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.