Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

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

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

My Lords, I apologise to the House for having to be absent for much of the debate due to a clash with a meeting of our Joint Committee on Human Rights. I regret missing the maiden speeches apart from that of the Minister, whom I congratulate on his aplomb during it.

I shall therefore be brief. I am sure that noble Lords will have covered wisely and in detail the points of contention. I want to state what the chair of the Joint Committee on Human Rights, Harriet Harman MP, said in a press release to its recent report:

“This Bill raises major human rights concerns … There should be added to the Bill clear limits on the scale and type of criminality which can be authorised. We cannot pass a law that leaves open the possibility of state-sanctioned rape, murder or torture … The power to authorise crime should be restricted to the public authorities whose role it is to combat serious crime and protect national security and not include bodies such as the Food Standards Agency or the Gambling Commission.”


I just want to emphasise a few points that concern me. First, the Joint Committee on Human Rights report points out that the authorised criminal offences have the potential to interfere with several qualified and absolute rights, including those guaranteed by the European Convention on Human Rights and the Human Rights Act 1998. Secondly, the Bill contains no specific limits on the criminal conduct that can be authorised. Thirdly, and very importantly, no distinction is made between adults and children for the purposes of CCAs within the revised CHIS code of practice. This would be a serious breach of the UN Convention on the Rights of the Child, an international treaty and therefore legally binding on ratifying countries—the UK ratified the UNCRC in 1990. My noble friend Lord Haskel and others have spoken about this intolerable situation. The rights of the child are paramount, as reflected in the UNCRC. There must be no compromise on this, and the age of a child is 18 and under, not 16 as the Government seem to think.

The Bill does not include provisions for victims of authorised criminal conduct. The Bill needs additional safeguards to ensure that there can be no authorisation for serious criminality. Many agencies, including Reprieve and Justice, and the Bar Council have suggested changes that could be introduced to the Bill. They and the Joint Committee on Human Rights have similar concerns. I therefore hope the Government will take note. I look forward to hearing the Minister.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, in moving Amendment 6, in my name and that of my noble friend Lady Hamwee, I will speak also to the other amendments in this group.

Section 27(2) of the Regulation of Investigatory Powers Act 2000 states:

“A person shall not be subject to any civil liability in respect of any conduct of his which … is incidental to any conduct”


that, for the purposes of this Bill, is authorised by a criminal conduct authority. Our Amendment 6 removes this immunity from civil liability. My support in the last group should make it absolutely clear to the Committee that I feel that that is the solution to this problem. It would be only in the very unfortunate circumstance that those amendments are not incorporated into the Bill that I would revert to this amendment.

This part of RIPA was intended to deal with the interception of communications. This might involve placing a listening device in a car or a room or intercepting phone calls, text messages or emails. This could be done only if it was authorised in advance by an Investigatory Powers Commissioner and by the relevant Secretary of State, and against only the most serious criminals, such as terrorists. While intercepting communications is a serious matter, the physical or financial harm to the—suspected—very bad person targeted is likely to be minimal.

The criminal conduct authorities—CCAs—under this Bill authorise undercover operatives to commit crimes in which innocent members of the public could be involved and seriously harmed. A frequent scenario in the past would have been recruiting a member of a gang of armed robbers, who was allowed to participate in an armed robbery during which, by either accident or design, the undercover operative working for the police may have harmed the security guard, potentially very seriously.

Noble Lords will also be familiar with—and other noble Lords have already mentioned—undercover police officers befriending and entering into sexual relationships with environmental activists. Despite the Government’s implied promise at Second Reading that such things would never happen again, in fact, what the Government have said is that an undercover operative would never be “authorised” to have sex with someone they were tasked to enter into a relationship with, not that it would never happen again.

There are two clear and distinct issues here, where someone may seek civil damages. One is where the handler authorises a CHIS to engage in a crime in a way that is not lawful, necessary or proportionate. The other is where the CHIS, whether an undercover officer or, potentially, a member of a terrorist group who passes information back to the police, goes beyond the authority of a CCA.  This could be something

“incidental to any criminal conduct”

they have been authorised to do.

An undercover police officer could argue that he had no choice but to become intimately involved with the activist he was tasked to befriend, and that even if the sexual activity was not specifically authorised, it was “incidental to” the conduct that he was authorised to engage in. To grant him, and potentially the police force concerned, immunity from being sued for damages in such circumstances is repugnant. This illustrates that RIPA was never intended for, and is ill suited to, granting immunity under criminal conduct authorities. 

The Government will say that, even if the CHIS evades civil action, the police force that tasked him, for example, will not. However, that seems to be cast into doubt by what the Minister said in the first group about the extent of the immunity granted, in that that immunity would extend also to the person tasking the CHIS. Again, there are two distinct issues with this.  The first is that if the conduct authorised under a CCA is “lawful for all purposes”, it seems to me that the police force, too, is immune from civil action. The second is that—I speak from personal experience in the police service, as others have—racist and sexist behaviour in police forces reduced only when police officers and their police chief found themselves personally liable for their behaviour. If they had not acted in the course of their duties as a constable, the chief constable could deny vicarious liability, and the officer would be personally liable for any damages. It is the threat of legal action, whether criminal or civil, that ensures that handlers and CHISs keep within the law. Removing civil liability from a CHIS would remove another important check on their behaviour.  

We cannot support Amendment 8, for a number of reasons. First, it says that criminal conduct under the authority of a CCA is lawful for the purpose of the criminal law. Clearly, we do not agree with that. As I have argued in the previous group, we do not believe that that should be the case. Secondly, it requires the authorising body to indemnify the CHIS against having civil action taken against him. For the reasons I have just explained, the personal liability of the CHIS in such circumstances is an important check on their behaviour. 

Amendment 71 would allow a complaint to be brought before an Investigatory Powers Tribunal, which may award compensation. But there is normally a time limit of one year after the taking place of the conduct to which the complaint relates, which seriously reduces the scope for compensation to be applied for, compared with the normal seven-year limit for other civil actions. I do, however, believe that the proposal has some merit, and perhaps with further adjustment it may be more acceptable. I beg to move.

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

My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, with his eloquence and experience. I shall speak to Amendment 8.

I am a member of the Joint Committee on Human Rights. This committee scrutinised the Bill, received expert opinion on it and made the report referred to earlier, most recently by my noble and learned friend Lord Falconer of Thoroton. This report raises many issues of human rights that will need to be teased out and possibly resolved as we go through this Bill.

Amendment 8 is there so that victims of criminal conduct carried out under criminal conduct authorisation can access compensation. This is from paragraphs 104 to 110 in chapter 8 of the report. The report notes that the Bill as introduced is potentially incompatible with human rights legislation. Article 1 of the European Convention on Human Rights requires the UK to secure the rights of all those within its jurisdiction, including victims of crime. Where crime also amounts to a human rights violation, the victim has a right to an “effective remedy” under Article 13, mentioned earlier. A victim also has a right, under Article 6, to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.

