Law Enforcement Agencies: Duty of Candour

Baroness O'Loan Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, first, I extend my deepest sympathies to the family of Daniel Morgan. Regarding who should be held accountable, the Home Secretary has asked the Metropolitan Police Service to account for the findings in the report. She has also asked HMICFRS to ask the chief inspector what steps the inspectorate can take to provide assurance on the issues raised in the report.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan panel. Is the Minister aware that the panel identified the abstraction of vast amounts of police material by the senior investigating officer of the last investigation, much of which he then disseminated to journalists and others for the purpose of broadcasting and writing a book about the murder? It included sensitive and secret material, the dissemination of which involves potentially significant risk to those identified and could undermine any future prosecution. Given this, does the Minister agree that the police must ensure that their policies and procedures to prevent such behaviour are effective and implemented, and that the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing?

[Baroness Williams of Trafford (Con)]

I agree with the noble Baroness and I thank her for the work she has done to bring forward this report, which I am sure will be a source of learning for both the Government and the Metropolitan Police. Regarding the policies and procedures and what has changed since the murder of Daniel Morgan, as the noble Baroness probably knows, a code of ethics for the police was introduced in 2014, and in 2020 the standards of professional behaviour were changed to clarify that failure to co-operate with investigations and inquiries could constitute misconduct. Much has changed for the better since the murder of Daniel Morgan, but, as the noble Baroness says, this is by no means the end of this very long story.

Daniel Morgan: Independent Panel Report

Baroness O'Loan Excerpts

Tuesday 25th May 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I do not see how there can have been a cover-up, if the Home Secretary has not yet received the report. We need to be very careful about the series of events that are required for publication to take place. I am sure that, like the noble Lord, we all look forward to the report being published in Parliament.

[Baroness O'Loan (CB) [V]]

My Lords, I declare an interest as chair of the Daniel Morgan independent panel. Is the noble Baroness aware that the panel has worked very closely with the Home Office, including with the Permanent Secretary, on arrangements for publication, and that it understood until 10 May that it was most likely that the report would be published on 17 May or yesterday and that the Home Secretary would have prior sight of it, as normal? There was no suggestion that the Home Secretary would seek to redact the panel’s independent report.

Is the Minister aware of the process adopted by the panel to ensure compliance with its legal obligations, which derive from its terms of reference, and the requirements when a report is to be published in Parliament, which include getting consent from all document holders to publication of their material, an anonymisation process, the sending of fairness letters to all individuals and organisations criticised in the report, a 10-day security review by five senior members of the Metropolitan Police and a full legal review of the 1,200-page report by the panel’s independent solicitors and Queen’s Counsel to ensure that there are no outstanding concerns?

Is she aware that the panel now awaits confirmation from the Home Office of the arrangements to ensure the security of the report prior to its publication in Parliament? Despite her previous answer, can she assure the House that publication will occur by 16 June, to enable the family of Daniel Morgan, who have been waiting 34 years and three months for answers, finally to see this report?

[Baroness Williams of Trafford (Con)]

I begin by thanking the noble Baroness for the part she has played as chair of the inquiry. We are as keen as she is to see that report published in Parliament. I echo her words about the family, who have had to wait 34 years for some of the answers they seek. That must have been an incredibly painful process for them. On publication to Parliament, I agree that the panel is now awaiting confirmation of the arrangements from the Home Office. The Home Secretary needs to see the report before it can be published in Parliament. To echo previous noble Lords, I also completely respect that legal specialists have looked at the report, but my right honourable friend the Home Secretary is under an obligation to assure herself of those facts before the report is published. As my honourable friend read out yesterday, the terms of reference say:

“The Independent Panel will present its final Report to the Home Secretary who will make arrangements.”


The noble Baroness has acknowledged that there is no attempt to redact, only to ensure that human rights and national security issues are absolutely scrutinised. Then, I hope, the report will be published as soon as practicable.

Domestic Abuse Bill

Baroness O'Loan Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

[Lord Morrow (DUP) [V]]

My Lords, I again commend the Government for bringing forward the Bill, as I have done throughout its passage through this House. I thank the Minister for the work that has been undertaken thus far. However, as the tragic events in Clapham so shockingly remind us, speed is of the essence when it comes to changing the attitude of men and boys towards women and girls in our society.

