Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord King of Bridgwater Excerpts

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

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, it is a great privilege to follow the noble Lord, Lord Blunkett, who has brought to bear his own experience on this issue. I would like very briefly to speak in favour of all these amendments. In essence, there are five main proposals before the House, some with variance. They are as follows: first, leave it as it is and rely on the discretion of the prosecutor; secondly, have authorisation in all cases either by the secret services or by the Competition and Markets Authority, or any of the authorities, and, in due course, review by the Investigatory Powers Commissioner; thirdly, pre-authorisation either by a judge or by the Investigatory Powers Commissioner or a Secretary of State; fourthly, pre-authorisation, except in an emergency, by the same people; and, fifthly, real-time notification.

I agree with the noble Lord, Lord Blunkett, about the comment made last week by the noble Lord, Lord Cormack—who spoke very wisely, as he often does, in saying that we should attempt to find the best solution. The difficulty is knowing how to do that without evidence as to the pros and cons. None of this is easy and getting it wrong will be very damaging to all concerned. Perhaps I may illustrate that by taking one of the alternatives and saying what it would be helpful to know. I shall take the example of real-time notification.

The first question I would like answered is: if the authorities can tell the Investigatory Powers Commissioner within seven days, why is it not possible in most cases to notify in advance? It would certainly be far safer to do that. Secondly, if this course is adopted, will each change have to be notified? Thirdly—this is the most serious question—what will happen if the Investigatory Powers Commissioner says that the authority should not have been granted? Will the authorisation cease immediately; and if it did not, what would the consequences be under the Human Rights Act, for example, for those affected? Presumably, any disallowance or contrary views by the IPC would not be retrospective. Fourthly, would not the report at the end of the year identifying that authority should not have been granted be more damaging than trying to stop that mistake in the first place by pre-authorisation?

Should this real-time notification apply to everyone? Like the noble Lord, Lord Naseby, and many others who have spoken, I have the greatest admiration for the security and secret services. But is the same true of the Competition and Markets Authority and the Food Standards Agency? We have to be careful of what can happen on people’s coat-tails.

Finally, I really do think it would be useful to have the views of the Investigatory Powers Commissioner himself on this idea. He has to operate it; does he think it practicable, and what is to happen?

I could, drawing on my own experience, try to give some more details in respect of these matters, but I fear that in doing so I might be at risk of transgressing, as would other noble Lords, by inadvertently saying something very sensitive. That is why in our previous sitting, in the debate on the second group of amendments, I suggested finding a means of ensuring that there is evidence before the House to enable it to understand the deficiencies in the present law which need to be corrected, and to scrutinise the proposals for reform and try to ensure that the proposals, if necessary as amended, will work well for the future. My general experience has been, in relation to both the police and the security services, that they are rightly reticent about putting matters into the public domain. But it is often possible to put sufficient into the public domain without damage to security and methods of operation. However, you cannot do that unless you know enough about the issues and the evidence.

It is also my experience that subjecting issues of this kind to independent scrutiny and not relying on conclusions that are put forward is in the overwhelming interest of the security services, the police and the other bodies. That is because these are difficult issues of judgment that need to be scrutinised externally and independently and then addressed so that the risk of future errors is minimised and confidence maintained. That is why I would hope that means can be found to enable the House to carry out the constitutional function I have outlined. I have suggested referring either the Bill or specific issues to a Select Committee, under Standing Order 8.118, which can take evidence in private and publish a report, or—an alternative as suggested by my noble friend Lord Anderson of Ipswich —to seek a report from an individual. I would hope that the report would enable us to do our constitutional duty, find the right answer and be able to reassure everyone that we had, on this extraordinarily difficult issue, made a decision where the safeguards were right and that was practicable. I have written to the Minister and discussed this with her. I very much hope that a way forward can be found.

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

I am very pleased to follow the noble and learned Lord, who ended by saying that he wanted to ensure that the solution was practicable and workable. I strongly agree. This is the first time that I have had a chance to speak on the Bill. I straightaway echo very strongly the comments of the Joint Committee on Human Rights, which recognised that, in an increasingly dangerous and unstable world, covert intelligence has a vital role to play in protecting our country from terrorism, organised crime and the growing threats to our national well-being. I was very impressed by the information that James Brokenshire, the Minister for Security, gave on Second Reading in another place. In the year to November 2019, in London alone, covert intelligence led to 3,500 arrests and the recovery of 100 firearms and 400 other weapons, half a ton of drugs and £2.5 million in cash. I note also the evidence given that, in 2017, covert intelligence foiled an attack on No. 10 Downing Street. Having myself been a victim of the mortar attack 30 years ago on No. 10, I am sorry that we did not have better covert intelligence then.

