Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

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

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, from the Opposition Front Bench I put on record my thanks to the police, the security services, the National Crime Agency and the wider law enforcement agencies for the work they do to keep us safe. They often put themselves in harm’s way and at real risk. It is important that they know they have our support and our thanks for the work they do every day to protect us and to prevent crime and loss of life.

The work of covert human intelligence sources is vital to fighting crime and thwarting acts of terrorism. The noble and learned Lord, Lord Mackay of Clashfern, referred to the necessity of having CHIS operatives to fight crime. However, the existence of such operatives is not on a statutory footing, but it should be. By putting this work on a statutory basis, we will provide for the necessarily robust safeguards and proper protections to be put in place. Both I and my noble friend Lord Rosser will argue those points consistently from the Opposition Front Bench as the Bill progresses through your Lordships’ House.

As my noble friend said, the activity that the Bill deals with is not new but has been going on for many years. My noble friend Lord West of Spithead made the important point that we need to be careful in the legislation we pass and should never pass anything that puts an agent’s life at risk.

This is a relatively short Bill, with seven clauses and two schedules, but it is of the utmost importance. It is a Bill where the House of Lords has an important role in providing the scrutiny enabling the Government to provide the necessary assurances. Where they are unable to do so to our satisfaction, we will seek to amend the Bill, return it to the other place in a much-improved state and ask them to think again.

There is considerable interest in the Bill. Over 50 noble Lords have spoken in this Second Reading debate. I congratulate the three noble Lords who have given their maiden speeches today. The noble Lord, Lord McLoughlin, had an impressive career in the other place, holding senior positions in both government and opposition, and representing the beautiful constituencies of West Derbyshire and Derbyshire Dales. I had the pleasure of spending much time there and regularly drove through to get to County Hall at Matlock to attend a meeting of the Derbyshire County Council Labour group, which was always a great pleasure. He must be the only member of the National Union of Mineworkers to have served in a Conservative Government and Cabinet.

The noble and learned Lord, Lord Stewart of Dirleton, has had an impressive legal career to date and takes on the position of Advocate-General for Scotland. I wish him well in his new responsibilities. I have not had a chance yet to speak to him outside the House and I look forward to doing that. He will be fully aware that there are many impressive legal minds on all Benches, and his skill as an advocate will be much in use in this House to support the Government. I can advise him that that is not an easy job at the moment with some of the legislation coming forward.

I have known my noble friend Lord Walney for many years. I think it is nearly a quarter of a century, which makes me feel very old. We were both working to elect and support the Labour Governments of Tony Blair and Gordon Brown. He was subsequently elected the Member for Barrow and Furness in 2010, the same time I was nominated to serve in this House. He was much more successful than me outside Parliament: he got to work in No. 10 Downing Street, while I never got out of Labour Party headquarters. I am conscious that I have never been to Walney Island. I am sure it is a beautiful place—nearly as beautiful as the London Borough of Southwark that I take my title from. The noble Lord is my noble friend and always will be. He is also a dear friend and I look forward to working with him many times in this House.

All three speeches were excellent. I look forward to hearing many more contributions from each of the noble Lords, as they will undoubtedly bring knowledge, skill and experience that will be of much benefit to us all.

I return to the Bill before the House today. It is right that we are very clear on what is and is not authorised by this legislation—what is legitimate, lawful activity, such as the activity of trade unions. They play an important role in the United Kingdom, standing up for people’s rights, campaigning for changes to legislation and changes in working practices and playing their rightful role in our democratic, free society. I have been a member of a trade union since I was 16—first USDAW and, for the last 31 years, the GMB.

My noble friend Lord Whitty raised a number of concerns about the Bill such as compensation for victims of crime and the issue of the legitimate activities of trade unions and other campaigning organisations. We will want to probe these fully in Committee. My noble friends Lord Rosser and Lord Dubs raised the important issue of the call for an inquiry into what happened at Orgreave on 18 June 1984. This again is something I am sure we will come back to during the course of the Bill. My noble friend Lord Hendy raised the issues of the undercover police inquiry and trade union activity. It needs to be clear that nothing in the Bill puts the lawful needs of unions into question. My noble friend Lord Mann made the important point about the restoration of trade union rights in 1997 at GCHQ. People there do work of the utmost importance to the security of our country. You can be both a proud, loyal trade union member and a proud citizen of your country and do work of the utmost importance to national security. There is nothing contradictory there whatever.

It is also important for the House to probe the number and range of organisations that are covered by this legislation and which would take powers from it. A number of noble Lords raised the issue of the Food Standards Agency and other bodies; I am sure that we will come back to that many times during consideration of the Bill.

Human rights protections have always been made; the Government are relying on the Human Rights Act, which is printed on the front page of the Bill. The noble Baroness, Lady Williams of Trafford, uses Section 19(1)(a) and says that the Bill is compatible with the convention rights, which is very important. The noble and learned Lord, Lord Hope of Craighead, raised that issue in his contribution to the debate. It is also clear, however, that many in the Minister’s party have voiced opposition to the Human Rights Act and to the convention itself. I would therefore appreciate a clear and unambiguous statement from the Government on where they stand on this. Many senior members of the Government, such as Mr Gove and perhaps even the Prime Minister himself, have raised concerns about this Act, so we need to be clear what we are doing if the Government are relying on this at the moment.

We also need to be absolutely clear that the most heinous crimes cannot ever be carried out or authorised in the name of the Government. As my noble friend Lord Rosser said, we will table an amendment seeking changes similar to those of the Canada model. The Government need to be clear on the limits of criminal activity to be authorised. The Ministers leading on this Bill will have heard the concern expressed across the House, and we will come back to that in the course of our debates.

What we have been talking about here is the type of crime that the police and other agencies are seeking to disrupt. It could indeed involve, as the noble Lord, Lord Stewart, said, outlining what needs to be done for organisations such as the Food Standards Agency. Crimes such as murder, rape and sexual violence are commonplace in the organisations they would be seeking to disrupt, and we have to have in place appropriate legal safeguards to get closer to what offences would and would not be allowed under this legislation. I know that the area where CHIS work is very difficult, but these are important points.

The right reverend Prelate the Bishop of Durham, my noble friend Lord Haskel, the noble Baroness, Lady Bull, the noble Lord, Lord Young of Cookham, the noble Lord, Lord Russell of Liverpool, and many others raised the question of child CHIS. The important thing to recognise is that they are children—just that. On the rare occasions that they have to be used to combat crime—if there is no alternative—we have to be absolutely clear that proper and meaningful safeguards are in place. Every possible safeguard must be there, as the noble Baroness, Lady Bull, said. I pay particular tribute to my noble friend Lord Haskel for first raising this issue in the previous Parliament.

The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing. However, my noble friend Lord Hain highlighted serious matters—serious breaches—that should concern all noble Lords in this House. He also outlined the authorisations that he approved as a Minister to use CHIS and said that we need to debate and explore carefully where we draw the line on this issue. Security is absolutely right, and we all support that, but we do not support the abuse of power, and getting the balance right is, of course, a matter that we will come back to again and again. We need clear accountability—the issue of self-authorisation in the Bill needs to be discussed—and we will press the issue of prior judicial oversight, because it is vital that we get the safeguards, processes and structures right. As my noble friend Lord Rosser said, there are procedures for judicial approval 24 hours a day. I listened carefully to the contribution of the noble Lord, Lord Anderson of Ipswich. I agreed that his points and suggested solutions to the concerns need to be debated fully by the House, so I look forward to those amendments being tabled and to debating those issues. We believe in accountability, and authorisation needs to be in as real time as is possible and notified to the Investigatory Powers Commissioner on an ongoing basis.

My noble friend Lady Ritchie of Downpatrick raised points about the activities of paramilitaries and agencies of the state and raised the issue of the murder of Pat Finucane. My friends in the other place—the Members for Sheffield Heeley and St Helens North—have spoken about that and called on the Government to hold an inquiry into his murder in 1989, and I fully support that.

