundamental.

I so rarely disagree with my noble friend Lord West, even on the need for more frigates; I generally agree with him even on the long list he has of further naval equipment that we need. In this case, I thought that he was in danger of simply parroting the lines of those people who clearly support having no legal safeguards at all in this respect. He said, slightly glibly, if I may say so, that we were talking about a checklist that it would be unreasonable for agents of the state to observe. We are talking not about a shopping list, but about specific exceptions for the most heinous crimes, which I do not believe that my noble friend, whom I know and trust greatly, would grant authorisations for.

The noble Lord, Lord Paddick, gave a very powerful speech; he has himself operated and manged agents and is not coming to this as a kind of naive human rights lawyer. But when he gave chapter and verse on other jurisdictions and how they have dealt with precisely the same issue, my noble friend said that Australia and the United States are—I noted down his phrase—“dangerous and irrelevant.” I was then waiting for him to expand on why they were dangerous and irrelevant, but he stopped at that point; he did not tell us why, somehow, the experience of the United States and Australia—not countries that play fast and loose with their own security—was not relevant to us here.

That leads on to the powerful points made by my noble friend Lady Chakrabarti about the role of the House and, if I may say so, the role of my party, the Labour Party. Those of us who engage in public life do so because we think that our parties express our values. My noble friend pointed out that these provisions were in no party’s manifesto. The Salisbury convention, which rightly governs our conduct, states that we should not insist on amendments in respect of a matter that the governing party has put in its manifesto and on which it has therefore had the explicit endorsement of the people. However, this issue is not covered by those arrangements.

Therefore, there is an important question of judgment as to why we are placed here: whether the House of Lords, as a second Chamber, should seek to insist on amendments concerning an issue in respect of which the Salisbury convention is not operating. Normally, we would not, and normally, I do not, because I am very conscious, as we all are in this place, that we are nominated and the other House is elected. But my noble friend made a very powerful point: that fundamental protections for human rights and the constitution are issues in respect of which, if the Government do not have explicit Salisbury convention mandates, we should be prepared to insist on amendments. The Parliament Acts themselves recognise that, because they except from the power of the House of Commons to override this House Bills to extend the life of Parliament. That was specifically put in to provide a constitutional protection, and in our enlarged understanding of the sphere of proper constitutional protections since the Parliament Act 1911, it is reasonable that fundamental human rights should be a part of that.

If this House does not exist to see that murder, rape and torture cannot be committed by agents of the state, then I am at a loss to understand why we are here at all.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not shy about admitting that I am critical of this Government, whose majority in the other place has made them quite shameless. They have, on occasion, asked your Lordships’ House to break the law, and this is another such occasion. Sometimes we are tough and we refuse; I hope that that is what will happen today.

It was superb listening to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Of course, both Greens will be voting for the amendments because this is about the rule of law and human rights. I do not very often agree with the noble Lord, Lord Adonis —probably never, in fact—but on this occasion I agreed with every single word he said, and I wish I had said it first.

On the enhanced protections for children, I understand that the noble Baroness, Lady Kidron, and the noble Lords, Lord Russell and Lord Young of Cookham, feel that something is better than nothing. But quite honestly, this is child abuse. It is child abuse by the Government—using children as spies. I cannot see how any Government who care about the rule of law could put this in legislation. It is obvious that this Government do not care about the rule of law; they protect their own while throwing others to the dogs.

This Bill provides blanket legal protection for undercover police and their informants—who could be criminals—for crimes with pre-authorised immunity. Similarly, the forthcoming overseas operations Bill creates new protections against prosecution for military personnel acting overseas. The Government have fought strongly for these protections against prosecution for the police and the military. They fought against any attempt by your Lordships’ House to reduce or check these protections.

Yet, having granted such broad protections to the police and military, even in cases of fundamental wrongdoing, the Government then refuse what is a comparatively far more limited legal defence for survivors of domestic abuse—usually women. A public inquiry is under way examining the 40-year history of government agents abusing their power while spying on trade unions, green campaigners and those in the black community fighting for justice. Police officers were using sexual relations with women as a deliberate strategy, although we are now told that it was unlawful all the time. We see this Government protecting their own from the law while allowing the abuse of vulnerable people and women. That is what this Government do.

I do not want to pile in on the noble Lord, Lord West, who said that the safety of CHIS should be paramount, but quite honestly, I thought the rule of law and the safety of the realm were meant to be paramount. If you continue to break the law as a Government, you are not increasing the safety of the realm; you are actually making it more dangerous for us all. I very much hope that noble Lords will vote for these amendments today and refuse again to let the Government abuse the law.

[Lord Rosser (Lab) [V]]

I thank the Minister for her opening statement setting out the Government’s position on these motions. I also thank her for the helpful meetings that have taken place throughout the passage of this Bill.

On Motion A on Lords Amendment 1, we welcome the Government’s willingness to address this issue in the code of practice by including in the code the words, “that the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

On Motion B and Lords Amendment 2, we note that the Commons disagreed with the Lords amendment on the basis, as has been said, that it would place sources and the wider public at risk. The Minister repeated that view when she said that the Government would not support the amendment and implored this House to accept the advice of operational experts and do the same. We are disappointed that the Lords amendment has not been accepted. As my colleague, the Member for St Helens North, said in the Commons:

“if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.”—[Official Report, Commons, 27/1/21; col. 431.]

I thank noble Lords who have raised their concerns today.

The Lords amendment was originally carried in this House by a small majority. We have already asked the elected House to think again on this issue, and it has not accepted the view we expressed. There was no indication, when it was debated and voted upon in the Commons, that our amendment had sufficient support to lead to a change in the Government’s position. We do not believe that sending the same amendment back a further time will produce any change in the legislation. For these reasons, we will not support the amendment to Motion B should the House divide, as it appears it will.

Motion C in respect of Lords Amendment 3 relates to the criminal injuries compensation scheme. We welcome the fact that on Report, the Government listened to the views of this House on redress for victims and have brought forward an amendment in lieu making it clear that an individual can access the scheme where appropriate. I pay tribute to the work done on the issue of redress for victims by the Joint Committee on Human Rights during its consideration of the Bill, and, in particular, by my noble friends Lord Dubs and Lady Massey of Darwen.

Motion D on Lords Amendment 4 relates to the authorisation of juveniles and vulnerable adults. I endorse the Minister’s comments on the involvement of noble Lords who have been particularly engaged with this issue—including my noble friend Lord Kennedy of Southwark and Stella Creasy MP—and pay particular tribute to the noble Baronesses, Lady Young of Hornsey and Lady Kidron, who tabled amendments that we supported throughout the Bill. The Minister will have heard the remaining concerns expressed by the noble Baroness, Lady Kidron. On this issue, we have not achieved everything that was asked for but we welcome the government amendments in lieu, which go further than previous government amendments on this issue.