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.