Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kennedy of Shaws Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

I join others in welcoming the noble Lord, Lord McLoughlin, and the noble and learned Lord, Lord Stewart, to this House and commend them on their maiden speeches. I want to say particularly to the noble and learned Lord, who like me is a Scot but also a criminal lawyer, that I hope he will bring his experience of human rights and civil liberties to bear on his work in this House, because we confront that regularly as criminal lawyers and know the importance of those aspects of our work.

I accept that the practice of our intelligence services and police in covert intelligence gathering has to be placed on a clear and consistent statutory footing. Covert agents may need to commit crimes in the course of what they do—I know that from my own work—but I want to reinforce what was said by my noble friend Lord Hain: the agencies involved should stop this business of spying on legitimate protest and lawful political activity, the stuff of which is so vital to a vibrant democracy. It is not the right use of our policing or of our security services.

As I said, agents may need to commit crime, but it cannot be acceptable or right to authorise the gravest of crimes—murder, torture, sexual transgression. Our security partners in the United States and Canada already place limits on the nature of the crimes that agents can commit. Canada recently passed legislation in this area which is worth looking at because it prohibits those serious offences quite clearly. It looked at what had been happening recently here in Britain with the “spy cops” case, which has been referred to a number of times. Women were lured into relationships in order to provide cover for agents joining political movements. Those women were involved in serious relationships over years and then felt abandoned, abused and ill-used because they loved the men who lived with them; one had fathered a woman’s child. This conduct has long-term, damaging effects on people and should be absolutely impermissible. The FBI in the United States learned from bitter experience that being involved in serious criminality had a cost, and it too has introduced clear guidelines.

The Government argue that there is no need for the Bill to include explicit limits on crimes, set out in any sort of list, because the Human Rights Act is a sufficient safeguard. This argument is a bit rich when Her Majesty’s Government have separately stated, in legal court arguments, and to Parliament, that they do not accept that the Human Rights Act applies to abuses committed by their agents.

The Government should not authorise grave crime. Without limits, the Bill may damage the integrity of the criminal law and suggest to the public that the state may tolerate or encourage such abuse. I am afraid that I see this as another display of the Government’s rather casual and light-touch commitment to the rule of law. We should be setting the gold standard for oversight and accountability and I hope that we do. There have to be clear limits on the permissible crimes, a right to redress for those who are abused or harmed in the course of crimes, and real-time oversight by a judicial commissioner or judge. This is serious, it matters, and I hope that the Government will listen.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.

There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.

The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.

I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:

“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”


He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:

“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”


The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,

“extremely limited in its oversight mechanisms”

and summarised its safeguards as “woefully inadequate”.

We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.

The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.

Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.

It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.

Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.

We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.

For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.

The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:

“The use of CHIS requires deep expertise and close consideration of the personal qualities”


of that particular undercover operation,

“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]

I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.

Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other”


judicial “authority”.

The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The quote concludes that

“it is in principle desirable to entrust supervisory control to a judge”.

Such scrutiny could be highly compelling for the potential use of CCAs.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kennedy of Shaws Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I echo the grave concerns of many Peers. I also endorse what has been said about the good faith of my noble friend Lady Chakrabarti and her commitment to civil liberties. That has been the imprimatur—the standard she has been the bearer of in her professional life.

We should recognise the importance of discussing the rule of law and how we have to be the guardians of it even when we recognise the need for the state to make use of agents. I hope the House will note the serious risks of introducing law that grants immunity to informants, agents and spies. My great regret is that the Bill lumps together the needs of different kinds of agency. The requirements of, for example, the security services are distinctly different from some of the other agencies they have been lumped together with in the Bill. Perhaps our attitudes to those different needs should be distinctly different too.

Let me assure noble Lords that from my work in the courts over the years involving national security, I accept the vital need for the police and security services to use covert operatives in their investigations, particularly into serious crime. I accept that there are times when, to maintain their cover, agents or informants have to be involved in criminal activity. The status quo, which I would like to see preserved, has security service guidelines that provide an appropriate balance between the necessity of certain law enforcement operations and the public’s legitimate expectation that informants and agents be deterred from acting with abandon and—if they go beyond what has been agreed and commit criminal offences—to be held accountable for their actions.