I also recognise that this vital tool must be put on a proper statutory basis. I have to say again that it is not before time, because it was 26 years ago that the Secret Intelligence Service and the Intelligence and Security Committee, which I had the privilege to lead in its early years, was put on a statutory basis.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord King of Bridgwater Excerpts

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

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Baroness, Lady Blower, who appears next on the list, has withdrawn, so I call the noble Lord, Lord King of Bridgwater.

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

My Lords, unlike, I think, every other speaker to these amendments so far, I do not support them. I see in them, once again, attempts to impose yet more conditions that may affect the effectiveness of the operation of undercover support and sources doing what I thought was generally agreed to be vital work in the interests of enforcement and the life of people in our country. I say at the start that a number of these things, and the worry about how these powers may be exercised, do not pay respect to the fact of the code of practice, which many have said should be required reading for everybody taking part in these debates. The importance of that code of practice is that it is going to have to be approved by both Houses of Parliament. That will be a very important protection, because it is under that code of practice that authorising officers issuing CCAs, and the Investigatory Powers Commissioner, will obviously be required to act.

I make no apology for repeating what I said on an earlier amendment in quoting James Brokenshire, the Minister for Security, when he gave the astonishing figures for a single year in London alone. The use of undercover sources resulted in 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. It also enabled, which I did not mention, the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. Those figures alone, just from London in one year, surely leave nobody in any doubt of the importance of this vital source of support for preserving an orderly and law-abiding society. I make this point because, under the code of practice, which includes this question, others are seeking to add the word “serious” to “crime”. How does an authorising officer react when an informant comes and says, “There is a group of people who are starting to get together, I am not quite sure what they are up to, but I think there is a real risk that it could turn, later on, into something much nastier”?

When one looks at those figures I quoted from James Brokenshire, how many lives have been saved; how many people’s lives have not been disrupted; how much misery and poverty that might otherwise have entailed has been prevented? For these reasons, I am not persuaded of the need to add “serious” to crime; I think it might inhibit the operation of a properly authorised issuer of a CCA, who obviously has to use his judgment, and has to persuade the IPC as well that his judgment is correct and is in line with the code of practice.

I should also say a word about preventing disorder. We are living in extremely difficult and dangerous times at the moment. We know that the power of social media now makes it possible, in an instant, practically, to organise major demonstrations which may, in fact, be based on that new and horrid ingredient “fake news”. These may disrupt many people’s lives and may cost people’s lives. Although there are many very worthy causes—whether it is Black Lives Matter or Extinction Rebellion—pursuing very understandable and admirable objectives, none the less we also know that around the fringes of those organisations, or in the confusion that some of their demonstrations cause, other sources of crime can easily emerge and it often makes opportunities for gangs to commit many more crimes as well. So I would not delete “preventing disorder”, provided it is properly covered within the code of practice.

The other thing I would just add is about economic well-being. I totally support trade unions—I always have done and, as Secretary of State for Employment, I was obviously closely involved—and legitimate trade union activity. However, we all know that, within our lifetime, we have had one or two instances where that has not been the case. One instance was the miners’ strike, when Mr Arthur Scargill said that one of his objectives was to bring down the Government, and he was not averse, in the process, to accepting money from the Soviet Union in pursuit of that objective. It is to the credit of Neil Kinnock, now the noble Lord, Lord Kinnock, if I may say so, that he would not support him at that time, because Mr Scargill had not put the issue to a vote of the whole trade union movement.

I think we have seen here, and I understood at the beginning of this, that virtually all noble Lords recognise the vital importance of undercover source information and for there to be a proper system, a statutory system, under which they would operate. That is what I wish to see. I wish to see a thoroughly effective code of practice, thoroughly trained issuing officers and rapid and close contact with the Investigatory Powers Commissioner as they carry out their work.

[Lord Paddick (LD)]

My Lords, I accept that it is difficult to separate these issues, but I will leave discussion of economic well-being and the activities of trade unions and trade unionists until the relevant groups.