Since the Bill would render all authorised criminal conduct “lawful for all purposes”, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. It would seemingly also prevent a claim for compensation under the criminal injuries compensation scheme.

My amendment mirrors the regime in Australia, which, as the report states,

“provides indemnification for any participant who incurs civil liability in the course of an undercover operation.”

In other words, a civil claim can be brought against the perpetrator by the victim, and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The effect of this provision would be to ensure that the person authorised to carry out criminal conduct

“would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”

This Bill has been described as promoting the concept of “one size fits all”, framed more eloquently by my noble friend Lady Chakrabarti. It is simply not acceptable or possible to do that. In relation to my Amendment 8, I have mentioned specific issues on human rights legislation, which is the core of the report I have quoted today. I look forward to the Minister’s response.

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights, along with my noble friend Lady Massey, and I am speaking in support of Amendment 8. My noble friend has put the case so well that I am just going to add one or two very minor comments. I am going to do so by quoting from the recommendations in the report that the Joint Committee put forward—a report that has set the tone for much of the debate and many of the amendments that we are discussing today. To quote from the recommendations:

“By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.”


I will go on very briefly to the next recommendation in the Joint Committee’s report, which is:

“The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability.”


This is a very clear proposal, and this is a very clear amendment that would safeguard the rights of individuals who will otherwise have no rights left if the Bill goes through unamended.

--- Later in debate ---

The right to protect journalistic sources is recognised by international law, the United Nations, the Council of Europe and many other international institutions as a key element of freedom of expression. Indeed, the Government themselves have spoken in support of that principle on many occasions. I do not intend to press the amendment to a vote on this occasion but would be grateful for an explanation of the Government’s thinking on this issue, given their previous support for the principle of the protection of journalistic sources.

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

My Lords, I, too, remind colleagues that I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs. I will be brief in supporting my noble friend’s excellent contribution on Amendments 11 and 59 concerning the requirement for prior judicial approval of criminal conduct authorisations, also mentioned by my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Anderson of Ipswich.

The amendments are based on the JCHR’s examination of the Bill and refer to chapter 7 of its report. Paragraph 94 refers to lack of prior independent scrutiny or approval of CCAs, and paragraph 95 gives examples where the Bill is in contrast to other investigative procedures, highlighted by my noble friend.

Retention of data is also an issue. Privacy is a vital right protected under Article 8 of the European Convention on Human Rights, but the authorisation of criminal conduct risks more damaging human rights violations, including physical violence. Paragraph 97 of the report states that

“the Bill as it stands imposes no requirement that the belief of the individual making the CCA that it is necessary must be a reasonable belief”.

The report concludes that:

“Bringing CCAs within the review function of the IPC provides some reassurance of independent scrutiny of their use after the event. However, this is insufficient protection for human rights”,


and the Bill must be amended accordingly.

[Lord Hain (Lab) [V]]

My Lords, I shall speak to my Amendment 15, and I am grateful to my noble friend Lady Kennedy of The Shaws, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, for having added their names. I am also grateful to my noble friend Lord Blunkett, a former Home Secretary, who would also have added his name had not the list been full.

This amendment is very straightforward. It ensures that:

“The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by the Secretary of State.”


My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000—RIPA—which was updated by the Investigatory Powers Act 2016. When I was Secretary of State for Northern Ireland in 2005-07, I regularly signed warrants to place under surveillance dissident IRA splinter groups planning to kill, bomb and fundraise through drug and other crimes, and I signed warrants for surveillance on loyalist paramilitaries and hardcore criminals. If the Home Secretary was not available, I also signed warrants that he would normally have signed, sometimes with very short notice, in real time—on one occasion, to prevent Islamist terrorists in a south London house unleashing a bomb in London.

The point that I wish to underline is that these were absolutely essential security and policing operations, yet they required ministerial authorisation at a high level. Why was that so? Because ultimately that brings ministerial responsibility and therefore direct accountability. The operational decision was for the police or intelligence services, but the accountability was ultimately governmental and political. The time has come to bring that principle into the sphere of undercover policing, because it has involved far too many abuses for decades and, if there is not the same kind of accountability as for surveillance, there will inevitably be even more abuse.

I met undercover officers doing brave work trying to prevent dissident IRA splinter groups and loyalist groups killing and bombing. I was also briefed about vital undercover work around Islamist terrorist cells to prevent terrorist bombing and killing. In other words, I have direct experience of how undercover officers can perform vital functions to save lives and prevent crimes or terrorist attacks. But I am also due to give evidence early next year in what is described as a non-police, non-state core participant role to the official inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because undercover policing has got out of control and needs to be made accountable. That is important.

From 1969-70, undercover officers spied on me at anti-apartheid and anti-racist meetings, including when I was an MP in the early 1990s. As confirmed by evidence given to the Mitting inquiry, a British police or security service officer was in almost every political meeting that I attended, private or public, innocuous and routine, or serious and strategic, like stopping all white apartheid sports tours and combating pro-Nazi activity. Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London office of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose apartheid security service operations in the UK? Why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb in June 1972? It was so powerful that it could have blown up me, my family and our south-west London home were it not for a technical fault in the trigger mechanism. Scotland Yard’s bomb squad, then chasing down the IRA, took it away and made it safe, but I heard nothing more.

Another victim was ecological activist Kate Wilson, whom I mentioned at Second Reading. Agree or disagree with her views and actions, she is not a criminal. Kate was at primary school with my two sons in the 1980s, and our families remain friends. Undercover officer Mark Kennedy formed an intimate and what she described afterwards as an abusive relationship with her for over seven years, even reporting back to his superiors on contacts with my family when I was a Cabinet Minister. I would like to think that a Home Secretary presented with a warrant to assign Kennedy to target Kate Wilson would at least have asked, “Why are our police wasting their time targeting her, an environmental activist, instead of drug barons, human traffickers, criminals and terrorists?” A warrant procedure would force police chiefs to stop and ask that question too, instead of morphing policing from the overtly criminal into the covertly political sphere.

Another widely reported example was referred to by my noble friend Lord Dubs. Doreen Lawrence, now my noble friend Lady Lawrence, is a law-abiding citizen, yet her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder? A warrant procedure would have forced police chiefs to stop and ask that question, too, instead of morphing policing from the overtly criminal into the covertly political sphere.

Why did an undercover officer going under the name of Sandra infiltrate the north London branch of the Women’s Liberation Front between 1971 and 1973? She conceded to the Mitting inquiry that she failed to discover any useful intelligence whatever. Some of the meetings were attended by just two activists, she reported. She told the inquiry on Wednesday 18 November, last week:

“I could have been doing much more worthwhile things with my time.”


She worked for the Met’s special demonstration squad. She went on:

“Women’s liberation was viewed as a worrying trend … There was a very different view towards the women’s movement then as compared to today.”


Sandra told the inquiry that she did not think that her work

“really yielded any good intelligence”.

