Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

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

[Lord Mann (Non-Afl)]

My Lords, I join the welcome and congratulations to the Lord Advocate for Scotland and the noble Lords, Lord McLoughlin and Lord Walney. I thank the noble Lord, Lord McLoughlin, for the way in which he gave me and others support when we were under pressure at the height of the issues of anti-Semitism in the Labour Party. I acknowledge that what he said in private was far more significant than what he said in public. The noble Lord, Lord Walney, stood on the right side when he did not have to, and took a brave stance. He supported Jewish members of the Parliamentary Labour Party and Jewish Members of the Labour Party. That will not be forgotten, and I thank him.

There have been a number of changes since the 1970s and 1980s. We are no longer fighting countries and armies under rules of engagement in war. We have human rights legislation that we did not have before. Those are significant changes. Since 1997, the strongest trade union organisation in the country is at GCHQ. Being a trade unionist and being loyal to one’s country are not contradictions. The density of membership there is a sign of that. It is part of the checks and balances in the system that makes it work.

We are now in a digital era, which changes many things. In many of the issues that we are talking about today, we are missing the mundanity of the actions that will be required outside the law. Some of the models are rather old-fashioned in terms of approach to what is going on. The mundanity is important to the effectiveness of the powers required.

I particularly want to talk about what happens if we do not do this, as the noble and learned Lord, Lord Garnier, eloquently pointed out. We go back to the grey area that existed in the 1970s, 1980s and 1990s —the shadows, as it was described. What characterised that more than anything was the incompetence of the actions taking place. Nothing could illustrate that better than putting people inside the International Marxist Group or, as we used to call them, the sons and daughters of the bourgeoisie. The only revolutionary thing that that organisation ever did was when some of its members accepted a peerage to come into this place.

The incompetence of the grey area was not in the national interest. There is a worse example. The Economic League sums up the grey area, the shadows and the incompetence. I should know: I was on the Economic League blacklist. When I went to work for the Ciba-Geigy chemical company in Manchester, I got given a job that was then withdrawn because I was on the list. I managed to get hold of the list and found my name on it. That is what happens with a grey area.

The Bill does more than codify; it allows accountability. It does not mean that things will not go wrong and there will not be big issues—there could well be—but it gives us, the people and the victims, the power to do something about it. The grey area is not an option. I want to see the Bill go through.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Green of Deddington, will not be speaking in the debate so we will move straight on to the noble Baroness, Lady Whitaker.

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[Baroness Whitaker (Lab) [V]]

Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I offer my congratulations to the three noble Lords, including the Minister, on making their maiden speeches today.

I am afraid I cannot give the Bill approval because it provides people employed by the Government with immunity for carrying out murder and heinous crimes. In fact, it would give statutory effect to legalised criminal offences committed by informants, provided that MI5, the Police Service of Northern Ireland or other UK law enforcement bodies have authorised the informant to commit the crime in advance. I understand that this is known as criminal conduct authorisation.

There are also no express limits set out in the Bill to prohibit informants’ participation in particular crimes that would constitute human rights violations such as murder, torture including punishment beatings, punishment shootings and kidnapping, or acting as agents provocateurs. I think back to the use of agents in paramilitary murders in Northern Ireland. This goes to the very heart of the legacy issues that the Government are currently considering and their very unhelpful Statement of 18 March.

There is a concern that, in addition to criminal conduct authorisations making criminal acts by informants “lawful for all purposes”, the extraterritorial provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply, namely that:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


This would mean, for example, that MI5 could authorise from its Belfast base a serious criminal offence to be conducted by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but, clearly, this would not change an act being a criminal offence—[Inaudible.] The noble Lord, Lord Dubs, referred to the murder of Mr Finucane in all these regards. I must ask the Minister some questions. Were the Irish Government consulted on the content of this legislation and on the fact that this proposed activity could take place in their jurisdiction? Were they asked if this would impact on their own police service—the Garda Síochána? Did the Prime Minister discuss this with An Taoiseach when he met him in Hillsborough earlier this year?