As drafted, the Bill defines very broadly when a criminal conduct authorisation is necessary, and this group of amendments focuses on the new Section 29B(5)(b) inserted into the Regulation of Investigatory Powers Act 2000 by Clause 1(5) of this Bill. It states:

“A criminal conduct authorisation is necessary … if it is necessary … for the purpose of preventing or detecting crime or of preventing disorder”.


Crime and disorder have very wide definitions, as noble Lords have set out in this debate.

As we have already debated, tasking a CHIS to participate in crime is a very serious step for any authority to take, with all the implications for the rule of law and the potential for abuse that we have already debated, and because of the potential danger it places the CHIS in, about which we will discuss more in a later group. In many situations it could have far more negative consequences for innocent people than the interception of communications, and we should not forget that we are amending legislation that was originally intended to cover, when drafted, only the interception of communications.

The legislation covering such interception limits the use of its powers to cases of serious crime. Even in my limited seven years in this House, I have lost count of the definitions of serious crime in different pieces of legislation. It could be argued that, if we wanted to limit the power to grant a CCA to cases of serious criminality, we could choose whatever definition of serious crime we liked.

The noble Lords, Lord Hendy and Lord Hain, have decided in their Amendment 22 to define serious crime as indictable offences only, but I am glad to hear from the noble Baroness, Lady Chakrabarti, that the noble Lord, Lord Hendy, is attracted to our definition rather than the one in his own amendment.

As my noble friend Lady Hamwee has clearly articulated, we have gone with the definition already used in RIPA—for the sake of consistency, at least within the Act itself. The principle, however, is the same: that this power to grant a criminal conduct authorisation should be limited to serious crime.

The Government may say that, in addition to being necessary, the granting of a CCA must also be proportionate, and it would not be proportionate to deploy CHIS if the criminal activity was minor. The same argument applies, however, to the interception of communications in RIPA, where “necessity” is already limited to serious crime, as defined in our Amendment 31.

The noble Lord, Lord King of Bridgwater, talked about the code of practice. There is, however, a definition of serious crime in RIPA despite the existence of the code of practice for the interception of communications. The noble Lord also talked about the impressive array of offences that had been detected as a result of the deployment of CHIS, including those relating to firearms, drug-dealing and child sexual exploitation. All those examples would fall within our definition of serious crime.

What is sauce for the goose is sauce for the gander, even though geese and ganders are different in some important respects. RIPA limits the interception of communications to serious crime, so this Bill should limit the issuing of criminal conduct authorisations to serious crime using the same definition.

The second issue is more difficult and more controversial, starting with the fact that the prevention of disorder is not one of the necessary grounds for the interception of communications. The Government are already on the back foot here, in that large-scale disruptive disorder can have very serious consequences for society yet there is no power to intercept the communications of organisers of disorder in order to prevent it. None the less, there is an argument for both the interception of such communications and the deployment of CHIS into groups that are planning to cause widespread disruption that could seriously affect public order, cause damage to property and the economy, prevent people going about their day-to-day business, and create fear among innocent bystanders.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord King of Bridgwater Excerpts

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

[Baroness Whitaker (Lab)]

My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti. I echo her thanks to the Minister for her offer of a briefing. I support Amendments 67 and 70. On Amendment 67, I have little to add to the clear exposition by the noble Baroness, Lady McIntosh of Pickering. This is a really intrusive provision, and the criterion of economic well-being, to which it seems to be related, is too loose to be safe as far as the liberty of a citizen goes. The authorising officer is not even a relevant professional; it is the chair of the Competition and Markets Authority.

On Amendment 70, my noble friend Lord Sikka has covered the ground most persuasively. I simply add my voice to the alarm, echoing the concerns of the noble Lord, Lord Hodgson of Astley Abbotts, that such procedures, which are important to democracy and to liberty, should be capable of amendment only by statutory instrument outside the full parliamentary powers of scrutiny.

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

My Lords, I am pleased to follow the noble Baroness, Lady Whitaker, although I am afraid I do not take exactly the same approach as she has on this matter; in fact, I oppose the amendments. I understand that for many people they are probing amendments, and many might take a different view when the Minister has explained some of the background to them more fully.

I am reacting slightly to the comments of the noble Lord, Lord Paddick. The noble Lord’s speech introducing this group of amendments might have given some people listening the impression that something very new is being launched, but with his own background and personal experience he knows that we are talking about a well-established practice—the use of covert sources—which, as we know, has been a vital source of information in the prevention of much crime and terrorism in our history. We are not introducing something new here but putting an established practice on a statutory basis and putting in place a much tougher regime for its operation, one that has to be voted on by Parliament, which of course was not the previous situation.

