Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

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

[Lord Beith (LD) [V]]

My Lords, speaking from Berwick-upon-Tweed, it is a pleasure to welcome the noble and learned Lord, Lord Stewart, from just up the road in Dirleton. I wish him well in the House.

My interest in this Bill is as a former member of the Intelligence and Security Committee. I am in no doubt at all that human intelligence continues to be essential in preventing terrorist attacks, disrupting violent criminal gangs and tracking down prolific sex offenders. I also accept that law-breaking is inevitably a feature of some of those from whom we get human intelligence. In my mind, there is a distinction to be drawn—the noble Lord, Lord Hain, touched on this—between two different kinds of sources. One is described by intelligence services as an “agent” but, as my noble friend pointed out, by police as an “informant”. This is usually a person already involved in a terrorist, criminal or hostile state activity who has turned, induced to give information that may save lives, but they cannot retain their cover among people involved in that activity if they refuse to participate in anything that is against the law.

The other scenario is the undercover police officer who is sent to infiltrate an organisation but is still accountable to the police force for his or her actions. The noble Lord, Lord Hain, pointed to some of the dangers that arise from the misuse of that sometimes necessary process. However, all these activities require some legislative basis. A nod and a wink that, if the intelligence is good, they might not be prosecuted is not adequate, but a general immunity also presents problems, as my noble friend Lord Paddick made clear. Therefore, the Bill is necessary, but it requires further scrutiny and amendment to deal with some of the issues in it, and I want to pick out some of the main concerns.

First, there is a strong case for prior authorisation by a judge of all but the most urgent cases. If it is needed for interception or for a simple search warrant, how much more is it needed for a criminal act—perhaps a serious criminal act?

Secondly, I am unhappy with the range of organisations in the list. If we have to include bodies such as the Food Standards Agency, which sometimes has a need for human intelligence, then ought they not to have to refer to the police and get authorisation from them or from some other external body? The authorising process is so far from the central nature of their activities that it does not seem to me a satisfactory basis for their inclusion.

Thirdly, I have long had concerns about the term “economic well-being”, which features in the Bill. It is very familiar in intelligence legislation but I do not know of a case in which a court has had to define it. It could include so many things: it can include a systemic threat to our banking and financial system but it can also include a major industrial contract that could account for a lot of jobs in Britain, even perhaps a bid for a major international event to be held here. Where do we draw the line? There is too much uncertainty around that.

My fourth point is that, as well as the Investigatory Powers Commissioner, I would want the Intelligence and Security Committee of Parliament to review on a continuing basis the ways in which these powers are used. It should not be prevented from doing so by an insistence that the issues raised by this work are strictly operational. They are not; they include moral and ethical issues that require parliamentary scrutiny in a secure form, which is what the ISC is for.

I have one final plea. This Bill is a rewrite of RIPA 2000 and the Scottish equivalent legislation. You cannot understand it without a copy of RIPA beside you, so it makes an obvious claim for consolidation as soon as possible. The law really has to be readable and intelligible to those who have to enforce and live by it.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.

This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.

A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as

“like the hole in a doughnut”.

He said that it

“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”

In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.

[Lord Beith (LD) [V]]

My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.

There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.

In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?

As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.

The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.

I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Beith Excerpts

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

[Lord West of Spithead (Lab) [V]]

My Lords, I join in passing best wishes on to James Brokenshire. The noble Baroness, Lady Chakrabarti, talked about the calmness of debate with him. We have been talking now for some hours on an issue which a lot of us feel very strongly about in all sorts of directions, and it is rather good that it is carried out in such a sane and balanced way, with people putting very strong points of view without storming buildings—but enough of that.

I wish to speak to Amendments 8, 9 and 11. These would impose limits, albeit somewhat vague ones, on the types of criminal conduct and activity that could be authorised. The Intelligence and Security Committee supports the Government’s decision not to place limits on criminal conduct or on the activity which can be authorised on the face of the Bill, as this would undermine the effectiveness of future operations and put agents’ lives at risk.

It is unsurprising that there is speculation about the more serious forms of criminality and calls for curbs to the power and for limits to be put in the Bill—I understand that. However, there are clearly concerns, and the committee strongly supports the Government’s decision not to put them in the Bill—although, of course, this places an even greater emphasis on the need for robust safeguards, which we were talking about and voting on earlier this evening.

As a member of the ISC, I can offer some reassurance by saying that we have had full briefings on how MI5, for example, uses these authorisations at a very secure, secretive level, and we are reassured and satisfied that it uses them appropriately. I can also point to the European Convention on Human Rights: all public authorities, including those covered by this Bill, are bound by the Human Rights Act, which commits them to adhere to the ECHR, which includes the right to life and the prohibition of torture. The Bill is clear that all authorisations will be compliant with the ECHR and that the activity being authorised will be “necessary” and “proportionate” to the criminality it is seeking to prevent. On that basis, I will vote against the amendment.

[Lord Beith (LD) [V]]

My Lords, I add my thoughts for James Brokenshire, who was a member of the Justice Committee when I chaired it; I respect him and hold him in the highest regard, and I wish him well, as others have.

