Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness McIntosh of Hudnall Excerpts

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

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords who have spoken in this debate.

Amendment 39 seeks clarification on who can be authorised under the Bill. The intention behind the Bill is to provide protection both to the CHIS themselves and to those involved in the authorisation process within the relevant public authority. There are a range of limitations on what can be authorised under the Bill, including the conduct being necessary and proportionate. This means that it would not be possible to grant an authorisation for criminal conduct unless that conduct was by a CHIS for a specific, identified purpose, or involved members of the public authority making, or giving effect to, the CHIS authorisation.

Amendment 53, from the noble Lord, Lord Sikka, seeks to restrict those who can be granted a criminal conduct authorisation to employees of the public authority. The Government cannot support this amendment as it would significantly hamper our public authorities’ efforts to tackle crimes and terrorism. While CHIS are often employees of the public authority, they also can be members of the public. The real value of CHIS who are members of the public is in their connections to the criminal and terrorist groups that we are targeting. This is often the only means by which valuable intelligence can be gathered on the harmful activities which we are seeking to stop. Employees of a public authority will not have the same level of access. I reassure the noble Lord that the authorising officers within the public authority set out clearly the strict parameters of a criminal conduct authorisation. Were a CHIS to engage in criminality beyond their authorisation, that conduct could be considered for prosecution in the usual way.

The noble Lord, Lord Paddick, asked whether the CHIS and their handler could be prosecuted. Obviously, every situation will be different, but if the CHIS acted beyond their authorisation, they would have to answer for that. Equally, if the CHIS handler acted inappropriately or in a way that might endanger the CHIS, they could also be liable for that conduct.

The noble Lord, Lord Sikka, talked about security guards being undercover operatives. The noble Lord will know that we have published the list of bodies that can run undercover operatives. In addition to this, the criminal injuries compensation scheme is not undermined by this Bill, and I understand that anyone can approach the IPT if they feel they are due civil compensation. I think that is right, but I will write to noble Lords if that is wrong.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I have received a request to speak after the Minister, and hand signals suggest it may be the noble Lord, Lord Paddick.

[Lord Paddick (LD)]

I thank the Minister for her explanation. I am not sure I explained myself well enough to her in terms of who is covered by legal immunity. It is not if the CHIS goes beyond the CCA, but if the CHIS remains within the CCA. So, if the CHIS operates exactly in the way the handler has told them to, and the handler tells them only what the authorising officer has authorised them to, but it is not necessary or proportionate, it is corrupt or a mistake, who is covered by the CCA? Who is covered by the immunity, even though the CHIS has not gone beyond what they were asked to do?

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Amendment 40 not moved.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, we come now to the group consisting of Amendment 41. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.

Amendment 41

Moved by

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[Baroness Chakrabarti (Lab) [V]]

My Lords, this amendment is very simple but, none the less, incredibly important to reassure some noble Lords and organisations, which you heard from earlier, about peaceful, legitimate protest and political activity, such as trade unions, environmental movements and so on. This is an important amendment to reassure them against abuses by Governments present and future. No disrespect is intended to a Government of any particular stripe. It has been drafted with some care, because I understand that it is difficult to limit the precise positive purposes of a covert human intelligence source, not least because the Government have chosen in this legislation to cover a wide range of public authorities and their investigatory, regulatory and enforcement work. I have tried to rule out the use of a criminal conduct authorisation for the purposes of agents provocateurs.

I complained on other groups that one of the problems with the legislation, as drafted, is that it grafts criminal conduct—which is much more serious than normal intrusion—on to a legislative scheme designed for intrusion, but not for the greater harms of criminality. It also has a limited Long Title and a limited scope. It is difficult to use amendments to the Bill to improve the RIPA scheme on to which so much weight is now being placed. However, I believe it is possible to do a great deal of good, even within the limited Long Title, in preventing agents provocateurs.

For the avoidance of doubt, and for members of the public watching at home or reading tomorrow, an agent provocateur is a state agent who is placed undercover, quite often in a protest movement, trade union or other innocent, legal, peaceful organisation, for the deliberate purpose either to incite crime on the part of others who would not normally go that far in their protest or for the agent to commit crime, while undercover, to delegitimise the wider peaceful movement in the public’s eyes or to justify a more repressive policing or banning response by the state. This method has been used throughout history and throughout the world, even in the United Kingdom. It was used during the hunger marches and in various trade union activity. We will see what comes from the Undercover Policing Inquiry.

I have no doubt that the Minister does not intend the Bill to allow criminal conduct authorisations—which now come with immunity, as they never did before—to be used to license agents provocateurs. Therefore, it seems to me that she would want to support this amendment, or something like it, which puts it beyond doubt that no CCA is able to authorise agents provocateurs.

The amendment is carefully drafted not to rule out the agent who finds himself or herself joining in with criminal activity to keep their cover or encouraging, assisting or inciting, while in discussions with others, to keep their cover. It prohibits the authorisation for the primary purpose—this is the crucial part of the amendment—of inciting crime, to use the modern definition under the Serious Crime Act 2007, or otherwise seeking to discredit the person or organisation being spied on. That is, they are not inciting it, but they are doing it undercover to discredit that organisation. To me, it seems simple and carefully crafted, if I may say so, but desperately important to reassure those involved in peaceful protest in particular. I beg to move Amendment 41.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Baroness, Lady Warsi, is not participating in this debate, so I call the next speaker, who is the noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My Lords, I too signed the amendment, which the noble Baroness, Lady Chakrabarti, has very adequately introduced. When I think back to my experience in the Metropolitan Police Service and the instructions that we had, acting as an agent provocateur was clearly and explicitly prohibited as that relates to covert human intelligence sources committing crime. However, unless I have missed it, I cannot find in the Bill or in the draft code of practice any explicit reference to “agent provocateur”.

To repeat what the noble Baroness said in different terms, an agent provocateur is someone who commits a crime or encourages others to commit a crime that would not have been committed had it not been for the actions of the CHIS, or it relates to a situation in which the CHIS commits a crime and then blames the organisation for that crime, which members of the organisation had no intention of committing. In other words, the crime would never have taken place had it not been for the presence of the CHIS.

I look forward to hearing from the Minister where I have missed that explicit instruction, either in the Bill or in the codes of practice. I stress to her that, although I understand that this scenario could not happen under existing guidelines in the police service, we in this House want reassurance either in the Bill or in the codes of practice that it is prohibited.

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[Baroness Chakrabarti (Lab) [V]]

Of course.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am afraid that that is not within the rules at present. I apologise to the Minister but we have to let the noble Baroness, Lady Chakrabarti, finish.

[Baroness Chakrabarti (Lab) [V]]

I apologise. It is hard to see the Minister’s face or responses from this angle on Zoom. Briefly, in my scenario there is no trial, fair or otherwise, and therefore there is no issue of evidence against entrapment. There is just a CHIS who has been authorised for the purposes of discrediting a movement that may be feared to become violent in the future but is nowhere near doing so at the moment. My amendment seeks to ban a criminal conduct authorisation being issued for that primary purpose.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

Would the Minister care to respond to the noble Baroness, Lady Chakrabarti?

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Amendment 42 not moved.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

We now come to the group beginning with Amendment 43. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear during the debate.

Amendment 43

Moved by