In conclusion, the Opposition understands the importance of the Bill; we have set out the areas on which we have concerns and we will seek to make improvements to the Bill in those areas. We will work constructively with the Government, making our points clearly, and if we think it necessary, we will divide the House on issues to enable the other place to think again. However, we remain hopeful that if we consider these things carefully, considerable progress and improvements can be made by agreement with the Government as the Bill makes its progress through the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

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

This is incredibly important, because Article 6 of the European Convention on Human Rights allows people access to justice and is a particularly jealous protection of rights in the context of criminal activity. Noble Lords will remember the awful case of Osman v United Kingdom, where an immunity from serious crime was found to be in violation of the convention. I look forward to the noble and learned Lord’s response, if he has time, and some detail on what the consequences will be for criminal and civil immunity when and if—let us hope it never happens, but we have to consider it—things go wrong.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I have looked carefully at the amendments in this group. Amendment 16 moved by the noble Baroness, Lady Hamwee, and consequential Amendments 18 and 20, all seek to remove the reference to “belief” in relation to a criminal conduct authorisation to make clear that it must be necessary and proportionate. I understand the point that she is making, including on consistency in the Bill and accompanying guidance; I know what she is seeking to do and have sympathy with it. However, I looked carefully also at Amendment 17 from the noble Lord, Lord Anderson of Ipswich, which seeks to insert “reasonably”. I concluded that that is probably a better way to achieve what the noble Baroness seeks.

These are matters of judgment at the end of the day, and we have all been careful in our consideration. However, in this case, I found the amendments of the noble Lord, Lord Anderson, more persuasive and likely to find more favour with the Government, if, as they say they are—and I have no reason to doubt them—they are seeking to reach agreement with the Committee on these very difficult issues and ways in which we can all improve the Bill. For me, reasonable belief would be a belief that an ordinary and prudent person would hold in the circumstances, judging the situation in the light of the law and the information before them. That is the right way forward.

Amendment 19 in the names of my noble friend Lord Rosser, myself and the noble Baroness, Lady Jones of Moulsecoomb, simply seeks to place in the Bill the proposals advised in the code of practice, including determination of proportionality. It is important to provide that certainty in order to allay concerns raised across the Committee. I take on board the concerns of the noble Baroness, Lady Hamwee, on this matter but they are covered in the guidance, and placing those matters in the Bill is the right way to go. I hope that that provides the reassurance noble Lords are looking for. We would be interested to hear from the noble and learned Lord, Lord Stewart, where he thinks he can go on these issues if he cannot accept the amendments in their present form.

In his response, will the noble and learned Lord address the point made by the noble Lord, Lord Thomas of Gresford, on the motivation and experience of those authorising such activity? There has been some suggestion that although it may be very senior officers, in some cases, in the heat of the moment, those involved perhaps would not be so experienced. That is a fair point and we need to address who is authorising this conduct.

Amendments 32 and 33 from the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have been tabled to ensure that the necessity and proportionality tests are not weakened. I understand the points being made, and we deserve a full explanation from the noble and learned Lord, Lord Stewart.

It was good to hear from my old and dear friend, the noble Lord, Lord Mann, who made some very effective points about trade unions, following his work in the trade union movement, to which I can attest. He referred to the nonsense of infiltrating groups that are no threat to the national security of our country but are a bit of a nuisance. There are plenty of those about, but they are not a threat to national security and, frankly, are probably more a threat to themselves than anyone else. They can be a bit of a nuisance around the factory gate or power station gate, but investing time and money on these people is a complete and utter waste of time. Who would authorise activity in relation to those groups? That is worrying. Some senior people have authorised others to waste their time going into those organisations.

On the other side of the coin are the appalling and disgraceful abuses that have taken place. Equally, we need to ensure that that will never happen again. We need reassurance on those matters. The inquiry will have to consider how we deal with them in the future.

My noble friend Lady Chakrabarti asked the important question of where people go to when their rights have been abused. We of course hope that that never happens again, but where would people go if it did? We need to know that people will be protected when they find themselves in a situation that has gone wrong. If there has been proper authorisation but an offence has been carried out, how do people seek redress?

I look forward to the Minister answering those points and others raised in the debate.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one.

New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.

Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to “belief” risks introducing inconsistency and casting doubt as to how other provisions should be interpreted.

It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective “robust” has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment.

Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function.

I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

I want to make just a couple of points. I do not accept the noble and learned Lord’s point that, if you put things in the Bill, you risk leaving things out. It is possible to craft an amendment, to go on the face of the Bill, that covers those eventualities. There is always a concern that, when things are left to guidance and codes, sometimes they do not have the certainty and force of legislation. I think that an amendment can be crafted that covers both: you get the certainty of the main things but leave the door open, accepting that things can change. Both can be done, and that is a better way forward rather than leaving it all to guidance.

The noble and learned Lord also made the point that we should be looking forward and not back. I get the point of looking forward, and I accept it, but, equally, in looking forward, we are informed by what has happened previously. It is important that we take that on board as well. We need to ensure that the Bill is doing the job it needs to do, and that is addressing issues that happened in the past; not just the issues mentioned by the noble Lord, Lord Mann—which were, frankly, ridiculous—but, more importantly, the real issues of wrong-doing, abuse and great hurt that have taken place. We need to ensure that the Bill stops that in the future.

The other point that we will keep coming back to is the whole issue of what will happen if the CHIS has immunity and someone has something wrong done to them. Where do they get redress? That is a fundamental issue: how do they get redress if the person who has done something wrong has immunity? That is a question we need to answer in the next few days.

[Lord Stewart of Dirleton (Con)]

I am obliged to the noble Lord for that final submission. We do, I acknowledge, need to address these matters over the next period of time, as the Bill moves forward. I acknowledge to the noble Lord, and others who have contributed, that mistakes were made in the past around blacklisting and the penetration of bodies that need never have been penetrated, or of bodies that were engaging in legitimate activities. Acceptance of that will inform the manner in which we proceed further.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

However, I take the point made by the noble Baroness, Lady Massey of Darwen, that such disorder—riot—is in itself a serious crime as defined in our Amendment 31. It is important, however, to set out clearly that the type of disorder should be limited to serious disorder on the face of the Bill. We believe that such amendments would also address the concerns of the noble Baroness, Lady Jones of Moulsecoomb.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 22, moved by my noble friend Lady Chakrabarti with the support of my noble friends Lord Hain and Lord Hendy, seeks to limit the use of criminal conduct authorisations to serious crime—and by that they mean indictable offences that must be tried in Crown Court before a judge and jury.

The amendment seeks to remove subsection (5)(c) in respect of economic well-being in the United Kingdom. It would be helpful if, in her response, the noble Baroness, Lady Williams of Trafford, were to set out examples of what this provision is seeking to do and what it is not seeking to do. There are concerns about this, as I am sure the noble Baroness has heard, from around the House, during discussion of this group.

Can the Minister also explain why the list of necessary grounds given in this Bill—as listed in subsection (5)(5)—is slightly different from those listed in the Counter-Terrorism and Border Security Act? In that Act, the reasons listed are that the activity threatens national security, threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or is an act of serious crime. Why not use the same words? Not to do so is surely a recipe for confusion when you are dealing with such serious matters. We want to see clarity from the Government; clarity about what they intend to bring into law is very important. Why is a form of words that was acceptable to the Government two years ago, when they put the Counter-Terrorism and Border Security Act on the statute book, changed in this Bill? Surely there is a risk of some overlap between these two pieces of legislation. Will the noble Baroness clarify this when she responds to the debate?

Amendments 23 and 26, in the name of the noble Lord, Lord Paddick, add the word “serious” in order to limit a criminal conduct authorisation to issues of serious crime. I have listened carefully to the arguments from the noble Lord and have some sympathy with them, so I will be interested to hear from the Minister the case for why these amendments are not necessary. The noble Lord referred to the number of times we have talked about serious crime over the years, and the various definitions of “serious”. That is a fair point and it needs to be answered.

