Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Lord Rosser

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

[Lord Anderson of Ipswich (CB) [V]]

My Lords, in speaking to Amendments 33, 37, 44 and 46, which are also signed by the noble and learned Lord, Lord Mackay, and the noble Lords, Lord Butler and Lord Rosser, I first pay tribute to the Minister and the Bill team, who offered to co-operate with me on these amendments and have been as good as their word. They now give more complete effect, in language approved by parliamentary counsel, to the homemade amendments that I moved in Committee. The lead amendment is Amendment 33; Amendment 37 mirrors it for Scotland; and Amendments 44 and 46 are consequentials.

The amendments provide, in summary, not for prior judicial authorisation but for judicial scrutiny of another kind: the real-time notification of authorisations to a judicial commissioner, as soon as reasonably practicable and in any event within seven days. That should be seen very much as an outer limit for notification that should, so far as possible, be in real time. It will be open to the Investigatory Powers Commissioner to encourage not only prompt notification but pre-notification for informal guidance, as already occurs in some other surveillance contexts. This might be particularly useful for bodies that do not make frequent use of the power.

The case for real-time notification, as I shall call it, has been put most persuasively by those who signed the equivalent amendments in Committee—the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Butler and Lord Carlile. I shall summarise it as briefly as I can.

My immediate reaction to this Bill was to support prior judicial authorisation. I championed the use of prior judicial approval for other investigatory powers in my report A Question of Trust, and was delighted to see this in the Investigatory Powers Act 2016. I accept that it might also be feasible in this context, given sufficient judicial training, yet I have reservations about prior judicial approval in this Bill, not only for the pragmatic reason that the Government have so firmly set their face against it. Handling and authorising a CHIS is a highly specialised function that requires a close and dynamic understanding not only of the details of the operation but of the characters of those involved. That is not something that a judge, let alone a Secretary of State, will necessarily have the capacity to pick up. It differs considerably from the classic judicial exercise of weighing the benefits of tapping a phone or an undersea cable against the associated intrusion of privacy.

The person who tasks a CHIS, including by authorising criminality, effectively takes on a long-term duty of care, not only towards any potential victims of that crime but towards a CHIS for whom exposure could result in injury or death. Perhaps it is for that reason that the American and Canadian models of prior judicial authorisation, both of them inspirations for A Question of Trust, are not applied in either country to the tasking of a CHIS to commit crimes.

The main objection offered to these amendments in Committee was to the insufficient sharpness of their teeth. It is true that real-time notification may mean that the judicial commissioners are powerless to stop a particularly rapid deployment. It is also true that criminal deployments of this kind cannot just be turned on and off like a tap, but I say three things in response.

First, precisely the same result may arise under a system of prior judicial authorisation, for such a system, like its equivalents in other areas of investigatory powers, will inevitably involve an urgency procedure: deploy first, seek authorisation later.

Secondly, there is an existing precedent for real-time notification—the deployment of undercover police under the so-called relevant sources order of 2013, which, judging from IPCO’s annual reports, works well. The knowledge that a CCA will go straight before a senior judge is a useful discipline for authorising officers. My experience of IPCO, and my own work until last year as Investigatory Powers Commissioner in the Channel Islands, is that the prospect of an interrogation, investigation, recommendations and a possible serious error report are, from the police’s point of view, striking enough to encourage a high standard of conduct, but not so intimidating as to encourage the concealment of honest error. Further assurance would be given by Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, which I will leave him to develop but which I support for making this explicit in the modern practice of undercover policing.

Thirdly, though the precise mechanism may still be in dispute, it is clear that neither RIPA nor this Bill provides for complete immunity from prosecution for those who authorise criminal conduct. I mentioned earlier the assurance of the Bill team, which the Minister repeated just now, that nothing in the statute prevents the prosecution of an authorising officer for misconduct in public office—for example, a corruptly obtained authorisation. She has also accepted that such immunity as provided by Section 27 of RIPA will be removed if an authorisation is found by a competent civil or criminal court to be either not necessary or not proportionate.

I propose to move these amendments on Wednesday, subject to one point on Amendment 37, the Scottish one. The Minister updated us on engagement with the Scottish Government during the first grouping. Were the Scottish Government to indicate before Wednesday’s debate that they would not recommend a legislative consent Motion, with the result that Scotland is carved out of the Bill, I would not wish to move Amendment 37.

[Lord Rosser (Lab) [V]]

Amendments 5 and 23, tabled by my noble friend Lord Dubs, provide for prior judicial oversight. They have the Opposition’s support. A criminal conduct authorisation would not have effect until approved by a judicial commissioner, unless it was urgent, in which case it would come into effect immediately but with the proviso that it must receive judicial approval within 48 hours.

Amendment 17 provides that, where a criminal conduct authorisation is granted, the Investigatory Powers Commissioner must be notified of certain details, including the purpose and extent of the deployment, before the CHIS can be deployed. In urgent cases, notification can be given afterwards—as soon as reasonably possible, but within seven days. We will support Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It provides a further form of prior oversight to help ensure that the criminal conduct authorisation will not be used in an inappropriate manner.

We support Amendment 33 in the lead name of the noble Lord, Lord Anderson of Ipswich, which provides that the Investigatory Powers Commissioner must be informed of an authorisation as soon as reasonably practicable, and within seven days at the latest. It also represents a significant improvement in the Bill, in which the noble Lord, Lord Anderson, has played a key role. It enables an effective and powerful independent and impartial check on the use of criminal conduct authorisations, which will help to ensure that the bodies being given the power to authorise criminal conduct by covert human intelligence sources use that power appropriately and lawfully, in the knowledge that they will be held to account, albeit probably afterwards, by the Investigatory Powers Commissioner.

Amendment 34 would make it explicit in the Bill that, if the Investigatory Powers Commissioner thinks an authorisation should not have been granted, the authorisation will be cancelled. We support that. However, there are benefits from prior independent oversight that post-notification oversight does not provide: namely, the opportunity to prevent something out of order occurring before it happens. Prior judicial consideration is about approving or otherwise beforehand what is said needs to happen, and why. Post authorisation, it is about what actually happened and why. Both forms of consideration are important.

The absence of prior independent scrutiny for criminal conduct authorisations under this Bill is not in line with procedures that apply to other investigatory functions, although I appreciate that it has been argued that these investigatory functions are not similar to the authorisation of a CCA. Police search warrants require a magistrate to be satisfied that there are objective reasonable grounds for them. Targeted interception of communications or phone tapping must be approved by the Secretary of State and authorised by a judicial commissioner before being carried out—a double lock which the Investigatory Powers Commissioner says ensures that all investigatory powers warrants issued are necessary, proportionate and lawful. The power to require telecommunications operators to retain communication data for investigatory purposes can be used by the Secretary of State but must be approved by a judicial commissioner.

If these requirements for prior judicial approval, including in some instances a double lock of independent scrutiny, are needed for search warrants, phone tapping and retention of data, surely they are even more necessary for the potentially more damaging human rights violations, including physical violence, that could arise from the authorisation of criminal conduct by a covert human intelligence source.