Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

Moved by

[Lord Stewart of Dirleton]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) (Maiden Speech)]

My Lords, it is a pleasure to open this debate. I am struck by the importance of the legislation on which I will make my first contribution to the House.

Before commencing, I wish to express my thanks to the House for the warm welcome I have received since taking up my appointment. I owe particular debts to my supporters, my noble friends Lady Goldie and Lord McInnes, for their good humour and encouragement; to Black Rod, Garter and the clerks of Parliament for their patience and tolerance; and to my noble friend Lord Courtown for his wise guidance in the customs and practices of this place. Your Lordships will, I hope, realise that, should I offend against these, the cause lies in my obtuseness rather than in my noble friend’s instruction.

I recognise that I am filling the place of my noble and learned friend Lord Keen of Elie. I am too new in this place to speak of his reputation here, but I can say that his high standing in our profession is a consequence not only of his matchless forensic skills but of the kindness and courtesy that he shows to all and the care with which he led the Scottish Bar as Dean of the Faculty of Advocates.

I hope I will not trespass further on the patience of the House if I take the opportunity given by my maiden speech to make some reference to myself and to the place from which I have taken my title: the village of Dirleton, in East Lothian. It is a place of great beauty. Moreover, there are aspects of its history and geography which may provide your Lordships with matter for reflection.

I know that many of your Lordships are familiar with the area. Some of your Lordships may have tested your skills against the famous golf courses which lie round about. There are other diversions too: yachting and skiff rowing from North Berwick around the islands just off the coast, which fired the imagination of the young Robert Louis Stevenson. The islands may be viewed from the fine beaches, looking across to the Kingdom of Fife at magnificent and ever-changing vistas of sea and sky.

All sorts of sporting clubs and associations of other sorts flourish. At the recreation ground and elsewhere in North Berwick, I played bowls, hockey, football, rugby, highland games, tennis and, not least, cricket—a sport which suffers in East Lothian not so much from want of enthusiasm among its players but from the shortness of the season and the unpredictability of the weather.

Dirleton lies in an area of rich, fertile soil, and we can anticipate that our farmers may soon be able to take advantage of new opportunities arising out of the implementation by this Government of their popular mandate. We can anticipate, too, that more boats may set out along the waters of the Firth of Forth to work fisheries which will be richer, better managed and replenished by the more directed and more sustainable management policies which the policy of this Government will allow to be established.

The village of Dirleton features the castle—set in beautifully landscaped grounds—a village green, a primary school and two hotels, where visitors may regain their strength ahead of more sightseeing. The parish church in Dirleton dates from the 17th century. Inside is a list of the names of those of the parish who fell in two world wars. The church is set in surroundings of especial beauty, north of the village green and north of another smaller green, on which stands the war memorial where, again, the names of those who fell are inscribed.

This 11th day of the 11th month brings to mind those names on the war memorial, so familiar to me from their being called over at Remembrance Sundays. Some are the names of families who flourish in East Lothian to this day. But today calls to mind also those others who lie in the churchyard and the cemetery on the way out of the village—names from the rest of the United Kingdom, the Commonwealth and allied countries. Those graves remind us of service and sacrifice in a common cause to preserve our institutions and to keep alive our common hope for a brighter future. We will remember that the sacrifice in that common cause continued after those great wars were brought to an end, and continues today—sacrifice of life, of mental health and of emotional well-being.

Watching the business of the House and the range of expertise and experience your Lordships bring to the scrutiny of that business, I am conscious of the honour done to me by admission to your number. I am conscious, too, that I have no family history of service in this place, as do some of your Lordships, and that I have been appointed to my place, whereas many of your Lordships come here after having sought and won popular mandates from electors, whether in local or devolved government or in the other place. But I seek to assure your Lordships that in my role as law officer, I will seek not only to uphold the law but to try to maintain the spirit and traditions of your Lordships’ House.

The legislation we bring forward is a necessary piece of legislation; it will ensure that our intelligence agencies, law enforcement bodies and those public authorities that also have vital investigative functions are able to continue to deploy tools they need to keep us safe from harm and to prevent serious crime. The recent incidents in Nice and Vienna, and the increase in the threat level here in the UK, show that the need for robust tools with which to tackle terrorism remains as important as ever.

Covert human intelligence sources—I will use the convenient, if inelegant, acronym, CHIS—are agents: undercover officers who help to secure prosecutions by infiltrating criminal and terrorist groups. This technique has been used to disrupt terrorist plots, including one by Zakariyah Rahman against the then Prime Minister in 2017; drugs offences, including enabling the largest ever seizure of heroin destined for the United Kingdom in 2019; and child sexual exploitation and abuse, including attempts by individuals to take indecent images of children.

It is appropriate to reflect today on the role that our intelligence agencies play in war and conflict. A notable success of the intelligence agencies was the discovery and arrest of German spies in the United Kingdom at the outbreak of hostilities in 1914—a success built on the effective use of what we now call CHIS, alongside other techniques. The courage and ingenuity of the double-cross network, a CHIS network which did much to protect allied lives in the Second World War, often at grave cost, comes to mind also as we pause to remember today.

In order to build credibility and the trust of those under investigation, there are occasions where CHIS may need to participate in criminality themselves. This is an inescapable feature of CHIS use. Without this, it would not be possible to utilise CHIS as an intelligence tactic. The Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to ensure that there is a clear and consistent statutory basis to authorise participation in conduct which could otherwise be criminal, where this is necessary and proportionate to what is sought to be achieved. Let me say at the outset that the purpose of this Bill is not to extend the range of activity which public authorities are able to authorise—the Bill does not do this.

The Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes. I recognise that this is a departure from the existing approach, whereby authorised criminality can still be considered for prosecution by the prosecution services. This approach is a deliberate policy decision. It aligns with other investigatory powers and the approach taken elsewhere in RIPA, including other CHIS authorisations. It also provides greater certainty for CHIS that they will not be prosecuted for activity the state has asked them to commit. We think it is right and fair to provide this certainty, and it may also help to recruit and retain CHIS in the future and maximise the intelligence we can gather through this technique.

Of course, this is not a blanket immunity from any criminal prosecution. Criminal conduct authorisations are tightly bound with strict parameters which are clearly communicated to the CHIS. A CHIS will never be given authority to participate in all or any criminality and were they to engage in criminality beyond their authorisation they could be prosecuted in the usual way.

While it is right to provide this certainty to CHIS and to their handlers, it is of course important—vital—that this is subject to robust and independent safeguards. Let me briefly set out how the Bill ensures this.

All authorisations are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. Authorising officers have clear and detailed guidance that they must follow in deciding whether to grant an authorisation. We have published draft updates to the code of practice alongside this Bill that sets out some of that detail. I encourage all noble Lords to read that. The updates to the code will be subject to a full consultation and debate in both Houses in due course.

Authorisations are then subject to robust, independent oversight by the Investigatory Powers Commissioner—the IPC—who conducts regular and thorough inspections of all public authorities and published an annual report of his findings. The IPC sets the frequency of these inspections himself, and public authorities must provide unfettered access to documents and information. The IPC will report on the use of criminal conduct authorisations in his annual report, and this will identify any errors, provide statistics on the use of the tactic and may identify whether there are any training needs. Public authorities must take steps to implement recommendations given by the Investigatory Powers Commissioner’s Office—IPCO—with progress assessed at the next inspection. The IPC also has powers to provide independent remedy; for instance, to inform a person if they have been the subject of a serious error, or to refer a matter to the independent Investigatory Powers Tribunal.

I know that some will think that we need to enhance the role of the IPC in this process. The Government are committed to ensuring that there is robust oversight of criminal conduct authorisations, but that this is not at the expense of ensuring that the tactic remains operationally workable and reflects the live and complex human elements of CHIS, which we do not see in our other investigatory powers. For this reason, we do not think that prior judicial approval is appropriate for this tactic and believe that the authorising role best sits with the highly trained authorising officer within the public authority, as it does at present. The authorising officer will be able to consider the necessity and proportionality of the conduct, but will also consider the safety of the CHIS and the human element of the specific situation. The IPC then provides an important retrospective oversight function, which I have set out.

I want also to draw attention to the additional safeguards in place for vulnerable individuals and juveniles. These safeguards are clearly set out in the CHIS code of practice. It makes clear, for example, that juveniles or those who are vulnerable are authorised as CHIS only in exceptional circumstances. However, there may be occasions when these individuals are able to provide intelligence to disrupt criminal groups. I know that might sound uncomfortable, but it might be necessary to stop criminal groups continuing to exploit those individuals and prevent anyone else being drawn into them. In these instances, significant additional safeguards are in place to ensure that the best interests of the juvenile are a primary consideration in all operations. Those are set out in detail in the code of practice, which has legal force and includes a requirement for an appropriate adult to be present at all meetings where a CHIS is under the age of 16 and to be considered for 16 and 17 year-olds, and the rationale documented if an appropriate adult is not present.

I turn briefly to the upper limits of conduct that can be authorised. These are contained in the Human Rights Act 1998. It is unlawful for any public authority to act in a way incompatible with the European Convention on Human Rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. We have not drawn up a list of specific crimes that may be authorised or prohibited as to do so would place into the hands of criminals, terrorists and hostile states a means of identifying a CHIS, creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public. We have taken this approach in response to a detailed assessment of the specific threats we face in this country. No two countries face the same threat picture or, indeed, have identical legal systems. In particular, we must consider the specific counterterrorist effort in Northern Ireland. However, through the safeguards and the independent oversight that sits alongside an authorisation, there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations or, indeed, activity that is not necessary or proportionate.

Let me, finally, just pause on the list public authorities that can authorise this activity. The number of public authorities able to authorise this conduct has been restricted from those that can authorise the use and conduct of CHIS generally. We expect wider public authorities to be low-volume users of this power because an authorisation can be granted only where it is necessary and proportionate to what is sought to be achieved. However, there will be occasions where CHIS play a critical role in providing the intelligence needed for these wider public authorities to identify and prevent criminal activity. These authorisations will be subject to the same safeguards and independent oversight I have already outlined, including by the Investigatory Powers Commissioner. We have published case studies that give examples of the use of this tactic by wider public authorities. I give the example of where the Food Standards Agency may authorise a CHIS to participate in criminal conduct. This may relate to the relabelling of produce to misrepresent its quality and fitness for consumption. Those are criminal offences, but by authorising a CHIS to participate in this activity the Food Standards Agency might be able to gather intelligence to seize unfit produce and identify those responsible for the fraudulent activity.

It has been a pleasure to make my maiden remarks on this issue. I am of the strong view that this Bill is both necessary to ensure that our operational agencies are able to keep us safe, and welcome in that it provides legal clarity through an express power and sets out the robust safeguards to ensure that an authorisation is tightly bound, necessary and proportionate. CHIS do a difficult and important job in providing intelligence that other investigatory tools cannot access. This Bill provides certainty that operational agencies can continue to utilise this tactic and that they are able to best ensure that they keep us all safe. I beg to move.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords not only for speaking in this debate but for some of the discussions that we had prior to the debate. They were very thoughtful and constructive. I look forward to exploring some of the issues that were raised today in further detail in Committee.

I have the very nice job of starting by thanking all three speakers who made their maiden speeches today. They were all excellent and quite different. All three noble Lords will be a great asset to this House. I start with my noble and learned friend Lord Stewart of Dirleton. It was an absolutely superb speech—almost poetic. It transported us for a brief moment into the beautiful area where he lives, and I am sure that in future he will regale us further with some of his words. He has clearly had a glittering career and it seems that he has another one to come. If he is from the same faculty of advocates as my noble and learned friend Lord Mackay of Clashfern, I know that he will be an excellent asset to your Lordships’ House.

My noble friend Lord McLoughlin has spent 33 years in Parliament, 30 of which have been on the Front Bench. I must confess that he looks very good on it. If I had to do another 23 years, I think that I would have to be carried out. He has had a great career, having spent 17 years as a Whip, and also as Transport Secretary and chairman of the Conservative Party. One of my favourite things that I have at home is a little postcard of his election where he is wearing his miner’s hat. I know that he will be a great contributor to your Lordships’ House. I am delighted to hear that he is a fan of HS2; he knows my views as a fellow fan.

Finally, the speech of the noble Lord, Lord Walney, was absolutely wonderful. I want to put on the record that I think he is a brave and principled man. As the noble Lord, Lord Mann, said, he stood up for his colleagues when others did not, and that is a great accolade. He has shown independence of character, spirit and strength through what he has suffered for probably far too long, but I think that he knows that in this House he is surrounded by friends on all sides. I look forward to hearing some of his views on nuclear submarines, coastal erosion and other things.

I thank all three noble Lords, who made great speeches today. They have set the tone for the debate in many ways.

I think that we are all in agreement—bar perhaps the noble Baroness, Lady Uddin, who I do not think will support anything that we put forward—that we need to ensure that our intelligence agencies, police and public authorities have access to the correct tools to allow them successfully to safeguard the public from criminal and terrorist groups that would seek to do us harm and undermine our way of life here in the United Kingdom. The raising of the UK’s threat level to severe last week reminds us all of the threats that we continue to face as a nation. I give my thanks to those in the public authorities, who work so hard and often put their lives on the line on behalf of us all to keep us all safe.

The noble Lord, Lord Rosser, started his speech by outlining the number of terrorist attacks that have been thwarted since 2017. As he said, there have been 27, nine every year. This activity saves lives. He also pointed out CHIS activity in the NCA disruptions that we have seen in the last year, as well as proscribed organisation infiltration—as he said, the Bill brings into law things that have been going on for years—and we thank all those concerned.

One of the major topics of discussion has been on safeguards and oversight of activity. They have rightly been a recurring topic. I pay tribute to the Investigatory Powers Commissioner and his team of judicial commissioners. They provide rigorous oversight of all our investigatory powers, including covert human intelligence sources, and will continue to play an important role under the Bill. On the percentage of authorisations currently overseen by the IPC—a point raised by the noble Lord, Lord West of Spithead—the IPC is able to examine any authorisation, and he sets the frequency of those inspections.

There have been calls for prior judicial approval by commissioners, including from the noble Lords, Lord Rosser and Lord Beith. The Bill currently replicates the existing model, whereby any criminal activity undertaken by a CHIS, as I will now call them, is signed off by an authorising officer, who is highly trained and experienced. They will know the CHIS, not just as anonymous assets but human beings with unique strengths and, of course, weaknesses. The officer will know the context in which the CHIS are operating, including the risk to the CHIS themselves and the public. Authorising officers are best placed to make that judgment on whether the proposed criminality will meet the necessity and proportionality threshold, while considering the specific duty of care for the CHIS and the specific live environment. However, we have been clear that if there are ways in which to provide greater reassurance on the safeguards and independent oversight of the regime, while ensuring that it does not affect the operational workability of the tactic, the Government are willing to consider that issue. I listened very carefully to the remarks of the noble Lords, Lord Anderson and Lord Carlile, and would welcome a further opportunity to discuss the matter with them.

The noble Lord, Lord West of Spithead, also asked about oversight by the Intelligence and Security Committee. It might be helpful for me to repeat the commitment made by the Security Minister in the other place in a letter lodged in the Library, which he stated that, in line with its remit and the provisions of the Justice and Security Act, such information as is requested in order for the ISC to provide effective oversight of these policies shall be provided to the committee.

Virtually every noble Lord who spoke raised the subject of the use of children and vulnerable people as CHIS. It is an uncomfortable area, and I agree that it is imperative that we ensure that appropriate safeguards are in place for the rare occasions—I repeat they are rare—where there is a need to authorise young or vulnerable people to participate in criminality. This may be necessary to stop criminal gangs from continuing to exploit those individuals and prevent others from being drawn into them. Noble Lords mentioned county lines gangs.

The then Investigatory Powers Commissioner previously confirmed that, in practice, juveniles are not tasked to participate in criminality in which they are not already involved, and that decisions to authorise are made only where that is the best option for breaking the cycle of crime and the danger for the young person.

The use of juvenile CHIS and additional safeguards have been debated previously in this House and the courts. We will extend those safeguards to ensure that they also apply in any proposed authorisation of criminal conduct. Juveniles and vulnerable individuals will be authorised to act as CHIS only in exceptional circumstances. This is emphasised in changes to the CHIS code of practice, a draft of which has been published alongside the Bill. As the noble Lord, Lord Carlile, said, please read it because not only is it a good document but it will be subject to full consultation and debate in both Houses. The safeguards are also set out in statute in the Regulation of Investigatory Powers (Juveniles) Order 2000, which was debated by this House in 2018 and subsequently updated.

Let me be clear in response to the point raised by the noble Lord, Lord Haskel: the code has legal force, so any authorisation must legally comply with the safeguards in it. The circumstances under which juveniles and vulnerable persons are asked to undertake criminal activity will be tightly controlled and subject to stringent risk assessments that will account for and seek to mitigate the risks of physical and psychological harm to them. All individuals will be risk-assessed, and their individual circumstances considered, before being tasked as a CHIS. Victims of crime will never be coerced into becoming a CHIS, but in some cases they may decide that they wish to play a role in bringing perpetrators to justice.

Any authorisation of juveniles requires a more senior level of authorising officer and a shorter authorising period, with reviews of the authorisation taking place at least monthly. For any juvenile CHIS under the age of 16, an appropriate adult must attend all meetings with the handlers. These safeguards seek to ensure that juveniles are appropriately protected when they play a vital role in undermining and disrupting the criminal or terrorist groups that seek to exploit them. I recognise that it is very important that noble Lords and the wider public have confidence that we have the right safeguards in place. I am very happy to discuss this further.

Many noble Lords talked about the limits. An authorisation will be tightly bound and specific. In response to the noble Lord, Lord West, I can confirm that this Bill will not widen the scope of activity which can be authorised. However, I appreciate why some noble Lords, including the noble Baroness, Lady Kennedy of The Shaws, and the noble Lords, Lord Judd and Lord Rosser, question why we cannot clearly write in the Bill the crimes that CHIS will never be authorised to commit, as is the case in Canada.

Every country has its own unique circumstances, be they in legal systems, public bodies or threat picture. The United Kingdom is the only Five Eyes country that is a signatory to the European Convention on Human Rights. We also have our own threat picture; the unique challenges we face in Northern Ireland in particular mean that our operational partners advise that CHIS testing is a very real possibility. However, there are limits to the conduct which can be authorised under this Bill, and they can be found in the Human Rights Act. This is set out explicitly in the Bill.

The requirement for conduct to be necessary and proportionate also places limits on what can be authorised. I emphasise the point on necessity and proportionality: an authorisation can be granted only if it is considered necessary for one of three statutory purposes and proportionate to prevent more serious criminality. Within this framework, I assure noble Lords—particularly the noble Lord, Lord Hain—that nothing in the Bill will prevent or limit legitimate and lawful activity, including activity by political groups or trade unions. The noble Lords, Lord Kennedy and Lord Mann, pointed that out very well.