The noble Baroness, Lady Jones of Moulsecoomb, raised the question as to why preventing and detecting crime would not be enough, on their own, as reasons for the powers in the Bill to be deployed. We also need reassurance about what will not happen when powers are given by Parliament, so it is important for the Minister to set out what will not be impacted.

Noble Lords may not like it, but the right to withhold one’s labour and to strike is a hard-won right that we should all defend. We need guarantees that the powers in the Bill would never be used to undermine lawful, legal trade union activity in respect of strike action or campaigning activity. My noble friend Lady Chakrabarti raised the important point regarding trade unions, as did my noble friend Lady Bryan of Partick and many others. We have to get the balance right; lawful activity must not be undermined by the state with the use of undercover activities.

We have heard about the policing inquiry. Some terrible things have happened that I am sure we all regret, which have undermined legitimate activity. It must never happen again. Those are the questions the noble Baroness needs to reassure the House on: how will this Bill ensure that never ever happens again?

I am a proud trade unionist. I was a member of USDAW for 12 years when I first left school and I have been a member of the GMB for the last 30 years. I never rose very high in the GMB ranks; I got as fair as the chair of the Labour Party senior staff sub-branch for a couple of years. I spent probably more time arguing with the rest of the staff in the Labour Party about where we wanted to get to. But I certainly think that the unions are very important. For example, USDAW—a union I am very close to—is a great trade union with great campaigns that I always support. It is important that we support the work that unions such as USDAW do.

At this point, I pay tribute to my old friend John Spellar. John was first elected to public office 50 years ago today, in a St Mary Cray by-election on 3 December 1970. John has served as a councillor, trade unionist, trade union official, MP and Minister. John would have nothing to do with any extremism of any sense whatever; anyone who knows him would know that. He has also run a news service for many in the Labour Party called “Spellar News”. We get it two or three times a day: early bird, evening round-up and news flashes. John is actually retiring the news service today, which I am very sad about. He has done great work as a trade unionist and is a great example to many of us in the Labour Party.

I was also sorry to learn that the noble Baroness, Lady Jones of Moulsecoomb, has been arrested on demonstrations. I have been on a few demonstrations in my time as well. I have avoided being arrested, but I must admit that I have also been demonstrated against. When I was a councillor, many times things that we did on the council provoked some annoyance. I remember once that I put up the fees of the traders in East Street Market and drew their wrath for a number of weeks. There were lots of unpleasant signs about me.

What is important here is that, if you are a trade unionist or a campaigner, nothing in the Bill must ever undermine legitimate work. It is really important for the Government, and for the noble Baroness, to reassure the House and Parliament that nothing legitimate will ever be undermined when this goes on the statute book, and that actually it will be supported. I think she can see from the comments of people around the House today that we are not convinced that is the case. She needs to reassure us now in responding to the debate.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have taken part in this debate and pay tribute to anyone who has been in politics—and indeed the trade union movement—for 50 years. I have heard of John Spellar in dispatches, but unfortunately not the person that the noble Baroness, Lady Bryan of Partick, referenced.

Turning to public authorities, they have different functions, the ultimate outcome of which is to keep the public safe from harm in a variety of ways. It is very important that they can lawfully deploy CHIS to fulfil those responsibilities. These amendments seek to restrict the statutory purposes available to public authorities under the Bill.

The structure of new Section 29B closely resembles that of Section 29, which authorises the use and conduct of CHIS, as there is a high degree of interrelationship between the two provisions. That is why a Section 29 authorisation is required to be in place before a Section 29B authorisation can be granted. The statutory purposes that will be available for a criminal conduct authorisation are linked to those available for a use and conduct authorisation. It is not operationally workable to have different grounds for authorisation between the provisions. For example, we would want to avoid a situation where a CHIS’s use and conduct has been deemed necessary for the prevention of crime, but the linked criminal conduct authorisation for the same CHIS and the same activity may be only on the basis of preventing a serious crime, as my noble friend Lord King of Bridgwater pointed out.

My noble friend also pointed out the words of my right honourable friend James Brokenshire about the sheer amount of activity that has been done under covert means—it led to 3,500 arrests and the recovery of more than 400 firearms, 100 other types of weapons, 400 kilograms of class A drugs and £2.5 million-worth of cash. But first and foremost, and most importantly, is the fact that it safeguarded hundreds of victims from child sexual abuse and other heinous crimes.

To restrict the prevention of “crime” to “serious crime”, as Amendments 22, 23 and 31 propose, would mean that public authorities would be less able to investigate crime that, while not amounting at the time to serious crime, actually has a damaging impact on the lives of its victims—so the outcome is serious, to answer the question of the noble Lord, Lord Kennedy. An example of this would be food crime: the extension of meat durability dates, leading to out-of-date food being consumed, is damaging and can be very dangerous to public health.

Of course, the necessity and proportionality requirements mean that an authorisation must be proportionate to the activity it seeks to prevent. This provides an important safeguard against authorisations of serious criminality being granted to prevent less serious, but equally important, crime. However, it is surely right that public authorities have access to the most effective tools to ensure justice for victims of these crimes and to prevent their occurrence.

The noble Baroness, Lady Chakrabarti, referred to some of the examples that we have heard in this Chamber of sexual relationships between undercover police and women, and some of the actually quite devastating consequences of that. I think I have said before in this Chamber that that was not lawful, is not lawful and would never be lawful.

In response to the1 amendments seeking to remove economic well-being, this is one of the established statutory purposes for which covert investigatory powers may be deployed by public authorities. It recognises that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. It might, for example, include the possibility of a hostile cyberattack against our critical national infrastructure, our financial institutions or, indeed, the Government. It is important that law enforcement bodies and intelligence agencies can deploy the full CHIS functionality against such threats where it is necessary and proportionate.

Similarly, preventing disorder is an important and legitimate law enforcement function. Where illegal activity takes place, public authorities listed in the Bill have a responsibility to take action as is necessary and proportionate. An example of this could be managing hostile football crowds, which does not involve lawful protest but causes harm to the public.

To be clear to noble Lords concerned that either economic well-being or preventing disorder could be used to target legitimate protest or the work of the trade unions, an authorisation can be granted only if it is proportionate to the harm or criminality that it seeks to prevent. Therefore, this would not include—to use the words of the noble Baroness, Lady Chakrabarti—“legitimate and lawful activity”. The noble Baronesses, Lady Jones and Lady Bryan of Partick, also gave examples of activity by political groups or trade unions. The noble Lord, Lord Kennedy, asked me about the difference between the wording in this Bill and the CT Act. It goes wider, basically, and it is consistent with RIPA.

With those words, I ask noble Lords not to press their amendments.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 27 is tabled in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I am not going to speak for long because we discussed some of these issues in the previous group. We have mentioned numbers in the various pieces of legislation and I have made the point about consistency. I know that when I mentioned the counter-terrorism Act, the noble Baroness was spot on and I will look at what she said in the earlier debate. However, we need to be sure that we have consistency in the various bits of legislation that we are talking about today. That is very important.

A number of colleagues have talked about the need to get the balance right here. The concerns that have been raised by Members of the House show that it is one thing when you are dealing with terrorists from another state or people who for various reasons are looking to undermine the economic well-being of the country, but on the other side of that are quite lawful campaigners. We might not like them and we might think that what they are doing is wrong or irritating, but they are acting in a perfectly lawful way. That is the area in which we need reassurance and it is what this debate comes down to. People have the right to protest, to be annoying and irritating, as long as they do it lawfully. We have to be sure that we get this right and that is what we are worried about.

Equally, I turn to the whole question of trade unionists, who have been mentioned many times. Trade unionists have the right to campaign and to know that they can do so without having agents put in to undermine their activities. You could argue that others might undermine their activities, but they do not need people in their own ranks who are sent in to do that.

