Undercover Policing

Lord Herbert of South Downs Excerpts

Wednesday 13th June 2012 Westminster Hall

[The Minister for Policing and Criminal Justice (Nick Herbert)]

May I say what a surprise, but nevertheless what a great pleasure, it is to see you in the Chair, Mr Davies? I congratulate the hon. Member for Brighton, Pavilion (Caroline Lucas) on securing the debate. I am grateful to her for raising some of these issues, because it gives me an opportunity to set out the Government’s response. I recognise that the issues she has raised are serious.

Undercover operations are sometimes necessary to protect the public and to prevent or detect crime. We should commend the difficult and often dangerous job performed by undercover officers. However, in the light of recent cases and concerns, including those raised by the hon. Lady, it is right to ask two principal questions that we must be able to answer with confidence. First, is there a system for ensuring that the use of police undercover deployment is consistent with human rights legislation, particularly the right to privacy and the right to a fair trial? Secondly, is the system working sufficiently well for the particular type of undercover deployment that has led to concerns, or do we need to take action to improve it and ensure that it provides the required assurance?

Before I consider those two fundamental questions, it is important to point out that the deployment of Bob Lambert, a case raised by the hon. Lady, took place in the 1990s, before the Regulation of Investigatory Powers Act 2000—or RIPA, as it is known—was implemented. RIPA is the legislative framework that enables police and other public authorities using covert human intelligence sources, such as undercover officers, to ensure that they act in compliance with their duties under the Human Rights Act. A “covert human intelligence source” is the label used by the legislation to describe anyone who establishes or maintains a relationship for a covert purpose. That applies to a member of the public who comes forward to volunteer information about someone and who is asked by a public authority to find out more. It applies to a public authority test purchaser who engages the confidence of a supplier to buy illicit goods. It also applies to a member of a law enforcement agency who goes undercover to infiltrate and to pass intelligence back to that agency about an organisation planning disruption or criminal acts.

[Mark Reckless]

Will the Minister clarify whether RIPA also applies to ACPO’s responsibility for an undercover officer and its status as a private company? Moreover, did ACPO have any involvement in the Lambert case, or did it become involved only in later operations?

[Nick Herbert]

I will clarify that point later, but my understanding is that the accountability lies with chief constables, not ACPO. I am aware of and share my hon. Friend’s concern about ACPO and its status. I hope and believe that it will be addressed, but if there is anything further to say about the matter, I will write to him.

[Mark Reckless]

I am thinking in particular of the environmental protests at Ratcliffe-on-Soar, where it emerged that ACPO was responsible for the management of undercover officers. I am delighted that, since then, Ministers have ensured the transfer of the powers involved to the Metropolitan police.

[Nick Herbert]

My hon. Friend is correct about the responsible unit, and that important change has enhanced accountability.

RIPA applies to each of the instances that I have mentioned, because the true nature of the relationship, which involves reporting back covertly to a public authority what has been said or done, is hidden from the other person or people being talked to. In every case, RIPA requires that authorisation is given only if it is necessary and proportionate. RIPA sets out who can make a decision to deploy a covert source and for what purpose the deployment might be made. RIPA codes of practice provide practical guidance on how best to apply the regulatory framework and how to observe the human rights principles behind authorisations. External oversight and inspection are provided by the chief surveillance commissioner, and independent right of redress is provided by an investigatory tribunal for anyone who believes that they have been treated unlawfully.

That is the system, which was not in place when Lambert was deployed, but does it work? The published annual reports of the chief surveillance commissioner indicate that, in the main, it does, but that has not always been the case. That was shown graphically by the independent report produced by Her Majesty’s inspectorate of constabulary earlier this year on the deployment of undercover police officer Mark Kennedy. It showed that there had been failings in the application of the existing system and safeguards, but it went further by making a number of recommendations for ACPO to strengthen both internal review and external quality assurance of undercover officers deployed against domestic extremism. It also invited the Home Secretary to consider the arrangements for authorising the undercover police operations that present the most significant risks of intrusion. In particular, it proposed raising the internal level of police authorisations for the long-term deployments of undercover police officers under RIPA, and establishing independent, external prior approval by the chief surveillance commissioner for long-term deployments of undercover police officers.

