Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

57: Clause 1, page 3, leave out lines 10 to 16
Member’s explanatory statement
This amendment is tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, in moving Amendment 57, I will also speak to Amendment 74.

These two probing amendments are designed to explore how the Government plan to use their regulatory powers in the Bill. I am informed on this because I am the chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House. Along with the Delegated Powers and Regulatory Reform Committee—chaired by my noble friend Lord Blencathra—my committee has been concerned by the increasing use of skeleton Bills, where only the broadest frameworks are set out in primary legislation and all the practical details are left to regulation.

As a result, Parliament too often has only a general idea of what it may be approving when it passes the primary legislation. The Government may—they probably will—argue that all regulations have to be approved by Parliament, but Members of your Lordships’ House are well aware of the weakness of the scrutiny of regulations, which is that they are unamendable. The House is left with only what I call the nuclear option of complete rejection. Unsurprisingly, in these circumstances, neither House has felt able to press the button, except in the most exceptional circumstances.

Our two committees—my noble friend Lord Blencathra’s and mine—have written to Jacob Rees-Mogg, as Lord President of the Council and Leader of the House of Commons, to express our concern and make suggestions for improvement. Let me take an example from earlier debates in Committee. My noble friend the Minister and other noble Lords—notably my noble friend Lord King and the noble Lord, Lord Carlile of Berriew—referred Members to the revised code of practice as providing a reassurance against bad behaviour in the operation of CCAs. Indeed, the noble Lord, Lord Carlile, urged every Member of the Committee to read through the code. I followed the noble Lord’s advice and read it, all 73 pages of it. I agree that, at least to my untutored and inexperienced eye, it appears extensive and comprehensive, but its weakness is that it is made by regulation—in this case, Section 71 of the Regulation of Investigatory Powers Act 2000. So its contents depend on ministerial policy decisions and can be changed, at any time, by the tabling of an unamendable regulation.

I do not doubt for a moment the good intentions of my noble friends on the Front Bench, nor the good intentions of the Front Benches of the other parties in this House or the other place, but none of them will be in their seat for ever. Amendment 57 is designed to explore the risk of what I described in my remarks at Second Reading as “mission creep”, or, more specifically, how wide the room for manoeuvre is for a future Secretary of State using the powers available under Clause 1(5)(10) on page 3 of the Bill.

I pose three simple questions for my noble friend the Minister to answer when he replies. First, can the Secretary of State, under this clause, add to or remove bodies from the list of relevant authorities given on page 4 of the Bill? Secondly, is there any limit to the changes that the Secretary of State may make, under this clause, to the authorisation levels for CCAs, given in annexes A and B of the draft revised code of practice? This issue has been raised on a number of occasions, notably by the noble Lord, Lord Anderson of Ipswich. Thirdly, is there any limit to the changes that the Secretary of State may make to the purposes for which a CCA is sought? That was a discussion on Amendment 22. In particular, what is meant by “impose requirements” in line 13? That issue was raised by the noble Baroness, Lady Hamwee.

Before I finish, I turn briefly to Amendment 74. This poses the same questions for Scotland as Amendment 57 does for the rest of the United Kingdom, but there is one additional point of concern: whether, as a result of two systems existing, what is known as forum shopping can take place. Historically, in cases involving extradition, prosecuting authorities were in the habit of surveying the legal options open to them and picking the route, courts and jurisdiction that, on past experience and record, were most likely to give them a favourable result. As I see it, the two CHIS systems begin in identical form but, over time, can and probably must be expected to diverge. How far that will be is impossible to predict now, but the possibility of forum shopping emerges. Can my noble friend comment on the interchangeability of CCAs granted under Scottish law being used in the rest of the United Kingdom, and vice versa? I beg to move Amendment 57.

[Baroness Hamwee (LD) [V]]

My Lords, I am very glad that the noble Lord decided to probe these two provisions. I have seen the correspondence published by the three committees. I was struck when the noble and learned Lord, Lord Stewart, in responding to the previous group, referred to the code of practice having the force of law. I do not dispute that, but it is of course law that can be changed by government Ministers without coming to Parliament.

The point just made by the noble Lord, Lord Hodgson, about forum shopping is interesting. As he said, I have asked for assistance on the meaning of some terms during the passage of the Bill. I questioned what is envisaged by the terms “conduct” and “requirements”. I read both to restrict, rather than expand, the scope of what may be done. I would be grateful to have that confirmed or, if not, to understand why not. In short, we should not be expanding opportunities for criminal conduct authorisations without, at the very least, understanding exactly what we are doing.

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[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.

I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.

I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?

[Lord Stewart of Dirleton (Con)]

I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.

The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.

[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.

I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

75C: Clause 4, page 5, line 16, after “authorisations)”, insert “including—
(i) information on the number and types of criminal conduct authorisations requested and the number granted;(ii) whether these authorisations produced any operational benefits;(iii) any material damage or civilian harm incurred as a result of acts authorised”Member’s explanatory statement
This amendment is intended to probe the adequacy of information provided to Parliament on criminal conduct authorisations, and to probe how the efficacy of these authorisations will be evaluated.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.

The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.

During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.

First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.

My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.

Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.

My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.

To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.

[The Deputy Speaker (Lord Rogan) (UUP)]

The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.

My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).

I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.

Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.

Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.

I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.

Amendment 75C withdrawn.