I also stress that our operational partners have publicly stated—I reiterated this the other day—that it is never acceptable for an undercover operative to form an intimate sexual relationship with anyone they are tasked to investigate or may encounter during their deployment. The conduct will never be authorised; nor must it ever be used as a tactic of deployment.

I reassure the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Hodgson of Astley Abbotts that while the activity that will be authorised under the Bill is UK-focused, the same safeguards will apply for authorisations for both UK and overseas activity. A CHIS will never be given authority to commit any and all crimes. The UK complies with all obligations under the Human Rights Act and is also bound by obligations under international human rights law.

I turn briefly to the points made by the noble Lord, Lord Rosser, and the noble Baroness, Lady Young, about the potential for the Bill to have a disproportionate impact on women or members of BME communities. These characteristics will never be a consideration in why a person is under investigation.

I turn to the issue of redress. Authorisations are very tightly bound and, as part of the necessity and proportionality test, collateral damage will be considered. This minimises the risk of those who are not the intended subject of the operation being impacted. In the rare case that an individual is unintentionally impacted, there are number of routes for redress available to them to challenge the validity or lawfulness of the authorisation and seek appropriate remedy. An affected person could seek a judicial review of a public authority’s decision to authorise criminal conduct. The Investigatory Powers Tribunal also has jurisdiction to investigate and determine complaints against a public authority’s use of this power, and any person or organisation is able to make a complaint to the IPT. The Investigatory Powers Commission also has an obligation to inform a person of a serious error that relates to them, where it is in the public interest. This would include situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned.

Moving to the range of public authorities, there were diametrically opposed views—that there were too many and not enough—but all those included in the Bill already have the power to authorise the use and conduct of CHIS, and we have restricted the number of public authorities able to then authorise participation in criminal conduct based on operational need. I welcome, in particular, the remarks of the noble Lord, Lord Rooker, on this issue. I urge noble Lords to read the case studies that I think I provided yesterday to explain why these public authorities require the use of this power. All public authorities will receive appropriate training to ensure that authorising officers understand the strict necessity and proportionality parameters that must be met before authorising a CCA, and will be subject to independent oversight provided by IPCO.

On immunity, and the point raised by several noble Lords that we should simply continue to leave decisions on the prosecution of CHIS to the CPS or other prosecuting bodies, it seems unfair and unreasonable for the state to ask an individual to engage in difficult and potentially dangerous work while leaving open the possibility of the state prosecuting them for the exact same conduct. That tension has existed for many years and it is right that we use the Bill to resolve it. It is also undesirable to create an express power for public authorities to authorise activity that remains criminal. I refer noble Lords to the remarks of the noble Lord, Lord Anderson, on this point, but I reassure noble Lords that if a CHIS were to undertake criminal activity that fell outside the strict parameters of a CCA, that will have been clearly explained to the CHIS by their handlers. The prosecuting authorities are in a position to consider whether to bring a prosecution. This has been done before and will be done again if required.

I am committed to ensure that Members of this House and the wider public can have confidence that there is not an unfettered and unlimited power for public authorities to authorise criminality. The legislation certainly does not do that, but it is right that we debate and consider the safeguards and the oversight in place. We must ensure that we do not pass legislation that unnecessarily restricts our operational agencies from utilising the tactics they need to keep us safe. That is the balance that this Bill seeks to strike, and the key principle that we should be operating to. This is important and necessary legislation and I look forward to debating and considering it further.

Bill read a second time and committed to a Committee of the Whole House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

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

I now call the Minister, the noble Baroness, Lady Williams of Trafford.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank all noble Lords who have taken part in this debate. I am sorry not to have heard the end portion of the comments of the noble Lord, Lord Rosser, but I am sure he will come back once his wi-fi is restored and I have responded.

Amendments 7 and 9 seek to remove the provision that allows for a criminal conduct authorisation to be granted in relation to conduct that takes place outside of the UK. The activity that will be authorised under the Bill is UK focused, but of course there will be times when the activity begins in the UK and progresses overseas. It does not remove the possibility of criminal prosecutions overseas, but an authorisation will only, and can only, take effect under UK law.

The noble Baroness, Lady Ritchie of Downpatrick, asked if the UK will inform the Irish authorities. I can tell her that, although the content of the Bill is reserved in Wales and Northern Ireland, we have consulted with the devolved Administrations and their respective devolved agencies about their inclusion in the Bill. It is up to the respective devolved agencies to determine whether there is an operational need to be included.

It is important that we do not restrict the ability of our public authorities to tackle what are often international crimes. If we removed this provision, it would hinder our public authorities’ ability to tackle what are often very serious crimes, including drug transportation, human trafficking, et cetera. Noble Lords do not need to be told that crimes do not respect borders.

The noble Lord, Lord Thomas of Gresford, asked if this is a “licence to kill” Bill. The Bill is constrained by both the ECHR and the Human Rights Act, so these are the two constraints on activity. We have heard quite a lot today from noble Lords about undercover police making people pregnant, et cetera. This was never lawful; the sort of activity the noble Lord talked about is not lawful and would not be lawful in the future.

To go back to the case studies that I produced to accompany the Bill, one of them relates to the important overseas work by HMRC to tackle the illegal importation of goods from abroad. In this scenario, an HMRC covert human intelligence source is engaged with an organised crime group to import counterfeit tobacco from overseas. They might be required to travel abroad to meet with members of the group, undertake other preparatory work or even transport the goods to the UK. Without that ability to authorise criminal conduct authorisations for the full scope of the activity, the effectiveness of this and similar operations would be undermined.

Authorising the activity not only ensures that those involved are protected as a matter of UK law but, importantly, means that the safeguards contained in the regime apply consistently and in relation to all CHIS criminal conduct, both in the UK and overseas. If we prohibit the authorisation of activity overseas, we risk displacing activity to these jurisdictions. Criminals might then seek increasingly to conduct part of their activity in other countries, and our ability to tackle it would be constrained.

The amendments risk having serious unintended consequences, including impacting on our public authorities’ ability to keep the public safe from harm, and it is for that reason that we cannot accept them. I forgot to mention: the noble Lord, Lord Thomas of Gresford, talked about the extraterritorial jurisdiction on things like domestic violence; we do exercise that jurisdiction. With that, I ask noble Lords not to press their amendments.

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

My Lords, I think we have managed to re-establish connection with the noble Lord, Lord Rosser.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

There have been many questions raised and points made during the debate on this group of amendments, which relate to the oversight arrangements that should be in place for the authorisation of criminal conduct by covert human intelligence sources, not to whether these should exist. I hope that the Government, in their response or subsequently in writing, will give their answers to all those points and questions, as well as giving careful consideration to the concerns expressed, and then move from their current position, as set out in the Bill, on this key issue of the necessary oversight arrangements.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords for contributing to what has been quite a lengthy debate on this very important group of amendments. I agree with the noble Lord, Lord Blunkett: it is a shame that we had to break the debate last time. Of course, these things are agreed through the usual channels, and it may well be the case that we have to do so again, but it did slightly break the flow, so I will refer back to what was said at the end of last week as well. I begin by saying to the noble Lord, Lord Rosser, that I was slightly confused; it felt like the noble Baroness, Lady Chakrabarti, was making the points from the Front Bench, but I think it was the noble Lord, Lord Rosser. If one or both of them could confirm that, that would be fantastic.

I start with the comments that my noble friend Lord King started with, which were echoed by the noble Lord, Lord Rooker. Basically, they asked how covert intelligence has stopped terrorism, stopped serious and organised crime and led to thousands of people being arrested who would otherwise do this country harm. I first thank noble Lords for the debate on the role of judicial commissioners in providing that independent oversight of criminal conduct authorisations. The Government’s priority with this legislation is to provide public authorities with an operationally workable regime to help to keep the public safe. We recognise that this needs to be subject to robust—I will go on to the meaning of that word later—and appropriate safeguards, and that is the balance that the Bill seeks to provide. During this debate, I have been pleased to hear noble Lords unite in recognising the importance of this balance.

The amendments of the noble Lords, Lord Rosser and Lord Dubs, and the noble Baroness, Lady Kennedy of The Shaws, all require the prior approval of a judicial commissioner before an authorisation can be granted. We do not think—and other noble Lords have articulated why—that prior judicial approval strikes the balance between safeguards, which my noble friend Lord Naseby talked about, and an operationally workable power, as it risks the effective operation of this vital capability. My noble friend Lord King and the noble Lords, Lord Janvrin, Lord Rooker and Lord Paddick, all concurred. I do not think that any noble Lord would argue that this is not a vital capability, but prior judicial approval is not the only way to provide effective oversight of investigatory powers.

Noble Lords might find it helpful if I set out in more detail why this capability is unique. As the noble Lord, Lord Anderson, outlined, the use of a covert human intelligence source is different from other powers, such as interception or equipment interference. The noble Lord, Lord Paddick, made that point, and the noble Lord, Lord Janvrin, pointed out that human beings are more complex than phones or cameras. Any decision on how to use a covert human intelligence source has immediate real-world consequences for that CHIS, as we call them, and the people around them.

Every one of these decisions that impacts on the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice, which, as the noble Lord, Lord Carlile, keeps telling us, is very good supplementary reading to the Bill. The use of a CHIS requires deep expertise and close consideration of the personal strengths and weaknesses of that CHIS, which then enables very precise and safe tasking. These are not decisions that have the luxury of being remade; we are dealing with people’s lives, very often, and it is critical that these decisions are right and made at the right time.

The Bill’s current clarity of responsibility and resulting operational control are the best method for protecting the covert human intelligence source, officers and the public. Even with provision for urgent cases, as proposed by the noble Lord, Lord Dubs, which would reduce one operational challenge of this model, as the noble Lord, Lord Butler, has said, it is best that the authorising officer considers the necessity and proportionality of conduct alongside the operational specifics and safety of the CHIS. That is why deep and retrospective oversight is the most appropriate way to provide oversight of this power.

I have listened to remarks, including by the noble Lord, Lord Thomas of Gresford, that retrospective oversight lacks “teeth”, to use his word. I reassure him that the IPC will pay particular attention to criminal conduct authorisations, and that his oversight role includes ensuring that public authorities comply with the law and follow good practice. The Bill is clear on this, but it further underpins this in the code of practice. Public authorities must report relevant errors to the Investigatory Powers Commissioner’s Office—for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards. These will be investigated by IPCO, and rightly so.

The IPC will then make recommendations to public authorities in areas that fall short of the required standard. A public authority must take steps to implement recommendations made by the IPC. The IPC could also advise the public authority that it ought to refer matters to the appropriate authorities, or ultimately report it themselves, subject to the statutory process set out in the Regulation of Investigatory Powers Act. I hope that the noble Lord, Lord Rosser, will agree that that is a robust process.

The amendment of the noble Lord, Lord Hain, to which the noble Lord, Lord Blunkett, referred, is similar to those requiring prior approval by a judicial commissioner but requires prior approval by the Secretary of State. It creates the same challenges as prior judicial approval and, equally, cannot be accepted.

I also want to address concerns that the authorising officer cannot be trusted to undertake these duties without independent approval and the examples that noble Lords raised around the conduct subject to the Undercover Policing Inquiry and the appalling murder of Pat Finucane. We also heard reference to events at Orgreave and personal accounts from the noble Lord, Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb. I note—the noble Baroness, Lady Chakrabarti, mentioned this—the update that the Secretary of State for Northern Ireland provided in the other place yesterday on Mr Finucane’s murder. These are difficult and utterly unacceptable cases and it is right that they continue to be scrutinised. However, as the noble Lord, Lord Carlile, so clearly articulated and the noble Lord, Lord Rooker, echoed today, they are examples from the past.

The situation and framework within which CHIS operate today is not the same environment as it was then. There is stringent internal and external oversight in place and robust training to ensure that this activity is handled and managed properly. The policies and procedures used to authorise and handle covert human intelligence sources are subject to regular review and external scrutiny.

We now have the Human Rights Act 1998; authorising officers are trained in its application and how to communicate the tight limits of an authorisation to CHIS. We have also been clear that CHIS will never be authorised to form an intimate sexual relationship and the relevant sources regime places additional safeguards to protect against this in future. The Investigatory Powers Commissioner has oversight of authorisations; he will identify any misconduct by a public authority and take action accordingly.

Noble Lords have spoken about some of the horror stories from the past in the absence of a clear and robust framework. The situation is now different, and the Bill provides further clarity. As the noble Baroness, Lady Manningham-Buller, my noble friend Lord King and the noble Lord, Lord Blunkett, mentioned, this is a long-overdue piece of legislation that places this activity in a clear and consistent framework.

I understand the concerns that have been raised on judicial oversight of journalistic material and sources in Amendment 77. I reassure the noble Baronesses, Lady Jones of Moulsecoomb, Lady Clark and Lady Whitaker, that additional safeguards already exist in the CHIS code of practice for the protection of confidential journalistic material. To echo again the noble Lord, Lord Carlile, I ask noble Lords to please read the code of practice to understand the detail that sits underneath the Bill. These protections will apply to criminal conduct authorisations as well as the wider use and conduct of a CHIS.

The safeguards include a requirement for authorisation at a more senior level than that required for other CHIS activity, reflecting the sensitive nature of such information. Confidential journalistic material, or that which identifies a source of journalistic information, must also be reported to the IPC as soon as reasonably practicable, if it has been obtained or retained other than for purposes of destruction.

The amendments in the names of the noble Lords, Lord Rosser and Lord Anderson, would require an authorisation to be notified to the Investigatory Powers Commissioner within seven days. I listened very carefully to the points made on notification to the IPC. The Bill as drafted replicates the current oversight role of the IPC in ensuring that he has unfettered access to information and documents that enable him to inspect any public authority at any frequency of his choosing. However, it is clear that providing for independent oversight which is closer to real time—I think most noble Lords mentioned this—would strengthen the oversight regime for criminal conduct authorisations by providing independent review of every authorisation soon after it has taken place.

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[Lord Hain (Lab) [V]]

My Lords, I thank the Minister for her typically courteous and thoughtful response, particularly her offer to talk to a number of my noble friends and other noble Lords about possible oversight that would be acceptable to the Government. Could she look again at Amendment 15? I and my noble friend Lord Blunkett worked very closely with the Security Service, in my case when I was Secretary of State for Northern Ireland—including with the noble Baroness, Lady Manningham-Buller—GCHQ, and, when I was in the Foreign Office, with MI6. I have authorised warrants, as I have explained, for vital work in surveillance and interception, and worked with undercover officers.

I appeal to the noble Baroness to meet my noble friend Lord Blunkett and myself informally to discuss the terms of Amendment 15, because it is very practical. It can happen in real time; I have been involved in authorising warrants in real time, including one on Islamist bombers planning to attack London when the operation was live. So, it does deal with her point. It is practical; in some respects, it is the most practical of all these oversight measures. It would give greater legitimacy to and authority for the deployment of undercover officers for the purposes that she is quite properly seeking. They can play vital roles in combating terrorism, for example. I ask her to look again at this and perhaps meet us to discuss it.

[Baroness Williams of Trafford (Con)]

The noble Lord knows how I operate, so he can be absolutely sure I would be happy to meet noble Lords to discuss some of these amendments. I was particularly attracted to the post-facto oversight, because operationally —I do not know whether the noble Baroness, Lady Manningham-Buller, is going to say something about this—prior authorisation could be very difficult. To get that notification as close to real time as possible is, I think, what we are all seeking.

[Lord Blunkett (Lab)]

In the light of the answer the Minister has given, including her willingness to talk with my noble friend Lord Hain, I am happy to withdraw.

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[Baroness Williams of Trafford (Con)]

Try as I might, that was very difficult to hear. I think that the noble Baroness—I know that she will intervene on me again—made the following three points. In fact, I meant to pull out from the speech of the noble Lord, Lord Paddick, her first point: that authorising is done not by the handler but by a senior authorising officer. The second point was that training for CHIS handlers is extensive. She may have said “expensive” but I think she said “extensive,” because it would have to be extensive for this serious an operation.

I think the noble Baroness’s third point was that details of numbers have to be top secret to maintain and protect the welfare of the CHIS. I referred to the IPC report because I think that the noble Lord, either last year or the year before, gave numbers on juvenile CHIS, which gave a flavour of the numbers that we were talking about.

[Lord Marlesford (Con) [V]]

My Lords, I want to make a point on Amendment 77 on journalistic sources, in the name of the noble Baroness, Lady Whitaker. As I mentioned to my noble friend last week, Parliament already has an effective equivalent to judicial review. I referred to the Economist case of 1975, when the House of Commons Committee of Privileges imposed a personal penalty on the editor and a journalist—who happened to be me—of the Economist due to the premature publication of the draft report of the Select Committee on a Wealth Tax and our refusal to reveal our sources. The House of Commons debated this on the Floor of the Chamber for more than two hours and voted not to impose the penalty.

[Baroness Williams of Trafford (Con)]

I think the only response to that is to thank my noble friend for taking the time to explain it to noble Lords.

[Baroness Whitaker (Lab)]

In thanking the noble Baroness for her characteristically thoughtful response and her offer to meet noble Lords, I ask her also to include a discussion of journalistic sources, because the code of practice left me with some questions. I assume that the meeting will be before Report.

[Baroness Williams of Trafford (Con)]

I am very happy either to write to the noble Baroness and outline what I said in more detail or meet with her before Report.

[Lord Paddick (LD)]

My Lords, I thank the Minister for what she has said. I accept what she and the noble Baroness, Lady Manningham-Buller, said about it being a senior officer. In urgent cases, however, the police officer who actually grants the criminal conduct authority would be only at inspector level, which is not very senior. Criminal or civil liability would probably rest with the handler because the handler is the one who made the request to the senior officer—but I am glad that that has been clarified.

The Minister dismissed our Amendment 47 on the basis that it looked like prior judicial approval. It is not prior judicial approval at all and it deserves to be looked at. The Minister said that retrospective oversight is the best solution, but once a criminal conduct authority has been granted, so has legal immunity. So what if the CHIS has been corruptly tasked to commit a crime and commits a crime that should not have been committed? With only retrospective oversight, that CHIS and that handler are still immune from prosecution. How can that be right?

[Baroness Williams of Trafford (Con)]

If I understand the point from the noble Lord, Lord Paddick, that the CHIS is authorised to commit something that is later deemed unlawful, my understanding of it—I will stand corrected if officials tell me differently—is that the person who authorised the unlawful conduct would themselves be liable for the deployment of the CHIS. Clearly, what the CHIS did would also be looked into post facto, but the person who authorised the deployment would be liable for that conduct in the deployment, I think.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 22, moved by my noble friend Lady Chakrabarti with the support of my noble friends Lord Hain and Lord Hendy, seeks to limit the use of criminal conduct authorisations to serious crime—and by that they mean indictable offences that must be tried in Crown Court before a judge and jury.