It is pleasure to follow the noble Lord, Lord West; I recall taking evidence from him when I was a member of the Intelligence and Security Committee. Now that he has gone from poacher to gamekeeper, I hope he is applying similar zeal to the scrutiny and examination of these very issues. I hope that the ISC will take a continuing interest in this legislation when it is on the statute book.

During my time on the Intelligence and Security Committee, I was concerned about the unspecific and broad nature of the “economic well-being” justification as a basis for approving various forms of action. Of course, that was in relation to intrusive surveillance powers, not the sanctioning of criminal acts, which we are discussing today; indeed, since that time, the economic well-being justification has been qualified in the same terms as those which Amendment 9 uses.

I raised my concerns in Committee on 3 December, and they echo the concerns expressed by the Constitution Committee, of which I am a member, in its report on the Bill. It was disappointing that, on 3 December, the Minister’s reply did not answer or even refer to the concerns I had raised. She had had a long day, and she has had an even longer one today, but I hope that I can provoke her to make some things clearer.

In that debate, I said that there are obviously threats to the economic well-being of the United Kingdom that are as serious as physical threats to that security. I included

“action by a hostile state or a terrorist ... group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems”—[Official Report, 3/12/20; col. 870.]

as well as government communications and many forms of cyberattack.

I will suggest three other areas which might involve action by hostile states or extremists and might be candidates for authorisation. I do this simply to illustrate how broad the concept of economic well-being is. The current pandemic is, undoubtedly, a threat to the economic well-being of the United Kingdom. Could there be a future pandemic situation in which we believed that the reckless behaviour of other countries or deliberate action by extremists was making the spread of the pandemic significantly more dangerous? Would that qualify if some form of participation by an agent or human intelligence source seemed likely to help us fight the threat? I think it probably would.

I will give another example. The way the Brexit future relationship agreement is implemented could certainly affect the economic well-being of the United Kingdom. Could that justify deploying intelligence resources, including covert human intelligence, involving themselves in criminal acts? That is not quite so clear.

I offer a third example—that of a major overseas defence and civil engineering contract, affecting perhaps as many as 10,000 jobs in Britain, where there are fears of bribery, corruption and money-laundering, and of those distorting the outcome. What if a different British company is involved in the rival bid for this contract—these bids normally come from consortia involving companies from several countries—and that company considers that it would be very adversely affected by action which might have been begun by someone qualified through this legislation? The economic well-being justification is clearly not a simple matter in such a situation.

I am not asking the Minister to comment on those three hypothetical examples individually. What I want her to consider is, first, whether the economic well-being justification should be so broad. Secondly, if it is not to be qualified by reference to national security, as Amendment 9 in the name of my noble friend Lord Paddick requires, how else can we be confident that it is not inappropriately used? The use of this justification for serious criminal action has not really been the subject of much ministerial comment, and its scope will depend heavily on how future CCAs will be viewed in retrospect by the Investigatory Powers Tribunal and by the commissioners. This approach does not give us much confidence that applications to authorise criminal conduct in relation to economic well-being issues will be considered by authorising officers against a well-understood test of what is justifiable. We have to bear in mind that these authorising officers are in a wide variety of organisations, some of which have long experience of intelligence work and some a great deal less.

The Constitution Committee said in its report:

“While we recognise that threats to the ‘economic well-being of the United Kingdom’ may justify a security response, we are concerned about the use of such a broad concept to authorise serious criminal conduct. The House may wish to consider whether the authorisation of criminal conduct should require more specific justification than a general invocation of the need to protect economic well-being.”


That is what we are doing in this short debate tonight. I would like to hear a clear statement from the Minister on how we might establish clear principles against which to test whether authorising criminal action under so broad and vague a headline as “economic well-being” will, in any future instance, be proportionate and justifiable. Would it need to be a threat to economic well-being of a kind that would, in effect, be a threat to the security of the United Kingdom? That is really what the amendment suggests.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I join in the good wishes to James Brokenshire. He has been a superb Minister over many years and never appears to be partisan, whatever he feels inside. He is one of the best listeners among Ministers I have ever seen. He has played a very important part in some significant policy areas, so we hope that he will be much better soon and back in a very senior position.

It is always an enormous personal pleasure for me to follow the noble Lord, Lord Beith. I have admired him in politics for decades. He is one of the best parliamentary debaters that we have, as he has illustrated in the last few minutes.

I want to speak on Amendments 9 and 11. Like the noble Lord, Lord Beith, I was looking for examples and thought I would ask myself whether I had done any cases as a QC that involved serious economic crime that did not fall within the realms of national security, or clearly so. I was immediately able to think of two examples. One was a money-counterfeiting case in which a ring of forgers was forging very substantial quantities of notes, many of which passed into currency circulation. The other was a fraud relating to the activities of the London Metal Exchange in which over £1 billion-worth of fraud was committed by the simple task of forging bills of lading that referred to metals passing around the world, when the only ones that were really passing around the world were a few containers of pig iron—not the much more valuable metals referred to on the forged bills of lading.

Neither of those cases, obviously, would have any direct relevance to or interest in national security, but they are undoubtedly very serious crimes. I do not know, for I was the defence counsel in both those cases, whether any CHIS were involved in those cases, but it would not surprise me if they were, because there were obvious parts that they could have played. It seems to me that the use of CHIS in those circumstances of economic crime is entirely legitimate and that Amendment 9 is therefore inappropriate and too limiting.