Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB) [V]]

My Lords, I congratulate the noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord McLoughlin and Lord Walney, on their excellent maiden speeches. I had the pleasure of welcoming the noble and learned Lord, Lord Stewart, in my capacity as lord president on the very threshold of his career at the Scottish Bar when he was admitted to the Faculty of Advocates in 1993. He has come a long way since then, further than we would have dared to contemplate on that day. It is a real pleasure for me to welcome him once again and to wish him well now that he takes on his new responsibilities as Advocate-General for Scotland.

It has occurred to me, as I have been reading and thinking about the Bill and the dangerous nature of the activities that it refers to, that I have led a very sheltered life. I have not been involved in any way with supervision of the work of the intelligence services, but I have had something to do with torture. When I was working here as a Law Lord, I was a member of the Appellate Committee in two cases that raised issues about it. One was the Pinochet case, in which we had to consider the reach of the UN Convention against Torture. The other was under Article 3 of the European Convention on Human Rights. The question was whether our courts could rely in terrorism cases on information provided to us by agents from overseas that might have been obtained by torture.

As Lord Bingham said in the latter case, the fundamental nature of the prohibition against torture requires member states to do more than avoid the practice. It is not enough to say that I did not do it, I was not there, I did not see it happening or even that for some very good reason resort to it was necessary. It requires member states to do everything in their power to prevent and avoid it. The torture convention, we must remember, is breached by any act by which severe pain or suffering is inflicted to obtain information or as punishment by or at the instigation or with the consent or acquiescence of a person acting in an official capacity. Article 3 of the ECHR is at least as wide as that.

The reference in new Section 29B to the authorisation of criminal conduct by persons designated for the purposes of that section, and thus acting in an official capacity, seems to fall within the ambit of these provisions. The conditions mentioned in Section 29B(4) and the obligation merely to take account of the Human Rights Act in Section 29B(7) do not go nearly far enough with regard to this particular crime. We need to be very careful—ought it not to be made clear somewhere and somehow that participation in any way whatever in acts of torture will never be authorised? I am not suggesting this should expressly be mentioned as an exception in the statute but somehow, somewhere, a solution to this problem needs to be found.

Of course, to raise that question begs the question of whether we should go further. The right to life in Article 2 of the ECHR is also unqualified. At the very least, clear guidance needs to be read into the code as to when, if ever and for what purposes, participation in murder could be authorised. I also find the idea that children might be authorised to participate in torture or crimes of such gravity—by no means unimaginable given the way county lines operate—deeply disturbing for all the reasons mentioned a moment ago by the noble Lord, Lord Russell of Liverpool. I am sure the Minister will take his comments and his suggestions very seriously.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hope of Craighead Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

[Lord Judd (Lab) [V]]

My Lords, I support Amendment 25 because it seems essential for us to have safeguards in place if we go down this road at all. The noble Baroness, Lady Hamwee, spoke very convincingly on this matter. I am glad to support her on this and I do not suppose it will be the last time in my parliamentary career that I support her in her initiatives. While we are debating this group, I want to say how much I applaud Amendment 12 by the noble Lord, Lord Young of Cookham, and Amendment 19 by the noble Lord, Lord Cormack. In the operation of our society and our legal systems, we need some clear-cut cornerstones about what is permissible and what is not. I like the forthright language that they use in their amendments because it cuts out all the grounds for rationalising and talking ourselves into situations where we should not be at all. The point is that vulnerable people of the kind described in the amendments, and children, should not be involved in this kind of activity.

We are signatories to the conventions on the rights of children, and we have reaffirmed on many occasions our commitment to them. Are we just sentimentalists or are we real? If we are real, and if we want to give muscle to our expressed sentiments in those directions, that becomes very applicable in this kind of activity. We are also signatories to, and have frequently expressed our adherence to, the European Convention on Human Rights. I would always go further in this context and say that what matters even more is the Universal Declaration of Human Rights and the reasons why it was put in place. Again, if we are serious and not just sentimentalists, it is in matters of this kind that adhering firmly to the principles set out in those conventions becomes so important.