The amendment seeks to remove subsection (5)(c) in respect of economic well-being in the United Kingdom. It would be helpful if, in her response, the noble Baroness, Lady Williams of Trafford, were to set out examples of what this provision is seeking to do and what it is not seeking to do. There are concerns about this, as I am sure the noble Baroness has heard, from around the House, during discussion of this group.

Can the Minister also explain why the list of necessary grounds given in this Bill—as listed in subsection (5)(5)—is slightly different from those listed in the Counter-Terrorism and Border Security Act? In that Act, the reasons listed are that the activity threatens national security, threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or is an act of serious crime. Why not use the same words? Not to do so is surely a recipe for confusion when you are dealing with such serious matters. We want to see clarity from the Government; clarity about what they intend to bring into law is very important. Why is a form of words that was acceptable to the Government two years ago, when they put the Counter-Terrorism and Border Security Act on the statute book, changed in this Bill? Surely there is a risk of some overlap between these two pieces of legislation. Will the noble Baroness clarify this when she responds to the debate?

Amendments 23 and 26, in the name of the noble Lord, Lord Paddick, add the word “serious” in order to limit a criminal conduct authorisation to issues of serious crime. I have listened carefully to the arguments from the noble Lord and have some sympathy with them, so I will be interested to hear from the Minister the case for why these amendments are not necessary. The noble Lord referred to the number of times we have talked about serious crime over the years, and the various definitions of “serious”. That is a fair point and it needs to be answered.

The noble Baroness, Lady Jones of Moulsecoomb, raised the question as to why preventing and detecting crime would not be enough, on their own, as reasons for the powers in the Bill to be deployed. We also need reassurance about what will not happen when powers are given by Parliament, so it is important for the Minister to set out what will not be impacted.

Noble Lords may not like it, but the right to withhold one’s labour and to strike is a hard-won right that we should all defend. We need guarantees that the powers in the Bill would never be used to undermine lawful, legal trade union activity in respect of strike action or campaigning activity. My noble friend Lady Chakrabarti raised the important point regarding trade unions, as did my noble friend Lady Bryan of Partick and many others. We have to get the balance right; lawful activity must not be undermined by the state with the use of undercover activities.

We have heard about the policing inquiry. Some terrible things have happened that I am sure we all regret, which have undermined legitimate activity. It must never happen again. Those are the questions the noble Baroness needs to reassure the House on: how will this Bill ensure that never ever happens again?

I am a proud trade unionist. I was a member of USDAW for 12 years when I first left school and I have been a member of the GMB for the last 30 years. I never rose very high in the GMB ranks; I got as fair as the chair of the Labour Party senior staff sub-branch for a couple of years. I spent probably more time arguing with the rest of the staff in the Labour Party about where we wanted to get to. But I certainly think that the unions are very important. For example, USDAW—a union I am very close to—is a great trade union with great campaigns that I always support. It is important that we support the work that unions such as USDAW do.

At this point, I pay tribute to my old friend John Spellar. John was first elected to public office 50 years ago today, in a St Mary Cray by-election on 3 December 1970. John has served as a councillor, trade unionist, trade union official, MP and Minister. John would have nothing to do with any extremism of any sense whatever; anyone who knows him would know that. He has also run a news service for many in the Labour Party called “Spellar News”. We get it two or three times a day: early bird, evening round-up and news flashes. John is actually retiring the news service today, which I am very sad about. He has done great work as a trade unionist and is a great example to many of us in the Labour Party.

I was also sorry to learn that the noble Baroness, Lady Jones of Moulsecoomb, has been arrested on demonstrations. I have been on a few demonstrations in my time as well. I have avoided being arrested, but I must admit that I have also been demonstrated against. When I was a councillor, many times things that we did on the council provoked some annoyance. I remember once that I put up the fees of the traders in East Street Market and drew their wrath for a number of weeks. There were lots of unpleasant signs about me.

What is important here is that, if you are a trade unionist or a campaigner, nothing in the Bill must ever undermine legitimate work. It is really important for the Government, and for the noble Baroness, to reassure the House and Parliament that nothing legitimate will ever be undermined when this goes on the statute book, and that actually it will be supported. I think she can see from the comments of people around the House today that we are not convinced that is the case. She needs to reassure us now in responding to the debate.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have taken part in this debate and pay tribute to anyone who has been in politics—and indeed the trade union movement—for 50 years. I have heard of John Spellar in dispatches, but unfortunately not the person that the noble Baroness, Lady Bryan of Partick, referenced.

Turning to public authorities, they have different functions, the ultimate outcome of which is to keep the public safe from harm in a variety of ways. It is very important that they can lawfully deploy CHIS to fulfil those responsibilities. These amendments seek to restrict the statutory purposes available to public authorities under the Bill.

The structure of new Section 29B closely resembles that of Section 29, which authorises the use and conduct of CHIS, as there is a high degree of interrelationship between the two provisions. That is why a Section 29 authorisation is required to be in place before a Section 29B authorisation can be granted. The statutory purposes that will be available for a criminal conduct authorisation are linked to those available for a use and conduct authorisation. It is not operationally workable to have different grounds for authorisation between the provisions. For example, we would want to avoid a situation where a CHIS’s use and conduct has been deemed necessary for the prevention of crime, but the linked criminal conduct authorisation for the same CHIS and the same activity may be only on the basis of preventing a serious crime, as my noble friend Lord King of Bridgwater pointed out.

My noble friend also pointed out the words of my right honourable friend James Brokenshire about the sheer amount of activity that has been done under covert means—it led to 3,500 arrests and the recovery of more than 400 firearms, 100 other types of weapons, 400 kilograms of class A drugs and £2.5 million-worth of cash. But first and foremost, and most importantly, is the fact that it safeguarded hundreds of victims from child sexual abuse and other heinous crimes.

To restrict the prevention of “crime” to “serious crime”, as Amendments 22, 23 and 31 propose, would mean that public authorities would be less able to investigate crime that, while not amounting at the time to serious crime, actually has a damaging impact on the lives of its victims—so the outcome is serious, to answer the question of the noble Lord, Lord Kennedy. An example of this would be food crime: the extension of meat durability dates, leading to out-of-date food being consumed, is damaging and can be very dangerous to public health.

Of course, the necessity and proportionality requirements mean that an authorisation must be proportionate to the activity it seeks to prevent. This provides an important safeguard against authorisations of serious criminality being granted to prevent less serious, but equally important, crime. However, it is surely right that public authorities have access to the most effective tools to ensure justice for victims of these crimes and to prevent their occurrence.

The noble Baroness, Lady Chakrabarti, referred to some of the examples that we have heard in this Chamber of sexual relationships between undercover police and women, and some of the actually quite devastating consequences of that. I think I have said before in this Chamber that that was not lawful, is not lawful and would never be lawful.

In response to the1 amendments seeking to remove economic well-being, this is one of the established statutory purposes for which covert investigatory powers may be deployed by public authorities. It recognises that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. It might, for example, include the possibility of a hostile cyberattack against our critical national infrastructure, our financial institutions or, indeed, the Government. It is important that law enforcement bodies and intelligence agencies can deploy the full CHIS functionality against such threats where it is necessary and proportionate.

Similarly, preventing disorder is an important and legitimate law enforcement function. Where illegal activity takes place, public authorities listed in the Bill have a responsibility to take action as is necessary and proportionate. An example of this could be managing hostile football crowds, which does not involve lawful protest but causes harm to the public.

To be clear to noble Lords concerned that either economic well-being or preventing disorder could be used to target legitimate protest or the work of the trade unions, an authorisation can be granted only if it is proportionate to the harm or criminality that it seeks to prevent. Therefore, this would not include—to use the words of the noble Baroness, Lady Chakrabarti—“legitimate and lawful activity”. The noble Baronesses, Lady Jones and Lady Bryan of Partick, also gave examples of activity by political groups or trade unions. The noble Lord, Lord Kennedy, asked me about the difference between the wording in this Bill and the CT Act. It goes wider, basically, and it is consistent with RIPA.

With those words, I ask noble Lords not to press their amendments.

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[Lord Paddick (LD)]

My Lords, I am grateful for what the Minister has said and appreciate that she has to stick to her script, but it gives the impression on occasion that there is no point in making contributions to debate because what I have said appears, from what she has said, to have been completely ignored. I will repeat exactly what I said. I said that of course the Government may say that in addition to being necessary the granting of a CCA must be proportionate—the issue that she mentioned—and it would not be proportionate to deploy a CHIS if the criminal activity was minor. That is almost word for word what she said. However, I went on to say that the same argument applies to the interception of communications in RIPA, where necessity is limited to serious crime, as defined in our Amendment 31. That second point seems to have been completely ignored by the Minister. I accept that that is probably because she has, understandably, just stuck to her script. It comes back to the point that I made, which is: what is the point of making speeches in debates if what noble Lords say is ignored by the Minister?

The Minister said that these amendments would limit how CHIS could lawfully be deployed and seek to restrict their deployment, and authorities would be less able to investigate crime. This Bill is about criminal conduct by CHIS, not their deployment. It is about giving authority to agents and informants to commit crime, and grant complete legal immunity to CHIS in those circumstances. There is a world of difference between deploying a CHIS and authorising them to commit crime, and then granting them immunity from prosecution. Yet the whole basis of her argument, from what I understood her to say, is that there is no difference between the two. In which case, what is the purpose of the Bill?

I say again: why is the interception of communications limited to serious crime if there is no need to limit the deployment of CHIS, who are going to be authorised to commit crime? Why should they not be limited to serious crime? That is a question that the Minister has failed to answer.

[Baroness Williams of Trafford (Con)]

The noble Lord, with whom I am actually good friends, makes a valid point: what is the point in making speeches if points are ignored? I often find that I make the same points over and again, and they are completely ignored because such is the will of people to make their opposite points. However, on this occasion, he is absolutely right. I did not address his point about RIPA and it being confined to serious crime. In the interception of communications, we are dealing with machines. In the deployment of humans, we are dealing with something else. I apologise to him for not answering his point.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to all noble Lords for the care with which they have approached this group, which once more highlights the gravity of the development of this legislation to enable statutory criminal conduct authorisations with total immunity for the first time in our law. I will not rehearse the various arguments, most of which I agree with, but I will respond to the noble Lord, Lord King of Bridgwater, a distinguished statesman for whom I have a great deal of respect, and to the Minister. It is their opposition to these amendments and the thinking behind them that I must address, because the issue is so serious.

At various times in the debates on the Bill, some noble Lords have expressed irritation that one should hark back to past abuses including those in the Undercover Policing Inquiry, or the treatment of my noble friends Lord Hain and Lady Lawrence, as if they belong in a bygone era and would never happen again. Other examples include the treatment of the Greenpeace women and so on. One can cast those abuses aside by saying they would never happen again but, of course, we know that as legislators we have the precious duty—the sacred trust of those who have appointed us to this role—to learn from the past and legislate for the future, informed by the dangers that past activities have exposed. It is right that we take some care and employ forensic precision in refining provisions in legislation as serious as this.

With the greatest respect to the noble Lord, Lord King of Bridgwater, and the Minister, there has been an element of blurring classes of activity that should not be blurred in legislation of this kind. In particular, there has been blurring, as the noble Lord, Lord Paddick, highlighted, on authorising undercover operatives, which is perhaps the most serious kind of intrusive surveillance—because humans are human, not machines, to quote the Minister. Yes, they need more protection but we also need more protection from them because they will change our behaviour and not just record it.

Undercover operatives are important but dangerous, even under the present law. There is a new category of authorisation in this legislation, which is about criminal conduct by those agents and criminal conduct with total immunity after the fact. That is completely novel. It is important to understand how we got here, not just regarding the vital need for these operatives or the abuses of the past but the jurisprudential and legislative train that got us to this station.

Article 8 of the convention on human rights guarantees the right to respect for private and family life, stating that:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”


But of course there are exceptions. Article 8(2) is crucial in this debate. It states:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


That is a necessarily broad exception. Why? It is because that exception exists in international and human rights law to cover any privacy interference at all. Any camera on a high street or requirement to fill out a tax form is an interference with privacy. It includes any interference on a prisoner’s privacy or the privacy of a schoolchild—any interference at all. Therefore, that category of exception is broad. However, it is too broad for intrusive surveillance, which is why, as the noble Lord, Lord Paddick, said, we start to introduce further restrictions for intrusive surveillance. It is not just about the duty to fill out a tax form any more; we are now talking about much greater intrusions—serious crime rather than just any crime.

Economic well-being is vital, for example, for the tax form; but it is too broad a category for authorising agents of the state to commit crimes against me, my friends or my associates. That is the Article 8 wording, which is too easily copied and pasted. Then we have the slightly tighter definitions in the Regulation of Investigatory Powers Act, on to which today’s scheme is going to be grafted. That, serious though it is, is intrusive surveillance, but this is intrusive surveillance plus criminal activity plus total civil and criminal immunity. That is why the justifications in this Bill need to be tighter still than those in RIPA, not broader, and certainly a great deal tighter than the exceptions to Article 8 of the convention. I hope that I have made that clear, and I hope it rings true with most of your Lordships’ House.

To return to the noble Lord, Lord King of Bridgwater, I say that nobody is under any doubt that covert human intelligence sources are absolutely vital tools of public protection. Under the current law, we have no doubt that they have protected many of us and saved many lives. However, that was on the basis of a law where these people acted on the basis of guidance, but without this absolute immunity; but now we are told that they need absolute immunity—not a public interest defence and not what they have had until now. Therefore, it is perfectly reasonable to at least probe the possibility of, if not to insist on, much tighter regulation and safeguards than are currently provided in the Bill. Having had that discussion, however, for today at least I beg leave to withdraw the amendment.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 27 is tabled in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I am not going to speak for long because we discussed some of these issues in the previous group. We have mentioned numbers in the various pieces of legislation and I have made the point about consistency. I know that when I mentioned the counter-terrorism Act, the noble Baroness was spot on and I will look at what she said in the earlier debate. However, we need to be sure that we have consistency in the various bits of legislation that we are talking about today. That is very important.

A number of colleagues have talked about the need to get the balance right here. The concerns that have been raised by Members of the House show that it is one thing when you are dealing with terrorists from another state or people who for various reasons are looking to undermine the economic well-being of the country, but on the other side of that are quite lawful campaigners. We might not like them and we might think that what they are doing is wrong or irritating, but they are acting in a perfectly lawful way. That is the area in which we need reassurance and it is what this debate comes down to. People have the right to protest, to be annoying and irritating, as long as they do it lawfully. We have to be sure that we get this right and that is what we are worried about.

Equally, I turn to the whole question of trade unionists, who have been mentioned many times. Trade unionists have the right to campaign and to know that they can do so without having agents put in to undermine their activities. You could argue that others might undermine their activities, but they do not need people in their own ranks who are sent in to do that.

As many noble Lords have mentioned, in the past undercover officers have been sleeping with campaigners. That is totally out of order. I am sure that it will be said that that will never happen again, but people need to be reassured that it is, as I say, totally out of order. While the Government are saying that this will never happen again, the noble Baroness, Lady Jones, has challenged a number of police commissioners—three of them are now Members of this House—and has never had an answer; that is also a concern. These things are totally wrong.

The Minister has a job here to find a way of reassuring the Committee that these things will not happen again, but how can we be sure about that? That is the issue that we have to deal with, because of course we thought that they could not have happened before, but clearly they did and we have only found out about them years afterwards. We want legislation that is right and proper so that people are protected, but, equally, legitimate campaigners have to be protected as well so that they are not abused and wrong things done to them. This, I think, is the crux of the issues we are debating today and I look forward to the response of the noble Baroness.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have taken part in this debate. I will start with the comments of the noble Baronesses, Lady Jones and Lady Chakrabarti, and the point about listening to what each other is saying. I have never tried to skirt around the issue of the disgusting behaviour of some 30 years ago. I do not know whether police officers were not told that it was illegal and the inquiry is clearly establishing the ins and outs of that. But it was not acceptable and it was never lawful, and it cannot be authorised under this Bill. I hope that I have made that very clear. I do not dismiss what those women went through—including, indeed, what the noble Baroness, Lady Lawrence, went through—and I hope that the inquiry will vindicate an awful lot of the people who suffered, complained and were simply ignored in the past. The inquiry will get to the bottom of something that was never lawful in the first place. I digress, but I must add that operational partners are very clear that that sort of behaviour could not be authorised under this Bill.

I shall move on to the substance of Amendment 27. I will not repeat the points I made in response to the last set of amendments, but I will emphasise that economic well-being is one of the established statutory purposes for which covert human investigatory powers may be deployed by public authorities. We recognise that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. That might include, for example, the possibility of a hostile cyberattack against our critical infrastructure, as I said earlier, attacks on financial institutions or on the Government themselves. I gave examples in my previous speech of the victims of CSA, cash and drugs activity, so they may not be solely related to issues of national security.

We have agencies such as HMRC, the NCA and the Serious Fraud Office whose mandate includes mitigating broader threats to the UK’s economic well-being. These threats are real, emerging and go beyond the remit of national security. We cannot tie our hands in response to such threats by limiting the statutory purposes available to tackle these issues. Of course, there are also examples of where economic well-being is not restricted to national security, as set out in other parts of the Investigatory Powers Act and the Security Service Act.

I hope that I have given a full explanation of why Amendment 27 should be withdrawn.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee.

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[Baroness Hamwee (LD) [V]]

My Lords, if the noble and learned Lord was referring at the beginning of his contribution to the term “economic well-being”, I hope that the references made during the earlier debate will be helpful. I certainly agree with him about the breadth of what is in the Bill and the distinction between surveillance and authorising criminal conduct.

The amendments in this group raise the issue of whether we are concerned about the activity or the actor. My noble friend Lord Paddick questioned Amendment 29 and the term “legitimate political activity”. I had in fact made a note that that quite attracted me, but he and I have not had the opportunity to thrash this out between us. We may get it on the floor of the House if the noble Baroness brings the matter back at a future point.

On Amendment 78, on the equality impact assessment, frankly, the Government would be ill advised to resist this. I am mindful of the need to avoid the identification of agents. The noble Baroness, Lady Manningham-Buller, was very clear about that the other day but, as the amendment is worded, I do not think that there should be such risks—although of course I am not experienced in this area.

In Amendment 56A, my noble friend has stood back to look at the purpose. Again, it is the broader point of addressing the principle rather than producing a list or a detailed prescription. I hope that the Minister will accept that we are keen to address the problems that the Bill throws up without undermining it. I am sorry that, today at any rate, I will not get the chance to speak after she has responded to my noble friend, but I believe that he has come up with a formula that is well worth pursuing.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.

