Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Cormack (Con)]

My Lords, the noble Lord, Lord Dubs, referred to this as a potential abuse of power and, although I am entirely convinced that that is the last thing in Ministers’ minds, I say nevertheless: be careful what you wish for. I am very troubled by this section of the Bill, which is why I put down three amendments—Amendments 64, 66 and 69—to delete from the list of bodies authorised the Department of Health and Social Care, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. However, putting those down as probing amendments, I became increasingly convinced that I had not gone far enough, so I say unequivocally that I prefer the amendment of the noble Lord, Lord Paddick, which he introduced a few minutes ago.

This is a troubling Bill. I think that there has been a universal acceptance across your Lordships’ House, because it is the paramount duty of any Government to protect the state and those who live in it, of the need for, and the unavoidable necessity of, the Bill. However, it goes too far. We had a very interesting and challenging series of debates a week ago today, when we talked about whether certain crimes should be on a list of prohibited crimes. We also talked about authorising children—those under the age of 18.

Both those aspects of the Bill troubled me, and I have put amendments down, but this also troubles me: giving almost a carte blanche to a whole range of bodies, some of which are not concerned with the most heinous crimes or with the ultimate protection of the state and citizens. I urge my noble friend the Minister to accept that these are very important and valid points. We certainly will need to come back on Report, and I would like to consult the noble Lord, Lord Paddick, and others on precisely which amendments we go for.

There are two developments in modern legislation that trouble me, as I know they trouble the noble and learned Lord, Lord Judge, more than anything else: the proliferation of Henry VIII clauses and of the granting of almost unlimited powers to Ministers of the Crown, as well as what I call the “Christmas tree Bill”—of which this Bill has some aspects. Having been persuaded that legislation was necessary, and I understand why that was so, the Government have said, “We’ll give as many people as possible as much permission as possible to do what they like, and we will give a particular power”—the noble Lord, Lord Paddick, underlined this graphically—“to the Home Office”. Therefore, power is ultimately given to a party politician whose motives, I am sure, would always be pure in his or her eyes, but it would not necessarily be conducive to enhancing public confidence in the machinery of government. All these issues are touched on in this clause.

We must be very wary of what power we give and to whom we give it. Although we have said before—and I do not for a moment resile from it—that some of the agents, of whom the noble Baroness, Lady Manningham-Buller, spoke movingly a couple of weeks ago, are among the bravest of the brave, there are others who swim in murky waters and have a criminal background. It is not sufficient for the Food Standards Agency or the Environment Agency to say, “We’ll employ a thief to catch a thief”—because that is what it could come down to.

I urge my noble friend, who is due to reply, to take these points as serious points that require the most careful examination before and during Report stage. I am very grateful for the letter I received this morning from my noble friend, inviting discussions and co-operation; she has a very good track record in that regard and is an exceptionally conscientious Minister. Of course, we are not talking about current Ministers here; we are talking about giving an extended power for an indefinite period, whatever the complexion or orientation of the Government.

I strongly support the improvement on my amendments by the noble Lord, Lord Paddick, and I hope we can, on Report, ensure that this Bill is sufficiently trimmed down and that the right number of baubles are removed from the Christmas tree so that we have something in which we can all have a degree of confidence.

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

My Lords, I am delighted to follow my noble friend, and I associate myself with the comments made previously by the noble Lord, Lord Paddick, who spoke so powerfully, in introducing his Amendment 63. As he said, Clause 2 breaks new ground, giving powers to grant legal immunity and to authorise agents to commit acts that otherwise would be criminal to these other bodies that we have before us this afternoon, which can say that such acts are not to be considered criminal offences.

I echo the comments of my noble friend Lord Cormack. I was hugely moved by the words of the noble Baroness, Lady Manningham-Buller, who paid such justified tribute to those who work in the services that are largely contained in new Part A1 inserted by Clause 2. No one can take away from the risks that they run and the huge efforts they have made on our behalf to keep us all safe, not least those of us working in Parliament and public life; we are extremely grateful for that.

On reflection, as my noble friend Lord Cormack has said, I prefer Amendment 63 but would like to speak to the amendments I have tabled for the purposes of debate today: Amendments 67 and 68 and to oppose the Question that Clause 2 stand part of the Bill. I have absolutely no argument that the bodies listed in categories A1 to E1 of new Part A1—any police force, the National Crime Agency, the Serious Fraud Office, any of the intelligence services and any of Her Majesty’s forces—should not automatically be considered for preferment and allowed to fall under the provisions of this Bill. I assume that that was primarily what was in mind when the Bill was initially drafted.

I thank the Minister for the offer to meet; that would be extremely useful before we get to Report. On a number of occasions I was heavily involved, both as a local MP and as chair of the EFRA Select Committee next door, with rural crime. It grieves me greatly that many of these rural crimes are simply not taken as seriously as crimes that occur in towns, market towns or cities, such as London and other major cities in the UK. I am talking specifically of very serious rural crimes with a very heavy criminal content of organised gangs. I pay tribute to the work the Environment Agency has done in this regard by installing covert cameras and trying to solicit as much information and intelligence as it can. With the cost now of disposing of building waste and other hazardous waste, it is becoming extremely attractive to dispose of it on rural property, often privately owned. It is a public duty to remove this waste if on a highway or byway, but the cost of removing it to a private landowner is never considered and it is very difficult for them to resist this type of activity.

The other activity in which I was involved was taking evidence, particularly from the Food Standards Agency, on the passing off of horsemeat as beef and other meat. This is an ongoing activity. I pay tribute to Professor Elliott and others who have been heavily involved. I also pay tribute to the Food Standards Agency, and others agencies, which continues, as do local authorities—both environmental health officers and trading standards officers—to keep safe the food that we eat and ensure that, whatever we purchase, it is what it says it is on the tin or label. This is potentially a multi-million-pound fraud.

I have a simple question for the Minister: why are we seeking to extend the provisions of the Bill, in the terms set out by the noble Lord, Lord Paddick, in Amendment 63, to grant immunity from prosecution to bodies such as the Environment Agency and the Food Standards Agency? It would be perfectly proper for this action to be taken by any police force or the Serious Fraud Office. There was a problem with horsegate—the passing off of horsemeat as beef. I think it was the City of London Police fraud office that was asked to intervene, because no other body was deemed fit to have the wherewithal and capability to deal with that fraud.

I share the unease and anxiety of others who have spoken in the debate this afternoon. We are perhaps inviting unintended consequences and being a hostage to fortune by opening up to criminal activity those acting as authorising agents for CHIS to act on their behalf in bodies such as the Environment Agency and the Food Standards Agency. I would like to understand more the grounds for including these bodies and what activities will be covered.

To continue the theme, I am also deeply concerned that, in amending the Investigatory Powers Act 2016 to provide the exercise of these new powers to authorise criminal conduct falling within the statutory oversight duties of the investigatory powers provision, the secondary legislation that will be required will contain all the information and detail on the specific rank of officeholders within the bodies I have referred to who would be permitted to grant criminal conduct authorisation for the first time. I am very uneasy that this is not on the face of the Bill and that the detail will be provided in subsequent secondary legislation, albeit coming in very short order. I would much prefer that this is not included in such Henry VIII clauses in regulations; it should be in the Bill.

I support the main thrust of the provisions of the Bill, without a shadow of a doubt. However, I query many of the bodies included in the broader Clause (2) —in particular the Environment Agency and the Foods Standards Agency, which I have mentioned—and the fact that we are leaving so much to be decided at a later date; that concerns me greatly. I look forward to reassurance from my noble friend. These are intended as probing amendments.