As many noble Lords have mentioned, in the past undercover officers have been sleeping with campaigners. That is totally out of order. I am sure that it will be said that that will never happen again, but people need to be reassured that it is, as I say, totally out of order. While the Government are saying that this will never happen again, the noble Baroness, Lady Jones, has challenged a number of police commissioners—three of them are now Members of this House—and has never had an answer; that is also a concern. These things are totally wrong.

The Minister has a job here to find a way of reassuring the Committee that these things will not happen again, but how can we be sure about that? That is the issue that we have to deal with, because of course we thought that they could not have happened before, but clearly they did and we have only found out about them years afterwards. We want legislation that is right and proper so that people are protected, but, equally, legitimate campaigners have to be protected as well so that they are not abused and wrong things done to them. This, I think, is the crux of the issues we are debating today and I look forward to the response of the noble Baroness.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have taken part in this debate. I will start with the comments of the noble Baronesses, Lady Jones and Lady Chakrabarti, and the point about listening to what each other is saying. I have never tried to skirt around the issue of the disgusting behaviour of some 30 years ago. I do not know whether police officers were not told that it was illegal and the inquiry is clearly establishing the ins and outs of that. But it was not acceptable and it was never lawful, and it cannot be authorised under this Bill. I hope that I have made that very clear. I do not dismiss what those women went through—including, indeed, what the noble Baroness, Lady Lawrence, went through—and I hope that the inquiry will vindicate an awful lot of the people who suffered, complained and were simply ignored in the past. The inquiry will get to the bottom of something that was never lawful in the first place. I digress, but I must add that operational partners are very clear that that sort of behaviour could not be authorised under this Bill.

I shall move on to the substance of Amendment 27. I will not repeat the points I made in response to the last set of amendments, but I will emphasise that economic well-being is one of the established statutory purposes for which covert human investigatory powers may be deployed by public authorities. We recognise that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. That might include, for example, the possibility of a hostile cyberattack against our critical infrastructure, as I said earlier, attacks on financial institutions or on the Government themselves. I gave examples in my previous speech of the victims of CSA, cash and drugs activity, so they may not be solely related to issues of national security.

We have agencies such as HMRC, the NCA and the Serious Fraud Office whose mandate includes mitigating broader threats to the UK’s economic well-being. These threats are real, emerging and go beyond the remit of national security. We cannot tie our hands in response to such threats by limiting the statutory purposes available to tackle these issues. Of course, there are also examples of where economic well-being is not restricted to national security, as set out in other parts of the Investigatory Powers Act and the Security Service Act.

I hope that I have given a full explanation of why Amendment 27 should be withdrawn.

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Moved by

[Lord Kennedy of Southwark]

28: Clause 1, page 2, line 30, at end insert—
“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”Member’s explanatory statement
This would provide that circumstances in which a criminal conduct authorisation is deemed necessary for the economic well-being of the UK may not include the activities of trade unions.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 28 in my name and that of my noble friends Lord Rosser and Lady Clark of Kilwinning, and the noble Baroness, Lady Jones of Moulsecoomb, seeks to amend the Bill by adding to it an exclusion that, where a criminal conduct authorisation is sought and deemed necessary, the grounds on which it is sought cannot include the activities of trade unions. We have mentioned trade unions in a number of our earlier debates. This is a very important issue and one that I hope that the noble Baroness, Lady Williams of Trafford, will make a very positive response to at the end of the debate. I should add at the start of my remarks that I fully support Amendment 29, in the name of my noble friend Lady Clark, which is an amendment to my amendment to add the words “or legitimate political activity”.

Noble Lords will know that trade unions have been legal in the United Kingdom since about 1824. As a result of the Royal Commission on Trade Unions of 1867, it was agreed that unions were advantageous both to employers and employees. That led to the passing of the Trade Union Act 1871. Trade unions have been a force for good in the United Kingdom and around the world. They have led campaigns to improve the conditions, and the health and safety, of workers and communities alike. They are experts in the world of work. Through constructive engagement with employers in the public and private sectors, they have sought to deliver improvements of which we are all beneficiaries today. They should not be subjected to any activity resulting from the powers given under the Bill, which is why this amendment is so important.

Trade unions have brought about improvements such as sick pay, maternity pay, the eight-hour day for most workers, paternity leave, paid holidays, the minimum wage, protection against discrimination, equal pay and safe and healthy workplaces, but there is always more to do. Trade unions today are campaigning on zero-hours contracts and their associated poor working conditions, and on low wages. They also play a huge role in the campaigns on climate change, domestic abuse and the gig economy—where basic rights are often in short supply. They have highlighted the shambles of the universal credit roll-out, for example, and the great shame that, in the fifth-richest country in the world, there are people relying on food banks and sleeping in the streets close to this noble House.

All that work is legitimate and legal, and it should never be at risk from the powers contained in the Bill. I am seeking an unequivocal assurance from the Minister that trade unions will never be targeted. If she will not accept this amendment, how can she provide that assurance to the House? I fully support the amendment in the name of my noble friend Lady Clark, as I said earlier, which would further ensure that legitimate political activity cannot be targeted under the powers contained in the Bill.

Amendment 35, in my name and those of my noble friends Lord Rosser and Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, would prevent the powers in this Bill being used to compile lists of trade union members or to discriminate against them when they seek employment. We have heard disturbing stories of how, in the past, police officers were involved—and that is terrible—and organisations were doing just that. It is vital to have an unequivocal assurance that never again will we see officials of the state involved in targeting individuals, using the powers contained in the Bill. These are serious matters. Even the Metropolitan Police’s official spokesman said that the force’s internal report into blacklisting had established that the conduct of certain officers amounted to the improper sharing of information, as the law stands. Even their own spokesperson accepted that these things were wrong.

That was all part of a scandal which was exposed 10 years ago. It involved an organisation called the Consulting Association and information being quite improperly supplied to companies. That effectively ended the individual’s chances of getting a job, which was appalling and disgraceful. We are all aware of the settlements offered by companies such as Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Robert McAlpine, Skanska and VINCI. I am sure that the Undercover Policing Inquiry will look at this further, but I am also concerned that these activities should worry us all.

If these powers are put on to the statute book, what are the protections and guarantees against these activities happening again? I know the Minister will say it will never happen again but, sadly, sometimes these things do. Can she say in her answer what will be done if it happens again? We all know about the questionable activities of Mark Jenner, also known as Mark Cassidy. He allegedly passed on information about 300 workers; his name comes up many times in connection with other activities. We need to know that this cannot happen again and, if it does, what the Government would then do. I look forward to this debate and I beg to move.

Amendment 29 (to Amendment 28)

Moved by

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Amendment 29 (to Amendment 28) withdrawn.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank all noble Lords for their contributions to this debate, in which we have discussed some important issues. Needed here are guarantees that trade unions—as corporate bodies or their individual members—political parties, campaigning organisations and individual political campaigners undertaking legitimate and lawful activity, which you may not like, will not have agents of the state working to undermine their work. That is the key thing here. We will have to pursue this matter again on Report. This has clearly happened in the past and the Minister has admitted that it could happen in the future. If we cannot guarantee that it will not happen again, what are we going to do about it? That is what we need to know; that is the point that we need to sort out.

The noble Lord, Lord Thomas of Gresford, highlighted the wide range of authorities that have powers and the subjective nature of individual criminal activity authorisations. That is also an issue. I am starting to wonder whether some previous authorisations were malicious or, in some cases, just stupid. Either way, you worry about, “Well, why would people do that?” It may be malicious or just stupid. How could one issue an authorisation for some little organisation that poses a threat to nobody? It is a waste of public money if nothing else; it is just ridiculous. These are the things that we need to know about.

The noble Baroness, Lady Jones of Moulsecoomb, is a highly respected Member of the House. I like her very much, as I know do many other Members around the House. We do not agree on everything, but we agree on lots of stuff. She brings important points to the House which we all need to consider and respond to. For that, she is highly valued.

In response to my question and that of my noble friend Lady Clark, we need to hear from the Minister that further reassurance about what we are going to do if this happens again.

