Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

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

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

My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.

The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.

As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.

No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.

Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,

“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”

I agree.

I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.

I look forward to Committee, which promises improvement of an already very welcome Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

A question then arises—and this is one of the differences between the movers of the amendments in this group: who should exercise that authority? I share the view of my noble friend Lord Anderson that this is a matter for a specialist overseer, which is the role for which we have the Investigatory Powers Commissioner. It is not like the authorisation of a specific act, like a search warrant or an act of interception. These are moving situations; they require specialism and people who can continue to exercise scrutiny over them. There is merit in my noble friend’s suggestion. I understand that the Minister has indicated that the Government are amenable to further consideration of this issue, and I hope that that will lead to progress in the direction of closer authorisation and real-time oversight. One of those forms is advocated by my noble friend.

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

My Lords, it is a privilege to follow my noble friend Lord Butler of Brockwell. His clarity and measured critical faculty provide an example to us all at all times.

I speak in support of Amendments 46 and 73, which were moved with such clarity by my noble friend Lord Anderson. I have added my name to each. Because his argument was so cogent and full, I do not need to repeat any of it, and I shall try to make a short speech. I did want to say, near the outset, that I am surprised that so few noble Lords have spoken clearly in support of MI5 and the police of today. I agree with much of the criticism of the authorities of yesteryear, but we are talking about the authorities of today. They protect our country and our citizens, and they deserve our proportionate support, which, I would suggest to your Lordships, Amendments 46 and 73 provide.

I preceded my noble friend Lord Anderson as Independent Reviewer of Terrorism Legislation. Between us, we were independent reviewer for 16 of the last 20 years. Both of us, in our different ways and in different times, have observed, in real time, the operation of CHIS in the terrorism arena. I, as a barrister who has been involved in many criminal cases, have observed the way in which CHIS have brought many serious criminals to justice. We must put aside our prejudices, often formed from anecdote, and we must aim to provide operational practicality together with rigorous scrutiny. That balance must be achieved based on current practice of those services of today to which I referred a few moments ago.

The Government are right to introduce legislation as we have before us today that seeks to set out clearly how such authorities should behave. I do not believe anyone in this debate has referred to the code of practice of the handling of CHIS, which, as I said at Second Reading, should be required reading for everybody talking on these issues. We must look at the provisions in the Bill alongside that code of practice, which, as has been said frequently, is legally enforceable. Together, they provide the proportionate support for the process that I mentioned earlier.

It was said at one point in the debate by a noble Lord for whom I have great respect that the police are being given unbridled power. With respect, that is a gross exaggeration. The whole aim behind this Bill and the code of practice has been to dilute police and MI5 powers, such as they are, by bringing them under regulatory control that is strict but proportionate. In my view, this part of the Bill sets out and distinguishes a proper role for the investigators and judges in IPCO respectively. We do not have an investigatory system of justice, with investigating magistrates, in this country. However able judges are, not one of them, as far as I am aware, has ever been an operational investigator in the difficult area we are discussing. But they have experience, often brilliant experience, in after-the-event scrutiny. That is what judges do.

I urge the Government therefore to accept the modifications in the amendments which I support, recognising that some strengthening of the Bill’s provisions as they stand is needed, but to resist a system which would cause delay and would not improve the skills applied to the kinds of operations that we are considering.

[Baroness Manningham-Buller (CB) [V]]

My Lords, I am delighted to speak to Amendment 46 and to say a few general words. I have heard lots of excellent speeches today. Unfortunately, I could not be at Second Reading, but I listened to the debate afterwards, and I am sure that, as with most legislation that comes before your Lordships’ House, we will improve the Bill. I welcome this legislation, for many of the reasons said by other noble Lords, most recently the noble Lord, Lord Carlile. It is long overdue, and I declare a strong interest as a former member of MI5 for 33 years. It is on that experience that many of my comments today are based.

Running agents, as we call them—I draw this to the attention of the noble Lord, Lord Cormack—is a central part of the work of MI5, and always has been. I can remember—I have checked with former colleagues, who have found paperwork going back 27 years to 1993—raising with Governments the need for legislation to cover the activities of what were then called “participating agents”. I do not apologise for reminding the House of a little history; that date was before the Intelligence Services Act, which put SIS and GCHQ on a statutory footing, and before the establishment of the Intelligence and Security Committee. My service’s request always ended up in the “too difficult” tray, but MI5 seeking legislation was part of a pattern of which I am proud. It argued for a security service Act, for a parliamentary oversight body, and for what became RIPA, long before others did.

Why did we want that legislative framework? Because a robust legislative framework provides clarity and confidence for the public, who need to help us in our work, for those members of my old service, for others doing intelligence and security work, and for our agents, our covert human intelligence sources. I do not accept the argument that they are unconcerned by this. I am afraid that it is not true. Legislation also builds in oversight and accountability. The current litigation has led to uncertainty, so there is an overwhelming operational requirement for this legislation.