The issue of additional authorised bodies is spoken about as though this is some huge expansion, when it is my understanding—the Minister may be able to confirm this—that it is actually a reduction in the number of bodies that can apply to use the covert-intelligence-source approach. It is not new; each of the bodies listed has previously shown an operational requirement and has been using it in practice to some great benefit for the country. Here I echo what the noble Lord, Lord Paddick said, and which others have echoed, which is an appreciation of the Minister’s email to me—and maybe her letter to others who are more present on the scene—regarding what can be advanced as evidence of where this has been valuable to the organisations concerned.

The suggestion following on from that is that we do not really need all these bodies to be involved and that we should just give it all to the police. As I understand it, in many of these cases the introduction of a covert intelligence source in a particular area of responsibility, whether it be the Environment Agency or the Department of Health and Social Care, may often be to try to find out what is happening in the first place. That is not at a stage where you are producing masses of evidence of something that can be handed straight over to the police; it is about trying to assess whether there is some real threat or danger in these areas.

Many have cited the importance of a code of practice. I think there is general recognition that it is a pretty strong document. It is a huge improvement on what did not exist before, and it has to be voted on by Parliament, so we will have to approve its coming into operation. It will of course be binding on all parties.

The reason why I have taken part in these debates in Committee is that at present we are living in an exceptionally dangerous world. I have previously quoted the evidence from the Minister, James Brokenshire, on the amount of crime of very different sorts that one year’s covert intelligence had helped with. I see that included in that was the fact that no fewer than 27 different terrorist attacks were prevented by covert intelligence in the last three years.

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.

It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.

The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.

The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.

However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?

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

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for drawing attention to the points I made, and I am sorry if I sounded too aggressive on some of them. The point I did not make, which I shall make now, is on how much crime is committed. One would expect that, in most cases, it would not be the commission of crime so much as association with people while they committed crimes, with the person in question not necessarily being directly involved but having some complicity, which is one of the problems.

The requirements, as I understand them, if they are in that situation and a criminal conduct authorisation is issued, are that it has to be proportionate, it may not be issued if what is sought to be achieved can be done in another way, and it has to be part of an effort to prevent more serious criminality. Those three conditions are perhaps not mentioned very much but are important.

I have left out some issues that I might have discussed. We have just talked about possibly leaving the Department of Health and Social Care out of the Bill. Think of this moment when organised crime, throughout the world, is seeing how it can get into the vaccines business in one way or another. The challenge that that will pose will feature in our news broadcasts and papers in the days ahead. It will obviously be a big issue. One recalls that the NHS was practically brought to a grinding halt from its systems being hacked and disrupted.

There is this, as well, if it is not too dramatic. At the time of Brexit, when we may be moving towards no deal, there is an idea to take from HMRC its ability to keep every possible assistance. In trying to deal with some of the problems it will have, it will need all the help it can get.

My concern about these amendments, and referral to the police or judges to overview the operations of CCAs, is that a clear structure is set up. The Investigatory Powers Commissioner is a very senior judge and the judicial commissioners are very senior. My concern all the way along is that nobody has challenged how vital covert intelligence sources can be, in a range of different fields. The question is whether we can still keep those covert sources coming. The more we expand the range of people who have access to that information, the bigger the danger of leaks, and then there will be fewer sources available in the future. That is why I think the structure set up of the Investigatory Powers Commissioner and his judicial commissioners, with a tribunal and an annual report to Parliament on its operations, has important safeguards. Going much further than that starts to undermine the security of the information and imperil the safety of some brave people, who are giving evidence to help keep our country safe, in a range of different fields.

[Lord Paddick (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord King of Bridgwater, with whom I completely agree on maintaining the status quo on the involvement of covert human intelligence sources and the ability of the police and security services to authorise these people to engage in crime. I have no argument with him on those issues. But, as the noble Baroness, Lady Chakrabarti, said, the issue for us is the police granting immunity from prosecution or from any legal action at all.

My noble friend Lady Hamwee and I have Amendment 79, but I will take the amendments in this group in order. Amendment 75A from the noble Baroness, Lady Jones of Moulsecoomb, is intended to require the Investigatory Powers Commissioner to identify unlawful or improper conduct through a CCA to the police for investigation. I have a great deal of sympathy for what the noble Baroness is trying to achieve, but I am not sure that her amendment achieves what she sets out to.