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[Lord Paddick (LD)]

My Lords, I am grateful to the Minister. I have just one question. She said that the scenario I suggested could not happen because police forces had dedicated source units. Can she point to where in the Bill or in the codes of practice it says that that has to be the case? If not, the Bill or the code of practice is defective.

[Baroness Williams of Trafford (Con)]

The noble Lord will appreciate that not every Bill contains every minute detail of issues such as this, but I hope that, with my having made the statement on the Floor of the House, the noble Lord is satisfied that there cannot be conflict. However, I would be very happy to speak to him about this before Report.

[Baroness Clark of Kilwinning (Lab)]

I am happy to withdraw Amendment 29.

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[Lord Rosser (Lab) [V]]

There are a number of amendments in this group relating to human rights. They variously provide that a criminal conduct authorisation: may not authorise activity that would be incompatible with convention rights; may not authorise murder, torture or rape, or a person under the age of 18 to engage in criminal conduct; cannot authorise causing death or grievous bodily harm, sexual violation or torture; and cannot authorise causing death or grievous bodily harm, perverting the course of justice, sexual offences, torture or depriving a person of their liberty.

There is also an amendment in my name and that of my noble friends Lord Kennedy of Southwark and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, that would also put explicit limits in the Bill on the types of criminal behaviour that can be authorised. These limits cover causing death or bodily harm, sexual violation, perverting the course of justice, torture, detaining an individual or damaging property where it would put a person in danger. There is an amendment to my amendment from the noble Lord, Lord Hodgson of Astley Abbotts, the purpose of which, as he has explained, is to explore whether the proposed regulatory regime provides adequate safeguards for operations carried out overseas.

The amendments all follow a similar theme, namely, wanting to include in the Bill clearer and tighter wording in respect of the criminal conduct that can be authorised by a CCA, so that there can be no doubt over what is a permissible criminal conduct authorisation and, more significantly, what is not. The Government’s position appears to be that criminal offences that are contrary to the Human Rights Act are already precluded, given that all public authorities are bound by the Human Rights Act, and thus authorising authorities are not permitted by the Bill to authorise conduct that would constitute or entail a breach of those rights.

Interestingly, the Bill states in new Section 29B(7) in Clause 1(5), on criminal conduct authorisations:

“Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”


But what are the words “to take into account” meant to mean in this context as regards adhering to the requirements of the Human Rights Act? One can, after all, take something into account and then decide that it should be ignored or minimised in whole or in part. What do the words,

“so far as they are relevant”,

mean in relation to the requirements of the Human Rights Act? In what circumstances are those requirements not relevant in relation to criminal conduct authorisations?

Turning to an issue that the noble Lord, Lord Anderson of Ipswich, addressed, the Government have maintained that specifying in the Bill offences that cannot be authorised places at risk undercover officers and agents on the grounds that 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. However, as has been said, the Canadian Security Intelligence Act authorises criminal conduct similar to that proposed in the Bill, and my amendment reflects the wording in the Canadian legislation on the type of serious criminal conduct that cannot be authorised.

The Joint Committee on Human Rights has pointed out that the Bill gives the Secretary of State power to make orders prohibiting the authorisation of any specified criminal conduct and that, in line with the Government’s argument, whatever might be prohibited by such an order could presumably also be used by criminals as a checklist against which to test a covert human intelligence source. The JCHR comments in its report:

“If limits can be placed on authorised criminal conduct in publicly available secondary legislation without putting informants and undercover officers at undue risk, it is unclear why express limits cannot also be set out in primary legislation.”


The JCHR report also states:

“If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the”


Human Rights Act.

Perhaps, in their response, the Government could say whether they are still committed to the Human Rights Act, since following their 2019 election manifesto commitment to ensuring that there is a proper balance between the rights of individuals, national security and effective government—which suggests that the Government do not think that is the present position—they have announced that there is to be a review into the operation of the Human Rights Act.

If the Government intend to argue that the Human Rights Act will provide protection in the years ahead against unacceptable use of the powers in this Bill, there needs at least to be a clear statement from the Government that they are committed to the Act and will not be altering its provisions.

It could be claimed with some justification, however, that the Human Rights Act has not prevented previous human rights violations connected to undercover investigations or covert human intelligence sources. I await the Government’s response to this group of amendments and to the contributions that seek more specific wording in the Bill, to put clear limits on the type of criminal behaviour that can be authorised.

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords for their very thoughtful contributions to a discussion of the upper limit of what can be authorised by a criminal conduct authorisation.

I will first address comments—because they have been the most numerous—that propose to replicate on the face of the Bill the limits that the Canadians have set in the legislation governing their security service, and Amendment 42, from my noble friend Lord Cormack, which prohibits murder, torture or rape. I totally recognise why noble Lords want to ensure that this Bill does not provide authority for an undercover agent to commit any and all crime. It does not. I reiterate once more: there are already clear limits on the criminal activity that can be authorised and they can be found within the Human Rights Act—which, by the way, was not in place when some of the activities that noble Lords have described were carried out.

Nothing in this Bill undermines the need to comply with that Act, as is made clear by new Section 29B(7). Further limits are placed on the regime by the need for the authorising officer in all public authorities to confirm that there is a demonstrable need to authorise a CHIS by making a clear case for its necessity and proportionality. I understand questions about why we cannot place explicit limits in the Bill, as they do in other countries, notably including—as noble Lords have said—Canada, and I will explain our reasoning.

We think that placing express limits on the face of the Bill is not necessary. The Human Rights Act already provides these limits and the amendments that replicate the limits in Canadian legislation do not prohibit any criminal conduct which is not already prohibited by the ECHR and HRA, as encompassed by the Bill. The noble Lord, Lord Anderson, made a point about undercover police who have sexual relationships: if gangs knew that that was unlawful, would they then test against it? I would say that although that behaviour would be unlawful in that context, it is very distinct from rape. I have been trying to talk to my noble friend who is a QC and perhaps I will set my answer out in more detail in writing.

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[Lord Rosser (Lab) [V]]

My Lords, Amendment 39 in the names of my noble friends Lady Massey of Darwen and Lord Dubs removes from the definition in the Bill of authorised criminal conduct the words

“by or in relation to”

the specified covert human intelligence source. It replaces those words with a more detailed definition; namely, that it is conduct by

“the covert human intelligence source”

or by a person who holds a rank, office, or position in the public authority that is granting the authorisation and is assisting in the behaviour of the covert human intelligence source. As my noble friend Lord Dubs said, this amendment was recommended by the Joint Committee on Human Rights.

Under the terms of the Bill, authorised conduct is not limited to the conduct of the covert human intelligence source. The code of practice says that a criminal conduct authorisation may also authorise conduct by someone else in relation to a covert human intelligence source, with that someone else being those within a public authority involved in or affected by the authorisation.

If the Government do not accept Amendment 39, they need to set out in their response the reasons why they consider it necessary to provide for the authorisation of criminal conduct by someone other than the covert human intelligence source; the parameters of that criminal conduct by someone other than the CHIS that can be so authorised; and the safeguards in the Bill to ensure that the person authorised to commit criminal conduct—who is someone other than the covert human intelligence source—is not also involved in any way in the authorisation process to which that criminal conduct relates.

I shall listen with interest to the Government’s response to Amendment 39 and to the pertinent questions raised by my noble friend Lord Sikka in speaking to his amendment.

[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?

[Baroness Williams of Trafford (Con)]

I say again that each situation will be different, but I understand the noble Lord’s point that if the CHIS is acting as instructed, but the handler has gone beyond where they should have gone, it would be the handler’s authorising officer who would be liable for that activity. There would be an investigation, but at that point, we are talking about a theoretical case. If it was the handler who had acted beyond their purview, the handler would be liable for that handling activity, or the authorising officer. It is late, I am tired, and I have suddenly forgotten my thread.

[Lord Dubs (Lab) [V]]

My Lords, I am grateful to all noble Lords who contributed to the debate. I have to lead with what the Minister said. I feel that her interpretation of the part of the Bill we are talking about was nearer to the spirit of the amendment than the wording of the clause itself. That is why I want to have a look at it. As for what my noble friend Lord Sikka said, I was not aware that a person in the Bill could be a corporate body. I fear he has an important point, but maybe it is not quite in the scope of the Bill. I beg leave to withdraw the amendment.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, my contribution on this amendment will be fairly short. I hear the point that my noble friend Lady Chakrabarti makes and I note the point made by the noble Lord, Lord Paddick, that this issue is not mentioned in the Bill. Therefore, I am not quite clear whether the amendment is necessary. It would help us if, when the Minister responds, she could say something about the detail of the authorisations in a CCA.

Behind all the amendments today are concerns and worries about what may or may not have happened in the past. People want reassurance going forward, but they are not seeing it. I see that theme across all our discussions today. At some point, the Government will probably have to go a bit further to provide that reassurance, although I do not know how they will do that.

All these issues have been raised because of concerns that people have had in the past. As my noble friend said, we do not know whether we can stop this in the future, but I hope that the Minister can go a bit further. I cannot see any particular issue but, if I am right, the reason behind an authorisation would have to be recorded and shared with the Investigatory Powers Commissioner. That is the issue on which we need reassurance, as we move forward and give people new powers.

[Baroness Williams of Trafford (Con)]

I thank noble Lords. I hope to reassure the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, about why we do not need this amendment.

I have already stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. Article 6 of the ECHR protects the right to a fair trial. The article restates a fundamental principle of English law and, I understand, Scottish law: that a court has a duty to ensure a fair trial. The use of an agent provocateur could be seen as affecting the fairness of a trial, and rightly so. A court already has the requisite power in law—under Section 78 of the Police and Criminal Evidence Act 1984—to consider and exclude such evidence. The relevant entrapment principles are set out in the leading House of Lords case of Loosely from 2001, which also opines on the convergence of English law in this area with our Article 6 commitments. I hope that that provides reassurance.

[Baroness Chakrabarti (Lab) [V]]

I apologise: I perhaps have not made myself clear enough. It is late and we have all been at this for a while, but I do not think that I explained myself well enough either to my noble friend Lord Kennedy of Southwark or to the Minister.

Agent provocateurs are not limited to the trial process. In fact, the scenario that I have painted could apply where nobody is brought to trial, so Article 6 and evidential rules against entrapment are no protection. I shall try again.

The scenario is like this. Some hours ago, the noble Lord, Lord King, spoke about the possibilities—suspicions or fears perhaps—that in the future environmental or race equality movements might become involved in more militant or violent action against people or property. That is a concern that he already has, and maybe some other people do too. Given that the Bill allows economic concerns to be a justification not just for CHIS but criminal conduct, what would happen if a CHIS were authorised to enter such a protest movement and misbehave in order to discredit it when that movement had not yet, or at all, engaged in that more violent, militant or illegal activity?

In my scenario, it is possible that only the CHIS himself is committing a crime, but because he is doing so within that movement, the organisation is now discredited in the public mind or the Government might choose to prohibit the organisation in some way. It is quite possible that in that scenario nobody will have been brought to court and there will be no Article 6 fair trial issue and no entrapment/evidence issue.

[Baroness Williams of Trafford (Con)]

Will the noble Baroness give way?

[Baroness Chakrabarti (Lab) [V]]

Of course.

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[Baroness Williams of Trafford (Con)]

I apologise for intervening at an inappropriate moment. I was trying to clarify whether the noble Baroness was suggesting that a CHIS would be authorised to entrap. I do not think that authorisation would be valid.

[Baroness Chakrabarti (Lab) [V]]

Forgive me, but in the scenario that I have just painted there is no entrapment because nobody is prosecuted. There is just criminal behaviour by a CHIS for the purpose of discrediting in the public imagination an otherwise peaceful protest movement, for example; it could be an environmental movement. At the moment I see nothing in the Bill that bans a criminal conduct authorisation being made with the primary purpose of discrediting an otherwise peaceful movement that perhaps poses a challenge to some people’s idea of the economic well-being of the nation.

[Baroness Williams of Trafford (Con)]

I think that we are coming to the end of this debate, but entrapment in and of itself would have been committed.

[Baroness Chakrabarti (Lab) [V]]

My Lords, we can disagree on that, but perhaps before Report the Minister and her colleagues might reflect on what I am trying to achieve. For the moment, I beg leave to withdraw my amendment.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is one of those debates where you can stand up and quite honestly say you agree with every single word that has been said from across the House. I am sure the noble Baroness understands that this presents particular problem for the Government, because I am sure that, in addition to the noble Lord, Lord Young of Cookham, who made an excellent speech, many other members of the Government’s own party will agree with all the points that have been raised here today.

This group of amendments brings the House back to an issue that was first raised by my noble friend Lord Haskel on a statutory instrument, to which the noble Baroness responded. I remember sitting in a much more packed House, and there was lots of concern around the House—“What is this?” People were quite shocked to learn that children were being used in such a way, and that shock and concern has continued, which is why we have come here today.

Everyone around the House is very worried. That is certainly why I signed Amendment 60, which was so ably spoken to by the noble Baroness, Lady Young of Hornsey. Other noble Lords have spoken, and all these amendments are excellent, but I hope that we can hone this down to one. I particularly like Amendment 60, but I think we can see the concern expressed by the House, and we need to deal with this. Our Amendment 60 does not rule out child CHIS completely, but it certainly restricts them. I accept that in very limited circumstances, you might have to use a child, but it must be a very limited, rare occasion.

I am confident that the House will pass an amendment on this issue. Ideally and hopefully, it would be a government amendment, but I am confident that the House will pass an amendment by a large majority on this issue, which is about children. As you have heard, people under 18 can be quite streetwise—certainly, children think they are quite streetwise, although I do not know if they are; they are not quite as streetwise as they think they are. It is about that ability to give informed consent.

We are asking these children to take part in, be involved in and inform and report back on some very dangerous situations. This can be terrorism, drug dealing, sexual abuse or paedophilia: all sorts of really appalling, terrible things. We have to ask ourselves the question posed by the noble Lord, Lord Young of Cookham: how is that individual child protected? What would be said if a child CHIS is authorised and that child dies? That would be appalling—what would we say then? I think we have to take note of and be concerned about that, as well as the comments of the Children’s Commissioner in respect of using child CHIS.

Of course, sometimes—we have had this before—the child CHIS can be asked to pass information back to their handler, who can be a member of their own family. There are often situations when they are involved in a crime family: it could be their own father or mother. It is not always the case that the child is in care and hanging around the streets before getting involved; sometimes, it can be members of their own family, who can be very dangerous people. We are putting people in very difficult situations, and we must be even more careful about the individual child in those situations. These children have rights, and we need to ensure that, as the state, we protect them even more. As I said, if you are under 18, you are legally still a child and deserve protection from the state.

The right reverend Prelate made the point again about children, and I fully support his comments, as I do the points about mental capacity made by the noble Baroness, Lady Bull, which are very important. I also support the point of the noble Lord, Lord Paddick, that, sometimes, you can have quite a streetwise child and, equally, an older adult who is not that streetwise, so there is an issue there as well. These are things that we need to consider.

I hope that the noble Baroness will be able to tell the House that she fully understands the situation—and I know she is concerned about this. I hope that she will work with the House and, as the noble Lord, Lord Russell, says, can see the concern and genuine desire to agree something. I hope that she will welcome noble Lords from around the House and that we will come back with an amendment that, hopefully, we can all sign up to on Report, allowing very limited circumstances where a child may need to be used—very limited. Equally, I want to see much more protection for people. I hope that, when the noble Baroness responds, she will be able to give the House that information.

[Baroness Williams of Trafford (Con)]

My Lords, I start with the words of the noble Lord, Lord Kennedy, and absolutely confirm that I fully understand what all noble Lords have been talking about this evening. Of course, I will continue to work with the House, as I have done to date, in discussing what is, for me, the most difficult part of the Bill. The noble Lord, Lord Paddick, asked me: would I like to be a CHIS? No: I would be utterly terrified. Could I see my children being deployed in such activity? It would be incredibly difficult for me.

We need to put ourselves in the shoes of those children, who, as every noble Lord has said, are fairly vulnerable people in the sense that they might have been involved in, or their home life might be the site of, criminal activity. This is a very difficult area indeed. I thank the noble Lords, Lord Russell, Lord Paddick and Lord Kennedy, and my noble friend Lord Young of Cookham—and any noble Lords who are behind me—who have taken the time to come and speak to me about this aspect of the Bill.

The noble Lord, Lord Russell, put to me the suggestion from the noble Lord, Lord Anderson, about sessions in private. We are thinking about the best way to ensure that people have some of the information they need, although noble Lords will understand that some of that is sensitive to the point that it cannot be given out. I hope that noble Lords will appreciate that I have taken the time to have a one-to-one session with any noble Lord who requested it, on any aspect of the Bill. That said, these issues are very difficult, and I totally understand the concerns that have been raised. Nobody likes to think of children or young people being involved in these horrible areas.

Noble Lords may recall that the issue of juvenile CHIS, including whether they should be authorised at all, was discussed extensively in Parliament in 2018. The noble Lord, Lord Russell, and the noble Baroness, Lady Young, asked me why there was no child impact assessment of the Bill. As a result of concerns being raised about the use of juvenile CHIS, the IPC himself launched a review of all public authorities that have the power to authorise CHIS, to ensure that there was a comprehensive record of how often these powers were used in relation to juveniles. The conclusions of the review were reported in March 2019 to the Joint Committee on Human Rights. I have discussed them before, including the numbers, on the Floor of this House.

On the basis of these detailed reviews, the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process. He also noted that public authorities are reticent to authorise juveniles as CHIS unless the criminality and the risk of harm to individuals and communities that the authorisation is seeking to prevent is of a high order and cannot be resolved in less intrusive ways. The noble Baroness, Lady Young of Hornsey, put that challenge to me.

The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can, potentially, offer a way to extricate themselves from such harm. The decisions to authorise were only made where this is the best option for breaking the cycle of crime and the danger for the individual, much as that might sound contradictory.

As well as the IPC investigation, the High Court considered the issue of juvenile CHIS last year. Mr Justice Supperstone set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are,

“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”

I hope that that goes some way to reassuring noble Lords that the decision to authorise a young person to act as a CHIS, or participate in criminality, is never taken lightly.

I will now set out the additional safeguards that apply to the authorisation of juveniles as CHIS, and which will equally apply when criminal conduct is being authorised. These include authorisation at a more senior level, a shorter duration for authorisations—four months, rather than 12 for adult CHIS—with monthly reviews, and a requirement for an enhanced risk assessment. There must also be an appropriate adult present at meetings between the public authority and the CHIS for those under 16 years of age. To answer another question, appropriate adults are always independent of the police or other investigating authorities. This must be considered on a case-by-case basis for 16 to 17 year-olds.

