Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack Excerpts

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

[Lord Cormack (Con)]

My Lords, there are few moments of unalloyed joy in politics but being able to endorse the splendid remarks of my noble friend Lord Young of Cookham in congratulating my noble friend Lord McLoughlin is one of them. I, too, remember that visit to Cardinal Griffin school in May 1970, over 50 years ago. I, too, remember the schoolboy coming to the Palace of Westminster. I remember him becoming a splendid local Conservative, having a poster with a miner’s hat when he fought his first constituency. I am always amazed that, when I left the House of Commons 10 years ago, he was my Chief Whip. I bid him welcome with all the warmth at my disposal.

It was very splendid also to have a maiden speech from the Front Bench. My noble and learned friend Lord Stewart of Dirleton spoke with an elegiac love of his constituency. As my noble and learned friend Lord Mackay indicated, the rest of the speech was not entirely at his disposal; nevertheless, he delivered it with a calm rationality that made me feel that we have a true learned friend in our midst.

Having said all that, while putting on record that I believe that the Bill is necessary and support it, I am troubled. We have to look at this in the context of the times. We are, through no desire of anyone, living at the moment in a benign police state. I cannot go out this evening with my son for dinner; I cannot ask him round to my flat nor go to his home with his wife and children. We are in a very difficult situation. We have the Law Commission proposing that remarks made at the dinner table should perhaps be admissible in a court of law in the prosecution of a hate crime. We therefore have to be careful how far we go. That is why I am troubled, as others have said, about the number of agencies that are allowed to have, as it were, crimes committed in their name. I shall want to look at that very carefully in Committee.

I share the concerns of many colleagues about the position of children. Although it may be tempting to use children in dealing with ghastly county lines, we have to be careful about our overall responsibility for our children.

As we go through the Bill, which lends itself to the forensic examination that it needs and deserves in your Lordships’ House, we must be extremely careful. First, how many agencies can take advantage of it? I think that it is too many. Secondly, how is the regulation on the use of children controlled? Thirdly, we have to look carefully at whether there should be specific limits—as there are in Canada, as we have heard from the noble Baroness, Lady Kennedy of The Shaws—on the type of crimes that we can see committed in the interests of the greater good. That we need to protect our people from terrorism and terrible crimes is self-evident, but we have to be careful how we go.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to speak quite a lot of times today. I do not really want to apologise for that, but I do want to explain it: I have been interested in this particular area of policing for more than a decade, ever since I found out that the Metropolitan Police was actually spying on me, tracking my movements and reporting back on what I was doing. At the time, I was an elected councillor in Southwark, an elected assembly member and, for a year of that time, I was Deputy Mayor of London—when there was only one Deputy Mayor of London, not all these other deputy mayors. At the time, I think I was quite naive about the fact that the police did this sort of thing. When I got into it, of course, it became obvious that they do quite a lot of it.

The spy cops inquiry that is happening at this moment—actually, it is not happening at this moment, it is taking a break, but it will be happening again in 2021—has made it obvious that there are huge problems with this area of policing. This Bill does not solve them, and in fact it goes further—it makes more problems than it might be said to solve. I did try to be a core participant in the spy cops inquiry, but the judge at the time ruled that, because I had been spied on by the ordinary police, not by undercover police, I did not qualify. That was obviously a matter of huge sadness to me.

I congratulate the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for tabling these amendments, because they are, I would say, quite necessary. For example, the language is quite confusing. I am going to say it in my own words, because we have had some very good lawyerly comments on this, but I thought I should say it in the way that I see it. These amendments would replace

“in the course of, or otherwise in connection with, the conduct of”

a covert human intelligence source, or a police spy, with the word “by” a police spy. These are important amendments to probe how tightly or loosely criminal conduct can be authorised. The Minister needs to give a clear and thorough explanation of the intention behind the words

“in the course of, or otherwise in connection with, the conduct of”.

What does “otherwise in connection with” mean? What do the Government say would be the effect of removing those words, and having the much simpler word “by”?

It is important to recognise that many police spies are recruited from the ranks of criminals. To what extent can their existing or ongoing criminal conduct be authorised? I know that the noble Baroness or the noble and learned Lord will explain that it is only future conduct, but at the same time, of course, when they are doing future conduct, they will also be doing the past conduct continually. Amendment 37 probes this issue further, making it clear that only future conduct can be authorised. Without this, there is a risk that past criminal conduct can be authorised, so that criminals would essentially be let off the hook in exchange for future co-operation with the police.

Then there is the question of how all this interacts with the Proceeds of Crime Act. If criminal conduct is authorised under this Bill, does that shield any criminal profits from being recovered under the Proceeds of Crime Act? For example, can a drug dealer or human trafficker rake in huge amounts of cash while working on the side for the police as a spy, or would this money be confiscated by the state? This legislation must not create legalised criminal enterprises—state-endorsed mafias—where the profits are irrecoverable by the state. That would be a very dangerous situation. So I am hoping that the two Ministers we have with us today will tell me that that is a ridiculous suggestion and it could never happen, because the Government will make sure that it never happens.

[Lord Cormack (Con)]

My Lords, I rather wish this Bill were called the “Authorised Criminal Conduct Bill”. I find it very difficult to get my mouth around this very cumbersome title, and I utterly loathe the term “CHIS”. I wonder if my noble and learned friend who will reply could earn himself undying gratitude from those of us who care about the English language by coming up with something else.

These are probing amendments, and they seek essentially one thing: clarity. The noble Baroness, Lady Hamwee, made that very plain in her admirably brief introduction to this short debate. Clarity is of such importance when we are swimming in such murky waters and dealing with such very questionable matters.