That is nice to know now, over 40 years later, but why was there no proper accountability for her deployment? I like to think that a Secretary of State might have asked a few questions if a request came to authorise her infiltration of a women’s rights group. Knowing that the Home Secretary would take a look, maybe police chiefs would never have deployed Sandra on this scandalous and wasteful mission.

In each of these cases, the police were on the wrong side of justice, the law and history: harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom, instead of pursuing crimes by the apartheid state in our country; infiltrating the family of a climate change activist, instead of combating climate change; covering up for a racist murder, instead of catching the murderers; and targeting women’s rights campaigners, instead of promoting gender equality, including within the police of that time. Why were undercover police officers trying to disrupt all of us, diverting precious police resources away from catching real criminals, such as drug traffickers, human traffickers, terrorists and criminal gangs?

When I give evidence next year to the undercover inquiry, I will also show that there was a systematic pattern of malevolence, deceit and exaggeration by undercover officers. One, named as Mike Ferguson, claimed to be my right-hand man when I chaired the campaign to stop sports apartheid tours by all-white rugby and cricket teams. It was a straight lie; I had no right-hand man. If he is the person I vaguely recollect, he was on the periphery of the central core around me. Mike Ferguson claimed our campaign intended to attack the police at Twickenham when England played the Springboks—a lie. We did not. He also claimed that we planned to sprinkle tin tacks on the pitch—another lie. We did not, and indeed were at pains to avoid personal injury to players, as we ran on to pitches in acts of nonviolent direct action, sometimes being beaten up by rugby stewards or the police. Mike Ferguson reported that we planned to put oil on Lord’s cricket pitch and dig it up—again a lie. We never did. Giving evidence only the other week, another undercover officer who had infiltrated our campaign admitted that this allegation about oil and digging up pitches was false. Undercover officers also played agent provocateur on occasion, daring militant but non-violent protesters into criminal activity.

A warrant procedure would have forced police chiefs to stop and ask serious questions about all this before seeking authorisation from the Home Secretary over Mike Ferguson’s role, instead of morphing policing from the overtly criminal into the covertly political sphere.

This is not ancient history; it has happened over recent decades and could well be happening still. There needs to be a structure of proper accountability to ensure that undercover policing or covert surveillance through embedded agents is performing a legitimate function, not an illegitimate one, as in the examples I have mentioned, including those involving me. Otherwise, how do we stop legitimate undercover police or intelligence work sliding over into the illegitimate and the blatantly political? Even in our era of modern legislatively accountable policing and intelligence work, things are still going badly wrong, such as when counterterrorism police recently put non-violent Extinction Rebellion on their list of terrorist groups, doubtless for undercover operations, which are presumably continuing now, as well.

This covert human intelligence sources Bill does not address any of the key questions that I have asked, which is why I believe that the amendment, which would ensure that a warrant was signed by a Secretary of State before undercover policing was authorised, is vital and why I hope that it will be put to a vote on Report.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

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

[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”.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.

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[Lord Anderson of Ipswich (CB) [V]]

My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.

First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.

As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.

What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.

It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.

I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.

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

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I speak to Amendment 48 tabled in my name and support all those who have spoken in favour of limiting the use of children as CHIS. The reason for putting forward Amendment 48 is to try to probe the thinking of the Government on the relationship between the provisions of the Bill with the UN Convention on the Rights of the Child. How does my noble friend the Minister believe that they can square the use of children as CHIS with the provisions of that convention?

I endorse and support entirely the comments of my noble friend Lord Young of Cookham and I thank him for so eloquently moving his Amendment 43. I congratulate the other noble Lords who supported his amendment. The noble Baroness, Lady Massey, has tabled Amendment 51, which would build on the thinking that I have put forward in my probing amendment about how the UN convention could apply in this regard.

My noble friend Lord Young referred to one of the four general principles that are set out in the UN Convention on the Rights of the Child—Article 3, establishing what is in the best interests of the child. I support that view entirely; it is difficult how using children as covert intelligence sources can be squared as being within the best interests of the child, as opposed to the wider and broader interests of the community. I also have regard to the three other general principles of the UN convention: Article 2, on non-discrimination; Article 6, on the right to life, survival and development; and Article 12, on the right to be heard. In summing up this debate, can my noble friend the Minister indicate how a child’s voice, particularly one who may be as young as 15, in the instances that we are considering, in this part of the Bill, is heard before they are asked to operate as covert human intelligence sources?

I support entirely the comments made by others that children are particularly vulnerable in this regard. They may not understand what is being asked of them. Are they in a position to ask what the implications are for their future, and how their actions might be interpreted? Are they actually in a position where they could refuse to act, if it has been explained to them, when they are being asked to act in a particular way? It is difficult to understand the circumstances in which this might be explained to a child aged 15, 16 or 17—how their conduct might benefit our society, but also how it might be of harm to themselves.

I support this group of amendments. I have tabled Amendment 48 as a probing amendment, because I believe that the provisions of the UN Convention on the Rights of the Child apply here. If that can be achieved by one of the other amendments in this group, I will be extremely happy. I urge my noble friend to put my mind at rest by indicating how what the Government are seeking to do through this Bill by using children as CHIS can be squared with the provisions to which I have referred in the UN convention.

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

My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.

Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:

“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,


which has already been quoted by the noble Lord, Lord Young,

“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”

The best interests of the child must be at the core of all our concerns.

The JCHR report concludes:

“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”


The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.

I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.

The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.

I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?

Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.

[Lord Dubs (Lab) [V]]

My Lords, when I originally looked at this Bill and thought about it in relation to children, I felt that there might be some justification for using children as CHIS in the most exceptional circumstances. I am now doing something that is not very fashionable. I am changing my mind in the light of what I have heard in the debate so far, especially from my noble friend Lady Massey and the noble Lord, Lord Young. I now believe that there should be no circumstances in which children should be part of this process. It is wrong and cannot be justified. The highest standards of human rights would be fully met if we said that children should be totally exempt. There should never be any circumstances in which the end would justify the means. I have been persuaded by the argument. Maybe one does not often admit this publicly, but I am prepared to do so here and now.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Paddick (LD)]

My Lords, I shall speak to Amendments 63, 65 and 80, in my name and that of my noble friend Lady Hamwee, in this group. They attempt to get to grips with the plethora of organisations that the Bill seeks to authorise to grant criminal conduct authorisations. I remind noble Lords that this is to grant legal immunity to covert human intelligence sources, informants or agents, and authorise them to commit acts that, under any other circumstances, would be a crime, but because these public authorities have said so, they are no longer crimes.

Unlike existing legislation that limits legal immunity to agents of the state engaged in property interference, intrusive surveillance, equipment interference and interception—all exclusively targeted on the most serious criminals and only with prior approval given by an investigative powers commissioner and often a Secretary of State—this Bill seeks to give public authorities the power to grant immunity to anyone, often criminals, for almost any crime that can be imagined with no prior authorisation outside their own organisation. One would hope that the number of public authorities would therefore be extremely limited, and that evidence would be produced to justify their inclusion.