These safeguards are contained within the Regulation of Investigatory Powers (Juveniles) Order and the updated CHIS code of practice, where the safeguards for juveniles have been further strengthened. The revisions to the code will be subject to a full consultation before they are finalised and will have legal force.

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[Lord Russell of Liverpool (CB)]

I thank the Minister for her very full reply. I asked whether the approach of my noble friend Lord Anderson of Ipswich in 2016 to the scrutiny of the Investigatory Powers Act, as it went through both Houses, might not be a model to follow. In our meeting last week, the Minister discussed with myself and those of us who are sceptical about the use of child CHIS for evidence the requirement for this. To convince us, she was kind enough to indicate that the 17 cases that we know of through IPCO produced a result that was deemed, in the balance of all things, positive and justified the use of those cases. In the absence of that sort of evidence, those of us whose primary concern is the best interests of the child are understandably very cautious and a little sceptical. We are willing to be convinced but we need the evidence to be convinced, please.

[Baroness Williams of Trafford (Con)]

I will reiterate what I said, which is that I am trying to work out a mechanism for sessions that might be helpful but not leaked, and perhaps where we can give some working examples—again, perhaps in private. We will try to do that if not before Report then during it, but before we come to this amendment.

[Lord Kennedy of Southwark (Lab Co-op)]

Actually, I have nothing to ask. The noble Baroness answered my point right at the end, after I had asked the clerk if I could speak, so I will leave it there.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I will be brief. I see the point that the noble Lord, Lord Paddick, is making on the need for review, but I am not convinced that it needs to be in the Bill. I am not persuaded that it is the right thing to do, although I see the point of a review. When the noble Baroness responds, maybe she can tell us about the detail of future authorisations. Would it be built into the authorisation itself? That would seem the better place for it, but I will wait to hear what the noble Baroness says. As it is, I am not convinced by the amendment or that the issue should be in the Bill.

[Baroness Williams of Trafford (Con)]

My Lords, I hope to provide the clarity that the noble Lord, Lord Kennedy, seeks and persuade the noble Lord, Lord Paddick, that this is not necessary in the Bill. The current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities listed in the Bill.

In the updated CHIS code of practice that accompanies the Bill, it is clear that a criminal conduct authorisation should be relied upon for as short a duration as possible. There is also a requirement on authorising officers to undertake regular reviews to assess whether the authorisation remains necessary and proportionate, and is justified. An authorisation must be cancelled when that is no longer the case.

Authorisations will be specifically and narrowly drafted and, in many cases, the specificity of the authorisation will mean that the criminal conduct authorised is in effect narrowly time-limited. However, there will be occasions when this conduct necessarily extends longer than a four-month period; CHIS who are members of proscribed organisations is a good example of this.

[Lord Paddick (LD)]

I thank the Minister for what she just said and I thank the noble Baroness, Lady Chakrabarti, for her support. I do not quite understand the position of the noble Lord, Lord Kennedy of Southwark. If 12 months is specified as the length of a CCA in the Bill then why, if we want to change it to four months, should it not be in the Bill? The Minister is saying it is consistent with the period for authorising CHIS, but not the period for authorising juvenile CHIS. It is a much more serious issue than simply authorising CHIS, as we have discussed. Authorising someone to commit a crime and giving them immunity from prosecution is far more serious than simply deploying CHIS.

To say that it makes it easier if the length of time is the same for one as it is for the other is to ignore the seriousness of this deployment—authorising CHIS to commit crime. If you were to follow the noble Baroness’s argument to its logical conclusion, you would not need the Bill to authorise CHIS to commit crime, as it would be just the same as deploying CHIS. No doubt we will return to this on Report but, at this stage, I beg leave to withdraw my amendment.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have taken part in this debate. To echo the words of my noble friend Lord King, we live in a very dangerous world. I made the point last time that 27 terrorist attacks have been prevented in the last three years.

I absolutely appreciate that it might not be immediately obvious why some public authorities require this power. Again, I urge noble Lords to read the case studies that have been published to reassure themselves about the contexts in which they might seek to use the power. Alongside law enforcement and the intelligence services, some of our wider public authorities have important responsibilities for investigating and preventing criminal activity and protecting the economic well-being of the United Kingdom. We should not underestimate the important role that these public authorities play in keeping the public safe.

To answer the point raised by the noble Lord, Lord Paddick, I am happy to share business cases with him and other noble Lords, should they wish me to do so—I promise that I shall not give him only 45 minutes to read them.

I think that noble Lords have fully accepted that there will be occasions where undercover operatives play a critical role in providing the intelligence needed to identify and prevent criminality. As organised crime groups increasingly expand into areas overseen by those public authorities, the need for that robust investigative tool is more important than ever.

My noble friend Lord King made a very important point: the list is not an expansion but in fact a reduction. The information about how many organisations have been taken off the list has not appeared, but I can get that number for noble Lords, if it is to hand, before Report.

To answer the point made by the noble Lord, Lord Anderson, the officers in the public authorities are experts in their fields and are best placed to take appropriate and proportionate action to tackle the harms caused by criminal groups operating in the areas that they regulate. To answer his other point, they will have received specific training, which reflects the specialist remit in which they operate. I note that having the capability to carry out their investigative work themselves allows the police to focus on their priorities, as my noble friend Lord King and the noble Lord, Lord Anderson, noted.

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[Lord Rosser (Lab) [V]]

Two amendments in this group stipulate the action that the Investigatory Powers Commissioner must take on becoming aware of unlawful or inappropriate conduct linked to a criminal conduct authorisation, or on becoming aware of an inappropriately granted or unlawful criminal conduct authorisation. I will listen with interest to the Government’s response to these two amendments.

A third amendment requires a review within six months by a High Court judge that would consider the grant of criminal conduct authorisations in relation to children or vulnerable people, the conduct of covert human intelligence sources, the oversight and monitoring of, and reporting on, such conduct, the oversight of persons allowed to authorise criminal conduct authorisations, and the sanctions available if they misuse those powers.

Under the terms of the Bill, the Investigatory Powers Commissioner has the power to conduct investigations, inspections and audits, but would not appear—I will listen to what the Government say in response—to have the capacity to investigate every time a criminal conduct authorisation is used. The Commissioner also covers the use of the power to grant criminal conduct authorisations in the annual report, which must also be laid before Parliament but which may be redacted. Of course, we do not know how much the annual report will reveal in practice. As an annual report, it will be reporting a long time after any particular issues with criminal conduct authorisations may have arisen.

It is surely important to have as much transparency as possible in how, and in what kind of circumstances, covert human intelligence sources and criminal conduct authorisations are used and granted, since the powers and activities provided for in this Bill are considerable and potentially wide ranging. They have to be applied appropriately, and the greater the transparency that is possible, the more likely that is to be the case and the greater the public confidence in how the powers are being deployed, and with what objectives in mind.

The review referred to in Amendment 79, which would be laid before Parliament, would be one way of contributing to that transparency and ensuring public confidence. If the Government are not going to accept the amendment, I hope that in response they will indicate a willingness to look further at the powers, duties and role of the Investigatory Powers Commissioner to ensure that transparency in how and in what circumstances the powers given in the Bill are exercised is maximised as far as possible. I await the Government’s response.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I know that the noble Lord, Lord Paddick, would not expect me to respond to the case that he brought before the House this afternoon, but I would be happy to sit down and discuss it with him, if he would like. I think what he wants from Amendment 79 is to require a review of all criminal conduct authorisations to be undertaken by a High Court judge, with the review to be commenced six months after the Act has come into force.

The IPC, supported by judicial commissioners, already has oversight of all criminal conduct authorisations. He and his judicial commissioners have all held high judicial office and are entirely independent of the Government. The commissioners are supported by expert inspectors and others, such as technical experts, who are qualified to assist them in their work. They are responsible for inspecting the full range of agencies and departments that will use this power and will ensure that they are complying with the law and following good practice. This includes investigating systems and processes, checking records and paperwork, interviewing key staff and investigating any known errors.

The frequency of these inspections is decided by the Commissioner, and the inspectors must have unfettered access to documents and information to support the Commissioner’s functions. This allows inspectors to undertake thorough and robust investigations of each police authority’s use of the power, covering the entire chain of events and decision-making.

A report is issued after each inspection that sets out IPCO’s conclusions and recommendations and identifies any areas of vulnerability or non-compliance. It also identifies areas of good practice which may be of interest to other similar organisations. The report will enable organisations to take action on the basis of IPCO’s recommendations. This process provides for systemic review of all public authorities’ use of the power and allows for continuous improvement in the authorisation and management of the capability.

Amendments 75A and 75B seek to put obligations on the IPC to report conduct to other bodies. Criminal conduct authorisations will be subject to the existing error-reporting processes for investigatory powers, which require public authorities to report all relevant errors to the IPC. This would include situations where undercover operatives’ conduct has taken place without lawful authorisation or there has been a failure to adhere to the necessary safeguards. Where it amounts to a serious error, the IPC must inform the person of an error relating to them where it is in the public interest.

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[Lord Rosser (Lab) [V]]

The purpose of the amendment moved by the noble Lord, Lord Hodgson of Astley Abbotts, is described as being to probe the adequacy of information provided to Parliament on criminal conduct authorisations and to probe the efficacy of the authorisations.

I think that this comes back to the issue of transparency. To be a little more particular, will we be told in advance, during the passage of the Bill, precisely what kind of information about criminal conduct authorisations will be provided to us and to the public by the Investigatory Powers Commissioner in the annual report or other reports? At the moment, I am not clear about what information will be provided and what it will cover, and whether it will give us a feel for what is happening over criminal conduct authorisations or whether we will be told that the information provided will be limited and that, on grounds of security, it cannot be disclosed.

I hope that, at least in their response either to this amendment or on Report, the Government will be prepared to spell out what information will and will not be provided so that we all know where we stand on this issue.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.

My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).

I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.

Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.

Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.

I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

I am with the noble Lord, Lord Anderson: the gift horse needs a bit more to chomp on. We support there being clear provision in the Bill to deal with the problem of “lawful for all purposes”.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have taken part in this debate, which I think has gone on now for over two and a half hours, signalling the importance of this subject and this Bill. The noble Baroness, Lady Chakrabarti, started off by really pressing the importance of parliamentary democracy and the rule of law. She was, of course, supported in that endeavour by the noble Baronesses, Lady Kennedy of The Shaws, Lady Bryan of Partick, Lady Blower, and my noble friend Lord Cormack. I agree absolutely wholeheartedly with those sentiments of democracy and the rule of law.

However, it also led me to reflect, thinking about events the other day on Capitol Hill, on some of the events that have taken place close to our Parliament in the last few years. The noble Baroness will recall her erstwhile colleague John McDonnell, saying:

“Parliamentary democracy doesn’t work for us … we used to call it insurrection. Now we are polite and say, ‘direct action’. Let’s get back to calling it what it is. It is insurrection. We want to bring this Government down by whatever mechanism we have.”


I stand by the principles of democracy and the rule of law, and that there can be no departure from them. The noble Lord, Lord Carlile, whom I do consider my noble friend, posits some of the points that noble Lords have made about whether we are dodging the rule of law. We are not. We are putting covert human intelligence sources engaging in criminal conduct beyond statutory doubt in the Bill.

I will begin with Amendments 1 and 2. The question of whether properly authorised conduct should be rendered lawful or left open to prosecution was discussed at great length in Committee. I have listened very carefully to the points made by noble Lords on this issue, and to the views of operational partners, and the Government’s view is that the approach in the Bill as drafted is the right one. It seems unfair and unreasonable for different approaches to be taken here from those for other investigatory powers, such as interception and equipment interference, where otherwise criminal conduct is rendered lawful by properly granted authorisation.

In response to the remarks of the noble Lord, Lord Paddick, regarding the assertion of my noble and learned friend the Advocate-General for Scotland—and I thank the noble Lord for giving me notice that he would be making this point—that all noble Lords agree with this position, clearly, if he does not, then it is not the case. However, I hope that most noble Lords can see the merit of the Government’s position on this issue. Covert human intelligence sources operate in the background and take great personal risks to keep the wider public safe from harm. It seems a disservice to them to expect them to carry out this activity and not provide them with the appropriate protection for doing what they were asked to do.

Noble Lords are all aware, and I think appreciate, that we are limited in what we can say publicly about this tactic, so I am afraid that I cannot go any further. What I can say is that we risk damaging the future operation of this tactic if we take the approach suggested in these amendments. At the end of the day, CHISs are humans. Each CHIS is one of us and not a machine that can be switched on and off. We must do what we can in this Bill to protect them in exchange for the work that they do on our behalf to protect us.

Amendment 3 seeks to remove the exemption from civil liability for CHIS criminal conduct. Let me start by setting out the legal position in RIPA. The effect of a valid authorisation under Part 2 of RIPA is that authorised conduct is rendered

“lawful for all purposes”

by Section 27. Section 27 sets out a requirement for the conduct to be in accordance with an authorisation in order for it to be made lawful for all purposes. Where a court finds that the authorisation under the Bill does not meet the requirements of the new Section 29B, or where the conduct goes beyond what is permitted by the authorisation, it will not be rendered lawful. I will make this point again, as it is very important: an authorisation will have been granted because the authorised conduct was deemed to be both necessary and proportionate to tackle threats such as crime, terrorism or hostile state activity—and, as the noble Lord, Lord Carlile, says, it is laid out in the code of practice. Where that authorisation has been validly and lawfully granted, it is right that those criminals or terrorists cannot then sue the CHIS or the state for that same vital activity.

Let me be clear that it is not the intention of the Bill to close off routes of redress where an authorisation has not been lawfully granted, or where a person has been the victim of conduct by a CHIS that was not covered by the tightly bound authorisation. It is right that in these cases appropriate routes of redress remain open to those affected. For example, where the person is a victim of conduct not covered by the tightly drawn criminal conduct authorisation, the authorisation would not offer protection from criminal liability. This would mean that the conduct was not rendered lawful, the person could report the crime in the normal way to the police and the normal routes of redress would be available. The approach that we have taken in the Bill does not leave open the possibility of criminals and terrorists suing public authorities for legitimate and lawful activity, but it will still be possible for innocent people to seek redress where appropriate. That is why the Government cannot accept Amendment 3.

Amendment 32, from the noble Lord, Lord Paddick, seeks to ensure that conduct authorised under the Bill is within the remit of the Investigatory Powers Tribunal. I absolutely assure him that this will already be the case. Section 65 of RIPA sets out that conduct to which Part 2 of RIPA applies falls within the jurisdiction of the tribunal. The Bill creates a new Section 29B which will be inserted into Part 2 of RIPA. Any person or organisation will be able to make a complaint to the tribunal regarding CHIS criminal conduct. The tribunal also has the same remedies available to it as other courts, including the ability to grant compensation. This amendment is therefore not necessary.

Responding to the amendment tabled by the noble Baroness, Lady Jones, on the Proceeds of Crime Act 2002, I should first highlight that CHISs are authorised in essence for the purpose of acquiring information. A CHIS will be authorised to participate in criminal conduct only where it is truly necessary in connection with that overall aim. The proposal to carve out certain activity from the Bill is inconsistent with the approach of the Bill, which is to render properly authorised conduct lawful for all purposes. I assure the noble Baroness that a CHIS could not be authorised for the purpose of legalising an otherwise unlawful profit-making exercise, as it would not be necessary for a statutory purpose.

In Amendment 21, the noble Lord, Lord Anderson, seeks reassurance that the Bill will not provide a blanket immunity that results in improper conduct being excluded from prosecution. I can be very clear on this point. I would expect any improper conduct on behalf of an authorising officer to be picked up by the stringent safeguards that are in place, thereby preventing such an authorisation being granted in the first place. However, if an authorisation did not meet all the requirements of new Section 29B, a court could find that authorisation to be invalid. The conduct would not then be rendered lawful and prosecutions could be brought.

In practice, if the Investigatory Powers Commissioner’s Office felt that an authorisation was improperly granted, it would flag up any concerns that it had to the authorising authority. This could include recommending that it refers the conduct to the appropriate authorities. While the primary responsibility for reporting crime rests with the authorising public authority, IPCO could refer a case directly to the appropriate authorities, subject to the process set out in the Investigatory Powers Act. The courts could then decide whether the authorisation was improperly granted and therefore whether it was unlawful.

As a matter of public law, a decision made subject to a discretionary power, such as the decision to issue a criminal conduct authorisation, must be “reasonable”. The decision must be rationally open to a reasonable decision-maker in possession of the facts of the case, or it will be unlawful. In terms of the additional reassurance that the noble Lord, Lord Anderson, sought, it is clear that authorising officers must be acting lawfully when properly granting a CCA. That does not prevent a prosecution of that officer for having improperly granted a CCA, including for misconduct in a public office if the authorisation was corruptly granted—but we would expect a court to consider the validity of that CCA as a preliminary issue.

I can also confirm that judicial commissioners have the ability to report conduct directly to prosecutors, subject to the process set out in the Investigatory Powers Act, and that anyone who has been impacted by a criminal conduct authorisation can make a complaint before the IPT. Where that complaint is upheld the IPT can provide redress, including compensation.

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[Baroness Hamwee (LD) [V]]

My Lords, with regard to the criminal injuries compensation scheme, the Minister said that the Bill does not “in practice”—I stress those words—interfere with its operation. Can she confirm that it does not interfere with the scheme either in law, as distinct from practice, or as the scheme is currently drawn; in other words, should we regard the term “in practice” as limiting the scope for application to it, which noble Lords have made clear is something that concerns us?

[Baroness Williams of Trafford (Con)]

I noticed that the noble Baroness mentioned that point in her speech. The practical application of this will not interfere with the operation of the scheme. She is shaking her head—I do not think she is very satisfied.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I am grateful to everyone who has spoken in this debate and was quite humbled by so many of the speeches—both those I agreed with and many with which I disagreed—not just by the kind remarks about me and my intentions with these amendments, but by the sheer eloquence and experience which so many noble Lords displayed on all sides of your Lordships’ House. Please forgive me if I do not pay appropriate tribute to everyone individually, as I am sure your Lordships would not thank me for the amount of time that that exercise would take.

We have been dealing with some difficult realities on this legislation, but also some important principles. That has come across in the nature of this important debate. The noble Lords, Lord Paddick and Lord Naseby, and others, talked about difficult realities from both sides of the argument. The noble Lord, Lord Paddick, gave a speech rooted in being, as far as I noticed, the only former police officer who has spoken on the Bill. His picture of handing out banknotes to undercover agents is not a difficult reality, designed to undermine the importance of using undercover agents in the community. It is not designed to undermine the difficult reality of some of those people being current or former criminals—or, indeed, having turned terrorist, for that matter. But it is important to demonstrate that not everyone involved in this kind of activity—in the past, present or future—has been or will be of the character or ability of the finest trained officers and agents. There will necessarily be a variation; that is a difficult reality.