All these matters become particularly poignant—it is interesting that we have not dwelt much on this—given what is happening on the other side of the Atlantic. All of us, particularly perhaps in this Chamber, operate in the context of a political family in which it is expected and assumed that certain rules of decency, honesty and integrity will apply. We cannot be certain that will always be the case. I have always felt this about legislation: what matters is not just the people who are in place at the time of the legislation is passed, but how firmly that legislation establishes principles that it would be difficult for anyone who comes afterwards to vary. For that reason, it is significant to look at events in the States and wonder, when we talk about the kind of society that we want to be, whether we are really taking seriously our obligations, duties and concern for children and young people who have perhaps been asked to undertake activity that is very much against so much that is established as the norm for behaviour that is required in our society, for all the reasons that we have discussed on many previous occasions on this legislation. If we take those responsibilities seriously, we need the firmness of Amendments 25 and 19.

I am sure that I must be among many Members on all sides of the House who are deeply fearful about the implications of what is happening on the other side of the Atlantic. At moments such as this, where we still have the context of our own society—thank God—we need to be explicitly clear about what is acceptable and what is not. I cannot say more strongly that it is not acceptable for children to be involved in activity of this kind. That is the point: it is not acceptable; it is not something we can rationalise our way out of by saying that there are exceptions in this particular case. There are not; it is a principle that children should not be involved in such activity. Similarly, when we think of what vulnerable people have been through mentally and physically and all the traumas of their life, it is not acceptable to involve them in any way in activities which may have serious implications for their stability and well-being and for their safety.

From these standpoints, I am very glad that we have this group of amendments before us. I again say that the noble Lords, Lord Young and Lord Cormack, have been exemplary in stating a principle on which the rest of our activity should be founded.

[Lord Hope of Craighead (CB) [V]]

My Lords, as the speeches that we have been listening to in this debate have made so very clear, this surely is the most difficult part of the Bill and, as we search for a solution, for each of us making up our own minds this group presents a real challenge. The solutions range from an absolute bar—the “clear-cut cornerstones”, as the noble Lord, Lord Judd, has just described it—on granting authorisations to anyone under 18, in Amendment 12, and anyone under 16, in Amendment 19, to which the noble Lords, Lord Young of Cookham and Lord Cormack, spoke so movingly, to the more nuanced and carefully worded procedures proposed in Amendments 23, which would require the prior approval by a judicial commissioner, and Amendments 24 and 26, which have no such requirement.

I entirely recognise the force of the principle that the child’s best interests are paramount, and I appreciate the attraction of a clear and simple absolute bar—a red line—by reference only to a person’s age. That is right when dealing with, for example, the age of criminal responsibility, but I am not so sure that it is right here, where we are being asked to balance the protection of the best interests of the child against the need to protect the public against serious crime, such as that perpetrated by county lines where children are, sadly, so much involved. Recognising that a child’s best interests are paramount does not entirely exclude the possibility of looking at all the circumstances and balancing the interests of the child against other interests, as judges have to do from time to time, but of course it has a crucial bearing on how that exercise is carried out.

Looked at from that point of view, I suggest that one can take account of the fact that children do not all have the same circumstances, as the noble Baroness, Lady Kidron, has said. Also, the facts and circumstances may differ widely as to nature of the case and the extent of any risk of physical and psychological harm to the particular child who may be involved—I was interested in the points made by the noble Baroness, Lady McIntosh of Pickering, based on her own experience of the Scottish Bar. The fact is that we are not in possession of all the information that would guide those taking such decisions. I would therefore prefer to leave the door open for the use of children in strictly and most carefully limited circumstances, taking every possible care in full recognition of all the risks, rather than closing it firmly against their use in any case whatever. Had Amendment 12 been qualified in some way, by reference, for example, to “exceptional circumstances”, I would have found it easier to accept, but, of course, as soon as one adds such words, one has to explain what they mean. That is why I am drawn to Amendment 24, to which the noble Lord, Lord Young, has also put his name. It contains that qualification and then defines what such circumstances are. I pay tribute to the clarity with which it is expressed.