I am taken back to a recent statutory instrument—the Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020—which added to the list of public authorities that can access communications data; that is, who contacted whom, from where, and when, but not the content of the communication. In the overall scheme of things, it is fairly low-level data. The Home Office had agreed to include more public authorities on the basis of detailed business cases submitted by each authority.

When I asked to see the business cases, I was told that I could, although the Home Office arranged for me to see them only 45 minutes before the statutory instrument was due to be approved on the Floor of the House. Will the Minister allow Members of this House to see the business cases that form the basis of the Home Office deciding which public authorities should be allowed to grant criminal conduct authorities, preferably not 45 minutes before we consider this issue on Report?

Our Amendment 63 would limit those public authorities that can grant CCAs to the police, the National Crime Agency, the Serious Fraud Office and the intelligence services, as it appears to us to be self-evident why these organisations may need to grant authority to agents or informants to commit crime. The other public authorities require justification, hence my request that noble Lords be able to see the business case justifying each of the other public authorities, albeit redacted and viewed in private.

Our Amendment 65 specifically singles out the Home Office, although it might be seen as a typical example—an example of a type of public authority—for further scrutiny. On the face of it, it sounds that, in theory, if not in practice, the Home Secretary could authorise a criminal to commit a crime and give that criminal legal immunity, whether directly or by ordering one of her officials to do so on her behalf. Giving power to politicians to authorise criminals to commit crime and to be able to grant those criminals immunity from prosecution, with no prior independent oversight, raises some worrying spectres.

Our Amendment 80 is consequential. At this stage, I will listen carefully to the concerns of other noble Lords and to the response from the Minister. I beg to move.

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

My Lords, the noble Lord, Lord Paddick, has spoken with great clarity and authority on the amendments in this group. I will speak to the human rights perspective of Amendment 63 as set out in the Joint Committee on Human Rights’ report on the legislative scrutiny of the Bill. Chapter 6 is concerned with public authorities granted power to authorise crime, as stated by the noble Lord, Lord Paddick.

Paragraph 75 of the report states:

“We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary … However, the Bill proposes granting the power to make CCAs … to a substantially wider range of public authorities”.


That concerns us. It goes on:

“This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being … extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.”


There are two key questions here from a human rights perspective. As the report states,

“the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.”

The Government have provided little justification for the authorisation of criminal conduct by such bodies as the Gambling Commission, the Food Standards Agency and others. The Home Office published brief guidance and a series of operational case studies, which provide examples of authorisation by CHIS in the cases of the Medicines and Healthcare products Regulatory Agency, Her Majesty’s Revenue & Customs and other hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency.

The question must be asked as to why the police or other bodies focused on the prevention of crime should not take full responsibility for authorising criminal conduct that may fall within the purview of these organisations. We are all aware that the police, in carrying out their responsibilities, have vast networks of agencies whom they consult in the course of their duties. They know whom to consult for specific issue as and when such consultation is needed. It is inappropriate and irrelevant to name other specific agencies, whose role is not protecting national security and fighting serious crime.

One of the witnesses to the inquiry carried out by the Joint Committee on Human Rights said:

“If the government believes it is necessary for each of these bodies to have the power to grant authorisations, it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”


No such detail is supplied by the Government. It is therefore impossible to assess how agencies whose primary function is not serious crime or national security can, or indeed would want to, be involved formally in granting CCAs. I look forward to the Minister’s explanation.

[Lord Dubs (Lab) [V]]

My Lords, I support Amendment 63. I very much agree with the comments made by the noble Lord, Lord Paddick, and my noble friend Lady Massey, so I shall be brief.

Like my noble friend, I speak as a member of the Joint Committee on Human Rights. It seems to me that authorisation that goes beyond the police, the National Crime Agency, the Serious Fraud Office and the intelligence services is a step too far. There has to be clear indication by the Government as to why such authorisations are necessary; so far, that indication has not been forthcoming. The list of agencies covered by this provision is so wide—not just Customs and Excise, the Environment Agency, the Food Standards Agency and many other bodies. There is no justification for extending the provisions of the Bill to that extent.

I am very concerned about one other matter. As the Joint Committee on Human Rights noted, under Section 35 of RIPA, the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise covert criminal conduct. I accept that this power has been used sparingly in the past, but—[Inaudible.]—if additional authorities that have little or no relationship to those permitted to make CCAs—[Inaudible.]—regulatory oversight.

In a previous amendment, the noble Lord, Lord Hodgson, indicated that using subordinate legislation to extend powers was going rather too far, and it applies in this instance as well. Surely, it is bad enough having a list of these bodies that—[Inaudible]—but adding to them in the future by a parliamentary process that allows for very limited scrutiny. We all know that subordinate legislation can go through, we cannot amend it and it is—[Inaudible]—because of our relationship with the Commons; therefore, this is potentially an abuse of power. For all those reasons, I support Amendment 63.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen 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 Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure yet again to follow the noble Baroness, Lady Jones of Moulsecoomb. I support Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti and Lady Moulsecoomb, the noble Lord, Lord Paddick; and I too am a signatory to Amendment 1. Amendment 2 seeks to preserve the current legal status quo, whereby those authorised to engage in criminal activity are not rendered immune from either civil or criminal liability. Instead, compliance with an authorisation will be relevant to any public interest consideration to prosecute, any existing legal defences and any court considerations as to civil liability and/or damages.

I feel that the existing legislation that we are debating seeks on the one hand to regulate in statute the use of covert human intelligence sources and, on the other hand, gives CHIS and their handlers a licence to kill. The recruitment of agents is undeniably necessary as part of intelligence-led policing; any such recruit should be a fit person, properly recruited, with free and informed consent and operating to human rights standards in police-led operations.

I listened very carefully to the words of the noble Baroness, Lady Chakrabarti. I recall saying in Committee that Northern Ireland has a particular experience to note in this whole area of using handlers and agents—not police officers but agents—and some of them were linked to criminal and paramilitary activities. We are a living example of what happens when the state, or the state through its agents, commits serious crimes, including murder. For that reason, I make a special plea to the Minister to consider these amendments and the Bill as currently drafted and to ensure that all protections are put in place to prevent any nefarious activity and any misuse of activity by handlers.

One example is the continuing investigation into the agent known as Stakeknife. Probably dozens were murdered on the instructions of those in command and control of the IRA with the knowledge and approval of those in command and control of a British security agent. Another example is Ken Barrett, a British agent involved in the murder of the lawyer Pat Finucane, which a former British Prime Minister, David Cameron, conceded had involved shocking levels of collusion—a fact reiterated at the end of November by Brandon Lewis, the current Secretary of State for Northern Ireland. There is also the example of Mark Haddock, an RUC Special Branch agent believed to have been involved in more than 20 murders.