I do not say this to criticise the need to have undercover operatives. It just makes the checks and balances in a democracy founded on the rule of law even more important. I say that to those who are flabbergasted at the idea that I should not just take the Government’s case studies without looking at any other experience, including that of the noble Lord, Lord Paddick. I think it was the Minister who said, rightly, that undercover agents—or CHIS—are human. They cannot be turned off and on. I absolutely agree; they are human, as we all are, and therefore flawed. They are not robots; they cannot be pre-programmed to cover every situation in the moment. We therefore need to create ethical incentives, not just blanket immunity. We have been dealing with the difficult realities of having to go undercover and keep cover. That will mean engaging in criminal activity, perhaps quite serious criminal activity such as being a member of a terrorist group or dealing drugs, for example.

There are also important principles such as the rule of law, as rightly pointed out by the noble Lord, Lord Carlile, even if he did not agree with my emphasis or my argument. He is right, and so is the Minister, in saying that the clarity and accessibility of the law are important rule-of-law principles. With that in mind, there is great value in putting these matters on a clear statutory footing. This is so that the public at large understand, in a clear statute for all to see, if they look it up, that sometimes undercover agents of the state will be authorised to engage in crime for the purposes of keeping their cover. The noble Lord, Lord Carlile, and the Minister are quite right to say that that is one attempt towards the rule of law.

However, another foundational principle of the rule of law in any jurisdiction anywhere in the world is equality before the law—as expounded by my noble friends Lady Kennedy of The Shaws, Lady Bryan, Lady Blower, Lord Hendy, Lord Judd, and many others. Equality before the law means that there is one law of the land for Prime Ministers, police officers—uniformed or undercover—and undercover agents or CHIS. That creates a conundrum for us: how can we respect equality before the law but also authorise criminal activity in certain situations in order to keep us safe? That is a genuine conundrum that I accept we are having to engage with here.

How does our current law tend to grapple with such a conundrum? Generally, this is not done by advance blanket licence or immunity, but by defences. Whether reasonable excuse defences or public interest defences are used, these would be taken into account by an investigating officer, prosecutor or, if necessary—and it does not seem to be very often—by a court after the fact. That is the kind of regime which protects all of us, including officers and agents and people who put themselves in difficult situations in harm’s way. This includes the armed police officers who are marksmen and those who protect all of us in your Lordships’ House. Those brave uniformed officers, who have sometimes made the ultimate sacrifice to defend your Lordships’ House, have used whatever reasonable force they could. They have done this, not with advance immunity, but in the knowledge that they were doing what was right and in the public interest. They have reasonable force defences or reasonable excuse defences, and nobody would dream of prosecuting them in the public interest. If it is good enough—

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[Baroness Hamwee (LD) [V]]

My Lords, it speaks well of the House that there is such concern about safeguards to buttress criminal conduct authorisations while, on the whole, accepting their use. Noble Lords identify the need for external validation and the oversight of the activities of different agents—of course, here we are dealing only with criminal conduct authorisations, not the whole of what they do—who are not identical across all the “public authorities”, as they are called, that fall within the Bill. We need to deal with all of them.

In most amendments, noble Lords identify the importance of someone with the authority of high judicial office, who therefore commands confidence, as well as the need to be practical, putting their arguments in the context of operational demands and realities, and paying attention to the timeframe. Of course, there are different proposals. I recall a discussion in a Select Committee a while ago about how, when you are a Minister, having to sign things off brings home to you that you are accountable—you have to answer for your decisions. We have heard from colleagues who have held high political office—of course, I have not had experience of this or judicial office. We support judicial authorisation.

The noble Lord, Lord Carlile, asked who judges the judges—but there is always that question, in the same way that there is always the question of who scrutinises the scrutineers. I have had the impression that the very experience of considering something after the event equips one for considering issues in advance, and commissioners are judges as well.

My noble friend spoke to all the amendments, including our Amendment 43, which is an outlier, not because it is inconsistent with the others—it is not—but because it is about a review of the regime rather than particular grants of CCAs. We do not suggest that the Investigatory Powers Commissioner is not alert to how CHIS may be used, but Amendment 43 would provide for a review of the regime—or the scheme, if you like—in the round, as distinct from tweaking legislation, which is what we are doing now, in response to court proceedings. As my noble friend said, it attempts to square the circle.

In their response to the JCHR, published this morning, the Government said on the issue of review that the current process

“provides for systemic review of all public authorities’ use of the power and allows for continuous improvement”

and so on. I think that “systemic” is probably not a typo, but I wondered whether it meant “systematic”; maybe it means both. I think the noble Baroness, Lady Manningham-Buller, would say it means “systemic”.

On Amendment 17, my noble friend stood back to consider the process as a whole; if he sets the grant of a CCA in the context of the deployment of the CHIS, it applies to agents used by the police and the intelligence services—not in exactly the same situations, of course—and provides for urgency.

We sought in Committee to answer the question of what follows with our own amendment to that of the noble Lord, Lord Anderson. Amendment 34, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, addresses the need for an outcome. His amendment is clear about determination, and I think that the noble Lord, Lord Anderson, said he would accept it. I was interested in the point made by the noble and learned Lord, Lord Thomas, about how the matter might evolve. We do not oppose Amendments 33 and 34, but notification is not approval, as noble Lords have noted, so they are different issues, and the amendment of the noble Lord, Lord Anderson, and our amendment are compatible. My noble friend Lord Thomas of Gresford was very persuasive on the possible fallout if there is no prior notification. The breadth of his speech has spared me, and therefore your Lordships, having to wind up on that, so I am grateful to him.

In Committee, the noble Lord, Lord Carlile, spoke of

“operational practicality together with rigorous scrutiny.”—[Official Report, 24/11/20; col. 210.]

I would summarise amendments on the subject of this debate as indicating that we prize independence, objectivity and respect for the rule of law—the protection of the citizen against the state as well as by it. We particularly support, of course, Amendment 5 and our Amendment 17.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this long but worthwhile debate. First, I pay tribute to the noble Lord, Lord Rooker. I could have just referred noble Lords to his speech then sat down, because he made his points so succinctly and brought out some case examples. My noble friend Lord King talked about the recent NCA operation that managed to yield so much thanks to undercover operatives.

I also echo for a moment the summary by the noble Baroness, Lady Manningham-Buller, and join her in thanking some of the undercover operatives who, as she said, literally risk their lives. I do not know, as I have not met any of them, but she is an expert in this area and, if she says that, I join her in tribute to them. There are no motives ulterior to keeping the public safe. She talked pertinently about oversight combined with the expertise provided for by this Bill and made the point that, when she started, there was no law at all governing the framework of this activity. She also talked about the Independent Reviewers of Terrorism Legislation—the two that were in our House and have contributed so much to this Bill, the noble Lords, Lord Carlile and Lord Anderson—and made the true point that there can be no exact accusation of conflict of interest with them. She talked about the vital role of the IPC—the report he does on a regular basis and the independence of the role. She talked about the double lock and made the point that judges have changed over the years, as the noble Baroness, Lady Kennedy of The Shaws, said, but so have the police and MI5. Noble Lords—the noble Lord, Lord Hain, in particular—will talk about some of the things that happened that under our new legal framework would not be either necessary or proportionate and would be ruled as such.

I shall start with the Investigatory Powers Commissioner: I want to welcome his most recent annual report, which was published during the passage of this Bill. He already plays an important role in providing independent oversight of this activity. But I have always been clear that the Government are willing to listen to the concerns of noble Lords and consider amendments to strengthen the Bill, providing they do not have an adverse effect on the ability of public authorities to do their job and keep us safe.

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[Baroness Williams of Trafford (Con)]

While I have the opportunity, I thank the noble Lord for the conversation we had the other day—it was very helpful in allowing me to know exactly what both noble Lords required. I cannot give that undertaking at the Dispatch Box but I can go back and ascertain just how often the Home Secretary receives these reports and whether the Investigatory Powers Commissioner might be thinking of making more regular reports in future if necessary, or indeed spot reports as and when required. I can certainly undertake to do that.

[Lord Hain (Lab)]

I too thank the Minister for her reply and for her engagement. It is clear from the balance of the debate that there is no point in my pressing Amendment 16, and therefore when the time comes, I will not seek to divide the House on it.

However, to follow up on the question of my noble friend Lord Blunkett, will the Minister give an assurance that the Home Secretary will take a particular interest in the most politically sensitive deployment of a CHIS, which is the area that has given rise to real worry? Whether that is in the form of a quarterly report or regular interactions with the head of the Metropolitan Police, other chief constables and the head of the security services is a matter for consideration, but there should be some hands-on authority by the Home Secretary and regular interest in deployments in politically sensitive areas.

[Baroness Williams of Trafford (Con)]

It was very good for us to have a chat the other day because we could discuss things that clearly we cannot discuss on the Floor of the House. I completely understood the sensitivity between some very nuanced situations and the purely operational role of the deployment of CHIS for criminal conduct. I will most certainly go back and put those points. Again, I thank the noble Lord for the time he took to discuss his concerns with me.

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[Lord Rosser (Lab) [V]]

Before I comment on these amendments, I am told that there was a tweet earlier today from the Commons Minister on this Bill, James Brokenshire, saying that he has had a recurrence of a tumour in part of his lung and that he is taking leave for curative surgery. I am sure that I am not alone in wanting to extend best wishes to him for a full recovery.

I will be brief, because everything that needs to be said on Amendment 6 has already been said. It requires a person authorising a criminal conduct authorisation to reasonably believe that the tests for authorisation are met and are necessary and proportionate. In Committee, the noble Lord, Lord Anderson of Ipswich, referred to what the Solicitor-General had said at Second Reading in the Commons, to the effect that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. As we have heard, there is wording in part of the code of practice that is not—let us say—quite as strong as the words of the Solicitor-General in the Commons.

Crucially, once again, as the noble Lord, Lord Anderson of Ipswich, said in Committee, the notion of reasonableness is completely absent from the Bill, which the courts would treat as the authoritative source. Like others, I see no reason why the Government are not prepared to put the word “reasonable” in the Bill. We certainly support Amendment 6.

[Baroness Williams of Trafford (Con)]

My Lords, I echo the words of the noble Lord, Lord Rosser. I heard earlier today that my right honourable friend James Brokenshire had to go in for some more surgery; I pay tribute to him. He is one of the most decent people in politics and an extraordinarily capable Minister. He has never been far from my mind this afternoon, as not only has he mentored me but we discussed and worked closely on every aspect of the Bill. I wish him a very speedy recovery.

The noble Baroness, Lady Hamwee, seeks to add an explicit requirement for an authorising officer’s belief that the conduct is both necessary and proportionate to be a reasonable one. I have already explained why the Government cannot support this proposal. In fact, the noble Lord, Lord Anderson, almost spelled out the reasons I was going to give, which are a bit of a repetition and with which I am not sure he will be entirely satisfied. However, since Committee I have updated the CHIS code of practice to make it clearer that it is expected that the belief should be a reasonable one.

I caution against an amendment seeking to include this wording in the Bill, as it would cast doubt on the test that is expected to apply to other authorisations. In particular, it could have unintended consequences for a Section 29 use and conduct authorisation under the Regulation of Investigatory Powers Act. Including the need for a reasonable belief here, creating an inconsistency in the legislation, would create uncertainty over whether the same requirement exists for the underlying Section 29 authorisation. As I mentioned earlier, as a matter of public law, a decision made subject to a discretionary power must be reasonable; that is, the decision must be rationally open to a reasonable decision-maker in possession of the facts in the case.

The noble Baroness, Lady Hamwee, has also called for the length of authorisations to be reduced from 12 months to four months, with a formal requirement for a monthly review of the authorisation. As I have said, the current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities using it.

While the code of practice is clear that an authorisation must be relied on for as short a duration as possible, and in many cases an authorisation will not last longer than four months, reducing the maximum length risks unintended consequences; for example, a shorter duration could mean that activity is rushed through in a shorter period of time, to avoid renewal or to demonstrate the value of a deployment to support a renewal. This clearly may not be the most effective or safest way of carrying out that conduct. I therefore hope that the noble Baroness is sufficiently reassured to withdraw her amendment.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I gather that the noble and learned Lord, Lord Mackay of Clashfern, would like to speak after the Minister.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

Does the Minister wish to reply?

[Baroness Williams of Trafford (Con)]

I will use the opportunity because the noble Lord, Lord Carlile, talked about the codes of practice, as he has done consistently; I would just like to raise those again.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

I now call the noble Baroness, Lady Hamwee.

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This is the first time I have spoken on this Bill on Report. I am very grateful to and want to offer my sincere thanks to all the police officers, MI5 and MI6 officers and others who undertake very dangerous work to keep us safe. We need safeguards and protections in place and clear codes of practice. People must be held accountable to those, so that agents are clear what they can and cannot do and how they must behave when they are deployed. It is important we get that right with the necessary protections. Sometimes people are authorised to commit crimes in limited circumstances, but they are doing that to prevent much more serious crime taking place. In doing this dangerous work, they get some very dangerous people off our streets—be they terrorists, drug dealers, gun-runners, paedophiles, murderers or other dangerous criminals. I will not support any amendments in this group on which we are dividing today.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords in this group who have paid their respects and tributes to my right honourable friend James Brokenshire. I will ensure that he gets all the comments in the form of a consolidated Hansard, so that he can see what kind things people have been saying about him.

I reassure noble Lords that the decisions taken when drafting this Bill have been informed by the input of operational partners. This includes the circumstances where it is necessary to authorise a CHIS to participate in criminal conduct to ultimately ensure that we can prevent terrorism, crime and harm to the public.

However, we have been robust in ensuring the power is only as broad as it is truly necessary to be. For that reason, we have restricted the public authorities able to authorise a CCA from those able to authorise a CHIS more broadly. It is also for that reason that we have reduced the statutory purposes for which a criminal conduct authorisation can be granted from the six that are available for a Section 29 CHIS use and conduct authorisation under RIPA. The remaining purposes have been included because there is operational evidence that they are required to keep us safe. I gave examples for each purpose in Committee and I am not going to repeat them all here, but I will highlight the impact this might have of the daily lives of the public.

The noble Lord, Lord Carlile, has given two examples. Another example, which the noble Lord, Lord Kennedy, alluded to is food crime—such as the extension of meat durability dates leading to out-of-date food being consumed. It is damaging and, as he said, it can be dangerous to public health, but it might not meet the serious crime threshold. I again offer reassurance, particularly to the noble Lord, Lord Beith, that the necessity and proportionality requirements apply for all authorisations. Activity could not be authorised if it was more serious than the activity it seeks to prevent and that is the test.

The noble Lord, Lord Kennedy, asked me about other forms of legitimate activity. Normal trade union activity would of course be perfectly outwith the test that I have just outlined.

I understand that the intention behind Amendment 11 is to prevent CHIS being authorised to act as agents provocateurs. However, the amendment as drafted goes much broader than that. It seeks to prohibit any CHIS from being authorised to encourage or assist in the commission of any offence. That would impose broad and clearly unintended constraints on criminal conduct authorisations.

I sought to provide reassurance on the issue of agents provocateurs in Committee, where I stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. But perhaps I can be even clearer: CHIS cannot be used to entrap people in crimes in the manner suggested. Article 6 of the ECHR, which protects the right to a fair trial, prevents this happening. I also point noble Lords to the publicly available Undercover Policing: Authorised Professional Practice, which states in very clear terms that an undercover officer must not act as an agent provocateur. I understand that noble Lords may wish to test the opinion of the House, but I hope I have provided the necessary reassurance on this point.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received two requests to ask short questions, from the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Chakrabarti. I call the noble and learned Lord, Lord Mackay of Clashfern.

Okay—there is no Lord Mackay, so I call the noble Baroness, Lady Chakrabarti.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, I thank the noble Lord, Lord Russell of Liverpool, for the leading role he has played in achieving consensus around Amendment 24. I start by reminding the House of the contribution of the noble Lord, Lord Young of Cookham, in his summary of a similar group of amendments in Committee. He used the analogy of torture, where the ends do not justify the means, in the same way that using children as informants or agents is difficult to justify under any circumstances. Regrettably, banning the use of children as covert human intelligence sources is outside the scope of the Bill. He went on to recall the contribution of the noble Baroness, Lady Chakrabarti, who suggested as an alternative to using children using people over 18 who look younger, as the acting profession often does, particularly when dealing with adult themes.

My noble friend Lady Hamwee pointed out that there is a very fine line between grooming and persuading children to act as covert human intelligence sources. My noble friend Lady Doocey quite rightly pointed out that these children are already vulnerable and exploited, particularly in the case of county lines, without the need for them to be further exploited by the police. We do not send children into war, so why do we send them into potentially more dangerous situations as CHIS, as a number of noble Lords have asked this afternoon? A very experienced police handler of informants told me that, in his experience, even adult CHIS are open to manipulation, let alone children. If you are a child, a non-documented migrant or a victim of human trafficking caught by the police committing crime, you are likely to look for any available way out. You do not need to be blackmailed in such a situation; you are likely to grab at any opportunity, including being tasked to commit crime as a participating informant, a point made by the noble Baronesses, Lady Jones of Moulsecoomb and Lady Young of Hornsey, in Committee. As the noble Baroness, Lady Kidron, said, we are talking about the power imbalance between the police and these vulnerable people, including children.

The Minister’s response in Committee was to cite a High Court judge, Mr Justice Supperstone, who was convinced by the police that it was okay to use children in this way. They appear to have been less successful in convincing the noble Lord, Lord Young of Cookham. When I was seeking promotion to the most senior ranks in the police service, on a six-month course at the national Police Staff College, we were told that we were moving from superintending ranks, where we had to operate within the existing paradigm, to ACPO ranks, where our responsibility was to change the paradigm. Despite the High Court’s decision, we need to change the paradigm. As the noble Lord, Lord Young, says, the court did not consider the active involvement of children as CHIS in crime.

The Government, in response to our deliberations in Committee, have come up with their own alternative. I am as unimpressed as the noble Lord, Lord Young, with this attempt. First, in relation to authorising the use of children, it amends secondary not primary legislation—much easier for the Government to subsequently change and impossible for us to amend. The only change to primary legislation is on post-event reporting. The government amendments, particularly Amendment 26, prohibit the use of children under 16 to commit crimes against their parent or guardian, but not 17 and 18 year-olds: this is already the case, as the noble Baroness, Lady Kidron, said. It creates the position of a “relevant person” who is responsible for the risk assessment and for ensuring that an “appropriate adult” is present if the child is under 16. This risk assessment and the presence of an appropriate adult are already required in legislation. In the case of 17 and 18 year-olds, the appropriate person has only to consider,

“whether an appropriate adult should be present”.

Again, that consideration is already required.