The Minister has been keen to point out that the Government’s own pornography research does not prove causation—how could it? It does demonstrate a clear association between pornography consumption and male aggression and sexual violence, as does other research in the field. In this context, addressing the impact of pornography consumption on male aggression towards women must form part of a credible legislative approach to violence against women and a credible response to the outpouring of stories that we have all been moved by this week.

In recent debates, much has been said about how Part 3 of the Digital Economy Act protects children from pornographic websites through age verification. That is certainly very important because, if Part 3 was in place now, children today would be less likely to be exposed to pornographic websites. It would therefore be less likely that they would move into adulthood with the expectation that violence is a natural part of sexual relationships, with all that this means for behaviour.

However, after the events of last week, it is also important to stress that another feature of Part 3—namely, the regulator’s power to take robust action against websites showing illegal extreme pornography, regardless of age verification—is important, because it will help foster an environment that challenges the normalisation of violence against women. It is a vital change that women and children could benefit from right now, that could have brought huge benefits from last year and, crucially, that could bring huge benefits very quickly, for reasons I will explain, if the Government implement Part 3.

The latest letter on this from the Minister comes with an estimated timetable of between 22 and 27 months for implementing Part 3 of the Digital Economy Act 2017, with a new regulator. This is perhaps the finest example of a cannot-do, rather than a can-do, attitude to emerge from Whitehall since Sir Humphrey Appleby took his retirement. It is deeply problematic for at least two reasons. First, it clearly draws out the process to the greatest possible extent, making it as long as possible. Secondly, it rests upon a strategy that hopes that none of us will be cute enough to spot the elephant in the room.

The truth is that, if the Government were prepared to redesignate the BBFC as the regulator for Part 3 during the interim period, while the online harms Bill is being developed, then women and children would benefit within a matter of months from the very important protections that this House has already sanctioned in relation to pornographic websites. The taxpayer would also see a return on the £2.2 million investment in the steps taken in preparing for implementing Part 3.

The question the Government must answer is this: is bowing to their preference that Ofcom be the regulator, rather than the BBFC, so important that they are prepared to demand that the price for it is that women and children should be denied the protections that this House has sanctioned for them for a period of years? We can argue about how long it might take for the online harms framework to reach the point of implementation, but if we use the Digital Economy Act as a model, we can assume that the time from the arrival of the primary legislation in Parliament to the point at which it and the attendant secondary legislation and guidance are passed will be about three years. Is the Prime Minister prepared to tell the women and children of the United Kingdom that his preference for Ofcom over the BBFC is so great that women and children should be denied these important protections from pornographic websites for some years, even though he can still have Ofcom when the online harms regime comes into play? Is he prepared to ignore Women’s Aid? Are the Government saying that, because they cannot consent to this, we should cease support for this amendment and all those who want implementation now?

I trust that the Prime Minister still has his political wits about him. I trust that he will think better of taking a different position from all these bodies and the noble Baroness, Lady Benjamin, whom the people of this country hold in such high regard. Redesignation would take 40 days, as per Section 17 of the 2017 Act, where it was agreed that we should give the websites three months to get ready.

By my reckoning, if the Government show a fraction of the determination that we saw at the vigil in Clapham on Saturday night, Part 3, with all its protections for women and children, could be in force before this House rises for the Summer Recess. It is my great hope that the Government will do the right thing today and tell the Minister before she gets to her feet that she can announce that the Government will now implement Part 3, so that the noble Baroness, Lady Benjamin, whose leadership on this issue demands our great respect, can withdraw her amendment.

[Baroness O’Loan (CB) [V]]

My Lords, I am pleased to speak today in support of the amendment in the name of the noble Baroness, Lady Benjamin. I am grateful too for the powerful briefings and extensive correspondence on this amendment that I have received from several organisations and individuals.

Like other noble Lords who have spoken, I have seen the Government’s letter of 8 March. I found it unconvincing and I am concerned that there is a danger of completely missing the point of the amendment. As we saw over the weekend, the country is very concerned about attacks on women. I think, too, that we are all concerned about the level of violence against children, and indeed against men, in our society. It is clear that the consumption of pornography is associated with aggression and violence against women, men and children. This is an issue on which we can act today.