I say to the Minister that Northern Ireland is a lesson from history, which the Government should take heed of in respect of the Bill. Serious crimes and murder committed by state agencies, or the agents of the state, lead first to a generation of victims and survivors, secondly to alienation, and thirdly to conflict. Yet this legislation, as drafted, would allow agents to commit serious crimes with extravagant powers given to handlers and a severe deficit in relation to authorisation and post-operational accountability. Hence the need for Amendments 1 and 2 to curb such illegal activity and to ensure that those who commit crimes are not immune from prosecution.

It is worth remembering that one of the 175 recommendations on new policing arrangements in Northern Ireland back in 1999—accepted but not addressed—was:

“There should be a commissioner for covert law enforcement in Northern Ireland.”


Maybe it is time to give this consideration now if the Government insist on pressing ahead with the Bill unamended. The noble Lords, Lord Dubs and Lord Rosser, referred to the need for prior oversight; this is one avenue that would facilitate prior oversight, albeit in the Northern Ireland context. As a result, there is no dedicated Northern Ireland covert oversight agency, and the UK arrangements to interrogate phone tapping or search authorisations should be more extensive.

I believe—I say this rather advisedly—that this legislation compounds the problem, with even less oversight of the authorisations that would arise under its provisions than is the case currently. The Bill is deeply problematic, and it could work against the need to tackle criminality and paramilitarism. Hence the need to ensure that those authorised to engage in activities are not rendered immune from prosecution, and hence the need for both amendments, calmly presented by the noble Baroness, Lady Chakrabarti, which I urge the Minister to accept. I hope that the Minister can respond in favourable and positive terms. I support both amendments and, if pressed to a vote, I will support them.

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

My Lords, I shall speak to Amendment 3, which seeks to ensure that victims of criminal conduct carried out under CCAs can access compensation. My noble friend Lord Dubs has covered this amendment comprehensively, so I will simply add a few words of support. Like my noble friend Lord Dubs, I speak as a member of the Joint Committee on Human Rights, whose legislative scrutiny report on the Bill was published last November. I am pleased that the Government have published their response to that report today. We shall no doubt refer to it during our deliberations on the Bill.

This amendment relates to paragraphs 104, 107, 108 and 110 of the Joint Committee on Human Rights report. Its purpose relates to rights under the European Convention on Human Rights, and it mirrors the system in Australia which

“provides indemnification for any participant who incurs civil liability in the course of an undercover operation”,

as described in paragraph 110 of the Joint Committee on Human Rights report. It states:

“The effect of this provision would be to ensure that the participant (i.e. the CHIS) would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”


I think the amendment is clear and I look forward to the Minister’s response.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I do not wish to address at any length the various competing amendments that are being suggested. Speaking for myself, I believe that pre-authorisation in one of the forms suggested is the obvious way forward. I have absolute confidence in the ability of the judicial commissioners to assess and make a judgment and, although I have much sympathy with the view that things are better now than they were in the past, we simply cannot ignore past experience, as we are constantly reminded.

As my second choice, I would go for real-time notification. I tabled Amendment 34—this is the subject on which I wish to speak—to clarify the position as to what happens if, after notification, the judicial commissioner expresses the view, or says, “This should not have happened.” It is clear from the way the Bill is drafted that, as the term “notification” is used, everything that is done prior to any decision by the judicial commissioner would remain authorised. The amendment proceeds on that basis and seeks to make that clear. However, what then happens if the judicial commissioner says, “Well, this should not have been granted”? It is very important when we try to clarify the law and put it on a statutory basis that we do not engage in a fudge. The word “notification” is used deliberately to provide for notification, but it simply does not say what happens when the commissioner makes a decision. This amendment makes it very clear that, if the judicial commissioner says that this should not have been authorised, then, subject to unwinding under a degree of judicial supervision, the activity must stop.

I have had very helpful discussions. I pay tribute to the Minister for organising this and to the officials who have been clear in some of their views. However, it has been explained to me that, in these circumstances, it is thought that, if the activity has not started, it would stop; but if it has started, it must be for the authorising officer to consider what to do. This is plainly not good enough. First, the judicial commissioner is not giving advice but making a determination; although not they are not sitting as a judge, it is as close to a judicial decision as you can get. Secondly, if the judicial commissioner says that this should not have been granted, can the authorising officer say that he is acting lawfully by going on with the activity? Thirdly, in those circumstances, is the officer at risk of committing the offence of misconduct in public office? It would be extraordinarily difficult to see how he could continue. What happens during the process of a criminal trial if a person continues in such circumstances? Does all this have to be disclosed?

Worst of all, what is to happen when the Investigatory Powers Commissioner publishes in his report that he said, “This should not have been granted” but the police or security services went on with it? As I understand it, the justification for opposing this, or saying that it is unnecessary, is, first, that the judicial commissioner is not making a decision but merely giving advice. With respect, that is pure sophistry. Secondly, it is said that you cannot have unwinding under judicial control as judges are not experienced in this sort of matter. I ask those who have doubts about the ability of judges to protect people to read the decision to which I was a party in a case called WV in 2011. In respect of a person who provided very valuable information to the police, the judiciary had to act to protect the person concerned, but in circumstances where in no way could that person be identified.

Therefore, it seems that the question of this amendment is straightforward. If a police officer or a member of the security services who has granted authorisation continues and does not accede to the judge’s decision, this says that we are a country that does not abide by the rule of law. In my respectful submission, it would be very difficult to see how this could be judged internally and it would do our security services great damage if it related to something overseas.

However, as this last remark shows, what I fear for in this is the damage that continuing with activity if the judicial commissioner says no will do to the security services. If the Minister opposes this amendment, I would ask her to set out what is to happen; we cannot leave this point undealt with. If it is possible, I ask her to deal with three of the main scenarios. If no activity has happened, surely the activity must not proceed. If activity has started, it must be stopped and unwound. I would hope for an assurance that, once the views of the judicial commissioner have been expressed, the activity would not go on.

This amendment seeks to deal with a subject that may be uncomfortable for people to face up to: that you have an authorising officer who says, “Yes, I think this is all right” and then a judge says, “No, it wasn’t.” We need clarity. When you think about this question, it shows the dangers of not having pre-judicial authorisation in a system. I suspect what will happen—this is why it is a great pity that we have not been able to go into this in much more detail with examples of what actually happens—is that once a judge says, “This should not have been granted” we will probably gradually move to a system of pre-authorisation.

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

My Lords, I very much enjoyed the previous speech, which gave me much information about a great number of things. I thank the noble and learned Lord, Lord Thomas.

My noble friend Lord Dubs has set out the parameters of Amendments 5 and 23 and my noble friend Lord Rosser has made incisive comments on them. I will add just a few comments in support of my noble friend’s arguments. Basically, the issues in the amendments are covered in Chapter 7 of the Joint Committee on Human Rights report on CHIS, entitled “Adequacy of oversight mechanisms”—surely absolutely essential. The Joint Committee had several concerns about this part of the Bill.