The noble Lord, Lord Anderson of Ipswich, said that he felt the matter of retrospection had probably been dealt with by the remarks of, I think, the Solicitor-General in another place. But there is still a certain lurking doubt, and it would therefore be good to put something on the face of the Bill while it is in your Lordships’ House to make it plain beyond any peradventure that retrospective authorisation is not possible.

I do not want to detain the House any longer, but clarity, I would emphasise, is what we are after here.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be very brief, because others have put the point so well and also because of the next debate to follow. I would simply say that this degree of micro-precision becomes particularly important because the Bill goes further than the status quo and creates these advanced criminal and civil immunities. I will leave it at that, because I think we are all really quite keen to hear the Minister’s response.

--- Later in debate ---

[Lord Cormack (Con)]

My Lords, I have considerable sympathy with the remarks of the noble Lord, Lord Paddick, in moving his amendment. It has been a very instructive afternoon, sitting here and listening to the previous, very long but extremely enlightening debate. The more I listened and the more I reflect on what we are discussing, the more uneasy I am about the Bill. I do not dispute the need—any more than the noble Lord, Lord Paddick, the noble Lord, Lord Thomas, or the noble and learned Lord, Lord Thomas, or anybody else has disputed it—to recognise that for the greater safety of the nation, we have to allow some of these things to happen. However, the noble and learned Lord, Lord Thomas of Cwmgiedd, made a very sober and sensible suggestion about perhaps having some special committee to look at this.

The Bill has far-reaching tentacles, because we are not just talking about the security services. We are talking about a whole range of agencies; we will come to that next week and I have tabled some amendments to delete most of those agencies. But we are discussing a really serious Bill, with far-reaching and unknowable implications. I am bound to say that I very much warmed to the suggestion of the noble Baroness, Lady Chakrabarti, that we refer to “undercover operatives” rather than CHISs. I was delighted when my noble friend took that up in his speech. I urge him to use that term henceforth, not something that the world outside will not understand if they turn on “Yesterday in Parliament” in a fit of insomnia.

Given the extraordinary wealth of legal experience that we have in this House—we have a former Lord Chancellor answering from the Opposition Front Bench —and that we have people who have experience in the police, and all the rest of it, we really are equipped to give this the most careful scrutiny, and we should. It deserves no less and demands no less. I hope that as we go through Committee and prepare for Report, where there will be some serious issues to debate and possibly to divide on, we will have at the back of our minds the suggestion of the noble and learned Lord, Lord Thomas of Cwmgiedd.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank the noble Lord, Lord Paddick, and the others who have tabled amendments in this group. I pay huge respect to him for his experience in this field. In the words of the noble Lord opposite, the noble Lord, Lord Paddick, stands out as one of the few who have personal experience of this. One listens with great respect to him when he shares his views with the House on occasions such as this.

All three amendments in this group seek to achieve the same thing: to enable those who have been victims of the crimes authorised under the Bill to seek civil redress. I congratulate my noble and learned friend Lord Stewart of Dirleton, the Minister, on his sterling debut performance and his manner in approaching the Bill. I think we are all extremely grateful to him. I listened carefully to the words he used in summing up on the previous group of amendments. Following on from the third direction case, I heard him refer to placing responsibilities on a statutory basis and I think he has the support of all the House in this. That is the whole purpose of the Bill and I lend him my personal support in that regard.

I also heard my noble and learned friend say, and I hope I heard correctly, that civil redress is not excluded. In regard to this small group of amendments, is it the case that civil redress is not excluded? Are there any limitations, either under the Bill or the current law as he understands it, on civil redress being so required? If that is the case, I am sure he will be able to tell us that these amendments, albeit well-intentioned, may not be needed. Personally, I would obviously welcome civil redress in that regard and these amendments are very helpful in enabling us to probe him on that.

--- Later in debate ---

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

My Lords, I have previously today made a case against permitting the authorisation of criminal conduct by an organ of the state without any independent check or oversight. The noble Lord, Lord Dubs, in introducing his amendment, referred to the Finucane case and the strong comments made by Desmond de Silva QC in his inquiry, calling for a strong framework of control.

This group of amendments puts forward alternative approaches. I prefer the approach of the noble Lord, Lord Dubs, which is simple and straightforward in operation. An application to a judge who is always available 24 hours a day for prior authorisation is, in my opinion, far preferable to the giving of notice after the authorisation has been made. The noble Lord, Lord Hain, strongly made that point. He pointed to the fact that the police being out of control in many ways lies behind the institution of the Mitting inquiry. He asks: who is the target, and why?

The noble Baroness, Lady Chakrabarti, referred obliquely in the debate on the second group today to concerns that this involves the judge, if he is approached, in the commission of a crime which has not yet happened. I disagree: the role of the judge—or, as the noble Lord, Lord Hain, would have it, the Secretary of State—is not to authorise the crime but to ensure that all the safeguards are in place against abuse of a necessary but dangerous tool in the detection of crime. That is an important part of the framework for which Desmond de Silva called.

After the event notice given to the Investigatory Powers Commissioner is proposed by the formidable array led by the noble Lord, Lord Anderson of Ipswich. The problem with their solution is that, in my view, it has no teeth. I listened to the noble Lord’s exposition. He thought that a decision referring to the authorisation of a CHIS depended on a close consideration of the character of the CHIS in the very difficult circumstances in which he might find himself. He said that it was too unpredictable and that he would not himself find it an easy decision to make. It would be an uncomfortable position. However, his proposal requires confidence that the security services, the police or other authorities will properly give a full explanation of what they have authorised to the IPC. This was an issue raised by my noble friend Lord Macdonald, as quoted by the noble Baroness, Lady Kennedy.

A case in 2019 showed that the intelligence services kept their errors secret. As Megan Goulding of Liberty said after the judgment,

“they’ve been trying to keep their really serious errors secret—secret from the security services watchdog, who’s supposed to know about them, secret from the Home Office, secret from the prime minister and secret from the public.”