So why this particular Bill? Although it is good housekeeping, it is not just that, and here I will talk about some of these covert human intelligence sources and agents. Every day, brave men and women, usually members of the public, in my experience, risk violence, and even torture and death, to obtain intelligence which may well save lives. There are extensive examples of thousands of lives that have been saved as a result of their work, although generally that cannot be made public in any detail because we have a moral obligation to look after them for the rest of their lives. I am afraid that I do not accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity. They are brave men and women, and we should all be thankful to them. They should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk. It may be proportionate and necessary for them to commit crimes in order to be trusted or to prevent more serious crime. I absolutely cannot conceive of their ever being authorised to commit the sort of crimes which it is their role to try to prevent.

I note that in its 2018 report, IPCO said that all authorisations by MI5 for its sources to commit crimes were,

“proportionate to the anticipated operational benefits”

and met the high-necessity threshold. Of course I understand the disquiet of the House about authorising crime, although this has happened for decades, and I see the attraction of extending the powers of IPCO by asking that body to give prior authority. I have no objection to that in principle, and doing so might give some comfort to the handlers and the agents. But—and it is a very big “but”—I cannot see that it is practical.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

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

Amendment 21 would ensure that the Bill did not exclude prosecution for misconduct in public office of those involved in granting a criminal conduct authorisation or in situations where it is later nullified. I recognise the need for authorising officers to act in adherence to human rights principles. However, it is also important that they are not unfairly disadvantaged compared to other public servants or officials just because they are involved in those decisions. I will listen carefully to how the Minister responds to this amendment.

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

My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.

The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.

There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.

The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:

“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”


Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.

To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.

It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.

So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.

Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.

I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.

Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.

Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.

[Baroness Hamwee (LD) [V]]

My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.

The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.

In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.

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[Lord Mann (Non-Afl) [V]]

My Lords, I very much agree with the detail and the general sentiment in the excellent contribution of the noble Lord, Lord Rooker. The word “practical”, which he used several times, is a vital word, to which I would add “mundane”, which I think he used once, referring to the mundanity of many of the orders, and the potential volume of those mundane orders. I speak not as any legal expert, but as someone who was on the receiving end of precisely this. I was on the Economic League blacklist, undoubtedly because of the infiltration of the anti-apartheid movement by an agent of the state.

My concern is about the competence of the state. A book was written at the time by an extremist, a Stalinist and supporter of the Soviet Union called Denver Walker. The book is called Quite Right, Mr Trotsky! and it was released in the same year that I was having those problems. In it, he starts by saying that this could be Special Branch or MI5 in terms of what he is doing. He exposes every Trotskyist organisation in the country, naming names, citing examples and explaining ideology in minute detail. At the same time all the organisations he named, bar two, were infiltrated. That is now on the public record. The state was spending resources and putting a priority on infiltrating irrelevant, tiny organisations. The Revolutionary Communist Group, one of the two not infiltrated, is described in the book as being presumed by everyone on the ultra-left to be run by Special Branch. That is actually in his book.

Competence is critical. If we are trying to intervene in, for example, terrorist organisations or organised crime, competence is absolute and fundamental. Yet we have this history, in the 1970s and 1980s, of the most appalling incompetence. We had the targeting of irrelevant people, creating consequences for people who were on the side of the state in precisely the terms on which the state was infiltrating these organisations. What conclusions would I draw from that?

I draw the conclusion that the noble Lord, Lord Blunkett, whom I normally agree with, is fundamentally wrong to suggest that the judiciary has the wrong skill set for assessing and authorising such decisions in advance. I would say exactly the opposite. The judiciary has exactly the right skill set, not to know anything about extremist organisations or extremists but to hear and evaluate a coherent case—or an incoherent case, and turn that down if it is—when put forward by one of the agencies to or for which we are giving, clarifying or maintaining powers with the Bill.

If you are incapable, as intelligence services, the police or one of the other agencies, of putting a coherent case together for why you need authorisation, it would seem that the authorisation you need has a rather weak case. If that had happened in the 1970s and 1980s, a lot of that nonsense and wrong priorities would never have got past stage 1. They were based not even on a hunch, but on an irrelevance. If we are to have efficiency in getting into terrorist groups and organised crime, having a system that forces those who wish to do so to explain their rationale for what they plan to do, and why, and having someone able to assess whether that rationale is coherent, seems the right approach. The last people who should do it, therefore, are politicians.

The practicalities and mundanity are what we should be determining these decisions on. Of course there will be cases that are far from mundane in their application, but that does not mean that the same principles are not required in getting an agreement. It therefore seems to me that those amendments which push the Government in that direction should be welcomed by the Government, and those that do not should be rejected—not just by the Government, of course, but by the House.

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

My Lords, the interesting lesson from the noble Lord, Lord Mann, on the history of the left—it is a pleasure to follow him—has shown exactly why the Government are right to make a root-and-branch reform, and introduce a structure based on statute for the handling of covert human intelligence sources. We have heard a lot about what happened in the past, but an awful lot has changed since the 1970s, the 1980s and the 1990s. The major changes in this kind of policing started after 9/11, which was like a massive electric shock to the whole system of detecting various serious crimes, because of the arrival of large-scale terrorism on the streets of Europe and in many other countries. An awful lot has happened, too, since 9/11. The methodology has been sophisticated quite enormously, hence the large amount of legislation since the events of 9/11.

