Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hendy Excerpts

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

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is a privilege, if not somewhat intimidating, to follow my noble friend Lady Kennedy of The Shaws. But it does give me the confidence to believe that some of the points I am making are probably accurate and worthy of consideration.

We have been told that the purpose of the Bill is to bring the operation of CHIS out of the shadows and put existing practice on a clear and consistent statutory footing. This Bill, however, goes much further than existing practice by allowing prior immunity. The current regulation on “Immunity from Prosecution” in Section 71 of the Serious Organised Crime and Police Act 2005 states that

“immunity notices can only be granted in respect of offences which have already been committed.”

There are many reasons why immunity should only be applicable to offences already committed, and we have not been given convincing reasons why this should change. There are occasions when it is in the public interest not to prosecute someone for a crime they have committed, but that does not change that there was a crime and, almost certainly, a victim. The Bill changes that: by giving prior immunity, it makes what in other circumstances would be a crime no longer a crime. The effect of issuing a CCA will commit the action of an undercover operative to

“be lawful for all purposes.”

There are some principles in law that even a lay person like me can understand. One of them is the rule of law, which the Oxford English Dictionary defines as

“the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

If this Bill becomes law in its current state, it will undermine that basic principle.

As the noble Lord, Lord Paddick, pointed out, some of the amendments in this group attempt damage limitation by mitigating the effect of granting prior immunity. They should be supported, but the key amendments are Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick, who have all spoken persuasively on them.

I think we can predict that, if the Bill goes ahead in its current state, there will be public inquiries in the years to come into the behaviour that it will have permitted, and they will reveal even more horrific stories than those being exposed in the current Undercover Policing Inquiry.

No one is denying that undercover activities are necessary, and that they will sometimes involve using criminals, but that makes it even more important that their actions are constrained rather than given carte blanche. Those of us who are concerned about this are not being awkward or indulging in conspiracy theories; our concerns are based on the actual experience of undercover activities that have resulted, at the most extreme, in murder and rape and, quite commonly, in the destruction of innocent people’s lives. I asked the Minister at Second Reading and again in Committee—and I ask it again today—whether she can give an example of when an undercover operative has been prosecuted after receiving legitimate authorisation.

If we were to read in the daily papers that the director of Amnesty International was hugely worried about a Government introducing deeply dangerous legislation that gave disturbing powers to their secret service, I am sure we would all be concerned and wonder which totalitarian regime she was talking about. However, that is what she said about this legislation going through our own Parliament. These two simple amendments would stop that happening and I will support them in a Division.

[Lord Hendy (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Bryan, in supporting Amendments 1 and 2, moved by the noble Baroness, Lady Chakrabarti, a woman of unimpeachable integrity, as the noble Lord, Lord Cormack, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Kennedy of The Shaws, have pointed out. I do not overlook the other signatories to the amendments: the noble Lord, Lord Paddick, who put a case which appears irrefutable, and the noble Baronesses, Lady Ritchie and Lady Jones, who made powerful speeches, as did the noble Baroness, Lady Chakrabarti. My position is that, unless the amendments are passed or accepted by the Government, I shall have no alternative but to vote against the Bill. This is not a matter of petty factionalism, as was disgracefully suggested in a newspaper today; it is a matter of conscience.

Like the noble Baroness, Lady Kennedy of The Shaws, I cannot support a Bill which gives the state the power to grant immunity for crimes to be committed in the future by agents on its behalf. Such immunity is contrary to the rule of law. The rule of law prescribes that all are bound equally to observe it, not least the criminal law. Giving the state the power to exempt its agents prospectively from criminal law is the antithesis of this fundamental principle.

I accept, of course, that every state necessarily deploys undercover agents to protect itself and, indeed, the rule of law. I accept that, in the course of their work, it may be necessary to break the law, including criminal law, but I cannot accept that state agents should be given prospective immunity to do so, no matter how senior or judicial is the person who authorises that criminal conduct.

The evil here is the prospective immunity to be granted, based only on an assessment of possible future situations. A decision to prosecute or not should be made only retrospectively, when the facts and circumstances of the criminal conduct are known. This is the status quo and, as far as is known, it has worked perfectly satisfactorily, as the noble Lord, Lord Paddick, demonstrated.