The Investigatory Powers Commissioner, Lord Justice Adrian Fulford, a man of great integrity and experience, as I know, said that MI5 had a “historical lack of compliance” with the law. He said that the Security Service would be placed under greater scrutiny by judges when seeking warrants in future. He compared the service to a failing school which needed to be placed in “special measures”.

Amendment 47 in the names of my noble friends Lord Paddick and Lady Hamwee would indeed give teeth in that, if the commissioner is not satisfied with the authorisation, conduct will not be lawful and ultimately the Director of Public Prosecutions would become involved—that is if the model suggested by the noble Lord, Lord Anderson, received the favour of the Government. The reformulation of the Anderson amendment in Amendment 73 again has no teeth.

The refining of the amendment proposed by the noble Lord, Lord Dubs, put forward by the noble Baroness, Lady Kennedy of The Shaws, to appoint experienced judicial commissioners is preferable. Authorisation would require the approval of a judicial commissioner before it took effect. Further it ensures that the judicial commissioner has to be satisfied that there are reasonable grounds for the authorisation and it specifically contains the safeguard that conduct contrary to the European convention is not authorised. Since the Government suggest that the only control on the authorisation should simply be the convention rights granted by the ECHR, so that they are not broken, I cannot see what objection the Government could have to such a proposal. Of course, I believe it preferable to specify in the Bill the particular offences which cannot be authorised, but that is a matter for later argument.

[Lord Cormack (Con)]

My Lords, this is another fascinating debate. A number of your Lordships are seeking to put forward solutions to what I think is a gaping hole in the Bill. I was glad to add my name to the amendment tabled by the noble Lord, Lord Hain. We have had some powerful speeches not only from the noble Lord, Lord Hain, who speaks with truly unique personal experience as well as experience as a very accomplished Secretary of State, which I saw at first hand in Northern Ireland, but we have other suggestions put forward, most notably by the noble Lord, Lord Anderson, and the very powerful quartet of the noble Lords, Lord Anderson, Lord Butler of Brockwell and Lord Carlile, and the noble Baroness, Lady Manningham-Buller, and we heard a powerful speech a moment or two ago from the noble Lord, Lord Thomas of Gresford.

Fundamentally, what it comes down to is this: what we are doing in the Bill is giving authority for people to commit crimes. We all accept the basic necessity when it is a matter of national security. I am not convinced, and I will need a lot of convincing, that we have to give similar powers to the Environment Agency, the Competition and Markets Authority, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. There are others on this list, such as the Serious Fraud Office, the National Crime Agency and the intelligence services, that one would approve, but wherever one is approving, one is giving potentially a vast range of people the authority to authorise crimes and to launch these agents into a world where they can do great damage to individual innocent people. We touched on this earlier when we talked about compensation.

I believe it is absolutely crucial that these permissions are not granted without the authority of a senior judicial figure or a Secretary of State. The argument in favour of a Secretary of State, made very pointedly by the noble Lord, Lord Hain, is that there is a degree of public accountability to Parliament for decisions that, one would hope, have been taken in good faith, but which may go wrong in a bad way. What we need is for my noble friend the Minister, and, doubtless, some of her ministerial colleagues, to sit down with those who have proposed these various amendments and try to come to agreement on an amendment for Report stage that the Government can back.

This Bill as it stands just will not do. It could be called the “carte blanche Bill”; in this field, that is not acceptable. I urge my noble friend when she replies to share some reflection on that idea. The noble Lords, Lord Anderson, Lord Butler of Brockwell, Lord Hain—all these people and others—have experience that they can draw upon and advice that they can proffer. We cannot have this Bill giving so many bodies authority to authorise the commission of crimes. I keep coming back to that, because that is what we are talking about. This has to be handled with firmness, sensitivity and, above all, the knowledge that the last thing we want to become is a state in which the police have virtually unbridled powers.

Police are public servants. We all honour them; we believe we are extremely fortunate in the quality of our police forces even though there have been some terrible recent examples, some of them talked about in this broad context by the noble Baroness, Lady Jones, a little while ago. At the moment—I have half-joked about this in the House recently—we are living in a benign police state where we can be prevented and fined for seeking to sit down with members of our family. It is all very serious, and underlines the seriousness of what this Bill is about.

I beg my noble friend to listen to those who have spoken with great experience and authority, putting forward ideas that are practical and workable; some doubtless better than others, but we must have a system where a person of real seniority, answerable for his or her decisions, can give the authorisation before the crime is committed.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I understand that the noble Baroness, Lady Wheatcroft, has withdrawn, so I call the noble Lord, Lord Butler of Brockwell.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack Excerpts

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

There are a number of other amendments in this group, including Amendment 42, which extends to the issue of whether under-18s can be used for this purpose and granted such an authorisation. We have amendments later, so I shall leave comments on that until a group which more broadly deals with under-18s. I beg to move.

[Lord Cormack (Con)]

My Lords, I do not dissent from what the noble Baroness, Lady Hamwee, said, but I shall concentrate my remarks on the amendment in my name, to which the noble Lords, Lord Hain and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, have kindly added theirs. Just so that colleagues are precisely aware, my amendment says:

“A criminal conduct authorisation may not authorise … murder, torture or rape, in any circumstances, or … a person under the age of 18 to engage in criminal conduct”.


I tabled this amendment because, during the debate at Second Reading, a number of people expressed very considerable concern about minors, those under the age of 18, being authorised to commit crimes. A number of colleagues including, perhaps most notably, the noble Baroness, Lady Kennedy of The Shaws, talked about Canada and other countries where there is a specific list of crimes that are definitely not in any circumstances able to be authorised. I regard this as a probing amendment, and I intend to return to the subject on Report, if the Government do not give me what I think is a satisfactory response. It is a probing amendment because I think it may be that the approach of the noble Baroness, Lady Hamwee, is the one that the Government prefer. I do not know, but I think these points should and must be addressed.