My noble friend Lady Chakrabarti mentioned that a level of uncertainty is quite curative; it is important for someone to be made to think, and not to feel they have the impunity of immunity. These issues are of serious importance to us, because they are about maintaining the moral equilibrium of ensuring that the law applies equally to all. That is what the rule of law is about. Let me make it clear to noble Lords: this is not some mild thing. The Bill will change the legal landscape that says we are all accountable to the law and nobody is above it. Having immunity for certain people means there is a greater sense of the weight of what people are involved in.

I have seen, in all my years of practising in the courts, that there are times when these matters go before the prosecuting authorities and no prosecution of informants or agents is forthcoming because it is not in the public interest to proceed. That is the better way of dealing with this. It is the better way of maintaining that commitment to the social contract we made that we are all answerable to law, save in exceptional circumstances, when their controllers—those who run agents in the field or deal with informants—step forward to give reasons why a person should not be prosecuted, explaining the circumstances in which crimes were committed. It is the granting of immunity that changes, in a fundamental way, relationships and the rule of law. That is why I am concerned and will support the amendment of my noble friend Lady Chakrabarti.

I am president of the JUSTICE Council—its advisory council—and it is not an organisation that goes into these things lightly. Huge care and consideration are given to the positions JUSTICE takes on matters of law and legislation going through these Houses. JUSTICE recommends that this House should be very cautious before throwing away the perfectly reasonable guidelines and provisions that currently exist and giving operatives certainty of never being prosecuted for what they do, when they may say, “I demand to be told that I will never be prosecuted for what I am doing”.

I am very concerned about this Bill. I will be supporting my noble friend Lady Chakrabarti. I regret that I cannot take the position of my party in abstaining—this is too important to me. I am a lawyer and have spent my life in the law. I head an institute of human rights; I created, at Oxford, an institute of human rights; I believe in the rule of law. We are a nation that stands for the rule of law in the world and, by God, having watched what happened in the United States recently, the need for a nation to stand for the rule of law is vital.

I regret that we are going down this road. I do not believe that this legislation is necessary in the way others seem to think it is; we could have refined this in a better way. I will be voting with my noble friend Lady Chakrabarti, and I will be adding additional amendments later if these do not succeed, as I suspect is likely.

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is a privilege, if not somewhat intimidating, to follow my noble friend Lady Kennedy of The Shaws. But it does give me the confidence to believe that some of the points I am making are probably accurate and worthy of consideration.

We have been told that the purpose of the Bill is to bring the operation of CHIS out of the shadows and put existing practice on a clear and consistent statutory footing. This Bill, however, goes much further than existing practice by allowing prior immunity. The current regulation on “Immunity from Prosecution” in Section 71 of the Serious Organised Crime and Police Act 2005 states that

“immunity notices can only be granted in respect of offences which have already been committed.”

There are many reasons why immunity should only be applicable to offences already committed, and we have not been given convincing reasons why this should change. There are occasions when it is in the public interest not to prosecute someone for a crime they have committed, but that does not change that there was a crime and, almost certainly, a victim. The Bill changes that: by giving prior immunity, it makes what in other circumstances would be a crime no longer a crime. The effect of issuing a CCA will commit the action of an undercover operative to

“be lawful for all purposes.”

There are some principles in law that even a lay person like me can understand. One of them is the rule of law, which the Oxford English Dictionary defines as

“the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

If this Bill becomes law in its current state, it will undermine that basic principle.

As the noble Lord, Lord Paddick, pointed out, some of the amendments in this group attempt damage limitation by mitigating the effect of granting prior immunity. They should be supported, but the key amendments are Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick, who have all spoken persuasively on them.