First, the Bill does not suggest any independent scrutiny of criminal conduct authorisations before they are made and acted upon. Secondly, the process of granting CCAs will be kept under review by the Investigatory Powers Commissioner in the oversight of CCAs after the event. He or she will not be informed of the authorisations at the time they are made, so how can prompt scrutiny take place? It is worth repeating those points, which were made by my noble friend Lord Dubs.

The Joint Committee on Human Rights report quotes Sir Desmond de Silva’s report on the death of Patrick Finucane. He accepts as legitimate the running of agents within terrorist groups as at the heart of tackling terrorism but says that the

“agent-running must be carried out within a rigorous framework. The system itself must be so structured as to ensure adequate oversight and accountability.”

Those conclusions are consistent w\ith the requirements of human rights law. There must be effective safeguards against abuse. The question is: does the Bill provide that rigorous framework of oversight and accountability? The amendments query that. In its submission to the JCHR, the law reform and human rights organisation Justice said that the Bill is

“extremely limited in its oversight mechanisms”

and that its safeguards were “woefully inadequate”.

The draft code of practice published with the Bill describes how the CCA practice will operate. Only a designated officer within a public authority may make a CCA, and this must be made in writing unless urgent.

Oversight of the Investigatory Powers Commissioner —who must be a senior judicial figure, of course— applies to CCAs. The IPC has the powers to conduct investigations, inspections and audits, but these are oversight functions only. The IPC does not have the capacity to investigate every time a CCA is used. The IPC role is restricted to covering the use of the power to grant CCAs in the annual report to the Prime Minister. This can be redacted before going before Parliament.

Reprieve has said:

“Once more, the oversight powers in this Bill are far weaker than those operated by the UK’s intelligence partners. The FBI has repeatedly released details of the number of crimes committed by its agents as part of efforts to increase transparency over the use of this power.”


There is currently a lack of prior independent scrutiny or approval for CCAs, as described in the report of the Joint Committee on Human Rights. This contrasts with, for example, police search warrants and phone tapping.

The Bill requires amendment—and these amendments in particular—to remedy this lack of prior judicial approval for CCAs, with provision for urgent cases, and I strongly support Amendments 5 and 23.

[Lord Cormack (Con) [V]]

My Lords, for the second time today, I have the great pleasure of following the noble Baroness, Lady Massey of Darwen, and I am delighted to do so.

There seems to be a degree of consensus among those who have spoken so far. We all believe that oversight at a high level is essential. I have signed the lead amendment of the noble Lord, Lord Dubs, and I meant to sign Amendment 23, but something went wrong—it certainly must have been my fault—and his amendments offer one route forward. I have joined forces with my friend, the noble Lord, Lord Hain, the noble Lord, Lord Blunkett, and my noble friend Lady Wheatcroft to offer an alternative: the Secretary of State. I do not have terribly strong feelings as to whether the oversight should be judicial or conducted by the Secretary of State, but they could be complementary—they are not incompatible—and the excellent amendments of the noble Lord, Lord Anderson, are certainly not incompatible with Amendments 5 and 23, as the noble Lord, Lord Rosser, pointed out, having signed all three himself. When we are dealing with matters of life, death and the country’s security, we do not want what the noble and learned Lord, Lord Thomas, fears—fudge rather than clarity, as he advocated with particular clarity.

I have a suggestion, and I hope that my noble friend the Minister will take it seriously. She has been very kind in making officials available to many of us. I have much enjoyed the discussions I have had, which have mostly focused on young people being used as CHIS; we will come to that later in our debate. She has been very helpful, as the noble Lord, Lord Dubs, said. I would like her to talk personally to the noble Lords, Lord Anderson and Lord Dubs, probably on one of these ghastly Zoom calls where they can all talk together. The noble and learned Lord, Lord Thomas, and the noble Lord, Lord Hain, should also certainly be included. I would like to come out of this an amendment which the Minister can table and introduce at Third Reading, incorporating the best features of all the amendments before us this evening.

Oversight at a high level is essential to create public and parliamentary confidence. Whether that high level is judicial or the Secretary of State, I have a reasonably open mind, but it is important that we try to reach a consensus, so that the Bill commands parliamentary and public confidence and we do not have the sort of fudge the noble and learned Lord, Lord Thomas, feared but, instead, the clarity he so brilliantly advocated.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Massey of Darwen Excerpts

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

Depending on the contributions to this debate, particularly those of the official Opposition, I reserve the right to test the opinion of the House on Amendments 12 and 13, but I hope that the noble Baroness, Lady Kidron, when the time comes, will press Amendment 24 if it is not accepted by the Government. I beg to move.

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

My Lords, the noble Lord, Lord Young, has spoken passionately and eloquently about protecting children, as he did in Committee. He made an excellent start to this debate.

I shall speak to Amendment 14, which prohibits the authorisation of criminal conduct by children without specific prior judicial approval. I thank the Minister for arranging for my noble friend Lord Dubs and me to meet officials in the Home Office to discuss this amendment. This was useful and informative but my concerns remain about the use of children in criminal circumstances.

The Joint Committee on Human Rights, of which I am a member, reported on the Bill last November. The government response to the report was published on Monday and makes substantial reference to criminal conduct by children, for which I am grateful. I shall refer to those reports.

I come to the Bill as someone who has worked with children—anyone under the age of 18, as defined in the UN Convention on the Rights of the Child—for many years. I am not sentimental about children, but I believe that they have rights as set out in the UNCRC— not just legal rights, although they are important, but moral and ethical rights such as protection, safety, family life and the right to be heard. Societies that nurture, cherish and attend to the total welfare of children are civilised societies. No society should endanger children. They need protection but also empowerment to take responsibility for themselves and others, and to learn to express opinions constructively. I like to think that the UK aspires to these principles of the UNCRC which it has ratified. We are fortunate in this country in having an articulate, dedicated voluntary sector for children that keeps us vigilant to their needs.

I cannot see how a child could be used to commit a criminal offence without there being a risk of danger, physical or psychological. As the noble Lord, Lord Young, said, I would prefer children not to be working as CHIS at all, but if they do we must make the situation as watertight as possible. I and other noble Lords know of cases where children have been let down and exploited by systems, and fallen through the net to physical and psychological harm, sometimes death. That must be prevented at all costs. It is why my amendment seeks high-level judicial approval before a child can take part in criminal conduct. The organisations Justice, Just for Kids Law and the Children’s Rights Alliance for England call that “meaningful safeguards”.

