Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Haskel Excerpts

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

[Lord Haskel (Lab) [V]]

My Lords, just over two years ago, it fell to me to voice the concerns of your Lordships’ Secondary Legislation Scrutiny Committee about extending the authorised time for which juveniles—young people—could be used for covert human intelligence work. Yes, this extension had been authorised in the form of an SI. Fortunately, your Lordships’ committee picked it up and the outcome was that the Minister provided a number of additional safeguards relating to the welfare, well-being and protection of those young people. Here we go again.

I congratulate the Minister on his maiden Speech and the other main speakers. As the Minister said, the Bill will allow young people to conduct criminal activity in pursuit of their intelligence work. As many noble Lords have said, once again, there is a need for better protection. I am grateful to Just For Kids Law, a charity that campaigns strongly for the rights of juveniles caught up in covert activities. It fought for amendments to the code of practice and is active again in preparing amendments to the Bill. Those amendments would ensure that better protection, such as providing for an independent individual who will ensure that the safeguards in the Bill work in practice, and seeking to address the inevitable power imbalance that exists between a juvenile and the police, and the 13—yes, 13—other public authorities who have demonstrated an operational need for this activity.

In her letters of 27 October and 11 November, the Minister justifies this criminal conduct in carefully managed circumstances. She says that the Bill provides additional safeguards for juveniles and strengthens the code of practice. However, it is a code. Does it really have the force of law? She says that juveniles will be authorised to act in only the most exceptional circumstances, with their consent. Is it really informed consent, not just pressure? She assures us that safeguards are in place to promote the best interests of the juvenile. I put it to her that the best interests of the juvenile is not to be involved in criminal activities in the first place. Other noble Lords have reminded us that Article 3 of the UN Convention on the Rights of the Child, to which we are a signatory, states that the best interests of the child shall be a primary consideration. It seems to me that the primary consideration here is security and catching the criminal, even if the child risks being corrupted.

Therefore, before we start debating amendments in Committee, I ask the Minister, do we really want juveniles to be authorised to carry out this criminal activity, even under the strictest supervision? As the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Bull, and others have suggested, are we not making a victim of the juvenile, bearing in mind the risk of violence and sexual assault, the emotional and associated mental, physical and psychological damage, and the risk of corruption, which will damage them well into their adult lives. To some, it would appear that these young people are being exploited by our public authorities, leaving it to the rest of us to clear up the mess.

This is not a party-political matter. As many noble Lords have said, it is a human rights matter and a rights of the child issue. In view of all those concerns and in spite of the need, will the Minister consider stopping the use of children in this criminal activity? Then we will not have to argue over safeguards for them.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Haskel Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

With that explanation, I hope that the noble Lord, Lord Dubs, will withdraw his amendment.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, I have had six requests to speak after the Minister, from the noble Lords, Lord Hain and Lord Blunkett, the noble Baroness, Lady Manningham-Buller, the noble Lord, Lord Marlesford, the noble Baroness, Lady Whitaker, and the noble Lord, Lord Paddick. I call the noble Lord, Lord Hain.

[Lord Hain (Lab) [V]]

My Lords, I thank the Minister for her typically courteous and thoughtful response, particularly her offer to talk to a number of my noble friends and other noble Lords about possible oversight that would be acceptable to the Government. Could she look again at Amendment 15? I and my noble friend Lord Blunkett worked very closely with the Security Service, in my case when I was Secretary of State for Northern Ireland—including with the noble Baroness, Lady Manningham-Buller—GCHQ, and, when I was in the Foreign Office, with MI6. I have authorised warrants, as I have explained, for vital work in surveillance and interception, and worked with undercover officers.

I appeal to the noble Baroness to meet my noble friend Lord Blunkett and myself informally to discuss the terms of Amendment 15, because it is very practical. It can happen in real time; I have been involved in authorising warrants in real time, including one on Islamist bombers planning to attack London when the operation was live. So, it does deal with her point. It is practical; in some respects, it is the most practical of all these oversight measures. It would give greater legitimacy to and authority for the deployment of undercover officers for the purposes that she is quite properly seeking. They can play vital roles in combating terrorism, for example. I ask her to look again at this and perhaps meet us to discuss it.

--- Later in debate ---

Amendments 12 to 15 not moved.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

We now come to the group beginning with Amendment 16. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in the group to a Division should make that clear in the debate. I inform the House that if Amendment 16 is agreed to, I cannot call Amendment 17.

Amendment 16

Moved by

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, I am pleased to follow the noble Baroness, Lady Jones of Moulsecoomb. I support and will speak to Amendments 17 and 72 in the name of the noble Lord, Lord Anderson of Ipswich.

I am sure that my noble and learned friend will be taken back to his law school days, as I have been, by the discussion of what is reasonable and what is the test of reasonableness in any given circumstances. I prefer Amendments 17 and 72 to Amendment 16 and others; I hope that, if they are pre-empted, this can be resolved on Report.

I entirely support what the noble Lord, Lord Anderson of Ipswich, said. He has gone through the draft code of practice, as he was invited to do by the Minister. I especially support his argument that the code is missing from the Bill. It is not sufficient as an understanding: I want to see it in the Bill in the circumstances that the noble Lord set out, in both the English and Scottish versions.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

The noble Lord, Lord Judd, has withdrawn so I call the noble Lord, Lord Thomas of Gresford.