Had the Government implemented Part 3 of the Digital Economy Act as planned, we would have had a functioning regulator today. He or she would have been able to take a series of robust actions against any pornographic website showing illegal extreme pornography. We would have seen the introduction of age verification on pornographic websites.

Today, 14 women’s organisations, including Women’s Aid, have written to the Prime Minister asking him to instruct his Ministers to respond to the debate by making a commitment to implement Part 3 of the Digital Economy Act as an interim measure to protect women and children, treating them with dignity between now and when the online harms regime will be ready, probably in three years.

The suggestion in the Government’s letter that

“commencing Part 3 of the 2017 Act as an interim measure would … create a confusing and fragmented regulatory landscape”

is unconvincing; it is also regrettable.

The online harms Bill is not yet before Parliament; it will take time to pass through Parliament and, even if it is passed as suggested and the Government commence implementation immediately, the interim arrangements proposed today would be in place and working for two or three years before it would be realistically possible for any benefit to be experienced through such an Act. That would be years of additional protection before any further legislation was operative.

If providing a greater measure of protection for women and children is a critical issue, as the Government have said, they cannot continue to argue that the legislation that we have passed should not be implemented now, even as work proceeds on developing even better legislation for the future. With child-on-child sexual abuse, we know that between 2012 and 2016 there was a 78% rise in England and Wales. Research from 2017 on preventing harmful sexual behaviour involved interviews with young sexual offenders, asking them what might have stopped them. Their answers included “help in management of pornography”. Implementing Part 3 would do this; it would help to save and protect until new legislation is enacted.

I urge the Government to respond positively to noble Lords who have spoken in favour of this amendment and the many women’s groups that have written to the Prime Minister today, and I shall support the noble Baroness, Lady Benjamin, if she divides the House on this amendment.

[Baroness Finlay of Llandaff (CB) [V]]

We should all thank the noble Baroness, Lady Benjamin, for Amendment 87A. It has been thrown into stark relief by the terribly tragic death of Sarah Everard.

In 2017, Parliament agreed powers to take action against any website showing illegal extreme pornography, yet although we have agreed that non-fatal strangulation is a crime, we still face the cultural normalisation of aggressive sexual activity, of which strangulation activities are the most extreme example. Fuelling such activities is violent pornography and the underlying problem of sex addiction, as explained by the noble Lord, Lord McColl of Dulwich. As with any addiction, the person requires ever more potent dosages of the source of their addiction, whether drugs, alcohol, gambling or abnormal sex. When sexual potency appears to fail, the man seeks greater stimulation in an attempt to achieve satisfaction, developing psychological tolerance to abhorrent acts. The pornography sought gradually becomes ever more extreme, with films and images made exploiting those who are vulnerable, often underage, enslaved or both. This is not about choice or self-control; the addict has surrendered choice—they are controlled by their addiction, compulsively drawn by dependence to extreme pornography. That does not absolve them from responsibility at all but, by leaving the extreme pornography there, we do not just normalise these practices but fuel the addiction, similar to the drug trafficker providing cocaine to the addict.

The Government’s own research into the impact of pornography on male aggression reported in February 2020 that

“there is substantial evidence of an association between the use of pornography and harmful sexual attitudes and behaviours towards women”.

We need robust action against websites based anywhere in the world, accessing the UK with illegal extreme pornography. Age-verification checks would ensure that children are significantly less likely to be exposed to pornographic websites, which have negative implications for their development and give an expectation that violence is a natural part of sexual relationships, with all this means for their behaviour. The terrible costs of not implementing Part 3 of the Digital Economy Act are evident. As has been said:

“It’s now easy to find content on the major porn sites of women being hung, strangled, suffocated, garrotted—and with ‘choking’ content often featuring on the front page.”


Moreover, on September 2019, the Journal of Criminal Law noted:

“Evidence suggests that the mainstream online pornography websites, while declaring such material as contravening their terms and conditions, continue to host such material”.


We cannot wait for the online harms Bill. Women up and down the country—[Inaudible.]

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness O'Loan Excerpts

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

[Baroness O’Loan (CB) [V]]

The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to

“pay … attention to public authorities’… power to grant … authorisations.”

It does not provide proper authorisation or audit.

The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:

“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.

The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.

As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.

The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.

As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.

Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness has gone well over the advisory limit of four minutes. Perhaps she will conclude her remarks there.

[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.