It is important that significant amendments are made to this Bill to ensure that the UK’s prosecuting authorities can independently review crimes—[Inaudible.] —and remove the power for MI5 and other public authorities to brand crime “lawful for all purposes”. I cannot accept the extraterritorial nature of this because it places an impact on the bipartisan rule of Britain and Ireland in terms of Northern Ireland.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I understand that we are still not able to return to the noble Baroness, Lady Whitaker; once her microphone is corrected, we will attempt to do so. We will move straight on to the noble Lord, Lord Sikka.

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[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We have ironed out the gremlins with the noble Baroness, Lady Whitaker, so we will return live to her.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am sorry, Lady Whitaker. We will try and return to you if we can find a microphone that works. We will go straight on to the noble Lord, Lord Judd.

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[Baroness D’Souza (CB) [V]]

Most of what I wanted to say has been said, and eloquently said. I will merely emphasise two points before I metaphorically sit down. The Government justify the absence of limits on the potential criminal activity that the Bill enables by saying that to do so might serve to expose active agents. Furthermore, HMG argue that there is no need to include such limitations in the Bill, as has been the case in similar legislation in Canada and the USA, on the basis that the UK is party to the European Convention on Human Rights, which is incorporated in the Human Rights Act 1998, and is therefore bound by the terms of the convention. However, at the same time and in almost the same breath, the Government said, in legal filings, that they do not believe that covert agents should be bound by the terms of the Human Rights Act. Additionally, since the Human Rights Act specifically precludes murder, torture or other degrading behaviour, which surely covers sexual violence, the argument that naming limits might endanger agents rather falls to the ground. Will the Minister clear up these ambiguities?

Secondly, the Bill relies heavily on oversight by the Investigatory Powers Commissioner, the right to lodge any complaint with the tribunal and additional oversight —oh, I fear I have lost my text. Forgive me. What I was going to say is basically that dependence on the Investigatory Powers Commissioner, when there are no fewer than 14 authorising authorities bound to ensure that any criminal activity undertaken must be proportionate, necessary and at the lowest level possible to achieve the aims of the particular operation, is surely too much to ask. One could rely on the ISC, but we all know that too often the ISC has not received full or timely information to fulfil its function, and the tribunal itself will obviously take place after the criminal act has been committed. For that reason, I ask the Minister to clear up what seem to me to be ambiguities.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We are going to make a final attempt to return to the noble Baroness, Lady Whitaker. We hope that, on this occasion, the gremlins have finally been removed from the system.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

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

Lastly, Amendment 14 talks about a judicial commissioner. I am none too sure, as we discussed the last time we debated this Bill, whether the judiciary is ideally placed for some of these decisions. At this point, I am going with the Minister. I will listen carefully, but let none of us forget that whatever actions are taken are often taken in the interests of society, given the danger from terrorism and all that area of life.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The noble Lord, Lord Mann, has scratched from the debate, so the next speaker is the noble Baroness, Lady Bull.

[Baroness Bull (CB)]

I rise principally in support of Amendments 12 and 13. My strong preference would be for these straightforward amendments, which would prevent all use of children and vulnerable adults in the way the Bill proposes to allow. If the noble Lord, Lord Young of Cookham, presses this, I shall vote with him. If the House cannot align behind this absolute position, I shall support Amendment 24, so effectively argued by the noble Baroness, Lady Kidron.

I have heard nothing in previous stages of the Bill to convince me to drop my fundamental opposition to the use of children as covert intelligence sources, and certainly nothing to persuade me that this further expansion of their use in authorised criminal activities should be allowed. Encouraging children into criminality to serve the ends of the law stands in direct opposition to what should always be our priority, which is to extract children and other vulnerable people from situations and relationships that promote criminality. It also contravenes existing child protection laws, including the UN Convention on the Rights of the Child. As the noble Lord, Lord Young, said in his as ever excellent speech, they make it clear that a child’s best interests must be a primary consideration in all decisions regarding that child. As the helpful joint briefing that many of us received from Just for Kids Law, Justice and the Children’s Rights Alliance for England points out, if a parent were knowingly to place a child in a dangerous, criminal situation, the law would rightly take action to remove that child to a place of safety. Yet that is exactly what the Bill authorises the law to do.