Saying that a child criminal conduct authorisation should be limited to four months instead of 12 is also not a real change. Child CHIS can only be authorised for a maximum of four months and a CCA cannot be granted unless the child has been authorised to be a CHIS, so a review after four months is already inevitable. Overall, I would summarise the proposed alternatives the Government are putting forward as too little, too late.

Amendment 24, proposed by the noble Baroness, Lady Kidron, has been a long time in the planning. I join with the noble Baroness in thanking Stella Creasy MP and Just for Kids Law. It covers vulnerable adults as well as children—the case for which was made strongly by my noble friend Lady Hamwee this afternoon—which the government amendment goes nowhere near. The presence of an appropriate adult would be mandatory for all children and vulnerable adults under this amendment, instead of being compulsory only for under-16s, as in the Government’s alternative. It sets out the very limited circumstances when a child could be used, where the best interests of the child must be paramount. The child or vulnerable adult is not to be put at risk of physical or psychological harm, and the Investigatory Powers Commissioner must be informed. The Minister may say that these restrictions are so limiting that it may result in children and vulnerable adults not being used at all. That is a risk we should be willing to take.

In the absence of Amendments 12 and 13, we support Amendment 24 as the best of the available options, though I agree with the noble Baroness, Lady Massey of Darwen, that it does not involve the independent prior authorisation contained in her Amendment 14. However, as I have just said, it does include informing the Investigatory Powers Commissioner as soon as possible. If anyone thinks that 16 might be an appropriate age for drawing the line, I would urge them to watch the film “County Lines”, directed by Henry Blake. It brings out the horror of the impact of county lines drug dealing on teenagers, including older teenagers, and powerfully makes the case for immediately removing children from these circumstances. Important points were made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, about the lifelong impact of adverse childhood experiences such as involvement in county lines. Regrettably, contrary to the assertion of the right reverend Prelate the Bishop of Durham, Amendment 12 does not prevent using a child as a CHIS; it only prohibits tasking them to commit crime. As my noble friend Lady Hamwee pointed out, some adults are at least as vulnerable as some children.

Amendment 24 is a compromise, but it is comprehensive in that covers both vulnerable adults and children, and we support it strongly for the reasons so clearly expressed by the noble and learned Lord, Lord Hope of Craighead.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.

Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.

This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.

I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are

“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”

The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can potentially offer a way to extricate themselves from such harm. The decisions to authorise are made only where this is the best option for breaking the cycle of crime and the danger for the individual.

In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.

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[Baroness Williams of Trafford (Con)]

I think that the noble Lord knows me by now. If Amendment 24 is carried, I will of course continue to work with him. The same is true for any other amendment that is successful on Report. I think that most noble Lords come from the same standpoint: they want to protect children but recognise that, sometimes, children may have to be involved in criminal activity. I know that my noble friend Lord Young does not take that view, but I think that most noble Lords recognise it. I will continue to work with the noble Lord, Lord Kennedy, Stella Creasy and others, whatever the outcome of today’s votes.

The noble Lord, Lord Russell, asked what happens if a person retires. That lifetime duty of care would probably necessitate certain people retiring and others taking over, but that does not mean that the duty of care does not extend over the young person’s whole life. On the formal reporting mechanism, we have IPCO and I am sure that there are other such mechanisms through the person tasked with that duty of care to the CHIS. If there are any other formal reporting mechanisms, I will notify the House of them.

[Lord Young of Cookham (Con)]

My Lords, this Bill has generated a series of debates about the role of the state in protecting society, including where the boundaries lie and the extent to which they impinge on civil liberties. This debate has been no exception, as the noble and learned Lord, Lord Hope, said. I am grateful to all those who have spoken; I will come to some of their comments in a moment.

The argument in favour of the use of underage CHIS has basically been that, in exceptional circumstances, the end justifies the means. Permitting a child to commit a crime and take risks is justified by the prospect of catching criminals. The contrary argument is that the end does not always justify the means, as the noble Lord, Lord Paddick, said; if it did, we would allow the waterboarding of suspected criminals and terrorists to save lives—but we do not. The debate has really been over where the risk/reward ratio, if I can call it that, falls in this case.

I am grateful to all those who have spoken. The noble Baroness, Lady Massey, referred to the UN convention and the inevitability of an element of risk if we go down this road. She also offered some additional safeguards of her own—namely, prior judicial approval.

The noble Baroness, Lady Kidron, along with others, paid tribute to the work of Stella Creasy. I do so as well. She has been heroic in liaising with your Lordships in taking this agenda forward. As the noble Baroness said, the Bill formalises the ability of the state to harm a child. She made the very valid point that a guardian is required if someone underage is charged with shoplifting but that there is no such protection if they become a CHIS. She also analysed the difference between Amendment 24 and government Amendment 26.

My noble friend Lord Cormack came up with a different limit—namely, under 16—but said that he would be tolerably satisfied with Amendment 24, which may indeed be where we end up.

The noble Baroness, Lady Hamwee, again made the important point about how you distinguish between grooming on one hand, which we do not approve of, and using a child as a CHIS, which we, on occasion, do. I think she said that her party’s preference was for Amendment 24 rather than Amendment 12.

I am grateful to the noble Baroness, Lady Chakrabarti, for her kind words. She pointed out that having exceptional circumstances always allows a degree of flexibility and subjectivity which one cannot get away from. She pointed out that, even if the amendment was carried, we still cannot ban the use of underage CHIS. Again, she made the useful point, which I think picks up on a point the Minister made, that many people look younger than they are—they are over 18 but look younger. Could not more use be made of them to avoid the dilemma that some of us find ourselves in?

The right reverend Prelate the Bishop of Durham emphasised the moral imperative of safeguarding a child. I think he said that, while his first choice would be Amendment 12 and then Amendment 14, Amendment 24 ended up as his third choice.

The noble Baroness, Lady Jones, rightly pointed out that people are unaware at the moment of what is going on. She referred to them as “child spies”. Again, if push came to shove, the noble Baroness would support Amendment 24. She seemed amazed that an aristocrat—if I can call myself one of those—should bring forward social reform, but if she looks at the whole history of the 19th century, she will find that a lot of social reform was indeed pioneered by aristocrats.

The noble Lord, Lord Dubs, was the swing voter in the last debate. He remains pro-Amendment 12, and I am grateful for that. Amendment 24 was his third preference. He referred to the long-lasting impact on the mental health of a child and cast doubt on whether they could give informed consent.

My noble friend Lady McIntosh also referred to UNCRC and came down, on balance, in favour of allowing CHIS in the most exceptional circumstances. But she needed convincing that Amendment 26, the government amendment, was better than Amendment 24.

The noble Lord, Lord Kennedy, was in favour of Amendment 24 and felt that Amendment 26 did not go far enough. He was in favour of using CHIS in exceptional circumstances and made it clear that he cannot support Amendment 12. I am disappointed by that, and I will come back to that in a moment.

The noble Lord, Lord Judd, spoke in favour of Amendments 25 and 19, and was against the use of CHIS.

The noble and learned Lord, Lord Hope, favoured the more nuanced approach of Amendment 24, rather than the absolute approach of Amendments 12 and 14.

My noble friend Lord Naseby agreed with the arguments that the vulnerable should be exempted, but he had some doubts about modern slavery.

The noble Baroness, Lady Bull, remains pro-Amendments 12 and 13, and I am grateful for that and for her support. She has not been persuaded by the argument. She made the point that parents who did what the Bill allows the police to do would find that their child would be taken into care. She also made the point that teenagers quite often act on emotion rather than reason.

I blushed when my noble friend Lord Holmes said his kind words about me. The high esteem in which he currently holds me may be lowered by what I have to say in a few moments.

The noble Lord, Lord Russell, has played a key role behind the scenes in trying to find a way through, and I pay tribute to that. He also mentioned James Brokenshire, somebody with whom I served in government for many years; I join those who wish him well and a speedy recovery. The noble Lord made four suggestions as to how we could build on what the Government have proposed, with a view to finding a solution.

The noble Lord, Lord Paddick, was unimpressed by the government amendments and ended up pro-Amendment 24.

I have had a bit of time to read the Minister’s letter. In her wind-up speech, she made the point that Amendment 24 would be unworkable because of the difficulty of finding appropriate adults. But appropriate adults are already there; they have to be there for under-16s and for those who are vulnerable between the ages of 16 and 18. One could draw on the same cohort to meet the requirements of having an appropriate adult for others. I listened to her example, but in it the child is extricated only after the information has been procured. The argument many of us have put forward is that the child should be extricated at the earliest possible opportunity, rather than after they have done their bidding.

In a former life, I was a Chief Whip, and one of the qualities needed in a Whip is the ability to count. I have looked at the fate of amendments to this Bill where the Opposition has withheld support, and they have gone down by three-figure majorities. I also note the reservation of several on the Cross Benches whose views I respect, such as the noble and learned Lord, Lord Hope. I do not believe that dividing the House is a useful use of its time, particularly given the position of the Opposition. Against that background, I will not test the opinion of the House, but I hope that all those who spoke in favour of Amendment 12 will back Amendment 24. I beg leave to withdraw my amendment.

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My noble friend Lord Bruce of Bennachie talks about the concerns of the Scottish Government and their call for prior judicial authorisation. After we have considered the amendment, we will come to the previously debated Amendment 17. It is this House’s last chance to insert prior judicial authorisation into the Bill, and I will be testing the opinion of the House on that amendment after we have, I hope, agreed to this one.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place.

The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law.

The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct.

I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough.

We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting.

This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse.

I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively.

Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks.

Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, I have received a request to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern.

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[The Deputy Speaker (Lord Alderdice) (LD)]

Would the noble Baroness, Lady Williams of Trafford, like to move Amendment 26 formally?

[Baroness Williams of Trafford (Con)]

I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the noble Baroness and the Government very much for that. I am sure we can get an agreement and all come together. Thank you so much.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I find myself agreeing with a lot of the comments of the noble Lord, Lord King of Bridgwater.

I absolutely recognise the concerns of Members about the range of organisations listed in the Bill. It is right that we probe, question and justify to ourselves as a House which organisations are listed here—as we have heard, that is now a reduced number—but it is also important that, as this Bill passes through the House, we empower a number of organisations to have the ability, in limited circumstances, to employ a covert human intelligence source.

If you look at the organisations here and think about the potential crimes that could be under their remit—HM Revenue & Customs in terms of tax fraud, the Food Standards Agency in terms of passing off out-of-date meat, the Environment Agency in terms of discharging all sorts of stuff into our rivers or the Competition and Markets Authority in terms of many activities which are illegal and very detrimental to our country—it is right that we have this range.

It is fair to say that some organisations listed here would potentially use the power much more than others. That is fair. I am clear that the Investigatory Powers Commissioner has some oversight here, but it would be useful if the noble Baroness could be clear in responding that an organisation that used this power very infrequently would have the ability to go to the Investigatory Powers Commissioner for advice and guidance, and maybe also to other agencies that are more used to using this power.

I absolutely see the point that we need to have organisations in certain areas empowered to do this work. These are potentially very dangerous situations. This is about keeping our country safe and protected in these difficult times. Although I understand the concerns raised by noble Lords in the amendments in this group, we on these Benches would not support any votes on them.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. Like the noble Lord, Lord Kennedy, I found the contribution from my noble friend Lord King very compelling. I hope that all noble Lords have received and read the business cases for the wider public authorities that I sent to all Peers last week. On the basis of those, I hope that noble Lords will appreciate the requirement that these public authorities have for the use of this power. I can again offer reassurance that they will be low users of the power but that it nevertheless remains an important tactic in detecting and preventing crimes that have a significant impact on the lives of the public.

Regarding why the police cannot just authorise for these wider public authorities, the police have a range of priorities and we have given various organisations specific law enforcement responsibilities. That is why these public authorities have their own investigative functions, and they therefore need the tools to fulfil those functions.

If noble Lords support Amendment 33, in the name of the noble Lord, Lord Anderson, as the Government will, IPCO will have close to real-time oversight of every single criminal conduct authorisation granted by each public authority. This will be another important safeguard to ensure that the power is being used properly and appropriately. IPCO will almost definitely flag where this is not the case, or if there are training requirements.

I can confirm that my noble friend Lord King is absolutely right: there were originally 34 authorities. There are now 14, so, far from expanding that list, we are contracting it. In response to my noble friend Lady McIntosh of Pickering, I can confirm that the IPC will consider the authorisation of wider public authorities in his annual report, which will be public.

I would like to give a very topical example of how this power might be used by one of our wider public authorities, the Medicines and Healthcare products Regulatory Agency, which comes under the umbrella of the Department of Health and Social Care in the Bill. The MHRA has responsibility for protecting public health through the regulation of medicinal products, medical devices and blood and blood products in the UK. These products are not ordinary consumer goods and have the ability to cure, prevent and diagnose disease and enhance life. However, they can also cause serious harm. In particular, prescription medicines are, by their very nature, potent and are prescribed to patients by a healthcare professional based on clinical judgment and a patient’s history.

In the UK, strict legal controls govern these products and breaches of these regulations are criminal. Crime involving medicines and medical devices is increasing; they are profitable commodities and unscrupulous individuals and organised crime gangs, which put financial gain before human health, face less risk and less severe penalties compared to trading in, for example, narcotic drugs. The MHRA relies on powers under RIPA, including the power to authorise the use and conduct of CHIS, to investigate and disrupt criminal activity in this area.

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[Lord Rosser (Lab) [V]]

As has been said, Amendment 42, moved so succinctly by my noble friend Baroness Whitaker, requires a judicial commissioner to give approval for authorisations that would identify or confirm journalistic sources. It also requires the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source.

As others have commented, the Investigatory Powers Act 2016 introduced a requirement for prior authorisation from a judicial commissioner when any application is made to identify confidential journalistic sources. The concern is that this Bill creates a means to access confidential journalistic material and sources without any prior judicial oversight. Statutory provisions in a Bill such as this on criminal conduct authorisations which might allow a way round the existing legal protection of journalistic sources would deter those sources from coming forward in future, at the potential expense of journalists being able to expose illegal, corrupt, exploitative or anti-social activity—a vital role in a democratic society.

The current Secretary of State for Justice has previously said that the ability of sources to provide anonymous information to journalists needs to be protected and preserved. That will not happen if those sources are liable to be exposed by the activities of covert human intelligence agents authorised to commit criminal conduct with no prior judicial oversight.

We need to ensure that the current protections for whistleblowers and journalists are maintained and cannot be weakened or compromised by this Bill. This amendment, requiring prior judicial approval for authorisations relating to journalistic sources, would achieve that objective. We support Amendment 42.

[Baroness Williams of Trafford (Con)]

My Lords, the amendment from the noble Baroness, Lady Clark, outlined by her noble friend Lady Whitaker, would require prior judicial approval for a criminal conduct authorisation seeking to identify or confirm a source of journalistic material. I set out earlier in the debate why the Government do not consider prior judicial approval to be a workable option for any CHIS authorisation, so I shall not repeat those arguments. However, I will say again that where an authorisation is likely to result in the acquisition of confidential journalistic material there are already greater safeguards in place which are set out in the CHIS code of practice.

There will also now be notification of every single authorisation to IPCO soon after they have been granted. That will of course include any authorisations that are likely to result in the acquisition of confidential journalistic material. Judicial commissioners will therefore be able to consider the necessity and proportionality of an authorisation and check that the proper safeguards have been followed. I hope that provides the noble Baroness with the necessary reassurance and that she can withdraw the amendment.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am required to inform the House that the Scottish Government informed the UK Government that they would be unable to recommend legislative consent for the devolved elements of this Bill, and we have tabled amendments in advance of this debate that remove from the Bill provisions that are within the legislative competence of the Scottish Parliament. The content of the Bill does not invoke the legislative consent process in Wales or Northern Ireland.

We have engaged closely with the Scottish Government over many months, during the drafting of the legislation and throughout its passage. Where the Scottish Government have identified concerns, we have sought to remedy them. An example of that is an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service to provide the Lord Advocate with visibility of criminal conduct in Scotland.

The Scottish Government, however, required further amendments to the Bill in areas which the Government cannot support; namely, placing express limits on the face of the Bill. The Government’s position throughout this process has been based on advice from operational partners to ensure that the Bill is workable in practice and has no unintended consequences for the safety of the public, or a CHIS, and we have had clear advice from operational partners in all parts of the UK that placing limits on the face of the Bill will lead to CHIS testing and increased initiation tests. We remain open to further discussion with the Scottish Government, to ensure that operational agencies continue to have access to the tools required to keep us safe.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I call the Minister to make a Statement on legislative consent.

[Baroness Williams of Trafford (Con)]

I have just done that.

Clause 4: Corresponding provision for Scotland

Amendment 1

Moved by

[Baroness Williams of Trafford]

1: Clause 4, leave out Clause 4
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

[Baroness Williams of Trafford (Con)]

My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.

Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.

In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.

First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.

In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.

How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if

“all or some of the conduct … is likely to take place in Scotland.”

If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.

Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.

[Lord Rosser (Lab) [V]]

I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.

The letter from the Minister of 13 January states that the Scottish Government

“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”

As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?

Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for raising those points. On the final point made by the noble Lord, Lord Rosser, on what happens if the law changes in relation to the court case, clearly the court case is ongoing, we await the findings of it and, in a sense pre-empting the court case, the Government have seen fit to put on to a statutory footing that which was never on a statutory footing. So I hope that, without in any way pre-empting the court case, this will satisfy the courts.

Obviously, the Government are disappointed that we are having to bring forward these amendments. We made it clear that a UK Bill was and remains our preference, and we have worked hard to try to accommodate that. But we have to ensure the workability of the Bill as our primary consideration, and on those grounds we could not provide the amendment necessary to ensure the support of the Scottish Government. On the point made by the noble Lord, Lord Rosser, about limits, we will not accept any change to what we have put forward because it would completely undermine the operational capabilities that the Bill provides for. I have been through the arguments about the safeguards on human rights that are provided in the Bill and, of course, the Children Act when it comes to children.

The noble Baroness, Lady Hamwee, asked about the Government’s assessment of impact. She will appreciate that we do not want to provide sensitive operational detail, but operational partners are considering how to manage any impact of the decision of the Scottish Government. In the immediate term, public authorities will need to consider any existing legal basis for an authorisation, but the noble Baroness is absolutely right to acknowledge that these organisations will not be able to rely on the clear statutory basis provided by the Bill. If there is operational or legal risk in the future, it will be for the Scottish Government to bring forward legislation for devolved activity. It will be in their gift to decide on the safeguards attached to that legislation, and I would hope and expect them to be driven by the expert advice of operational partners, as we have been.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

2: Clause 5, page 7, line 36, leave out “or (g)”
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

5: Clause 8, page 8, line 25, leave out subsection (3)
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

6: Schedule 1, leave out Schedule 1
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

7: Schedule 2, page 13, line 11, at end insert—
“(b) after subsection (4) insert—“(5) No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.(6) But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).(7) For the purposes of subsections (5) and (6),“a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).””Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That the Bill do now pass.

