Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Ritchie of Downpatrick Excerpts

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

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

My Lords, I offer my congratulations to the three noble Lords, including the Minister, on making their maiden speeches today.

I am afraid I cannot give the Bill approval because it provides people employed by the Government with immunity for carrying out murder and heinous crimes. In fact, it would give statutory effect to legalised criminal offences committed by informants, provided that MI5, the Police Service of Northern Ireland or other UK law enforcement bodies have authorised the informant to commit the crime in advance. I understand that this is known as criminal conduct authorisation.

There are also no express limits set out in the Bill to prohibit informants’ participation in particular crimes that would constitute human rights violations such as murder, torture including punishment beatings, punishment shootings and kidnapping, or acting as agents provocateurs. I think back to the use of agents in paramilitary murders in Northern Ireland. This goes to the very heart of the legacy issues that the Government are currently considering and their very unhelpful Statement of 18 March.

There is a concern that, in addition to criminal conduct authorisations making criminal acts by informants “lawful for all purposes”, the extraterritorial provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply, namely that:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


This would mean, for example, that MI5 could authorise from its Belfast base a serious criminal offence to be conducted by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but, clearly, this would not change an act being a criminal offence—[Inaudible.] The noble Lord, Lord Dubs, referred to the murder of Mr Finucane in all these regards. I must ask the Minister some questions. Were the Irish Government consulted on the content of this legislation and on the fact that this proposed activity could take place in their jurisdiction? Were they asked if this would impact on their own police service—the Garda Síochána? Did the Prime Minister discuss this with An Taoiseach when he met him in Hillsborough earlier this year?

It is important that significant amendments are made to this Bill to ensure that the UK’s prosecuting authorities can independently review crimes—[Inaudible.] —and remove the power for MI5 and other public authorities to brand crime “lawful for all purposes”. I cannot accept the extraterritorial nature of this because it places an impact on the bipartisan rule of Britain and Ireland in terms of Northern Ireland.

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

I understand that we are still not able to return to the noble Baroness, Lady Whitaker; once her microphone is corrected, we will attempt to do so. We will move straight on to the noble Lord, Lord Sikka.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Ritchie of Downpatrick Excerpts

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

I believe that the amendment is the best possible safeguard in this very serious legislation. It recognises the really difficult work that undercover operatives have to engage in but none the less protects the rule of law and the wider community. I beg to move.

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

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and support the amendments in her name and the names of the noble Lord, Lord Paddick, the noble Baroness, Lady Warsi, and myself.

I want to emphasise the point made quite rightly by the noble Baroness, Lady Chakrabarti: the rule of law should never be placed in jeopardy. I shall concentrate on the position of immunity from civil redress and give examples from the Northern Ireland perspective, where we have had widespread experience.

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Moved by

[Baroness Ritchie of Downpatrick]

7: Clause 1, page 1, line 19, at end insert—
“(3A) In section 27(3) of that Act (lawful surveillance etc.), after “Part” insert “(other than conduct authorised under section 29B)”.”Member’s explanatory statement
The effect of this amendment is that criminal conduct authorisations would not be encompassed by the provisions of section 27(3) RIPA which expressly provides that “The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”

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

My Lords, I support both amendments in this group; obviously, I particularly support Amendment 7, which is in my name. The effect of my amendment is that

“criminal conduct authorisations would not be encompassed by the provisions of section 27(3)”

of RIPA 2000, concerning conduct outside the UK.

Again, I come to this issue with experience from Northern Ireland. Human rights organisations, including the Committee on the Administration of Justice in Northern Ireland, are concerned about the extraterritorial reach of this Bill in terms of committing offences. There is a deep concern that, in addition to criminal conduct authorisations making criminal acts by an informant “lawful for all purposes”, the extraterritorial provision of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply—namely:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


I urge the Minister to outline from the Dispatch Box whether this is the case.

If it is, MI5 could, for example, authorise from its Belfast base the conducting of a serious criminal offence by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but clearly this would not change an act being a criminal offence under Irish law. In a recent parliamentary answer to a Member of the Dáil, the Irish Parliament, the relevant Justice Minister said that all persons in the jurisdiction—the Republic of Ireland—are fully subject to its laws and any evidence of a breach of criminal law will be fully pursued in the normal way by the relevant authorities. My amendment therefore seeks to disapply the provisions of Section 27(3) of RIPA, which expressly provides that conduct can be authorised outside the UK.

This raises a number of questions, which I asked at Second Reading but did not receive answers from the Minister. Perhaps she can provide them this evening. Will the UK authorities inform their Irish counterparts if they authorise a crime in their jurisdiction? If not, the UK will be secretly authorising criminal activity in the Irish jurisdiction. If the UK intends to notify the Irish authorities, will the Gardai—the Irish police—enforce Irish law and arrest the informant for the crime in question? If not, in essence, would the Irish authorities also be de facto legalising crimes authorised by the UK in the Irish jurisdiction?

Also, can the Minister confirm whether the UK consulted the Irish Government, and other Governments with whom it maintains diplomatic relations, on the content and implications of this Bill, including its direct association with other legislation? Were the Bill and its implications the subject of discussions at the last meeting between the Prime Minister and Taoiseach Micheál Martin earlier this year at Hillsborough?