I think we can predict that, if the Bill goes ahead in its current state, there will be public inquiries in the years to come into the behaviour that it will have permitted, and they will reveal even more horrific stories than those being exposed in the current Undercover Policing Inquiry.

No one is denying that undercover activities are necessary, and that they will sometimes involve using criminals, but that makes it even more important that their actions are constrained rather than given carte blanche. Those of us who are concerned about this are not being awkward or indulging in conspiracy theories; our concerns are based on the actual experience of undercover activities that have resulted, at the most extreme, in murder and rape and, quite commonly, in the destruction of innocent people’s lives. I asked the Minister at Second Reading and again in Committee—and I ask it again today—whether she can give an example of when an undercover operative has been prosecuted after receiving legitimate authorisation.

If we were to read in the daily papers that the director of Amnesty International was hugely worried about a Government introducing deeply dangerous legislation that gave disturbing powers to their secret service, I am sure we would all be concerned and wonder which totalitarian regime she was talking about. However, that is what she said about this legislation going through our own Parliament. These two simple amendments would stop that happening and I will support them in a Division.

--- Later in debate ---

I do not pretend that I see an answer in any particular amendment before us this evening. I know only that this work is absolutely vital to the security of this country. I have faith in my friend on the Front Bench, I believe that there have been discussions, and I look forward to listening to her and hearing how we solve this conundrum.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, there are obvious flaws in any authorisation procedure in which the main safeguard against a public body carrying out unjustified surveillance, for example, or committing serious crime, is a senior official from the same organisation. It just does not make good sense. Even the most diligent individual would struggle to remain objective, particularly if the organisation was under pressure to meet targets, to achieve results or to get the job done. I remember all too painfully as a counsel in the Guildford Four appeal when there was undoubted pressure on the police to produce results and this led to misconduct and very bad judgments.

The Government and supporters of the Bill put forward an argument that prioritises operational need over independent assessment. It is not convincing. I remind the House that there is a significant difference with regard to authorising a CHIS—a covert person in place—who has worked in a factory, as was suggested, and who might have seen unlawful activity or whatever, whistle-blows but stays to give a better account of his or her observations to the authorities. That observing of criminal activities and then reporting on them is very different from the situation where someone is actively involved in criminal activity but is turned by the authorities and made into an agent on their behalf inside a criminal organisation. They may be proactively involved in criminal acts and involved in planning and encouraging them. It is a marked, simple movement for them to cross that line and to go out and commit crimes with other members of the gang. This is a clear, profound and immensely qualitative difference, for which the Government have yet to account.

Some Members have proposed that a form of retrospective authorisation might suffice, and I want to explain why this does not work in practice. Unlike other covert powers, such as bugging a property, the potential harm caused in those circumstances is difficult, if not impossible, to undo. Some harms are difficult to undo once they have been done. If you place a listening device, it can be removed. If you have unlawfully recorded private conversations, they can be destroyed.

But let us think of the example of somebody who is in a county lines drugs gang, pushing heroin into the hands of the young. That heroin is sometimes of the purest form, which will be highly damaging, potentially to someone’s life, or it is contaminated, so that it goes further and makes more money for the criminal gangs, with substances that can be noxious and lethal. Suppose those drugs get into the hands of a vulnerable teenager who ends up dead. It is not a happy thought, but that is what criminal actions are about when you are involved in gang activity.

What if somebody is involved on the periphery of terrorist activities and is informing, but is required to secure items that might be used in the creation of an explosive device—a bomb? How does that make Members of this House feel? How does one undo the damage to innocent individuals, often vulnerable victims who might come into the firing line of gang members or terrorist groups who are armed with a criminal conduct authorisation, as the Bill proposes? What can we say to them if they have their synagogue blown up, or their child physically harmed, or, heaven forbid, people lose their lives? I say to the noble and learned Lord, Lord Mackay: when does that kind of crime stop being a crime?