I want to make one final point—it is a little bit off-piste. We have talked about economic harm, but I would suggest that Brexit is the most ridiculous act of economic harm that has ever been bestowed on this country. That is an issue for another day, but there is nothing madder than that. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

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[Lord Paddick (LD)]

My Lords, I too signed the amendment, which the noble Baroness, Lady Chakrabarti, has very adequately introduced. When I think back to my experience in the Metropolitan Police Service and the instructions that we had, acting as an agent provocateur was clearly and explicitly prohibited as that relates to covert human intelligence sources committing crime. However, unless I have missed it, I cannot find in the Bill or in the draft code of practice any explicit reference to “agent provocateur”.

To repeat what the noble Baroness said in different terms, an agent provocateur is someone who commits a crime or encourages others to commit a crime that would not have been committed had it not been for the actions of the CHIS, or it relates to a situation in which the CHIS commits a crime and then blames the organisation for that crime, which members of the organisation had no intention of committing. In other words, the crime would never have taken place had it not been for the presence of the CHIS.

I look forward to hearing from the Minister where I have missed that explicit instruction, either in the Bill or in the codes of practice. I stress to her that, although I understand that this scenario could not happen under existing guidelines in the police service, we in this House want reassurance either in the Bill or in the codes of practice that it is prohibited.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, my contribution on this amendment will be fairly short. I hear the point that my noble friend Lady Chakrabarti makes and I note the point made by the noble Lord, Lord Paddick, that this issue is not mentioned in the Bill. Therefore, I am not quite clear whether the amendment is necessary. It would help us if, when the Minister responds, she could say something about the detail of the authorisations in a CCA.

Behind all the amendments today are concerns and worries about what may or may not have happened in the past. People want reassurance going forward, but they are not seeing it. I see that theme across all our discussions today. At some point, the Government will probably have to go a bit further to provide that reassurance, although I do not know how they will do that.

All these issues have been raised because of concerns that people have had in the past. As my noble friend said, we do not know whether we can stop this in the future, but I hope that the Minister can go a bit further. I cannot see any particular issue but, if I am right, the reason behind an authorisation would have to be recorded and shared with the Investigatory Powers Commissioner. That is the issue on which we need reassurance, as we move forward and give people new powers.

[Baroness Williams of Trafford (Con)]

I thank noble Lords. I hope to reassure the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, about why we do not need this amendment.

I have already stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. Article 6 of the ECHR protects the right to a fair trial. The article restates a fundamental principle of English law and, I understand, Scottish law: that a court has a duty to ensure a fair trial. The use of an agent provocateur could be seen as affecting the fairness of a trial, and rightly so. A court already has the requisite power in law—under Section 78 of the Police and Criminal Evidence Act 1984—to consider and exclude such evidence. The relevant entrapment principles are set out in the leading House of Lords case of Loosely from 2001, which also opines on the convergence of English law in this area with our Article 6 commitments. I hope that that provides reassurance.

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Identified and evaluated by whom? It means by the police—and, with the best will in the world, the police are going to be primarily focused on tackling criminality and dismantling the criminal gang, rather than on the best interests of the child. As my noble friend Lady Doocey said, the focus is not going to be on the welfare of the child. In a recent article in Independent Voices by a former undercover police officer, he described how they would go out to exploit vulnerable people, to get them to do this sort of thing. In short, children should not be seen as a disposable asset to be used in this way.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is one of those debates where you can stand up and quite honestly say you agree with every single word that has been said from across the House. I am sure the noble Baroness understands that this presents particular problem for the Government, because I am sure that, in addition to the noble Lord, Lord Young of Cookham, who made an excellent speech, many other members of the Government’s own party will agree with all the points that have been raised here today.

This group of amendments brings the House back to an issue that was first raised by my noble friend Lord Haskel on a statutory instrument, to which the noble Baroness responded. I remember sitting in a much more packed House, and there was lots of concern around the House—“What is this?” People were quite shocked to learn that children were being used in such a way, and that shock and concern has continued, which is why we have come here today.

Everyone around the House is very worried. That is certainly why I signed Amendment 60, which was so ably spoken to by the noble Baroness, Lady Young of Hornsey. Other noble Lords have spoken, and all these amendments are excellent, but I hope that we can hone this down to one. I particularly like Amendment 60, but I think we can see the concern expressed by the House, and we need to deal with this. Our Amendment 60 does not rule out child CHIS completely, but it certainly restricts them. I accept that in very limited circumstances, you might have to use a child, but it must be a very limited, rare occasion.

I am confident that the House will pass an amendment on this issue. Ideally and hopefully, it would be a government amendment, but I am confident that the House will pass an amendment by a large majority on this issue, which is about children. As you have heard, people under 18 can be quite streetwise—certainly, children think they are quite streetwise, although I do not know if they are; they are not quite as streetwise as they think they are. It is about that ability to give informed consent.

We are asking these children to take part in, be involved in and inform and report back on some very dangerous situations. This can be terrorism, drug dealing, sexual abuse or paedophilia: all sorts of really appalling, terrible things. We have to ask ourselves the question posed by the noble Lord, Lord Young of Cookham: how is that individual child protected? What would be said if a child CHIS is authorised and that child dies? That would be appalling—what would we say then? I think we have to take note of and be concerned about that, as well as the comments of the Children’s Commissioner in respect of using child CHIS.

Of course, sometimes—we have had this before—the child CHIS can be asked to pass information back to their handler, who can be a member of their own family. There are often situations when they are involved in a crime family: it could be their own father or mother. It is not always the case that the child is in care and hanging around the streets before getting involved; sometimes, it can be members of their own family, who can be very dangerous people. We are putting people in very difficult situations, and we must be even more careful about the individual child in those situations. These children have rights, and we need to ensure that, as the state, we protect them even more. As I said, if you are under 18, you are legally still a child and deserve protection from the state.

The right reverend Prelate made the point again about children, and I fully support his comments, as I do the points about mental capacity made by the noble Baroness, Lady Bull, which are very important. I also support the point of the noble Lord, Lord Paddick, that, sometimes, you can have quite a streetwise child and, equally, an older adult who is not that streetwise, so there is an issue there as well. These are things that we need to consider.

I hope that the noble Baroness will be able to tell the House that she fully understands the situation—and I know she is concerned about this. I hope that she will work with the House and, as the noble Lord, Lord Russell, says, can see the concern and genuine desire to agree something. I hope that she will welcome noble Lords from around the House and that we will come back with an amendment that, hopefully, we can all sign up to on Report, allowing very limited circumstances where a child may need to be used—very limited. Equally, I want to see much more protection for people. I hope that, when the noble Baroness responds, she will be able to give the House that information.

[Baroness Williams of Trafford (Con)]

My Lords, I start with the words of the noble Lord, Lord Kennedy, and absolutely confirm that I fully understand what all noble Lords have been talking about this evening. Of course, I will continue to work with the House, as I have done to date, in discussing what is, for me, the most difficult part of the Bill. The noble Lord, Lord Paddick, asked me: would I like to be a CHIS? No: I would be utterly terrified. Could I see my children being deployed in such activity? It would be incredibly difficult for me.

We need to put ourselves in the shoes of those children, who, as every noble Lord has said, are fairly vulnerable people in the sense that they might have been involved in, or their home life might be the site of, criminal activity. This is a very difficult area indeed. I thank the noble Lords, Lord Russell, Lord Paddick and Lord Kennedy, and my noble friend Lord Young of Cookham—and any noble Lords who are behind me—who have taken the time to come and speak to me about this aspect of the Bill.

The noble Lord, Lord Russell, put to me the suggestion from the noble Lord, Lord Anderson, about sessions in private. We are thinking about the best way to ensure that people have some of the information they need, although noble Lords will understand that some of that is sensitive to the point that it cannot be given out. I hope that noble Lords will appreciate that I have taken the time to have a one-to-one session with any noble Lord who requested it, on any aspect of the Bill. That said, these issues are very difficult, and I totally understand the concerns that have been raised. Nobody likes to think of children or young people being involved in these horrible areas.

