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.