It is regrettable to me that the Government are persisting with this policy, but given that they want to go ahead it is vital that independent, prior judicial approval is built into the process to avoid and to mitigate the potential for tragic mistakes or abuses of power. I was very moved and affected by what the noble and learned Lord, Lord Thomas, said. His view as an experienced senior judge is that, in the end, they will have to come back to prior judicial oversight. His preference, like mine, is for prior judicial approval. I do not agree with the noble Lords, Lord Hain or Lord Blunkett, that the appropriate people are Ministers. My preference would be for it to be the judges. I echo what the noble Baroness, Lady McIntosh, said: if the judges who are dealing with other covert activities are considered good enough for that, what is so special about this?

I therefore urge this House to stick with the amendments that have been put forward. I will go with any of the collection of them that involve prior judicial authority. Of course, as a secondary position, I will support the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas, with his add-on amendment, which would ensure that it is done in real time. However, my preference is that it is done beforehand. Nothing else will make police officers and those who seek to do this kind of work with people embedded in organisations think carefully about the arguments for doing so.

I laugh when I hear my noble friend Lord Blunkett reiterating something that he has held true, which is his suspicion that the judiciary do not know how the real world works. Today we have a judiciary that is very different from the old one that operated. Happily, it is a different kind of judiciary, which is well aware of the problems and is used to making judgments in these kinds of cases.

What is being suggested in having judicial oversight is not radical but common sense. The European Court of Human Rights in many instances has spoken to the necessity of prior judicial authorisation. In one case, the court held that it offers

“the best guarantees of independence, impartiality and a proper procedure.”

This is particularly pertinent with surveillance, which, according to the court, was a field where “abuses are potentially easy” in individual cases to the extent that it

“could have harmful consequences for democratic society”.

The court concluded that

“it is in principle desirable to entrust supervisory control to”

the judiciary. I will say only that as a practitioner I can speak to the quality and speed with which our judges can handle time-sensitive and critical cases. Like other noble Lords who have mentioned it, I have had on occasion to make applications to judges late into the night, and our judges are well capable of making decisions in that way.

We have to get this right. It is incumbent on us to consider the gravity of the powers that Parliament is being asked to create, and we have to strive to ensure that they are exercised responsibly and with sufficient checks and balances. I therefore commend to your Lordships the amendments, which require prior judicial authorisation.

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is always a delight to follow my friend, the noble Baroness, Lady Kennedy of The Shaws.

There are three sides to this argument. What makes this debate so interesting is that they cross party boundaries. The noble Lord, Lord Dubs, argues the powerful JCHR case for prior authorisation by a judge, while on the other hand the noble Lord, Lord Anderson, is of the view that a judge or a Secretary of State does not have the expertise to task or to supervise a CHIS, a sentiment echoed by my noble friend Lord Carlile and argued more stringently by the noble Lord, Lord Naseby.

The noble Lord, Lord Anderson, supports post-authorisation notification. My criticism of that process, as I advanced it in Committee, was that this was a solution without teeth, an argument adopted in an excoriating speech by the noble and learned Lord, Lord Thomas of Cwmgiedd, in support of his Amendment 34. If the commissioner says on a post-the-event inquiry, “This should not have happened”, what then? The authorisation must stop. But what about any crime that has been committed before that judgement is given? The noble Lord, Lord Rosser, made that point.

What in the Bill as it stands would prevent the authorising officer on the ground from simply shrugging his shoulders? He might ask, “Why should the judge have greater expertise post the event than he had before?” But can the authoriser be acting lawfully if he goes on in the face of a decision deploring the deployment of the CHIS? Does the commissioner’s adverse view of the department have to be disclosed at trial? That is very important. Suppose the CHIS is a witness at a trial and gives crucial evidence in person, or, more likely, evidence which he has obtained by committing a crime is relied on. The prosecutor would have to disclose the decision of the commissioner that he should never have been deployed to get that evidence in the first place.

The noble Lord, Lord Anderson, suggests that prior judicial authorisation does not match the operational requirements. He argues that it lacks agility, in the words of the noble Lord, Lord Butler. But is his solution practical—the test of the noble Lord, Lord Rooker?