We also know, as the noble Baroness, Lady Kidron, so forcefully reminded us, that the children most likely to be recruited as covert sources are already among the most vulnerable, at risk of being targeted by criminal gangs and more likely to come from disadvantaged backgrounds, to live in deprived areas, to have fewer opportunities and to have suffered from trauma, substance misuse, mental health issues and learning disabilities. These children need the law to protect them, not to exploit them.

Nor have I heard anything to persuade me that the value of children’s covert activities would be such that it overrides these moral concerns. In fact, there is good evidence to the contrary—that teenagers are not particularly effective covert sources, because of the status of their neurological development. As the brain develops into adulthood, the connections between the rational and emotional parts of the brain grow stronger and more effective. But in teenagers, this process is still under way, and adolescents process information with the part that deals with emotion. That is why teenagers are more likely to act not on the basis of reason but on instinct; it is why they are more likely to engage in risky behaviour and less likely to consider the consequences of their actions.

Added to this, most young people involved in gangs and drug supply are themselves regular users, often because they need to fit in with a prevailing drug culture. Drug use also impacts on brain development, delaying further the development in the connections between the logical and emotional parts of their brains. So alongside the moral question of whether it can ever be right to encourage children into situations of criminality, we have to set an equally serious consideration about the accuracy, consistency and completeness of any information they are likely to provide. In this case, as in so many, the end result does not justify the means.

Amendment 13 would prohibit granting of criminal conduct authorisation to vulnerable individuals, victims of modern slavery or trafficking. I have raised at previous stages the concern of Anti-Slavery International: people who have been trafficked or enslaved are unlikely to be able to give informed consent, because of the experiences of manipulation and control they have endured and the long-term psychological implications of this on their ability to take independent decisions. This amendment would give vulnerable and already traumatised people the protection that they deserve. Alongside this, however, I would welcome a commitment from the Minister to address the omission from the code of practice of any reference to mental capacity and the specific issues to be taken into account when dealing with individuals with impaired decision-making capacity.

The Government’s own Amendment 26 seeks to introduce safeguards to the granting of criminal conduct authorisations to children used as CHIS. However, as we have heard—I shall not repeat the reasons—this amendment falls short of addressing the concerns expressed by this House. It largely reiterates existing safeguards and still fails to ensure that 16 to 17 year-olds and vulnerable adults have access to an appropriate adult at all meetings.

Amendment 24 would place protection for children, victims of modern slavery or trafficking and vulnerable adults on a statutory footing. These are some of the most vulnerable people in our society. Their protection needs to be enshrined in law and, if the noble Baroness, Lady Kidron, decides to divide the House, I will be voting with her.

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We discussed this issue in great detail in Committee, and my right honourable friend James Brokenshire and I have had a lot of conversations since then. Noble Lords have also had the opportunity of sensitive briefings from operational partners. In response to the points made by noble Lords, the Government have put forward significant amendments that, importantly, still ensure operational workability. I urge all noble Lords to support the amendments put forward by the Government. However, if a noble Lord wishes to test the opinion of the House on a further amendment, they should do so now.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received requests to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, due to a mistake I have made, I am not able to participate. My concern is the possible difficulty of preventing criminal communications with children.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Short and sweet. The next speaker is the noble Lord, Lord Russell of Liverpool.

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Amendments 13 and 14 not moved.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We now come to the group consisting of Amendment 15. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press the amendment to a Division must make that clear in debate.

Amendment 15

Moved by

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Duncan of Springbank Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Finally, just before I stood up, I noticed a message from my right honourable friend James Brokenshire. I note the comment from the noble Lord, Lord Russell of Liverpool, and I shall certainly send his regards. I want to thank him for the way in which he has worked with me and other noble Lords to ensure that this Bill has left this place in a very good state.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.

[Lord Adonis (Lab)]

My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?

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[Baroness Williams of Trafford (Con)]

I beg to move.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.

Motion B1 (as an amendment to Motion B)

[Baroness Chakrabarti]

Moved by

Leave out “not”.