I make it absolutely plain at the outset that I listened very carefully indeed to what my noble friend Lord King of Bridgwater said in the earlier debate this afternoon. He talked about the important work that these agents perform in the national interest. I do not dissent from that, nor from the very warm words of approval in a notable speech by the noble Baroness, Lady Manningham-Buller, on Second Reading, where she stressed the bravery of agents. However, we are swimming in murky waters here and, as I have said before, it is important that we recognise the implications of this very far-reaching legislation.

I think it is splendid that we have the noble Lord, Lord Paddick—he is briefly away from his seat—bringing his experience of the Met, but I wish that one or two of the former commissioners who sit in your Lordships’ House would give us the benefit of their advice as we move on to Report. We are very privileged in this House to have true experts with enormous collective experience, and it would be good to hear from them on this very important subject.

What I am seeking to do through this amendment is to achieve a balance between the absolute requirements of a civilised society and making that society safe. There are things that one should not do in any circumstances and still claim the rights of a civilised society. Torture, of course, stands out as perhaps the foremost among those, but I think a civilised society also has to be careful about what it allows its young people to do. One of the tragedies of the last 50 years —the time that I have been in Parliament—is that childhood innocence has been, to a large degree, destroyed. The principal culprit in recent years has been social media. That is something, way beyond the scope of the Bill, that the Government have to give further priority to.

If, in dealing with county lines and so on, we are going to authorise young people under the age of 18—indeed, I understand that some of them are under the age of 16—to engage in criminal conduct, that is really not a hallmark of a civilised society. I appreciate the difficulties, and I would like to hear more about them. That is why I said, a moment ago—and I am glad he is back in his place—how much we welcome the presence and participation of the noble Lord, Lord Paddick, and how helpful it would be if some of the former commissioners of the Met who are in your Lordships’ House took part on Report because, clearly, he and they know far more about this than I do. I try to look at this from a civilised perspective, and it troubles me deeply that young people should be authorised to commit crimes, and sometimes very serious crimes indeed.

I hope the Minister, who has been meticulous in seeking to answer the very legitimate points made by colleagues in this debate, will be able to devote some time and attention to this. I would welcome the opportunity of discussing these things with her before Report. We need the Bill; I accept that. Some of those we will be authorising are, indeed, as the noble Baroness, Lady Manningham-Buller, said, among the bravest of the brave, but there are others who have a criminal background themselves and, while I would not necessarily question the validity of their work, I might question the validity of some of their motives.

I think we have to get this, as we are legislating. Up to now, we have not, although we all know it has happened. As this very important, far-reaching Bill is before your Lordships’ House, and as it was not given the scrutiny in another place that we are giving it, I want us to be able to send it back to the other place significantly improved. I hope that, as in so many cases, the Government, recognising the validity of points made in your Lordships’ House, will themselves introduce amendments that we will be able to welcome and endorse, to create a Bill that is truly workable and that achieves that balance I talked of a few moments ago. I hope it goes back to the other place and does not come back to us after that, because I hope the other place will accept the improvements made to it. I commend this, as a probing amendment, to your Lordships’ House.

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Lord, Lord Cormack, whose amendment I have signed. It is a very important amendment about putting limits on what can be authorised, excluding rape, torture and murder. Quite honestly, it is astonishing that this even has to be debated; we really ought to be free of that sort of threat to ordinary people, quite often.

The Government say that amendments such as these are not necessary, because of the complex legal web of proportionality and the Human Rights Act. That argument might carry more weight if the Government were not constantly fighting a culture war against human rights lawyers. However, one does not need to be a human rights lawyer to understand that rape, murder and torture are never justified, so these restrictions have to be in the Bill.

Then there is the Government’s circular argument that we must not ban specific crimes from being authorised, because undercover agents would be tested by the criminals to prove themselves by doing prohibited acts. The circularity of that argument is that if the Human Rights Act already prohibits something, they can already be tested. I would like that cleared up if possible.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Cormack (Con)]

My Lords, the noble Lord, Lord Dubs, referred to this as a potential abuse of power and, although I am entirely convinced that that is the last thing in Ministers’ minds, I say nevertheless: be careful what you wish for. I am very troubled by this section of the Bill, which is why I put down three amendments—Amendments 64, 66 and 69—to delete from the list of bodies authorised the Department of Health and Social Care, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. However, putting those down as probing amendments, I became increasingly convinced that I had not gone far enough, so I say unequivocally that I prefer the amendment of the noble Lord, Lord Paddick, which he introduced a few minutes ago.

This is a troubling Bill. I think that there has been a universal acceptance across your Lordships’ House, because it is the paramount duty of any Government to protect the state and those who live in it, of the need for, and the unavoidable necessity of, the Bill. However, it goes too far. We had a very interesting and challenging series of debates a week ago today, when we talked about whether certain crimes should be on a list of prohibited crimes. We also talked about authorising children—those under the age of 18.

Both those aspects of the Bill troubled me, and I have put amendments down, but this also troubles me: giving almost a carte blanche to a whole range of bodies, some of which are not concerned with the most heinous crimes or with the ultimate protection of the state and citizens. I urge my noble friend the Minister to accept that these are very important and valid points. We certainly will need to come back on Report, and I would like to consult the noble Lord, Lord Paddick, and others on precisely which amendments we go for.

There are two developments in modern legislation that trouble me, as I know they trouble the noble and learned Lord, Lord Judge, more than anything else: the proliferation of Henry VIII clauses and of the granting of almost unlimited powers to Ministers of the Crown, as well as what I call the “Christmas tree Bill”—of which this Bill has some aspects. Having been persuaded that legislation was necessary, and I understand why that was so, the Government have said, “We’ll give as many people as possible as much permission as possible to do what they like, and we will give a particular power”—the noble Lord, Lord Paddick, underlined this graphically—“to the Home Office”. Therefore, power is ultimately given to a party politician whose motives, I am sure, would always be pure in his or her eyes, but it would not necessarily be conducive to enhancing public confidence in the machinery of government. All these issues are touched on in this clause.