I realise that Amendment 9, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, is similar to mine. I support them on that because we cannot tolerate crimes outside the UK or the extraterritorial reach of such provisions. I therefore beg to move Amendment 7.

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

My Lords, obviously, a government agency cannot grant to an individual immunity from prosecution by a foreign power for offences committed on its soil—a point made strongly a moment ago by the noble Baroness, Lady Ritchie, who referred to the comments of a Minister in the Dáil. One understands the particular sensitivities in Ireland.

We are dealing with offences for which this country has extraterritorial jurisdiction, of which there are not many. At the moment, these offences consist of murder, manslaughter, crimes against humanity, torture and sexual offences where the victim of the crime is under 18. Under the Council of Europe’s Convention on preventing and combating violence against women and domestic violence—the Istanbul Convention—the Government, in a paper published on 17 August 2020, indicated that they will extend the jurisdiction of the courts of this country to sexual offences committed against persons over the age of 18 and to domestic abuse.

Given that that is the current extension of extraterritorial offences, I would like the Minister to outline which of them any government agency would authorise. A current highly offensive issue that has been referred to many times this afternoon is that of covert policemen entering into relationships with individuals from whom they seek to extract information or to ingratiate themselves with a group under surveillance. That amounts to the offence of sexual intercourse without consent—another definition of rape. Is there a licence to kill, effectively to rape or to torture in overseas jurisdictions? Should there be? Would we be happy to see such immunities enjoyed by agents of a foreign power in this country? I suspect not.

As for the protection of the European Convention on Human Rights, I recall from my experience in the Baha Mousa case the vociferous complaints made by Lieutenant-Colonel Nicholas Mercer, the senior legal adviser in Iraq in 2003, all the way to the top of the Ministry of Defence, against the torture of prisoners by hooding and the use of stress positions against prisoners. These matters had been outlawed in Ireland. He said such conduct was against the European convention and was told that the Attorney-General of the day had advised otherwise, and if he were right, the senior civil servant told him, he should be Attorney-General himself. Of course, the Supreme Court later held that Lieutenant-Colonel Mercer was right that the convention did apply. Right-wing elements on the Government Benches have grumbled ever since about “lawfare”. That is a fight for another day. Their argument that squaddies should be allowed to torture without risk of prosecution or civil liability is for a Bill which will soon be heading towards us. But does this Bill permit such conduct to be authorised for covert agents? I ask the Minister specifically to reply to that point.

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[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I have received no requests to speak after the Minister, so I now call the noble Baroness, Lady Ritchie.

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

This has been a very interesting, albeit short, debate. My anxieties have not necessarily been dissipated by the Minister’s answer. I would like to examine Hansard before deciding whether to bring the amendment back on Report, because there are issues around human rights provisions and European human rights provisions as well.

The noble Lord, Lord Thomas of Gresford, outlined the various types of offences that can occur, and asked if the Government were sanctioning those activities outside the UK. The noble Baroness, Lady McIntosh of Pickering, asked about the unintended consequences and if there were extraterritorial consequences. The noble Baroness, Lady Jones of Moulsecoomb, talked about state agents being used outside the territorial remit of the UK and the impact on diplomatic relations. The noble Baroness, Lady Chakrabarti, talked about the sensitivities associated with this legislation and the use of RIPA, particularly in the context of extraterritorial initiatives. In Northern Ireland and Ireland, the Good Friday agreement and human rights and equalities provisions have to be respected.

This is a significant issue for diplomatic relations. I am afraid that the Minister answered the question solely in terms of the devolved Administrations; I was asking about consultations with the Republic of Ireland and, therefore, acts of criminality that could be sanctioned by the Government outside the UK territory in Ireland itself. I did not get a satisfactory answer to that.

The amendment in the name of the noble Baroness, Lady Hamwee, is similar to mine and is directed to the same issue—how RIPA allows extraterritorial offences, how that presents issues of ethics and how these extraterritorial provisions will be exercised. Both the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, referred to rendition, which obviously will be subject to other legislative provision and is not covered by this legislation. The noble Lord, Lord Rosser, dealt with overseas criminality and authorisations for that.

I will withdraw the amendment but, on reading Hansard, I may come back on Report to explore this matter further because I am not satisfied with the answers that I have received. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Ritchie of Downpatrick Excerpts

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

That actually does not answer my question: it is quite long but it does not answer my question. I need to know how conduct within a criminal conduct authorisation—or CCA—and any resulting profits will interact with the Proceeds of Crime Act. I need to know whether and how the Government will recover those profits. So far, my question has been totally ignored and the response—because it was not an answer—discussed only conduct that is outside a criminal conduct authorisation. This suggests to me that the Government are happy to allow criminals to benefit; therefore, this issue has to be probed further. Criminals will be allowed to keep any proceeds of a crime if the handler has authorised the crime—surely that is a complete anomaly. I would like to know exactly what the Government are thinking. I would be grateful if the Minister could answer my question about how profits made within a criminal conduct authorisation, which would otherwise be illegal, will be recovered. Otherwise, something quite corrupt is happening here; a handler can authorise a spy who could be an officer or a criminal already to keep money, and profits, from a crime. This has to be exposed and I really want an answer to my question.

[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.