The amendment talks about conduct that is not authorised by the criminal conduct authorisation, but we are also concerned with conduct that is unlawful or improper that is authorised by a CCA, by accident, inexperience or corrupt practice. This does not appear to be covered by the amendment. Of course, if it is the result of police malpractice, referring the matter to the police may not be enough to ensure that it is properly dealt with.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord King of Bridgwater Excerpts

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

[Baroness Manningham-Buller (CB) [V]]

I was expecting to follow the former chair of the ISC from when I was there, but I am delighted to follow the noble Lord, Lord Thomas of Gresford. I do not intend to repeat what I said in Committee, but I want to make a few points—although I realise it is late and we have a lot more to get through.

If the noble Baroness, Lady Kennedy of The Shaws, is right that judges have changed over the years, so have MI5 and the police. Since I left MI5 13 years ago, oversight, which is the first thing I want to talk about, has strengthened. The double lock now exists: you cannot get a warrant for a telephone intercept or a microphone operation without a judicial signature, as well as that of the Secretary of State. IPCO has assumed a very important and vital role and I read with great interest its recent report, which is very comprehensive and thorough.

Since I left, there have been Independent Reviewers of Terrorism Legislation. I suggest to your Lordships that we are lucky to have in this House the noble Lords, Lord Anderson and Lord Carlile. They have deep inside knowledge of these issues and, unlike me, they cannot be accused of a conflict of interest. They came to these jobs and did them objectively.

I welcome this oversight. I am not somebody who feels that too much interference is tricky. It helps keep standards high, it gives confidence to the public and it gives clarity to my former colleagues, which they welcome. When I joined the Security Service there was no law at all governing what we did, and I can tell noble Lords that that was an extremely uncomfortable position.

I support the new clause proposed by Amendment 33, because it seems to be the ideal combination of independent oversight from IPCO and operational expertise—and I believe quite strongly that we should not muddle those two roles.

I had thought that I would try to resist defending covert human intelligence sources, but I cannot allow some of the comments made this evening to stand without my giving an alternative view. Of course I do not defend those involved in the murder of Finucane, and of course I regard the undercover police who grossly abused their trust as culpable. But I have met many undercover agents—as very few Members of your Lordships’ House, apart from the noble Lord, Lord Paddick, have done. I have to say that my experience is different from the noble Lord’s. Mine have not been engaged in activity regarded as undesirable. They have not been venal or self-interested, receiving brown envelopes of cash. So the earlier point about whether the legislation is right for all of us is interesting, but my experience is very different.

This is where I will repeat myself from Committee. I have met brave men and women who risked their lives—I underline that—to save other lives. Yes, they are occasionally authorised to commit crimes, but lesser crimes than the ones they seek to prevent. It is risible to suggest that they have carte blanche or should be involved in setting bombs. They have saved thousands of lives. They will never get public recognition or thanks, but I take this opportunity to thank them. We have a moral obligation to respect them, protect them and keep them safe, because many of us depend on their work. I am also very reassured that a recent IPCO report said that the way MI5 ran covert human intelligence sources was “highly professional” and “mindful” of the ethical issues.

If the House will forgive me, I will take a slight deviation to tell noble Lords about one particular human source. A few years ago, the BBC “Today” programme asked me to guest-edit a Christmas programme, which I did. I asked my former colleagues in MI5 if they could produce an agent—a CHIS—to talk to the BBC home affairs editor, to be played by an actor, and explain why they were working for the authorities in this way. MI5 produced an agent who was a British Muslim, and he described what he was doing: reporting on ISIS and related terrorism. He was asked how he justified this to himself, and he said, “I look in the mirror every morning and I know I am doing Allah’s work.” I do not know what intelligence he produced or his name—I know nothing about him. But it was a very compelling interview.

On prior authorisation, whether judicial or political or, in today’s terms, probably a combination of the two, I said in Committee that this is superficially attractive. I still think this; it would give confidence and reassurance to many. But I am afraid that I also share strongly the views of the noble Lord, Lord Anderson, that it is unfortunately not practical. Why?