Then there is government Amendment 26. It seems to fall short of what is needed, not only because it lacks that qualification about exceptional circumstances but because it lacks the protection which Amendment 24 would give to vulnerable individuals and victims of modern slavery, whom we must also consider. I look forward to listening carefully to what the Minister has to say in support of her amendment, but, for the moment, my preference is for Amendment 24 and for supporting it if the noble Baroness, Lady Kidron, presses it to a vote.

Lastly, I am grateful to the Minister for her letter of today’s date about territorial extent. As she may tell us later on, she informs us in it that the Scottish Government have confirmed that they will recommend to the Scottish Parliament that it should withhold its consent to the Bill. It was for the Scottish Government to take that decision and we must respect it. I am sure that the Minister is right, respecting the Sewel convention, to remove from the Bill the ability to authorise participation in criminal activity for devolved purposes in Scotland. It is not for us to question the decision of the Scottish Parliament and she is right to proceed in that way.

[Lord Naseby (Con) [V]]

My Lords, I want to speak briefly to Amendments 12, 13 and 14. In relation to the first, I have recently done some research on military national service, introduced by a Labour Government with the support of a Conservative and Liberal Opposition in 1947 and lasting for just over 10 years. This recruited at age 18 young men to serve in the forces and possibly to face death. There was an element in that Act which allowed 17 and a half year-olds to be recruited, so it was not a carte blanche cut-off at 18; it actually started at 17 and a half.

Against that background, it seems to me—it is quite a long time ago now, but I was one of those who did my national service—today’s young people are certainly more experienced than we were at that age. Also, there is this great move afoot to give 16 year-olds the vote. That is a conundrum, is it not? If that were to happen—Scotland is in the lead on that—are those who get the vote at 16 still children or are they adults? For my money, on Amendment 13, there should be a cut-off age of 18, but subject to particular exceptions.

--- Later in debate ---

I beg to move.

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Massey of Darwen, and to express my support for the amendment she has just moved.

I have to say that I am wholly unconvinced by the argument that adherence to the Human Rights Act is all that is needed. The fact is that the convention rights set out in the schedule to that Act were not designed for this situation at all. Their purpose is to define the rights of individuals against the state, as represented by public bodies. It is not a catalogue of what individuals may or may not do to each other. Of course, the sources that the police may use must have these protections against those who use them. But to use the convention rights in the Human Rights Act to define what the sources may do to other people or may be encouraged to do to other people is to take those rights completely out of context.

Furthermore, reference to these rights lacks the precision and clarity that is needed to deal with what a source may or may not be authorised to do. If you look at Article 2 of the list of convention rights—the right to life—what is really dealt with there is the right to life as against the things that a state may do: depriving the individual of his life except in circumstances where that may be absolutely necessary; and the circumstances are set out there. Article 3 deals with the prohibition of torture, although I notice that it omits the word “cruel” before “inhuman”, which is in the Universal Declaration of Human Rights and in the UN convention against torture. Therefore, if one was trying to define the prohibition or the control against the misuse of sources, one would want to put in the word “cruel”, which is more easily understood than the word “inhuman”. Article 4 deals with the prohibition of slavery and forced labour, which is drifting far away from what we need to have as reassurance in the matter we are dealing with here. So it is with Article 5, which is the right to liberty and security, and which really deals with the circumstances in which an individual may be arrested or detained by the police. Furthermore, there is no mention in the convention rights of rape or other sexual offences, no doubt because that is what people do to each other, not what public authorities do to their citizens.

That said, I have to confess, if the noble Baroness will forgive me, that some of the wording of amendment 15 troubles me. The criterion we must apply is that what we have asked to be set out in the statute should be clear and easily understood. Proposed new subsection (8A)(b), which is given in Amendment 15, refers to

“an attempt in any manner to obstruct or pervert the course of justice.”