Amendment 24 in the name of the noble Baroness, Lady Kidron, and other noble Lords is very worthy. The noble Lord, Lord Young, referred to it as a useful advancement. I recognise also that she and her co-signatories are people who also care deeply about children’s welfare. That amendment extends additional protection not only to children but to vulnerable adults. That is important but, and this is a big “but”, it does not provide for independent judicial scrutiny of a CCA being made in respect of a child or other vulnerable person. It imposes a requirement that there should be exceptional circumstances before an authorisation is granted and makes it clear that other interests cannot be more primary than the child’s, and that it must have been determined that the child will not be in any danger of foreseeable physical or psychological harm. That amendment also makes compulsory the presence of an appropriate adult for all under-18s when meeting with the investigating authority. It requires any use of a CCA in respect of a child to be reported to the Investigatory Powers Commissioner within 18 days.

Amendment 24 meets most of the concerns of the Joint Committee on Human Rights about the welfare of children under CCAS. However, a major concern is that there is no independent decision-maker—only independent review after the event by the IPC. This system can pick up an abuse of power only when it has happened. Tough, independent assessment of whether a child should be used as a CHIS should be made before the child moves into a dangerous situation. I am sure the people working with these children are caring and professional, but this is such a serious issue for children that a judicial commissioner should look at each case and make the final decision.

I know that the Minister, speaking on different amendments on Monday, said that she could not agree with prior authorisation. I am not sure why. It may be that she can tell me more. There are not that many children in such a position—between 12 and 17 between 2015 and 2018. Undue delay would therefore be unlikely and the children’s cases would have double scrutiny, which is what they deserve, due to the seriousness of what they are being asked to do. If Amendment 24 is accepted by the House, I shall not put my amendment to the test but will suggest further action. The government amendment does not add much to what we have already heard, and we need to go further. That amendment, however, recognises that there are concerns about authorising children as CHIS and makes efforts at reconciliation, as the noble Lord, Lord Young, said.

This issue is not new. The Joint Committee on Human Rights raised concerns in 2018 and 2019 with the Minister for State for Security and Economic Crime and the Investigatory Powers Commissioner. In 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 of the European Convention on Human Rights. The court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was

“liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”

The Joint Committee on Human Rights concluded that the Bill must be amended to exclude children or to make clear that children may be authorised to commit criminal offences in only the most exceptional circumstances. I suggest that those exceptional circumstances should have independent consideration at the highest level.

The Government’s response to the JCHR report gave considerable space to discussion of these issues in relation to chapter 6 of the report. But they came up with, to me, a rather tenuous argument, stating that

“young people may have unique access to information that is important in preventing and prosecuting gang violence and terrorism. This helps remove from the cycle of crime not only the young person … but other young and vulnerable individuals caught in criminality. We should also acknowledge that by universally prohibiting the authorisation of young people to undertake criminality we are increasing the risks to them and placing them in an even more vulnerable position. If criminal gangs … know that a young person will never be authorised by the state to undertake criminality, such groups will be more likely to force young people to engage in criminality, confident in the knowledge that they could never be a CHIS”.—[Official Report, 3/12/20; cols. 937-8.]

I can see absolutely no logic in that statement.

Indeed, a former undercover police officer, with experience of being a CHIS, has said that

“Children recruited as informants are also highly likely to end up getting drawn back into criminality and feeling trapped in their situation.”


I am aware that the noble Baroness, Lady Hamwee, knows something about those situations.

A leading and highly respected child psychiatrist has said that

“the deployment of children as a CHIS could incur significant … emotional damage to the child and could in fact engender the creation of new criminals by placing them in criminogenic environments.”

This is not child protection; it is not respecting children’s rights. It is dangerous and potentially destructive. Every care must be taken, and we have a duty to see that that happens.

I have the greatest respect for the Minister and admire her common sense, sensitivity and practicality. Might I suggest that this whole operation needs to be taken away and looked at again very carefully, with an independent review? This should cover: the types of involvement by children; how children are assessed as suitable for such work; how the views of children, parents if appropriate and those accompanying children are taken into account; what psychological support is offered; and how children are assessed and supported after their involvement as CHIS, and for any long-term effects.

This may result in a recommendation not to use children in this fashion—I would welcome that—or in more stringent methods of prior independent authorisation being employed, as suggested by my amendment. The current situation in which children are used as CHIS cannot remain the same. I hope that the Minister will consider this suggestion. This issue is not going to go away; indeed, it is likely to intensify. I look forward to her comments and thank noble Lords for their time.

[Baroness Kidron (CB) [V]]

I speak to Amendment 24 in my name and that of the noble Lords, Lord Young of Cookham and Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. This sets out the safeguards and protections that should exist if we ask a child to commit a crime as a covert human intelligence source. I pay tribute to the work that many have done on this issue, including the noble Lords who support this amendment; the noble Baroness, Lady Young of Hornsey, who raised these concerns so admirably in Committee; the right reverend Prelate the Bishop of Durham, who has left us with no doubt where right lies; and my noble friend Lord Russell of Liverpool, who has taken time to go through the interlocking amendments and considerations with me.

I also acknowledge the tireless efforts of Stella Creasy MP, in bringing this issue forward in the other place, and the children’s rights advocates Just for Kids Law, which brought the court case on this matter last year. I have taken up the baton for this work at their request. As many of your Lordships know, my time, both in the House and beyond its walls, is spent as an advocate for children’s rights online and offline. I have great sympathy for the other amendments in this group, but I speak to Amendment 24 only and will make some points about government Amendment 26. I note and take to heart the words of both the noble Baroness, Lady Massey, and the noble Lord, Lord Young of Cookham; while I have their support for what I propose, it is the absolute minimum that children require and is not ideal, in their view. I declare my interests set out on the register.

Children do not all have the same circumstances. It is simply a fact that some children will not be as well-loved as others, some not as well-cared-for and some not as well-behaved. None the less, whether they are loved, cared for or well-behaved, any person under the age of 18 is a child. In a context where a person under the age of 18 is being asked to be a covert source and do something illegal, we must ensure that they remain a child in the eyes of all who play a part. In every other interaction with the criminal justice system, we try to remove children from criminal activity to take them away from harm and towards safety, but before us is legislation that formalises our ability to do the opposite.

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Moved by

[Baroness Massey of Darwen]

15: Clause 1, page 3, line 2, at end insert—
“(8A) A criminal conduct authorisation may not authorise any criminal conduct—(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;(b) involving an attempt in any manner to obstruct or pervert the course of justice;(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;(d) subjecting an individual to torture or to inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”Member’s explanatory statement
This amendment establishes a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act 1985.

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

My Lords, I thank my noble friends Lord Dubs and Lord Rosser and the noble Lord, Lord Paddick, for adding their names in support of this amendment.

The bottom line on this amendment is to include a prohibition on the authorisation of serious criminal offences. It establishes a prohibition on such offences listed in my amendment; these are in similar terms to those in the Canadian Security Intelligence Service Act 1985, which I will refer to later.

I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs, and I will refer to its report on the Bill, published last November. The committee had serious concerns about this part of the Bill, and I shall put this amendment to a Division unless I receive a thorough reassurance from the Minister.