We must be very wary of what power we give and to whom we give it. Although we have said before—and I do not for a moment resile from it—that some of the agents, of whom the noble Baroness, Lady Manningham-Buller, spoke movingly a couple of weeks ago, are among the bravest of the brave, there are others who swim in murky waters and have a criminal background. It is not sufficient for the Food Standards Agency or the Environment Agency to say, “We’ll employ a thief to catch a thief”—because that is what it could come down to.

I urge my noble friend, who is due to reply, to take these points as serious points that require the most careful examination before and during Report stage. I am very grateful for the letter I received this morning from my noble friend, inviting discussions and co-operation; she has a very good track record in that regard and is an exceptionally conscientious Minister. Of course, we are not talking about current Ministers here; we are talking about giving an extended power for an indefinite period, whatever the complexion or orientation of the Government.

I strongly support the improvement on my amendments by the noble Lord, Lord Paddick, and I hope we can, on Report, ensure that this Bill is sufficiently trimmed down and that the right number of baubles are removed from the Christmas tree so that we have something in which we can all have a degree of confidence.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow my noble friend, and I associate myself with the comments made previously by the noble Lord, Lord Paddick, who spoke so powerfully, in introducing his Amendment 63. As he said, Clause 2 breaks new ground, giving powers to grant legal immunity and to authorise agents to commit acts that otherwise would be criminal to these other bodies that we have before us this afternoon, which can say that such acts are not to be considered criminal offences.

I echo the comments of my noble friend Lord Cormack. I was hugely moved by the words of the noble Baroness, Lady Manningham-Buller, who paid such justified tribute to those who work in the services that are largely contained in new Part A1 inserted by Clause 2. No one can take away from the risks that they run and the huge efforts they have made on our behalf to keep us all safe, not least those of us working in Parliament and public life; we are extremely grateful for that.

On reflection, as my noble friend Lord Cormack has said, I prefer Amendment 63 but would like to speak to the amendments I have tabled for the purposes of debate today: Amendments 67 and 68 and to oppose the Question that Clause 2 stand part of the Bill. I have absolutely no argument that the bodies listed in categories A1 to E1 of new Part A1—any police force, the National Crime Agency, the Serious Fraud Office, any of the intelligence services and any of Her Majesty’s forces—should not automatically be considered for preferment and allowed to fall under the provisions of this Bill. I assume that that was primarily what was in mind when the Bill was initially drafted.

I thank the Minister for the offer to meet; that would be extremely useful before we get to Report. On a number of occasions I was heavily involved, both as a local MP and as chair of the EFRA Select Committee next door, with rural crime. It grieves me greatly that many of these rural crimes are simply not taken as seriously as crimes that occur in towns, market towns or cities, such as London and other major cities in the UK. I am talking specifically of very serious rural crimes with a very heavy criminal content of organised gangs. I pay tribute to the work the Environment Agency has done in this regard by installing covert cameras and trying to solicit as much information and intelligence as it can. With the cost now of disposing of building waste and other hazardous waste, it is becoming extremely attractive to dispose of it on rural property, often privately owned. It is a public duty to remove this waste if on a highway or byway, but the cost of removing it to a private landowner is never considered and it is very difficult for them to resist this type of activity.

The other activity in which I was involved was taking evidence, particularly from the Food Standards Agency, on the passing off of horsemeat as beef and other meat. This is an ongoing activity. I pay tribute to Professor Elliott and others who have been heavily involved. I also pay tribute to the Food Standards Agency, and others agencies, which continues, as do local authorities—both environmental health officers and trading standards officers—to keep safe the food that we eat and ensure that, whatever we purchase, it is what it says it is on the tin or label. This is potentially a multi-million-pound fraud.

I have a simple question for the Minister: why are we seeking to extend the provisions of the Bill, in the terms set out by the noble Lord, Lord Paddick, in Amendment 63, to grant immunity from prosecution to bodies such as the Environment Agency and the Food Standards Agency? It would be perfectly proper for this action to be taken by any police force or the Serious Fraud Office. There was a problem with horsegate—the passing off of horsemeat as beef. I think it was the City of London Police fraud office that was asked to intervene, because no other body was deemed fit to have the wherewithal and capability to deal with that fraud.

I share the unease and anxiety of others who have spoken in the debate this afternoon. We are perhaps inviting unintended consequences and being a hostage to fortune by opening up to criminal activity those acting as authorising agents for CHIS to act on their behalf in bodies such as the Environment Agency and the Food Standards Agency. I would like to understand more the grounds for including these bodies and what activities will be covered.

To continue the theme, I am also deeply concerned that, in amending the Investigatory Powers Act 2016 to provide the exercise of these new powers to authorise criminal conduct falling within the statutory oversight duties of the investigatory powers provision, the secondary legislation that will be required will contain all the information and detail on the specific rank of officeholders within the bodies I have referred to who would be permitted to grant criminal conduct authorisation for the first time. I am very uneasy that this is not on the face of the Bill and that the detail will be provided in subsequent secondary legislation, albeit coming in very short order. I would much prefer that this is not included in such Henry VIII clauses in regulations; it should be in the Bill.