I listened with particular interest, because I agreed with what they said, to my noble friends Lord Anderson and Lord Butler and the noble and learned Lord, Lord Mackay. I am a great believer in the theory of Occam’s razor, that entities should not be multiplied unnecessarily or, as it is sometimes put, “Keep it as simple as you can”. To start with, this is an operational issue. In the decision to make someone a CHIS, there is usually a very long period of assessment, a decision by management in consultation with the proposed CHIS handler and sometimes, as I said in an earlier debate, some behavioural analysis. This is an operational matter.

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

My Lords, on the narrow point just made very clearly by the noble Baroness, Lady Chakrabarti, I would question the way in which she diminishes the importance of codes of practice, which have the force of law. One example of a code of practice that has had the most incredible effect on the fairness of trials is Code C under the Police and Criminal Evidence Act 1984, which in many ways has been the formidable weapon in the hands of the defence advocate, and sometimes in the hands of the prosecution advocate too, to ensure that justice is done.

That said, I have no objection whatever to what is intended by Amendments 6 and 36. I suspect that the Minister would want to refer to the code, at least generally, which is peppered with words such as “reasonable”, “proportionate”, et cetera, and would say that reasonableness is imported in any event. However, I agree with the view that in a Bill of this kind, adding the word “reasonable” into the statute as suggested may be comforting and safe, and will make it a better statute.

I disagree with Amendment 18, which is in this group, and a time limit of four months. Running a CHIS is often very arduous and complicated, and many CHIS are run for much, much longer than four months. The noble Lord, Lord McCrea, in an earlier part of this evening’s debate, referred to the information that was obtained concerning the Real IRA, as it was called, which led to the conviction of a number of its operatives. I do not know anything about the facts of that case, but I suspect that in an operation of that kind, many CHIS were run for long periods, and for very good reasons. As the noble Baroness, Lady Manningham-Buller, said very eloquently, those who are running the CHIS are, in any event, these days, doing an extremely good job in great difficulty, and we do not want to add to their bureaucratic burden; they and their CHIS have great difficulties to face. They do not want to be faced with the necessity of reapplying every four months; it is just far too short a period.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I have little to add to what has gone before. I often wonder whether the Government are concerned about judicial review when they resist placing the test of a decision on a reasonable basis in any legislation. If the test in any case is simply the subjective belief of the official—the government agent involved—it might be hoped that a trip to the divisional court and an application for judicial review would be avoided. The noble Lord, Lord Anderson, did indeed refer to public law tests. The Wednesbury test of reasonableness is now more than 70 years old and it is sometimes forgotten that it was the local picture house that took the town’s corporation to court because the licence it gave prevented children under 15 attending the cinema on a Sunday, whether accompanied by an adult or not—one’s mind flips back to the dim and distant past. That was the factual basis of a very important principle of law.

When considering reasonableness in this context, there are two limbs. In the context the House is discussing, the question would be whether the authoriser had taken into account all the wider implications of the authorisation, including its effect on prospective victims of the crime being committed. He would obviously have to follow the code, which, as the noble Lord, Lord Carlile, has just said, is peppered with instructions, having the force of law, to act reasonably. If the authorisers get beyond the first limb of the test, the second limb is whether the decision they have taken is so outrageous and irrational that, as Lord Diplock put it in a later case, it is

“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Needless to say, cases challenging a decision tend to succeed on the first limb, but I do not see why we have to go to that position. I have been trying to check Hansard, but I think that the Minister referred, in reply to the first group of amendments today, to the decision being reasonable. I cannot see any reason why it would not be reasonable to put “reasonable” on the face of the Bill. I support these amendments.

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[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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Carlile of Berriew Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

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

My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.

It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.

The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.

[Lord Hendy (Lab) [V]]

My Lords, it is my particular pleasure to follow the noble Lord, Lord Carlile, although it is a particular discomfort to me to disagree with him on this occasion. The Bill proposes that the state should have the power to grant immunity for crimes committed in the future by agents on its behalf. I believe that the grant of such immunity is contrary to the rule of law, which prescribes that all are bound equally to observe the law, not least the criminal law. The fact that such immunity will derive from legislation if the Bill becomes law does not alter my belief.

Giving the state the power to exempt prospectively its agents from criminal law is the antithesis of this fundamental principle. A decision to prosecute or not should be granted only retrospectively, when all the facts and circumstances of the conduct at issue are known, including the nature of any authorisation and, above all, whether it is in the public interest to prosecute. The CPS makes such decisions all the time; that is compatible with the rule of law and equality before the law. This arrangement, as far as is known, has worked perfectly satisfactorily for the last 200 years. Instead, the Bill overturns this status quo, challenges the rule of law and gives the state unparalleled powers. I regret that on this occasion I cannot follow the advice of my noble friends on my party’s Front Bench and, as a matter of conscience, I am obliged to vote against the Bill.