The Home Secretary welcomed the HMIC report, and since its publication the Home Office has been working with the inspectorate, ACPO, the chief surveillance commissioner and others on how best to implement its recommendations.

[Caroline Lucas]

I am grateful to the Minister for setting out the situation as he sees it, but does RIPA allow undercover police to have sexual relationships with those they are trying to infiltrate? That is one of the points at issue: some say that it does and some say that it does not.

[Nick Herbert]

I will try to respond to the hon. Lady’s question before the end of my speech.

One factor is how we target the type of deployment that causes concern, without imposing an unnecessary or burdensome bureaucracy across a much wider field where the regime may be said to be working as Parliament intended. We need to ensure that we do not deter members of the public from coming forward to help the police in what can be difficult work. We also need to make sure that officers charged with sensitive, intrusive and dangerous policing in the community are given the support and protection they require. Above all, we need to avoid the mistakes identified in the HMIC report being made again. Our response, when we make it, will have that uppermost in mind.

On the hon. Lady’s call for a public inquiry, the independent HMIC review looked at the broad issues raised by the Kennedy case, and made clear recommendations as to how the system should be strengthened—a system that was not, in any case, in place when Lambert was deployed. We are considering our precise response to those recommendations. I do not think that it is necessary to conduct a public inquiry.

The hon. Lady raised a number of specific issues, one of which was whether RIPA can be used to authorise a covert human intelligence source to break the law. In a very limited range of circumstances, an authorisation under RIPA part II may render lawful conduct that would otherwise be criminal, if it is incidental to any conduct falling within the Act that the source is authorised to undertake. That depends, however, on the circumstances of each individual case, and consideration should always be given to seeking advice from the legal adviser of the relevant public authority when such activity is contemplated. A covert human intelligence source who acts beyond the limits recognised by the law will be at risk of prosecution, and the need to protect the covert human intelligence source cannot alter that principle.

The RIPA statutory guidance does not explicitly cover the matter of sexual relationships, but it does make it clear that close management and control should be exercised by the undercover officer’s management team. That will be a relevant factor. The absence of such management gave rise to concern in the Kennedy case.

[Caroline Lucas]

Does the Minister agree that that sort of fudged, grey area means that for women who have had such an experience, and for women and, indeed, men who might have such an experience in the future, this is incredibly unsatisfactory? We simply do not have clear guidelines on whether the action and going that far are legitimate, and that undermines confidence in the system. The Minister has referred to other inquiries that have been conducted, but what has not been conducted is a public, overarching inquiry to consider all the relevant areas.

Moreover, the Minister’s response to the case of Bob Lambert is extraordinarily complacent. Yes, RIPA was not in place at that point, so there can be no criticism that its guidance was not followed, but what is the Minister going to do now, given that the issue is in the public domain and that there could have been serious miscarriages of justice? How will he follow up on that case in particular?

[Nick Herbert]

I am happy to pursue the matter further with the hon. Lady, if she likes, but I am not persuaded that it would be appropriate to issue specific statutory guidance under RIPA about sexual relationships. What matters is that there is a general structure and system of proper oversight and control, rather than specific directions on behaviour that may or may not be permitted. Moreover, to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them. Specifically forbidding the action would put the issue in the public domain and such groups would know that it could be tested.

The Government are certainly not complacent about the Lambert case. We were keen for an independent, wider review of the deployment of undercover officers by HMIC, which is now independent of the Government and reports to Parliament. We are satisfied that its recommendations will further strengthen the proper system of safeguards for the deployment of undercover officers that did not operate when Lambert was deployed.