Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Bach Excerpts

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

[Lord Campbell-Savours (Lab) [V]]

My Lords, I will confine my remarks on this Bill to the thrust of Amendment 46. I declare an interest as a former member of the ISC from 1997 to 2001, under the excellent chairmanship of the noble Lord, Lord King of Bridgwater, who has just spoken and who equally supports Amendment 46. I am not a lawyer, but I ran with the hounds in the Commons during the Peter Wright affair of the 1980s. In doing so, I developed an interest in authorisation procedures, which I followed up as a member of the ISC.

As I read it, it is uncertainty over compliance with the Human Rights Act, the ECHR and the implied powers therein that is driving legislative reform. The problem is only aggravated by the inclusion of a raft of new bodies, some presumably with marginal quasi-professional experience of covert action. My problem is the inadequacy of post-event assessment. An annual report from the Investigatory Powers Commissioner is not enough. An onerous system of prior authorisation is too much. We need a robust, uncomplicated procedure of prior scrutiny, not authorisation, where the rights of individuals and the state are fully recognised.

I place on record the statement from Andy Erlam, the principal complainant in the Tower Hamlets v Rahman case, which exposes deficiencies in the current CHIS-bases system: “An attempt was made to recruit me as a CHIS some time ago. I had taken a successful election petition against the Mayor of Tower Hamlets, Lutfur Rahman. The police officer who met me was from the Metropolitan Police. He said he was employed by the Department for Professional Standards but that he had a national role in supervising CHISs. He asked me to recruit CHISs, and documentation exists to confirm that this meeting took place. I learned that the officer who had authorised the approach to me was the same officer in charge of the two Metropolitan Police criminal inquiries into Mr Rahman, and that the commission and the City of London Police inquiry all found insufficient evidence. Yet the campaign in Tower Hamlets which I led exposed extensive corruption. I suspect that the police were compromised in some way. I experienced police harassment and an attempted arrest in the middle of the election High Court trial, an election case which I later won. If the use of undercover operations can be justified in some cases, I do not think they should ever pervert the course of justice. I believe this approach was an attempt to compromise me. Police officers who I know informally state that the use of CHISs leads to lazy policing, and it is never clear whether the police are using the CHIS or the CHIS is using the police. The current proposal to extend legal immunity to cover CHISs carrying out criminal activities is a matter of considerable concern.”

Erlam is questioning a whole CHIS-based system. I do not, but on accountability he is right. We need a far more robust system of prior evaluation and scrutiny. In this debate, we have heard demands for prior judicial authorisation, judicial commissioners, the use of prosecutors and judges, and a prosecutorial approach with warrants, and the Government are saying no—although there was a slight movement from the Government in last week’s debate, a hint at reconsideration. Anyhow, whatever the position, the Government will have their way, with their 70-seat Commons majority, so a compromise must be found, and I propose a compromise.

I have two alternatives. First, I propose that the remit of the chairman of the ISC be extended in the way that I have previously suggested during ISC debates, to give him or her prior access to intelligence-based CHIS operational activity—a prior scrutiny role, not an authorising role—in the handling of all CHIS. It would mean restoration of the prime-ministerial lock on ISC chairmanship appointments. Under this proposal, the chairman would be able to release CHIS information to the ISC only where it is agreed to do so with the agency heads, including the wider list of agencies currently being proposed.

It could be argued that to include the Food Standards Agency et al could be stretching the duties placed on the ISC chairman, and potentially in a much limited form on the committee, far too far. I say that as we simply do not know the volume of CCAs. If that was a problem, the Speakers of both Houses could be asked to nominate an agreed alterative person or persons, depending on the volume of CCAs, to carry out the function. I suggest a Member of this House, their role being prior scrutiny of CHIS operational activity, not authorisation. I believe that we have people in Parliament who, as former chairmen of the ISC or other respected Members of this House, are as worthy of access to information in the deepest recesses of the various intelligence communities et al as any agency head.

Another way forward could be to appoint a scrutiny group comprising either two or three persons as part of the same prior scrutiny process. Such a group should comprise at least one member of a legislature of high standing—again, appointed by the Prime Minister but ratified by Parliament. In my mind, a member of a legislature must—I repeat “must”—be party in one form or another to whatever process is selected. In the USA, the defense appropriations subcommittee is, by law, according to Wikipedia, “fully and currently informed” of intelligence activities. This includes being kept informed of covert actions and any significant intelligence failure. I am not even asking for that. Wikipedia goes on to say that, under certain circumstances, the President may restrict access to covert activities to only the chairman and vice-chairman of the committee. I will settle for that. I am asking, in compromise, for a lesser form of accountability under a less onerous arrangement.

Under my second way forward, the second and third persons could be judiciary-drawn and/or departmental accounting officers. To me, the appointments under both options are particularly important in this new world of heightened tension, international trafficking, greater sophistication in fraud and organised crime. We cannot underestimate these dangers.

Equally, we need a commensurate increase in accountability. After over 40 years in public life, I have learned that transparency, by its very nature, influences conduct and thereby, to some extent, control to varying degrees. I support the thrust of the amendments that extend accountability, if not the detail, as proposed in the Committee today.

[Lord Bach (Lab) [V]]

My Lords, it is a privilege to follow my noble friend Lord Campbell-Savours, whose expertise in this area is well known and has been for many years.

There are many profound constitutional issues in the Bill, and many of them have been debated in this long group of amendments. I speak in support of Amendment 76, in the name of my noble friend Lord Hunt of Kings Heath. My noble friend and I agree that this is not a profound constitutional amendment but we argue that it is important none the less.

Noble Lords will recall the highly effective speech of my noble friend Lord Hunt last week in which he argued that police and crime commissioners should have some standing in relation to the annual inspection of police forces by the Investigatory Powers Commissioner and not just be excluded from playing any part. Of course, I must declare my interest as the elected and full-time police and crime commissioner for Leicester, Leicestershire and Rutland. I will try not to repeat my noble friend’s arguments but will attempt to persuade the Committee to reach the conclusion that, as with all inspections of a police force, it is essential that a police and crime commissioner plays some part.

Why do I say “essential”? Many noble Lords will remember the passage through Parliament of the Police Reform and Social Responsibility Act 2011. The then coalition Government, in setting up elected police and crime commissioners in place of appointed police committees, were clear that the role of a police and crime commissioner was to represent the public and hold the force to account for its effectiveness, its efficiency and, importantly, its legitimacy.