I support the main thrust of the provisions of the Bill, without a shadow of a doubt. However, I query many of the bodies included in the broader Clause (2) —in particular the Environment Agency and the Foods Standards Agency, which I have mentioned—and the fact that we are leaving so much to be decided at a later date; that concerns me greatly. I look forward to reassurance from my noble friend. These are intended as probing amendments.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack 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 Cormack (Con) [V]]

My Lords, I also think the amendment is clear, which is why I was glad to add my name to it. I would like to begin, however, by referring to the noble Baroness, Lady Chakrabarti. Anyone who knows anything of her work would not begin to challenge or dispute her integrity or motives. I am very glad that the noble Lord, Lord Rosser, made that plain even though he found items within her amendments with which he could not agree. That is a very honourable position to take.

The noble Baroness, Lady Chakrabarti, was very right to remind us at the beginning that we cannot take democracy or the rule of law for granted. She pointed to some of the events on the other side of the Atlantic, in the greatest of all democracies, that have disturbed us all. When you can have a position where the President of a country disputes the right of his successor to succeed him, and seeks to rabble rouse, we all have to take stock and realise that that could happen here. I do not think that it will, but we have to be very careful indeed. But, of course, it could not quite happen here—three cheers for a constitutional monarchy, where the head of state is totally removed from party-political considerations.

It is wrong that someone who suffers as a result of the actions of a CHIS—a horrible phrase—should not be properly compensated. It need not be a deliberately inflicted injury or wound; it could be the result of a car chase. We have all read in the last two or three years several accounts of people out innocently about their Sunday afternoon’s business of a walk in or to the park who have been killed or mutilated by someone driving a vehicle recklessly. Of course, it could happen even if the vehicle is not driven recklessly. I very much hope that my noble friend the Minister, when she replies, will be able to give us a good answer on this one.

Perhaps the answer lies in the acceptance, if not of this amendment, of Amendment 22, so clearly spoken to by the noble Lord, Lord Anderson of Ipswich. It would be quite wrong if the Bill goes on to the statute book without something in it to make it absolutely clear that people who suffer innocently are to be adequately compensated. Whether it is by means of the criminal injuries compensation board, as the noble Lord, Lord Anderson, suggested, or some other way does not matter so much. I favour his way, but it must be clear beyond any peradventure.

--- Later in debate ---

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I very much enjoyed the previous speech, which gave me much information about a great number of things. I thank the noble and learned Lord, Lord Thomas.

My noble friend Lord Dubs has set out the parameters of Amendments 5 and 23 and my noble friend Lord Rosser has made incisive comments on them. I will add just a few comments in support of my noble friend’s arguments. Basically, the issues in the amendments are covered in Chapter 7 of the Joint Committee on Human Rights report on CHIS, entitled “Adequacy of oversight mechanisms”—surely absolutely essential. The Joint Committee had several concerns about this part of the Bill.

First, the Bill does not suggest any independent scrutiny of criminal conduct authorisations before they are made and acted upon. Secondly, the process of granting CCAs will be kept under review by the Investigatory Powers Commissioner in the oversight of CCAs after the event. He or she will not be informed of the authorisations at the time they are made, so how can prompt scrutiny take place? It is worth repeating those points, which were made by my noble friend Lord Dubs.

The Joint Committee on Human Rights report quotes Sir Desmond de Silva’s report on the death of Patrick Finucane. He accepts as legitimate the running of agents within terrorist groups as at the heart of tackling terrorism but says that the

“agent-running must be carried out within a rigorous framework. The system itself must be so structured as to ensure adequate oversight and accountability.”

Those conclusions are consistent w\ith the requirements of human rights law. There must be effective safeguards against abuse. The question is: does the Bill provide that rigorous framework of oversight and accountability? The amendments query that. In its submission to the JCHR, the law reform and human rights organisation Justice said that the Bill is

“extremely limited in its oversight mechanisms”

and that its safeguards were “woefully inadequate”.

The draft code of practice published with the Bill describes how the CCA practice will operate. Only a designated officer within a public authority may make a CCA, and this must be made in writing unless urgent.

Oversight of the Investigatory Powers Commissioner —who must be a senior judicial figure, of course— applies to CCAs. The IPC has the powers to conduct investigations, inspections and audits, but these are oversight functions only. The IPC does not have the capacity to investigate every time a CCA is used. The IPC role is restricted to covering the use of the power to grant CCAs in the annual report to the Prime Minister. This can be redacted before going before Parliament.

Reprieve has said:

“Once more, the oversight powers in this Bill are far weaker than those operated by the UK’s intelligence partners. The FBI has repeatedly released details of the number of crimes committed by its agents as part of efforts to increase transparency over the use of this power.”


There is currently a lack of prior independent scrutiny or approval for CCAs, as described in the report of the Joint Committee on Human Rights. This contrasts with, for example, police search warrants and phone tapping.

The Bill requires amendment—and these amendments in particular—to remedy this lack of prior judicial approval for CCAs, with provision for urgent cases, and I strongly support Amendments 5 and 23.

[Lord Cormack (Con) [V]]

My Lords, for the second time today, I have the great pleasure of following the noble Baroness, Lady Massey of Darwen, and I am delighted to do so.

There seems to be a degree of consensus among those who have spoken so far. We all believe that oversight at a high level is essential. I have signed the lead amendment of the noble Lord, Lord Dubs, and I meant to sign Amendment 23, but something went wrong—it certainly must have been my fault—and his amendments offer one route forward. I have joined forces with my friend, the noble Lord, Lord Hain, the noble Lord, Lord Blunkett, and my noble friend Lady Wheatcroft to offer an alternative: the Secretary of State. I do not have terribly strong feelings as to whether the oversight should be judicial or conducted by the Secretary of State, but they could be complementary—they are not incompatible—and the excellent amendments of the noble Lord, Lord Anderson, are certainly not incompatible with Amendments 5 and 23, as the noble Lord, Lord Rosser, pointed out, having signed all three himself. When we are dealing with matters of life, death and the country’s security, we do not want what the noble and learned Lord, Lord Thomas, fears—fudge rather than clarity, as he advocated with particular clarity.