Noble Lords may recall that the issue of juvenile CHIS, including whether they should be authorised at all, was discussed extensively in Parliament in 2018. The noble Lord, Lord Russell, and the noble Baroness, Lady Young, asked me why there was no child impact assessment of the Bill. As a result of concerns being raised about the use of juvenile CHIS, the IPC himself launched a review of all public authorities that have the power to authorise CHIS, to ensure that there was a comprehensive record of how often these powers were used in relation to juveniles. The conclusions of the review were reported in March 2019 to the Joint Committee on Human Rights. I have discussed them before, including the numbers, on the Floor of this House.

On the basis of these detailed reviews, the IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks, and that concerns around the safeguarding of children and the public authority’s duty of care to the child are key considerations in the authorisation process. He also noted that public authorities are reticent to authorise juveniles as CHIS unless the criminality and the risk of harm to individuals and communities that the authorisation is seeking to prevent is of a high order and cannot be resolved in less intrusive ways. The noble Baroness, Lady Young of Hornsey, put that challenge to me.

The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can, potentially, offer a way to extricate themselves from such harm. The decisions to authorise were only made where this is the best option for breaking the cycle of crime and the danger for the individual, much as that might sound contradictory.

As well as the IPC investigation, the High Court considered the issue of juvenile CHIS last year. Mr Justice Supperstone set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are,

“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”

I hope that that goes some way to reassuring noble Lords that the decision to authorise a young person to act as a CHIS, or participate in criminality, is never taken lightly.

I will now set out the additional safeguards that apply to the authorisation of juveniles as CHIS, and which will equally apply when criminal conduct is being authorised. These include authorisation at a more senior level, a shorter duration for authorisations—four months, rather than 12 for adult CHIS—with monthly reviews, and a requirement for an enhanced risk assessment. There must also be an appropriate adult present at meetings between the public authority and the CHIS for those under 16 years of age. To answer another question, appropriate adults are always independent of the police or other investigating authorities. This must be considered on a case-by-case basis for 16 to 17 year-olds.

These safeguards are contained within the Regulation of Investigatory Powers (Juveniles) Order and the updated CHIS code of practice, where the safeguards for juveniles have been further strengthened. The revisions to the code will be subject to a full consultation before they are finalised and will have legal force.

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[Baroness Williams of Trafford (Con)]

I will reiterate what I said, which is that I am trying to work out a mechanism for sessions that might be helpful but not leaked, and perhaps where we can give some working examples—again, perhaps in private. We will try to do that if not before Report then during it, but before we come to this amendment.

[Lord Kennedy of Southwark (Lab Co-op)]

Actually, I have nothing to ask. The noble Baroness answered my point right at the end, after I had asked the clerk if I could speak, so I will leave it there.

[Lord Young of Cookham (Con)]

My Lords, I am very grateful to everyone who has taken part in this debate—not least the Minister, who has been on her feet answering debates for over six and a half hours and has done so with patience and courtesy. It is probably in breach of her human rights to be on duty for such a long time.

I am also grateful to all those who have taken part in this debate, the vast majority of whom have been in favour of Amendment 43—namely, there are no circumstances in which children should be used as CHIS. That is reflected in most of the amendments, with one or two, as it were, blurring the red line a little by specifying certain circumstances in which that might be possible.

Perhaps I may briefly pick up some of the points that were made during the debate. The noble Baroness, Lady Chakrabarti, made a good point about those over 18 who look younger than they are and whether, if it is inevitable that people who look young will be used, it should be them rather than people who actually are under 18. The noble Baroness, Lady Hamwee, made a good point about the rather narrow distinction between, on the one hand, grooming, which we are all against, and, on the other, persuading vulnerable children to act as covert human intelligence, which we are less enthusiastic about.

The right reverend Prelate the Bishop of Carlisle asked us to think about the consequences for the child, and he wanted better safeguards. The noble Baroness, Lady Bull, quite rightly, wanted the ban extended to victims of slavery and trafficking and those who are unable to give informed consent. She delved into the psychology of teenagers to query whether this worked and whether somebody of that age could make rational decisions. My noble friend Lady McIntosh wondered how the use of children could be compatible with the UNHCR. Then the noble Baroness, Lady Massey, joined others in pressing for a meeting with the Minister between now and Report, which she has readily agreed to.

We then came to what I thought was the most valuable contribution—from the noble Lord, Lord Dubs. He was the floating voter in this debate. He said that he had been swung by the argument and was now in favour of Amendment 43. As a former Chief Whip, I was always rather worried when colleagues went into the Chamber to listen to the debate just in case they could be swayed the wrong way, but on this occasion I am delighted that we have had an impact on the floating voter.

The noble Baroness, Lady Doocey, said that vulnerable children need support, particularly if they are already victims. She made the valid point that we do not send children into battle, so should we send them into circumstances that might be equally dangerous? The noble Baronesses, Lady Jones and Lady Young of Hornsey, touched on the risk of blackmail: “Either work with us as covert human intelligence or you will be arrested”. The noble Baroness, Lady Young, mentioned evidence from police officers that this was the case.

I say to the noble Baroness, Lady Jones, that it is not just Greenies who are in favour of this. I was a member of Friends of the Earth for a very long time— until, as Secretary of State for Transport, I built the Newbury bypass, when, I am sad to say, it expelled me. She also made the valid point that if the police are traumatised when they act in these circumstances, what will be the position of children under 18?

The noble Baroness, Lady Young, made a point that was picked up by others: would we allow our children —or, in the case of many Peers, our grandchildren—to be used as human spies? Of course, under the terms of the draft code, parents would not necessarily know that this was happening; they do not have to be told.

The noble Lord, Lord Russell, summarised the concern in both Houses and said we need the evidence. I hope we get the evidence and I hope it is all of it: not just the evidence that may substantiate the case that the Minister wishes to persuade us of, but evidence of where things have not perhaps gone quite as they should. The noble Lord asked whether the process used for the Investigatory Powers Act might be used in this case. I am not familiar with it but that sounds like a very helpful suggestion.

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[Baroness Chakrabarti (Lab) [V]]

I will speak briefly in full-blooded support of the noble Lord, Lord Paddick, and an amendment that seems to me like a no-brainer. The worst abuses of undercover policing, as are emerging in the inquiry, have related to people who have been embedded for a long time without adequate review, and obviously the risk of abuse is greater the longer a person builds their legend and is embedded without proper review.

Given that all time limits are arbitrary, it is right that we look for something relatively short, given the gravity of the line that is being crossed with this legislation for criminal conduct. The noble Lord has come to a very decent compromise with the monthly review and the four-month maximum on licensing people to commit crime.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I will be brief. I see the point that the noble Lord, Lord Paddick, is making on the need for review, but I am not convinced that it needs to be in the Bill. I am not persuaded that it is the right thing to do, although I see the point of a review. When the noble Baroness responds, maybe she can tell us about the detail of future authorisations. Would it be built into the authorisation itself? That would seem the better place for it, but I will wait to hear what the noble Baroness says. As it is, I am not convinced by the amendment or that the issue should be in the Bill.

[Baroness Williams of Trafford (Con)]

My Lords, I hope to provide the clarity that the noble Lord, Lord Kennedy, seeks and persuade the noble Lord, Lord Paddick, that this is not necessary in the Bill. The current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities listed in the Bill.

In the updated CHIS code of practice that accompanies the Bill, it is clear that a criminal conduct authorisation should be relied upon for as short a duration as possible. There is also a requirement on authorising officers to undertake regular reviews to assess whether the authorisation remains necessary and proportionate, and is justified. An authorisation must be cancelled when that is no longer the case.