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

My Lords, the first issue to consider is the identity of the person who grants the prior authorisation. The starting point is Section 30 of RIPA, now to be amended by Clause 2 of the Bill. It is for the Secretary of State, by regulation, to specify the persons holding such offices, ranks or position within the relevant public authority as to who will exercise the power to authorise. In addition to the police forces, the National Crime Agency and the intelligence services, the public authorities designated already include the Home Office, the Ministry of Justice and a variety of other authorities, as we have discussed.

The list of designated authorities, however, is not final since Clause 2(8) gives power to the Secretary of State to add more public authorities—subject, of course, to the approval of Parliament by the affirmative procedure. It is clear, therefore, that authorisations may be given by people with varying backgrounds and experience, with varying or no training in matters of this kind. If the subjective belief of one of a large number of unidentified people is sufficient to authorise an individual to commit crime, that places in the hands of the authorities an unusual and dangerous power.

What is it that the authoriser has to believe? They have to believe that the authorisation is necessary and proportionate in the interest of three things: national security, preventing or detecting crime or preventing disorder, or the economic well-being of the United Kingdom. There are varying views as to what is in the interests of the economic well-being of the United Kingdom. I have no doubt that the individuals who authorised events during the miners’ strike—the unions, as advised by the noble and learned Lord, Lord Morris of Aberavon, as he told us, on the one hand, and the Home Secretary on the other—had diametrically opposed opinions on where the economic well-being of the country lay and on what was necessary and proportionate. The noble and learned Lord, Lord Morris, was on one side; I myself was engaged in the prosecution of the two miners who killed a taxi driver with a concrete block.

One of the dangers we must bear in mind is that the Bill might solely conjure up a picture that it applies only where well-trained operatives are under the control of senior security officers to go out and fight the baddies. That is the picture painted by the noble Baroness, Lady Manningham-Buller. However, as my noble friend Lord Paddick made clear from his considerable experience, these authorisations are much more frequently to be given by a middle-ranked police officer—an authoriser, if you like—or perhaps an authoriser from the Inland Revenue or one of the other designated authorities. These authorisations are given to criminals with a chaotic life who are seeking for their own purposes to ingratiate themselves with authority either for personal gain or to avoid the consequences of their own criminal activity. That is why it is essential that the test of necessity and proportionality should be objective. If it is subjective, it allows an irresponsible official to follow their own course, perhaps—as my noble friend Lord Paddick suggested—corruptly or, through an excess of zeal, to chase their own hobbyhorse or their own dislike, for example, of striking miners or protestors against road or rail development, squatting up in trees. Indeed, they might dislike members of the Green Party, as the noble Baroness, Lady Jones, has reminded us. An objective test is a check that encourages systems of scrutiny, of consultation and of records—the recording of the reasons for the authorisation being given.

Amendments 17 and 71 in the name of the noble Lord, Lord Anderson, introduce the concept of reasonableness, which is certainly consonant with an objective test. Amendment 19, in the name of the noble Lord, Lord Rosser, deems the test set out in the code of practice, lauded by both my noble friend Lord Carlile and the noble Baroness, Lady Williams, to be necessary reading. Why should the public not read it in the Bill? Why should it not be in the Bill from the point of view of the courts and the juries that might try cases arising under it?

Amendments 32 and 33, in the names of my noble friends Lady Hamwee and Lord Paddick, insist that these tests should not be in any way weakened. This group of amendments conveys the same message that necessity and proportionality are not to be judged by the inclination and values of a shadowy and undefined figure. I hope that on Report, we can consolidate in order to improve this Bill.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

The noble Lord, Lord Cormack, and the noble and learned Lord, Lord Morris of Aberavon, have withdrawn, so I now call the noble Lord, Lord Rooker.

As the noble Lord is not responding, I call the noble Lord, Lord Mann.

[Lord Mann (Non-Afl)]

My Lords, I will speak to a number of these amendments simultaneously, using a different word to the thematics that have come through, but with the same purpose. The word that I refer to is “competence”: the competence of decision-making, and whether the legislation, in the view of the Minister as well as the Committee, is sufficiently precise in ensuring it. We have heard words such as corruption—that is very important—and concepts of reasonableness, which are also important.

I can recall when I and other trade union colleagues had suspicions about an individual who we thought was acting rather strangely over a period of time. He was observed selling Nazi memorabilia in London Bridge Station on a Saturday morning—not a normal activity for trade unionists, even in those days. We were suspicious, and he suddenly moved on. I had a sharp thought that I would handle his pension because it was an accrued pension entitlement that was to be transferred. Rather than leave it to the finance people, who would have handled it in a very financial way, I made the calls myself. I was fairly certain that he was not who he said he was, and that for some reason he decided to look into the heart of moderate trade unionism. The question that it begged to me, rather than being a question of principle, was what a waste of resources it was—what incompetence.

I found later that I was on the Economic League blacklist. I found out why by a fair amount of research. I looked into the case of the—I think it is fair to say—loud-mouthed communist, the very good actor Ricky Tomlinson, whom I got to know over the years. He was stitched up for being an industrial activist for no good democratic reason. He was a communist without any question and he was loud-mouthed, but he was participating in a perfectly normal way in our civil society, and yet he was stitched up.