[Baroness Williams of Trafford]

My Lords, I beg to move that the Bill do now pass.

Amendment to the Motion

Moved by

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken to this amendment to the Motion. I join other noble Lords in thanking the police, MI5 and other operational partners who will now, I hope, have a clear statutory framework and, as the noble Lord, Lord Carlile, says, the accompanying code of practice, which will also have the full force of law in which to operate.

I hope that the Government have put forward their case, in spite of some of the unique challenges relating to the sensitivity of this tactic and that noble Lords are reassured that I have been listening and will continue to listen to the strength of views that have been put forward on certain issues. I am happy to discuss any issue further and urge noble Lords to take that course of action if they have any remaining concerns, rather than support the amendment in the name of the noble Baroness, Lady Jones, which would cause the Bill to fall.

My noble friend Lord Marlesford talked about the implementation being monitored with rigour and I totally agree. Any legislation brought before Parliament must have that rigorous monitoring behind it. Every time the noble Lord, Lord Rooker, has spoken on the Bill, I felt like saying, “I refer noble Lords to the comments of the noble Lord, Lord Rooker”. He talked about the case studies which were much asked for at the beginning of the debates on the Bill and, once forthcoming, as the noble Lord said, almost forgotten about.

It is also worth considering that, without the power or activity that the Bill provides for, the NCA would have been unable to take almost 60 firearms off the street in 2018 alone and the Metropolitan Police would have been unable to seize more than 400 kilograms of class A drugs between November 2018 and November 2019. MI5 and CT policing would also have been impacted in their ability to thwart some 27 terror attacks since March 2017. I do not think that any noble Lord would want to prevent this criminality being stopped in future, which is what the amendment would do.

I acknowledge the important principles behind much of our debate on the Bill—Parliament needs to reassure itself that there is suitable oversight in place, and we have really interrogated that. While strong and differing opinions have been expressed on how to legislate for this activity, I pay tribute to the quality of the debate, despite fundamental differences, and the passionate and articulate way in which noble Lords have relayed their views.

I hope that, during the course of the debates, I have demonstrated the significant safeguards that exist and some of the additional ones that, as the noble Lord, Lord Paddick, and others have said, have now been inserted. Highly trained and experienced authorising officers must assess that an authorisation is necessary and proportionate. That authorisation must be compliant with the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. The authorisation is then overseen by the independent Investigatory Powers Commissioner, who reports his findings in his annual report and, thanks to amendments supported by noble Lords, will now consider each and every authorisation within seven days of it being granted. The IPT then offers an entirely independent judicial mechanism for anyone who is concerned that they have been subjected to improper action by any user of an investigatory power.

I hope that the Division that I know the noble Baroness is going to call will not succeed, and I hope that the Bill will now go back to the other place so that it can consider the amendments that noble Lords supported on Report. The Government are committed to providing any additional reassurance to command the support of Parliament and, of course, to keep the public and CHIS safe.

I will conclude there because I realise that we have combined speeches from the debate on the amendment with the final concluding remarks, but I join the noble Lord, Lord Rosser, in thanking the Opposition Front Benches, everyone who has contributed to these debates and all the staff who support us. I hope that the noble Baroness will feel able to withdraw her amendment, but I suspect that that is not about to happen.

[Baroness Jones of Moulsecoomb (GP)]

I thank the Minister for her response and all noble Lords who have taken part in this debate. I also thank the eight or nine Peers I passed as I came into the House, all of whom gave me the benefit of their views on this Bill and my amendment—some were positive.

It seemed to me that this Bill was the worst I had ever seen in your Lordships’ House until yesterday, when we had the overseas operations Bill, which is even worse. Luckily, there appears to be more opposition to that; I look forward to joining in. I have been in your Lordships’ House for seven and a half years, and, to the best of my recollection—which is not always the best—I have only ever pressed one vote to a Division. Today’s will be the second. I should like to test the opinion of the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Williams of Trafford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because the Commons consider that this amendment would cast doubt on whether belief need be reasonable for the purposes of other authorisations under Part 2 of RIPA.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I begin by paying tribute to all noble Lords who have contributed to the debates on this Bill. The quality and detail of discussion have been exceptional, and even where the Government have not agreed with the remarks of noble Lords, I recognise the value they have added to the debate. I also thank those noble Lords with whom I have discussed the Bill directly to seek to reach agreement on key issues, and I thank Opposition Front-Benchers in particular for the collaborative approach they have taken. I hope that today, we are able to reach consensus on the issues raised in these amendments, and to provide the certainty and assurance that CHIS and operational partners deserve when this Bill moves on to the statute book.

I have been clear throughout these debates that the Government’s position on this Bill is driven by the need to ensure that this important tactic remains operationally workable. We cannot risk the operation of the tactic or create unintended risk of harm to CHIS, or indeed the wider public, through damaging amendments, even where the sentiment behind them is well-intentioned. However, where we have been able to provide additional reassurances about the safeguards underpinning the power in an operationally workable way, we have welcomed the opportunity to do so. I again thank the noble Lord, Lord Anderson, for his amendments on real-time notification. I hope I can demonstrate that same approach to the amendments we will discuss today.

Amendment 1 would place on the face of the Bill the requirement that an authorising officer must reasonably believe an authorisation is necessary and proportionate. As I have previously confirmed, it is indeed the case that the belief of the authorising officer should be a reasonable one. The revised code of practice confirms this, and in response to concerns raised by noble Lords, this was further amended to make that clear. However, placing this requirement on the face of the Bill risks casting doubt on whether the belief must be reasonable when that is not specified elsewhere—for example, in Section 29 of Part II of RIPA.

However, the Government are willing to be clearer still in the code of practice and specify that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

I thank the noble Lords, Lord Anderson and Lord Paddick, and the noble Baroness, Lady Hamwee, for their engagement on this point, and I hope this provides the necessary reassurance on this issue.

Amendment 2 would place express limits on the face of the Bill. We have discussed at length why this is not workable and risks CHIS testing and harm to the public by enabling the development of wider initiation tests. To be clear, it is the assessment of operational partners that to explicitly rule out rape, for example, would lead to gangs asking potential members to rape people to prove that they are not working on behalf of the state.

Let me once again confirm that the necessity and proportionality tests and the Human Rights Act provide limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful, and this is clear in the training and guidance of all public authorities. I ask all noble Lords to seriously consider, therefore, whether we should risk CHIS testing and serious harm to the public when the practical effect of Amendment 2 is not necessary. The Government will not support this amendment for these reasons, and I implore noble Lords to place weight on the advice of operational experts and do the same.

Amendment 3 relates to the criminal injuries compensation scheme. As I said earlier, the Government are listening to ways of providing additional reassurances to Parliament and the public with regard to the safeguards underpinning this legislation where that is operationally workable. Therefore, recognising the views of noble Lords on Report, we are bringing forward an amendment in lieu which makes it clear that a person can access the compensation scheme where appropriate. Therefore, I hope noble Lords are reassured on this point.

Amendment 4 relates to the authorisation of juveniles and vulnerable adults. Let me start by thanking the noble Baroness, Lady Kidron, my noble friend Lord Young of Cookham and the noble Lords, Lord Russell of Liverpool and Lord Kennedy of Southwark, for their extensive engagement on this issue. I also pay tribute to Stella Creasy MP in the other place. This is an uncomfortable area and I completely understand why many noble Lords’ starting position would be to seek to prohibit any authorisation of a juvenile. The danger of that approach is that in prohibiting their use as a CHIS you increase their use by criminal gangs, which will be reassured that a juvenile cannot be working on behalf of the state.

Amendment 4 recognises this issue, and instead places additional safeguards into the Bill. The Government agree with the sentiment of this amendment but cannot support it in its current form, as it would create operational issues that would risk unintended consequences for the young person or vulnerable adult. For example, the amendment defines exceptional circumstances as those

“where all other methods to gain information have been exhausted”.

This requirement risks the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain the information, but these may not be the safest way to extricate the juvenile from the situation and lead to the best outcome for the juvenile involved.

Therefore, the Government have brought forward amendments in lieu. These capture the essence of this amendment and provide significant additional safeguards for the authorisations of these groups, but in an operationally workable form. The government amendments make clear that the authorising officer is under a duty to safeguard and promote the best interests of a juvenile and that the authorisation must be compatible with that duty. This reflects Article 3 of the UN Convention on the Rights of the Child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requires the IPC to keep these enhanced safeguards under particular review. The use of such authorisations will therefore be subject to close and independent scrutiny, through both the real-time notification process, regular inspections and the IPC’s annual report, which is laid before Parliament.

I encourage all noble Lords to read the 2019 annual report, published in December last year, and I can quote from IPCO here to provide further reassurance today. The 2019 report stated:

“In the very rare instances when a juvenile is authorised as a CHIS, we conduct a close examination of the case. We examine every such case at inspection and focus on the safety and welfare of the juvenile and check that the use and tasking (conduct) is not endangering the CHIS or leading the juvenile to associate with criminals and environments that they would not otherwise encounter.”


I also reiterate another important point relating to oversight of authorisations. It will never be the case that just one individual in the public authority is involved in the authorisation process. RIPA requires the handler and the authorising officer to be different people, while the code of practice mandates that no authorising officer can authorise themselves, so no single officer could ever take a decision without consulting others.

In addition, recognising the views of noble Lords on Report, the amendments also place the requirement for a juvenile CHIS to be authorised only in exceptional circumstances into the Bill and tighten the existing definition of “exceptional circumstances”. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile, as per Amendment 4.

The amendments in lieu further clarify that an appropriate adult must be in place for any meetings with an individual under the age of 16, and that there is a presumption that an appropriate adult will attend meetings with 16 and 17 year-olds, with any derogation from this position justified in writing. I hope noble Lords recognise the addition of this language to the Bill in response to concerns raised previously. I can also provide reassurance that the same principles apply to the underlying authorisation of the use and conduct of a juvenile CHIS; an appropriate adult must be in place for a meeting with a juvenile under the age of 16, and justification must be provided if one is not in place at meetings with 16 or 17-year olds.

The definition of “vulnerable adults” is deliberately broad so as to capture a wide range of people—including, for example, victims of modern slavery. The amendments recognise that children are a specific subset of vulnerable individuals, due to their age. It is appropriate for there to be consistent safeguards for all juveniles, as the reason for their vulnerability is the same. It is not possible to apply the “exceptional circumstances” requirement to all vulnerable individuals, as they will be considered to be vulnerable for a wide range of reasons and will require different levels of support. The safeguards, while still robust, recognise this distinction. The amendments add additional safeguards for vulnerable individuals, however. These require that an enhanced risk assessment must be carried out; the source must be capable of understanding and consenting to the deployment and any associated risks; and consideration must be given to the best interests of the source.

--- Later in debate ---

This is not the Bill that we would have passed but we believe that it is significantly improved by the changes achieved by noble Lords across all Benches.

[Baroness Williams of Trafford (Con)]

My Lords, I again thank all noble Lords for their thoughtful and detailed contributions to today’s debate and the lead-up to it. As the noble Lord, Lord Russell of Liverpool, pointed out, we have found a new way to work as a closed Committee without having to go through any of the bureaucracy of setting one up; I was very pleased to hear from him and other noble Lords that those sessions were very useful indeed. I have had many discussions with noble Lords, which have been very helpful. To echo the words of the noble Lord, Lord Rosser, we have made the Bill better, as we often do in your Lordships’ House.

The noble Lord, Lord Paddick, regretted that he could not have a meeting on his amendment. I thought that I had squared off all meetings that I possibly could. I spoke to him and the noble Baroness, Lady Hamwee, at the end of last week. It is unfortunate that he feels that his amendment could have been discussed further.

I also heard comment that the Bishops wanted to be here. The advancement of modern technology means that everybody can be here, remotely or otherwise, should they want to.

I particularly thank three noble Lords. The noble Lord, Lord West of Spithead, summarised the amendments very succinctly. The noble Lord, Lord Anderson, in typical forensic style, did similarly, as did the noble Lord, Lord Russell. A number of noble Lords, including the noble Lord, Lord West of Spithead, went into this Bill with some degree of scepticism. It is a tribute to the way in which our engagement has worked that they all feel that the Bill is better now that we have dealt with it than it was initially.

I want to start with the various responses and comments. First, in response to the noble Baroness, Lady Hamwee, I can confirm that the code of practice will state that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

The noble Baroness, Lady Chakrabarti, raised the reporting of the recent Court of Appeal hearing as to whether MI5 had authorised offences as serious as murder; the noble Lord, Lord Adonis, also mentioned this. I have been clear throughout that the Bill does not provide a licence to kill and that our commitment to the safeguards in this Bill is firm. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all authorised activity of undercover agents, alongside the state itself.

The noble Lord, Lord Adonis, asked me a specific question to which he required a specific answer: could I commit to there being no authorisation of murder, torture or rape? Obviously, I cannot be drawn on the crimes that can or cannot be authorised, for reasons that have been stated throughout the course of this Bill, but I note that all authorisations must be necessary and proportionate and must comply with the Human Rights Act. The independent IPC will be notified and see every authorisation in as close to real time as possible.

To clarify, the context of the remarks in the Court of Appeal—to which the noble Baroness, Lady Chakrabarti, referred—was a legal discussion that was solely about the existing vires for the Security Service to operate a policy that authorises its agents to participate in conduct that might, or would be, criminal. The First Treasury Counsel said that there is a power to authorise the commission of a crime under the Security Service Act and under the royal prerogative before that, although the power conferred no immunity from prosecution. The comment that the noble Baroness refers to concerns an entirely hypothetical question regarding the narrow point of whether the vires is limited to the commission of some crimes but not others. It was not and is not. That discussion is quite distinct from the question of whether an authorisation or subsequent conduct might be a breach of other law such as the Human Rights Act. I also note that the First Treasury Counsel said nothing about whether any particular type of conduct would or would not be authorised in practice or indeed compatible with a policy that requires it to be necessary and proportionate in any event.

The issue of whether certain conduct or types of conduct should be off limits has deliberately not been discussed in open court proceedings, for the same reasons as I have been unable to discuss these issues on the Floor of the House. It would not be appropriate for me to comment on the legal proceedings further. What I can say and what I have been consistently clear about is that, under the new regime introduced by the Bill, the necessity and proportionality test and the Human Rights Act provide legal limits to the conduct that can be authorised—and I say that again now.

On the subject of juvenile CHIS, I shall response to the points made by the noble Baroness, Lady Hamwee, on the government amendments. She is right that the amendment will prevent an authorisation being granted when the authorisation would put the juvenile in a position of reasonably foreseeable harm. In response to her question about injuries of a psychological nature, I reassure her that the definition of injury in the Bill includes that.

On the subject of the appropriate adult, they are there to support the young person to make informed decisions in relation to any tasking and nothing prevents them from playing an active part in the meetings that take place. The role of the appropriate adult in this setting differs from their role in a custody suite or an interview; they can have discussions with the CHIS and authorising officer outside those meetings, subject to any arrangements that the authorising officer may put in place to ensure that the safety of the CHIS and the adult themselves is assured at all times.

As to whether a juvenile CHIS would be used when other alternatives are available, they are used only in exceptional circumstances and, more importantly, when it is compatible with the best interests of that child. All authorisations must meet the proportionality threshold so, when using an adult could achieve the same outcome as using a child, that could be the correct option. However, even when an adult may be available, there may be occasions when the authorisation of a specific child is the only way in which to remove the child from a harmful situation.

In response to the noble Baroness, Lady Kidron, I pay tribute to her role in shaping the debate on this issue. This is a difficult and emotive area, and we all want to ensure that the well-being of a child is the priority of any authorisation, including for 16 and 17 year-olds. There is a presumption that there will be an appropriate adult in place for all meetings with CHIS aged 16 to 18 years. The justification for not having one will be available for IPCO to scrutinise and comment on; he or she will look at all aspects of an authorisation to ensure that all the enhanced safeguards have been applied, and they have stated that they pay particular attention to the welfare of the juvenile.

I assure the noble Baroness that the CHIS code of practice will be updated following the passage of the Bill and will provide the detail that underpins the authorisation process. There will be a public consultation on the updated code, followed by a debate and vote in both Houses. I encourage all noble Lords, as I have said previously, to feed into that process, and I certainly welcome any contribution from the noble Baroness and will make officials and operational partners available for any further discussion.

The noble Baroness asked about the level of detail given to Parliament. Clearly, there will be open and closed parts. The Prime Minister and Home Secretary will look at the closed part, and the open parts will, of course, be shared with colleagues.

As I said in my opening remarks, all criminal conduct authorisation will be the subject of rigorous independent oversight, which includes CCAs for juvenile CHIS, with the Investigatory Powers Commissioner seeing all authorisations in real time and being required to keep under review in particular the safeguards relating to juvenile or vulnerable individuals. The updated code will provide guidance on how the notification process will work and the enhanced safeguards that will apply to juvenile CHIS CCAs to supplement the detailed safeguards that we are bringing forward in the Bill.

I turn to the amendment of the noble and learned Lord, Lord Thomas, with regard to the points made by the noble Lord, Lord Paddick, on what happens if a judicial commissioner provides comments on an authorisation. Again, I offer reassurance on what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag it to the authorising officer, and would work collaboratively to address such concerns; it would not be the case that a public authority would simply ignore feedback from IPCO. This is collaborative, and the views of the commissioners carry very serious weight, but the commissioners have the power to refer an issue to the prosecution services if they felt it was necessary and, ultimately, it would then be for a court to determine the lawfulness and validity of an authorisation.

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[Lord Adonis (Lab)]

My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?

[Baroness Williams of Trafford (Con)]

I think that, like other noble Lords, the noble Lord will know that throughout the passage of the Bill I have very consistently said that I cannot be drawn on the crimes that can and cannot be authorised, for the reasons that I have stated consistently throughout the passage of the Bill. But I will say that all authorisations must be necessary and proportionate, and they must comply with the Human Rights Act. I will go no further than that.

Motion A agreed.

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Motion B

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.

2A: Because the Commons consider specifying types of conduct which criminal conduct authorisations could not authorise on the face of Part 2 of RIPA would place sources, and the wider public, at risk.

[Baroness Williams of Trafford (Con)]

I beg to move.

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

I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.

Motion B1 (as an amendment to Motion B)

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A, but do propose Amendment 3B in lieu—

3A: Because the Commons consider it is inappropriate to create an exception to the effect of criminal conduct authorisations.

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, but do propose Amendments 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4J in lieu—

4A: Because the Commons consider aspects of the safeguards for juveniles and vulnerable individuals provided for by this amendment to be unworkable.

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Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendment 5A.

5A: Leave out lines 27 to 35.