Authorisations will be specifically and narrowly drafted and, in many cases, the specificity of the authorisation will mean that the criminal conduct authorised is in effect narrowly time-limited. However, there will be occasions when this conduct necessarily extends longer than a four-month period; CHIS who are members of proscribed organisations is a good example of this.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

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

I have a great deal of sympathy for the noble Lord’s amendment because it highlights the unworkability of granting immunity in advance through a criminal conduct authorisation. However, our position is that the police should not be allowed to grant legal immunity to commit crime or, indeed, to say that something that clearly is a crime is no longer a crime—whether in advance or, as the amendment suggests, after the event. For that reason, we cannot support the amendment.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.

So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.

We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.

The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.

As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.

The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.

The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.

I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.

--- Later in debate ---

[Lord Anderson of Ipswich (CB) [V]]

My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.

Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.

Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.

Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.

That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.

The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.

The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.

I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.

Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.

For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.

I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.

My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?

Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.

We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.

I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.

I look forward to the Minister’s response. There are a number of areas to cover here for the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

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

[Lord King of Bridgwater (Con) [V]]

My Lords, I join so many noble Lords in paying a warm tribute to James Brokenshire and sending our best wishes to him. It is very sad to hear the news. I hope for a good and speedy recovery and to hear better news shortly.

My approach to these amendments is already pretty clear because we are setting up a completely new system. It is now on a statutory basis and has a new and I think generally respected code of practice. It has to report through the judicial commissioner and then the Investigatory Powers Commissioner, to the Prime Minister and Parliament, and to try at this stage to put in all sorts of qualifications seems quite unnecessary.

Take the issue about adding “serious” to “crime”: it seems that in many cases when the police first get some source—some possible informer—they may not be at all clear how serious the crime may be. However, I think we would all feel pretty silly if later on, when very serious crimes were reviewed, they said, “We knew about that, but because we couldn’t tell how serious it was going to be at that time, we never took any action.” That would be pretty unforgivable. Therefore, I do not support adding “serious” to these issues.

I will not say any more about how the issue of economic well-being is linked to national security, as the noble Lord, Lord Carlile, covered the point admirably. There is no question that many things could happen, as the noble Lord, Lord Beith, addressed; he is a former member of the ISC, who took evidence with me. And the noble Lord, Lord West—poacher turned gamekeeper that he is—said that we now see a situation in which many extremely serious things could affect economic well-being. That could involve perhaps many people losing their jobs and significantly higher unemployment, but you could not claim that that is linked to national security.

With the confusions and uncertainties of the world at present, the cyberattacks and the data war that is going on, I would not wish to qualify, limit or restrict a properly set up and statutorily approved new system with too many qualifications, which may limit the effectiveness of its vital work.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is the first time I have spoken on the Bill on Report. First, I join others in sending my best wishes to James Brokenshire. I do not know Mr Brokenshire very well, but I dealt with him when he was Secretary of State for Housing, Communities and Local Government, and he was always very fair. I wish him well in his treatment and send him my best wishes, as other noble Lords have done.

Amendments 7, 8, 9 and 10 in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I will comment on these first and then come to Amendment 11, proposed by my noble friend Lady Chakrabarti, along with the noble Lord, Lord Paddick, the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lady Ritchie of Downpatrick.

All issues in this group of amendments were discussed in Committee, on 3 December last year. Amendments 7 and 8 would insert the word “serious” after the words “detecting” and “preventing” in the Bill, thereby seeking to limit the use of a criminal conduct authorisation. I see the point that the noble Lord, Lord Paddick, is making and, while I have some sympathy with him, I am not convinced that these amendments are necessary.

Of course all authorisations must be necessary and proportionate, but, on reading through the revised code of practice, I thought it contained enough protection to render these amendments unnecessary, as I said earlier. On looking through the code, I saw one very important paragraph, which I read carefully. It said:

“The authorisation … will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render the use or conduct of a CHIS proportionate. Similarly, an offence may be so minor that any deployment of a CHIS would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”


That is fairly clear.

If votes are called on either of these two amendments, these Benches will not support them. I take a similar view that Amendment 10 is not necessary for the same reason. It is important to enable public authorities to have a reasonable suite of tools available to prevent crime and seek justice for victims.

When we discussed these matters before, the noble Baroness, Lady Williams of Trafford, used the example of out-of-date food being sold and consumed. On one level, you could ask what the big issue with a few dates is, but the reality is that it could lead to serious public health implications, with people consuming food that is not fit to be consumed by humans, leading to serious illness and even death, in certain circumstances. I can see circumstances in which, information having been assessed carefully using the guidance of the code, a CHIS would quite rightly be deployed. This is all about balance and proportionality, and I think we are probably in the right place.

Amendment 9 seeks to restrict issues around economic well-being to those linked to national security. The noble Lord, Lord Paddick, said that he intends to test the opinion of the House if he is not satisfied with the Government’s response. I again tell the noble Lord that these Benches will not support him if he does. I have reservations about this amendment, which could unintentionally prevent a CHIS being deployed on some crimes where their deployment would otherwise be reasonable, proportionate and necessary. That could be to the detriment of our economic well-being as a country, if other tests have been met. This issue was discussed at length in Committee.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

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

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.

My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:

“The Bill must be amended to exclude children or”—


I agree in particular with this part—

“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”

Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.

One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.

I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.

That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I am very pleased to take part in this debate. We have already heard some truly excellent speeches and I am sure there are more to come. I support Amendment 24, which has been so ably proposed by the noble Baroness, Lady Kidron, and am very happy to have added my name to it. I have huge respect for the noble Lord, Lord Young of Cookham. I agree with virtually all the points that he made in proposing Amendment 12. I join him in paying tribute to the noble Baroness, Lady Williams of Trafford, who always engages with the House on issues and seeks to find a way forward. It is important that we do that. However, what we have from the Minister at the moment in government Amendment 26 does not go far enough to address the concerns we have heard from around the House, although I accept that considerable efforts have been made to seek a way forward. I know that those efforts are still going on.

I certainly want to seek an improvement and get something detailed into the Bill that provides further protections for children; that is the most important thing for me. If we are to deploy CHIS then, in the very rare and exceptional circumstances where we need to do that, we must have those protections. That is why I support Amendment 24: I believe it sets out the way to get the right balance and, in those exceptional and rare circumstances, allows for that better oversight to be provided. In a way, I will vote for Amendment 24 to give the Government an opportunity to carry on discussions with people around the House and outside it. If we pass it, I hope that a better amendment will come back from the other place on ping-pong that builds on Amendments 24 and 26, and seeks to address the concerns that the Minister can surely hear from around the House, to get something in the Bill that is better than what we have now.

For that reason, I will not be supporting Amendment 12 by the noble Lord, Lord Young; I just do not believe that the Government are going to support that position, so it is a practical consideration that leaving a little room there for the exceptional circumstance, with the right protections, is the way to go. We need to build on the constructive discussions that we have had outside the House, and the debates we have had on this issue in the House, to find the way forward. I want to apply protections for children and vulnerable adults, and the process outlined in the amendment is the way to get them.

I bring my remarks to a conclusion by paying tribute to the many noble Lords around the House who have been engaged in this issue. I thought my noble friend Lord Haskel raised it on an SI some years ago, so I do not know who started it; maybe it was the noble Lord, Lord Young of Cookham, or the noble Baroness, Lady Jones. Certainly a number of people have raised this issue and everyone has been vitally concerned to protect children, put safeguards in place and get us to a better place, so I thank everyone in the House who has been involved in this. I thank the noble Baroness, Lady Kidron, for tabling her amendment and my honourable friend in the other place, the Member for Walthamstow, Stella Creasy, who has been heavily involved.

I believe that this is one of those debates in the House where you can hear the concern on all Benches from numerous highly respected noble Lords. We as a House need to send Amendment 24 to the other place, which will enable us to get something back from the Government that I hope will satisfy all noble Lords and get us to a better place.