The noble Lord, Lord Rooker, described—in some ways better than I have done—some of the complex aspects of running covert human intelligence sources. As I think the noble Baroness, Lady Chakrabarti, said, they are not robots. As I said a minute ago, we have an obligation to their safety first of all, under the ECHR and any other criteria. Running them is complex—there is the care for their welfare, and before they are taken on there is the involvement of in-house lawyers, security advisers and behavioural scientists. Some of them work for many years at great risk to themselves. It is quite different from microphone and interception operations, which can be switched on and off and the product from them retained or destroyed.

The handlers, who are not the people who authorise criminal activity, will have deep knowledge of the individual: their family; their history; their motivation, which will vary; their access; what intelligence they are going to get; what training they have had; what instructions they have been given; what limits have been put on what they do; what the agreed rules of their deployment are; their contacts for emergency; and if they need to be extracted. CHISs trust the handlers to protect their identity, possibly in perpetuity.

When I was head of MI5, I very rarely knew the name of a CHIS. I knew them by a number, and I knew what access they had. The authorisation for criminal activity is a small and rare part of a much broader relationship, often long-term, and running them deals with fast-moving and unpredictable circumstances. I am again reassured by IPCO’s independent view that the handling of cases involving criminality has been proportionate and necessary, and I think some of the suggestions of what CHISs might be authorised to do are just unrealistic and alarming.

I would like to pick up on Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount. Their right to life is as important as the right to life of the public who, in many cases, they seek to protect.

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

I was expecting to follow the noble Lord, Lord Thomas of Gresford, but I am even more delighted, with no disrespect to him, to follow the noble Baroness, Lady Manningham-Buller. Obviously, I have had some personal involvement with her, and I can pay tribute to her huge experience in this field. I certainly endorse her final point, which is, of course, the issue about the security of people involved as covert intelligence sources.

--- Later in debate ---

[Lord Judd (Lab) [V]]

My Lords, I am associated with Amendment 7 and shall speak in support of my noble friend Lady Chakrabarti’s amendment on agents provocateurs. I am one of those who believes that however much, from an idealistic position, a Bill such as this should be unnecessary, in the reality of the world, what the Bill covers is desperately needed. That is why I am convinced that we should not inadvertently get into a position in which we are undermining public understanding and goodwill towards the need for the Bill and for those who courageously do the work to which we are referring.

I am therefore certain that Amendment 7 is highly relevant. I have already spoken on a previous group about the word “serious”. We must not let this become seen as a convenient system at the disposal of the security services, and the rest. The gravity and seriousness of the work when it is necessary must be free from such misunderstandings and from having created situations in which people’s anxieties can be exploited by those with whom we have nothing in common. Believe you me, there are people who are determined to exploit every opening to try to disprove the validity of the Bill and what it is about. For that reason, I believe it is not superficial to insist on the word “serious”. It is extremely serious because it is key to keeping the maximum positive attitude.

On the amendment in the name of my noble friend Lady Chakrabarti, in the same way, we need to be very careful about counterproductivity. I cannot think of anything much more easily exploited for stirring up doubt and anxiety about what the security services are about and why legislation of this sort is necessary than to prevaricate on an issue such as agents provocateurs. It is all right to say “Well, it’s covered in other aspects of the Bill”; it may well be, but I believe that the concept of agents provocateurs and the counter-productivity if misused makes it absolutely essential that we spell out that the activity of agents provocateurs is just not acceptable. The more we underline that, the better.

I am therefore firmly with my noble friend Lady Chakrabarti on this, and some of my colleagues who have carried responsibilities in this sphere and who see this from an administrative and top-down point of view have to understand the dynamics which are there in society and which work to undermine what they seek to achieve on our behalf. From that standpoint, the amendment is necessary and highly relevant.

[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 King of Bridgwater Excerpts

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

[Lord Naseby (Con) [V]]

My Lords, these amendments are all about which specific public authorities should have the power to grant criminal conduct authorisations. Frankly, I disagree with my noble friend Lord Cormack and the noble Lord, Lord Dubs. I see no need to be restrictive; all sorts of public authorities may need to use the sort of, in effect, facilities to use criminal conduct authorisations. In addition to the list here, how about the Civil Aviation Authority? One knows—and I am deeply involved in civil aviation matters—that that area is riddled with challenges of illegality. The same applies to Customs and Excise, and so on. Surely the issue is not who should have the power, but deciding, after a thorough assessment of need, who is the most relevant and has the right expertise. Otherwise it becomes a bureaucratic nightmare, rather than a carefully planned and executed operation.

[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.