In chapter 4 of the JCHR report, four issues are discussed: first, there being no express limit in the Bill on the type of crime that can be committed; secondly, consideration of the approach taken in other jurisdictions; thirdly, the power to prohibit certain conduct by order; and fourthly, the Human Rights Act as an effective safeguard.

In their written response to the JCHR report, published on Monday, the Government give detailed consideration to the recommendations in this amendment. I am grateful for that, but I do not think it covers all our concerns as a committee. The Minister will perhaps reflect these considerations in her response. It is helpful that the Government restate their commitment to human rights in the response at the end of section 3. They say that

“the United Kingdom is committed to human rights and will continue to champion human rights at home and abroad. The United Kingdom is committed to the ECHR.”

But evidence of the commitment to human rights has to be demonstrated and reinforced, and I am concerned that by not expressing limits in the Bill on the type of crime that can be authorised, human rights are not being defended.

The Joint Committee on Human Rights has expressed the concern that:

“The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.”


The Home Office, in its guidance on limits of authorised conduct, consider this necessary because

“to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”

In their joint written submission to the JCHR, the NGOs Reprieve, the Pat Finucane Centre, Privacy International and Big Brother Watch note that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill. However, the Canadian legislation expressly provides that nothing in the Act justifies the issues set out in my amendment. They are, to summarise: causing death or grievous bodily harm; perverting the course of justice; any offence under the Sexual Offences Act 2003 or the 2009 Act in Scotland; subjecting an individual to torture, inhuman or degrading treatment or punishment, as in the meaning of the HRA 1998; or depriving a person of their liberty.

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[Lord Mackay of Clashfern (Con) [V]]

My name was down due to a fault of mine; I apologise for interrupting.

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

I have reservations about some of the issues the Minister raised in summing up this excellent debate—most of them have been addressed by noble Lords. I thank all noble Lords for their varied and incisive comments and useful examples in this valuable, interesting and important debate.

I am particularly delighted that the noble and learned Lord, Lord Hope of Craighead, immediately followed me in this debate; he raised many issues and provided excellent analysis and clarifications. I accept his comments and am delighted that he feels he can support what he has called an imperfect amendment. He is also right in saying, as did the noble Lord, Lord Cormack, and others, that great weight must be given to the issue of torture, which should never be authorised.

Other noble Lords have contributed varied arguments on my amendment. The noble Lord, Lord Bruce of Bennachie, made a useful contribution from the point of view of Scotland, where, interestingly, the Bill was found to be inadequate, as he said. That has been a theme throughout the debate, especially when discussing the Human Rights Act as an inadequate safeguard to prevent criminal offences. The noble Baroness, Lady Chakrabarti, among many others, raised this issue, saying that we cannot legislate in such broad terms; it is not all right to do so.

In thanking noble Lords for participating in this debate, I note that, although I understand what the Minister is saying, the consensus is that there are too many inadequacies. Given those inadequacies, I beg to test the opinion of the House.

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[Baroness Hamwee (LD)]

We have Amendments 27, 29, 30 and 45 in this group. Amendment 27 is the central amendment. I appreciate that it may not be immediately obvious, but it responds to how the Bill is constructed, so I will try to explain.

The Regulation of Investigatory Powers Act—RIPA—allows for a number of authorities to deploy sources. That number is reduced by this Bill, and we support that. However, at the same time, all authorities that remain on the list are relevant authorities, which are also able to grant criminal conduct authorisations. Our amendment would leave out what is a repeal of the list in RIPA—that repeal follows from the Bill’s new Part A1 of the RIPA schedule—but it puts back the police, the National Crime Agency, the Serious Fraud Office and the intelligence services for the purposes of new Section 29B, which is for new criminal conduct authorisations. In short, amendments 27 and 45 would mean that all the authorities listed in Clause 2 are relevant authorities for the purposes of the sections of RIPA that continue and so can deploy sources, but only the police, the NCA, SFO and intelligence services can grant CCAs. Simply taking out a number of authorities from the Bill does not achieve that, though it took me a while to work out how to get there and we got it wrong in Committee. The Minister was kind enough not to rub that in.

At the last stage, the noble Baroness, Lady Massey, and the noble Lord, Lord Dubs, explained the concerns of the JCHR, and they have tabled their amendment again. Other noble Lords had amendments and spoke to concerns about what the noble Baroness, Lady Chakrabarti, called overreach. The noble Lord, Lord Cormack, proposes leaving off the list the five authorities which have caused the most surprise among a number of noble Lords.

At the last stage and on Monday, I felt several times that those of us who have been putting forward amendments to the Bill, in what I described then as attempts to buttress safeguards to the granting of CCAs, while on the whole accepting their use, were thought to be attacking the use of agents. We were not. We understand the safeguards in the Bill and the draft code of practice—necessity and proportionality, as well as the procedural safeguards. Of course, most of us do not have the direct experience of other noble Lords, and most of us could not do what they do or have done. But I hope they do not regard it as disrespectful of them if I say that one of the attributes of this House is that we blend expertise and experience with, I hope, reasonably informed and intelligent generalism. It would not be good for democracy—I am aware of the irony of an unelected politician making the point—if experience in a particular area were not leavened by other experiences, including life experience.

Questioning the authorities that can grant criminal conduct authorisations is not questioning the use of agents. I understand the argument that it may be better not to split activities and that, if criminal conduct is to be authorised, it is better to authorise an agent already placed in the authority, perhaps even an employee. On Monday my noble friend Lord Paddick made the counterargument that, if the situation is so serious that a CCA is contemplated, it should be a matter for the police. It is a judgment between the two positions. I regard the granting of a CCA—permission to commit a crime for the greater good—as so serious that it should be more limited than the deployment of an agent. I do not dispute that some of what the authorities in contention, if I may put it that way, deal with is extremely serious; but I started to wonder why we would take out of the list of those who can deploy a CHIS the Gangmasters and Labour Abuse Authority and the Marine Management Organisation while retaining, for instance, the Environment Agency.

Our other amendments, which would be pre-empted if Amendment 27 is agreed, are to limit the authority of the Armed Forces to the police of the three services— the reference to the intelligence services is unaffected—as we assume, or hope, that it is not intended that every part of the Armed Forces should be entitled to give agents the authority to commit crime. In the case of the Home Office, we would limit the Home Secretary’s right, in effect, to authorising herself to prevent or detect modern slavery and trafficking, picking up on the Minister’s explanation of the inclusion of the Home Office being specifically related to immigration enforcement—she gave an example. I beg to move.

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

My Lords, I thank the noble Baroness, Lady Hamwee, for her explanation of this set of amendments. I shall be brief in presenting Amendment 28. I am a member of the Joint Committee on Human Rights, which considered the Bill and the issue of granting authorisations. This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.

The recent Joint Committee on Human Rights report considers the wide range of public bodies in the Bill unnecessary and unproductive. Criminal conduct authorisations, from a human rights perspective, must first consider whether the exceptional power to authorise crimes to be committed without redress is truly necessary for all these public authorities.