I have a suggestion, and I hope that my noble friend the Minister will take it seriously. She has been very kind in making officials available to many of us. I have much enjoyed the discussions I have had, which have mostly focused on young people being used as CHIS; we will come to that later in our debate. She has been very helpful, as the noble Lord, Lord Dubs, said. I would like her to talk personally to the noble Lords, Lord Anderson and Lord Dubs, probably on one of these ghastly Zoom calls where they can all talk together. The noble and learned Lord, Lord Thomas, and the noble Lord, Lord Hain, should also certainly be included. I would like to come out of this an amendment which the Minister can table and introduce at Third Reading, incorporating the best features of all the amendments before us this evening.

Oversight at a high level is essential to create public and parliamentary confidence. Whether that high level is judicial or the Secretary of State, I have a reasonably open mind, but it is important that we try to reach a consensus, so that the Bill commands parliamentary and public confidence and we do not have the sort of fudge the noble and learned Lord, Lord Thomas, feared but, instead, the clarity he so brilliantly advocated.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Cormack Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

I have informed the clerk that I intend to test the opinion of the House. I ask for noble Lords’ support on behalf of children who find themselves in this extraordinary situation—children of all ages, children who are already vulnerable, children let down by so many adults and institutions that should have offered them protection but did not. Let us not be counted among them.

[Lord Cormack (Con) [V]]

My Lords, it is a real pleasure to follow the noble Baroness, Lady Kidron. She spoke movingly, authoritatively and with passionate conviction, as did the noble Baroness, Lady Massey of Darwen, to whose amendment I added my name, and my noble friend Lord Young, who launched the debate on exactly the right note.

It was quite clear in Committee, when I tabled an amendment on this subject, that there was widespread concern in all parts of the House at the use of children. This is the single most serious aspect of the Bill. We are in fact being asked to pass into law something that in any other circumstance would be illegal. This conundrum was referred to by a number of speakers in the debates we had on Monday. Now we come to the nub of the matter.

I am grateful to my noble friend Lady Williams of Trafford for the attempt she has made with her amendment, but I agree emphatically with the noble Baroness, Lady Kidron, that it just does not go far enough. I am also grateful to my noble friend for affording me the opportunity of discussing this matter and my concerns in two hour-long meetings organised by Mr Arthur Lau in her private office. I am grateful to all those who took part. I was reassured on one or two issues. We will come to those at a later stage.

I was to some degree won over by the arguments of a senior police officer—clearly a man of unimpeachable integrity—who talked about the need to employ occasionally young people in tackling things such as county lines and sexual assault of young girls. He convinced me to some degree to table my Amendment 19, which would in exceptional circumstances allow 17 and 18 year-olds to take part as CHIS, but would draw the line at those aged 16. There are precedents for drawing the line at 16, such as the age of consent et cetera.

I am not sure whether I will put my amendment to the vote. It depends on what is said in this debate, particularly by my noble friend the Minister. There is a logic to the age of 16. It is a very sad fact that a great many crimes, many of them violent, are committed by 16 and 17 year-olds. Many of the stabbings in London and in other parts of the country have involved young people of that age and thereabouts. There is no point denying that county lines depend to a very considerable degree on the exploitation, manipulation and abuse of young people. I can see that there is a certain logic in using 16 and 17 year-olds in exceptional circumstances, much as I deplore and regret it.

However, I believe emphatically that the line has to be drawn somewhere. If it is drawn at 18 by the will of your Lordships’ House I shall be entirely content. If it is drawn at the age of 18 but with very real conditions attached, as they are in the amendment from the noble Baroness, Lady Kidron, I will be tolerably satisfied that we have made a step forward, but there is much to be said for being clear and emphatic, and for having a specific age in the Bill below 18 but not below 16 in any circumstances.

--- Later in debate ---

[Lord Dubs (Lab) [V]]

My Lords, I welcome the opportunity to speak to the amendment. I speak, of course, as a member of the Joint Committee on Human Rights, a position I share with my noble friend Lady Massey, and her amendment reflects very effectively the concerns of the committee about this issue—although the committee was, of course, also concerned by a whole range of other aspects of the Bill.

I can be very brief, but it can surely never be right for the state to authorise the gravest of crimes: torture, murder or extremes of sexual violence. That is the basis of this amendment, which I therefore fully support.

The Government have said that if we set limits on the offences to be covered by the Bill, that will risk that agents could be tested by the groups that they have infiltrated—in other words, that they would then challenge the CHIS, if they suspect them to be a CHIS, to commit one of those offences and therefore he or she would be revealed. As has already been said, other countries have the same safeguards: the United States, Australia and Canada. They already place express limits on the crimes CHIS can commit. If that works for the security services in Australia, the United States and Canada, it can surely apply to us.

The Government have said that the limits can be safeguarded by the Human Rights Act. Frankly, that is not certain at all. The Government have been hesitant about the Human Rights Act anyway, and I believe—the Minister may confirm this—that the Human Rights Act does not apply to abuses committed by agents of the Government. There is concern that this aspect of the Bill may be relevant to criminal conduct authorised overseas. That is a very dangerous situation indeed, and again I would welcome the chance to hear from the Minister whether or not that is so.

The Government produced comments on the report of the Joint Committee on Human Rights, and in particular said that we cannot go down the path of Canada, the United States and Australia because they are not under the European Convention on Human Rights and we are. That is not a straightforward argument. Canada has its own version of the European Convention on Human Rights and the United States has its own Bill of Rights, so it would be wrong to say that they are not protected by a human rights convention such as covers us. That is not a very good argument. In any case, in the United States, the FBI, as we are learning from the events of last week, has thousands of agents each year operating within terrorist and mafia groups which pose grave threats to the public, yet the United States places express limits on what crimes the FBI’s covert agents can commit.