--- Later in debate ---

[Lord Russell of Liverpool (CB) [V]]

My Lords, I have a specific question for the Minister. She mentioned the lifetime duty of care to the CHIS that whichever authority is managing them has after the deployment. In the case of children who have been deployed, if and when the person managing the child CHIS retires from the force or moves on to another role, what mechanism is there to replace the individual or individuals tasked with following up with the CHIS? Secondly, is there any sort of formal reporting mechanism that loops back how those ex-CHIS are doing, so that they can be monitored? Also, is that recorded in any way and can it be reported to Parliament?

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness for her very detailed response to this long and important debate. I want to push her a bit further. She said that the Government cannot support Amendment 24 in its present form but understand where we are coming from. I equally understand where the noble Baroness and the Government are coming from. However, if the House voted for Amendment 24 and it was sent to the other place, I am sure that she would want to engage constructively with its movers—and other colleagues in this House and elsewhere—so that we could bring back through the ping-pong process something that the whole House could unite behind, taking the best points of her government amendment and the points in Amendment 24 that were carried. It would be useful for the House to know whether that would be possible.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the noble Baroness and the Government very much for that. I am sure we can get an agreement and all come together. Thank you so much.

Amendment 26 not moved.

--- Later in debate ---

[Lord King of Bridgwater (Con) [V]]

My Lords, I am pleased to have the opportunity to follow the noble Lord, Lord Naseby, who is rather closer to my position than most of the other contributors to this debate.

I think we start, after these exhaustive Committee and Report stages, with a pretty wide recognition across the House of the value that can come from covert sources and the vital need to ensure that, in maintaining law and order and a safe country, we do not lose the opportunity of using covert sources. They may be the only way to get the results we want and to prevent very serious crime and damage to our country.

But I think the reason why perhaps we have the problem of these amendments—all of which I oppose—is that many people ask the Government for lots of examples of all the ways in which the various bodies that people wish to delete have actually had any success with covert sources. Of course, the difficulty the Government have, which I understand, is that it is very difficult in many cases. There may be ongoing issues, or they may endanger existing covert sources by giving too many examples of the ways in which we have managed to prevent crime and get the success that we want.

I certainly think that there is general agreement that, if we do have the operation of covert sources, it has been made very clear that we want to be satisfied that they are properly operated; that it is necessary and proportionate; that it is subject to effective scrutiny and inspection; and that there are clear limits on the number of authorities permitted and able to operate it.

When one looks at the list of the authorities, I was not impressed with the noble Lord, Lord Judd, talking about any Tom, Dick or Harry. These are major organisations in our country—public authorities with major responsibilities. I would just make this point: it is not just any list. We know that it would be wrong to have too many. The Minister may correct me, but I believe that there were 34 originally which, under the previous arrangements, could operate. This has now been reduced to 14, which seems to me the right approach to take.

Looking at some of the issues that there are, in my previous contributions I have drawn on the contribution of James Brokenshire, and I join in our best wishes to him. I will just repeat once the evidence he gave on the devastating amount of crime and serious events: in a year alone in London, covert sources helped ensure 3,500 arrests, the recovery of more than 500 weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. The only thing that that does not actually say is which of these agencies in London were part of that. That is part of the problem the Government have had in getting across the message of why these agencies are important.

In the current situation, in the middle of the Covid-19 pandemic, when I think we are about to have global challenges in the supply of vaccines and some new medicines thought to help with treatment, with the struggle there may be and the opportunities for organised crime to get into that area, for the Government to delete the Department of Health and Social Care and its medicines and healthcare products section from being involved in this area—they could be vital; they are needed in those situations—and say that they have decided on this occasion to deprive them of what may be a vital source of intelligence to protect the nation’s health would be unforgivable.

In passing, I note the decision to delete the Home Office from the list except in cases of slavery. I do not know how many noble Lords saw the letter in today’s Times from the Reverend Jonathan Aitken, the chaplain to Pentonville prison. He made the case that in prisons at the moment, where a number of staff are having to self-isolate and are under great pressure and there are opportunities for criminal gangs to get up to dangerous operations of one form or another, it is essential that we do not at this moment take away one of their sources of possibly vital intelligence.

I will not go on about it, because the other thing I see coming—just to cheer everybody up—in our present dramas is a real risk of world food shortages. If there is a challenge of that kind, with the opportunities for organised crime to get into the food area and cause huge problems for different people, that choice moment to delete the Food Standards Agency from being able to keep the fullest possible checks on what is happening seems very unwise. I certainly agree that there should not be a huge range of different agencies, but I do not support any of these amendments. All these agencies have good justification at the moment; it is vital we keep our defences up.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I find myself agreeing with a lot of the comments of the noble Lord, Lord King of Bridgwater.

I absolutely recognise the concerns of Members about the range of organisations listed in the Bill. It is right that we probe, question and justify to ourselves as a House which organisations are listed here—as we have heard, that is now a reduced number—but it is also important that, as this Bill passes through the House, we empower a number of organisations to have the ability, in limited circumstances, to employ a covert human intelligence source.

If you look at the organisations here and think about the potential crimes that could be under their remit—HM Revenue & Customs in terms of tax fraud, the Food Standards Agency in terms of passing off out-of-date meat, the Environment Agency in terms of discharging all sorts of stuff into our rivers or the Competition and Markets Authority in terms of many activities which are illegal and very detrimental to our country—it is right that we have this range.

It is fair to say that some organisations listed here would potentially use the power much more than others. That is fair. I am clear that the Investigatory Powers Commissioner has some oversight here, but it would be useful if the noble Baroness could be clear in responding that an organisation that used this power very infrequently would have the ability to go to the Investigatory Powers Commissioner for advice and guidance, and maybe also to other agencies that are more used to using this power.

I absolutely see the point that we need to have organisations in certain areas empowered to do this work. These are potentially very dangerous situations. This is about keeping our country safe and protected in these difficult times. Although I understand the concerns raised by noble Lords in the amendments in this group, we on these Benches would not support any votes on them.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. Like the noble Lord, Lord Kennedy, I found the contribution from my noble friend Lord King very compelling. I hope that all noble Lords have received and read the business cases for the wider public authorities that I sent to all Peers last week. On the basis of those, I hope that noble Lords will appreciate the requirement that these public authorities have for the use of this power. I can again offer reassurance that they will be low users of the power but that it nevertheless remains an important tactic in detecting and preventing crimes that have a significant impact on the lives of the public.

Regarding why the police cannot just authorise for these wider public authorities, the police have a range of priorities and we have given various organisations specific law enforcement responsibilities. That is why these public authorities have their own investigative functions, and they therefore need the tools to fulfil those functions.

If noble Lords support Amendment 33, in the name of the noble Lord, Lord Anderson, as the Government will, IPCO will have close to real-time oversight of every single criminal conduct authorisation granted by each public authority. This will be another important safeguard to ensure that the power is being used properly and appropriately. IPCO will almost definitely flag where this is not the case, or if there are training requirements.

I can confirm that my noble friend Lord King is absolutely right: there were originally 34 authorities. There are now 14, so, far from expanding that list, we are contracting it. In response to my noble friend Lady McIntosh of Pickering, I can confirm that the IPC will consider the authorisation of wider public authorities in his annual report, which will be public.

I would like to give a very topical example of how this power might be used by one of our wider public authorities, the Medicines and Healthcare products Regulatory Agency, which comes under the umbrella of the Department of Health and Social Care in the Bill. The MHRA has responsibility for protecting public health through the regulation of medicinal products, medical devices and blood and blood products in the UK. These products are not ordinary consumer goods and have the ability to cure, prevent and diagnose disease and enhance life. However, they can also cause serious harm. In particular, prescription medicines are, by their very nature, potent and are prescribed to patients by a healthcare professional based on clinical judgment and a patient’s history.

In the UK, strict legal controls govern these products and breaches of these regulations are criminal. Crime involving medicines and medical devices is increasing; they are profitable commodities and unscrupulous individuals and organised crime gangs, which put financial gain before human health, face less risk and less severe penalties compared to trading in, for example, narcotic drugs. The MHRA relies on powers under RIPA, including the power to authorise the use and conduct of CHIS, to investigate and disrupt criminal activity in this area.