That is a very wide-ranging crime, and I am not sure that it would be sensible to include it in this list because very often it may be a relatively minor thing to do, with no psychological or physical consequences to anybody; it is just obstructing the interests of justice. Paragraphs (d) and (e) refer to the Human Rights Act, but for the reasons I have given, I would prefer that that reference was omitted. The Canadian example to which the noble Baroness referred is clearer in its wording. For example, when dealing with obstructing or perverting the course of justice, it includes the word “wilfully”, which would be wise if one is trying to strike the right level of balance in dealing with these matters. It refers to the torture convention when defining what is meant by torture, which I would support, particularly because it includes the word “cruel”. As for paragraph (e), when the amendment refers to depriving a person of their liberty, it really means detaining an individual, which is what the Canadian example gives. The Canadian example adds another point: damaging property. It might be wise to think of including something along those lines too. To take the example of committing or participating in arson, that would give rise to a serious risk to individuals who are in the building and it would be as well to include that along the same lines and for the same reasons as the others in the list. I suggest that some matters might have to be looked at again if the amendment is to be taken further.

I wish to emphasise one thing, as I did at Second Reading, which is that great weight must be given to the obligation in the torture convention. That convention does not merely require states to abstain from torturing people. It requires them to do more than that; it requires them to do everything in their power to avoid torture in any circumstances. I would therefore support an amendment which particularly includes the reference to torture as something that would never be authorised in any circumstances whatever.

Despite these misgivings, and extending again my apology to the noble Baroness for criticising her carefully drafted amendment, and because I believe the Government must think again, I support Amendment 15.

[Lord Rosser (Lab) [V]]

Speaking for the Opposition, I reiterate our appreciation of the work that our police and security services do on our behalf to keep us safe and our country secure. We know only too well that what they do makes a real difference.

Amendment 15, so ably moved by my noble friend Lady Massey of Darwen and to which my name is also attached, would put limits in the Bill on the crimes that could be authorised under a criminal conduct authorisation. The serious crimes that could not be authorised would cover murder, grievous bodily harm, torture and degrading treatment, serious sexual offences, depriving someone of their liberty and perverting the course of justice.

The Government have given an assurance that the Bill

“would not allow the public authorities named in the Bill to grant CHIS unlimited authority to commit any and all crimes. To allow this would breach the Human Rights Act 1998”.

In that context, I note the comments that were just made by the noble and learned Lord, Lord Hope of Craighead, about the Human Rights Act 1998. However, the Bill itself contains no explicit limit on the types of criminal conduct that can be authorised. The Government say that to have a list of offences excluded from being given a criminal conduct authorisation would lead to covert human intelligence sources being tested against that list. But placing no explicit limit on the types of crimes that can be authorised is not the approach that has been taken in other jurisdictions, where the same risks of CHIS being tested would apply. As my noble friend Lady Massey has said, the Canadian Security Intelligence Service Act contains a power to authorise criminal conduct similar to that proposed in the Bill, but the legislation provides that nothing in that Act justifies many of the serious crimes also excluded under this amendment.

The FBI in the USA operates under guidelines that do not permit an informant to participate in any act of violence, except in self-defence. In Australia, the legislation provides protection from criminal responsibility and indemnification for civil liability only where the conduct does not involve the participant engaging in anything likely to cause death or serious injury to, or involve the commission of a sexual offence against, any person. The Government maintain that countries which have lists of such offences do not have similar criminality to us, but it is not clear what the established basis is for that assertion.

The Government then say that such a list of serious offences is not necessary, because the Human Rights Act provides all the protection needed against such serious crimes being given a criminal conduct authorisation. But if a criminal or terrorist group was sufficiently conversant with the terms of legislation excluding specific offences from being authorised to be able to test a CHIS, it would almost certainly also be sufficiently conversant with the protections against serious crimes being authorised in the Human Rights Act to test a CHIS if, as the Government presumably believe, those protections are clear-cut.

However, the Bill does not preclude specific criminal conduct being prohibited through a list, since it gives the Secretary of State the power, through secondary legislation, to prohibit the authorisation of any specified criminal conduct. Since it would be secondary legislation, Parliament would not get the right to amend what was put forward by the Secretary of State, as it would with primary legislation. Since the Government, presumably, do not believe that whatever criminal conduct might be prohibited from being authorised through such publicly available secondary legislation could be used by criminals as a checklist against which to test a covert human intelligence source, and put such sources at risk, it is not clear why explicit limits cannot also be set out in primary legislation.