The amendment is a proper one; it is a proper safeguard; it is something that those of us who believe in human rights would say ought to be there. We need the extra protection of the amendment: the Human Rights Act itself is not sufficient.

[Lord Cormack (Con) [V]]

My Lords, like the noble and learned Lord, Lord Hope of Craighead, I believe the amendment could be improved; nevertheless, like him, I support it. I support its basic principle. I support what the noble Baroness, Lady Massey of Darwen, said.

I was very glad the noble Lord, Lord Rosser, began by paying tribute to the police and those who keep us safe, following that splendidly spirited speech from the noble Baroness, Lady Manningham-Buller, on Monday, when she talked about the bravery of many who serve in the Secret Service. All that I endorse, but it cannot be right for the state to connive at the committing of heinous crimes: rape, murder or torture. I tabled an amendment in Committee specifically citing those crimes. When I saw the amendment of the noble Baroness, Lady Massey, on the Order Paper, I decided not to resubmit mine because she seemed to have covered it.

The noble and learned Lord, Lord Hope, made a wonderful forensic demolition of the Government’s citing support for resisting amendments such as this from the Human Rights Act. That really does not wash. I am bound to say that, in the various conversations I had with officials in the Home Office—I again thank my noble friend for making them possible—the only area where I felt the defence was very weak was in the opposition to an amendment along these lines. We have heard colleagues cite Canada and Australia, and again surely we cannot say that what has worked for almost 40 years in Canada without any apparent obstacle could not work here.

We are a civilised country that always proclaims its belief in the rule of law, the prime requirement of which is to defend all our citizens—hence this unpleasant but necessary Bill—and I submit to your Lordships that it would be completely wrong not to have a brake on the powers that a CHIS can be given. We have seen in the rather unpleasant stories that have come out in the recent inquiry, where women have been seduced when organisations that do not place the state in danger have been infiltrated, that things can get out of hand. I do not want to be part of any endorsement of the commission of murder, rape or torture. That is why, although I believe the amendment can be improved during ping-pong, if it is put to the vote, I will support it.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I now call the noble Baroness, Lady Chakrabarti.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. The nature of our hybrid proceedings allows us to see her beavering away almost by candlelight, keeping warm but still with us. We have not always agreed on this Bill, but she has been a stalwart scrutineer during these proceedings.

The various safeguards that noble Lords have tried to add to the legislation are a patchwork. One could be relaxed about dispensing with some if one had others. I personally would have been much more relaxed, even about this extensive list of agencies, but for not being supported by sufficient noble Lords on that vital constitutional issue of immunity, which I am afraid has completely changed the game on CHIS criminal conduct.

I hear the arguments about the need to protect the environment and the markets, and to protect gambling from corruption et cetera, but if such scandals and organised crime were so serious, the police could be engaged to assist a relevant agency or commission in appropriate cases. That is what happens with powers to enter and powers to arrest all the time. If there was not something special about trained Security Service officers or trained police officers, we would grant a whole range of serious powers to enter and arrest to many more state departments and agencies than we do.

I understand the argument about resources because the police are so pressed, but that is an argument for giving them the financial resources and personnel they need to engage in serious crimes, including those relating to unsafe food and so on. So, I support limiting the agencies in the manner suggested by Amendments 27 and 28. We should leave it to the trained police or the trained security agencies. I would include the National Crime Agency and the Serious Fraud Office, but not a whole host of state agencies and government departments; otherwise, there could be a serious constitutional concern and a great many scandals well into the future.

[Lord Cormack (Con) [V]]

My Lords, I first raised this issue at Second Reading and I tabled an amendment in Committee.

I very rarely disagree with my noble friend Lady McIntosh of Pickering, but the logic of her argument is that you cannot tackle crime without giving a multitude of bodies the opportunity to enlist people to commit crime. I just do not accept that. I have deleted the bottom five organisations in the list—the ones on which, as the noble Baroness, Lady Hamwee, said in her admirable introduction, people have focused most attention by asking, “Why are they there?”

I completely understand the argument about police forces and the National Crime Agency, et cetera. Having had conversations with officials in the Home Office and HMRC, I even understand the introduction of HMRC into the Bill, but, for the life of me, I just cannot see why, as the noble Baroness, Lady Chakrabarti, said a moment or two ago, police forces cannot deal with such bodies as the Environment Agency, the Food Standards Agency and the Gambling Commission.

Having a proliferation of bodies that are able to sanction people to commit crimes sends out a very bad signal. We take pride in our police forces and they should of course have the resources necessary to investigate all manner of crimes. People who commit crimes, whether within the orbit of the Environment Agency or the Food Standards Agency, should be brought to justice and punished if they are found guilty. But I just do not see a justification for this long list in the Bill. I very much hope that, when the Minister comes to reply, she will be able to convert and convince me, but I really do not think that she will. Whether I move my amendment to a vote will depend on what I hear, but I give notice that I might.

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, particularly as on this occasion, as quite often, I find myself in agreement with him.

When I listened to the noble Baroness, Lady McIntosh, I initially thought that there was something in her argument. Then I pondered again for a moment or two and decided that this was not an acceptable way of going forward, particularly as we could get into the position of mentioning a lot of other agencies and public bodies, all of which might have a similar claim to being included in the Bill as some of these have. It is going too far. When this issue got to the Joint Committee on Human Rights, we were quite puzzled by it all. I noticed that the media—certainly the national newspapers —had fun at the expense of the list.

I do not think that we can justify it. If we said that every public body had the right to be included in the list, that would be absurd. We should confine ourselves to bodies that deal with fighting serious crime and terrorism—major national and security issues. As I said, I think that this has gone too far. When I first heard about the list, I was not inclined to take it too seriously, but then I saw it on page 4 of the Bill. It does not seem to be a good idea, and I very much hope that we will pass one of the amendments that cleans up the list and makes it smaller and more sensible.