Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Lexden Excerpts

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

Amendments 20 and 21 not moved.

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

We proceed to the group beginning with Amendment 22. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in debate. I should inform the Committee that if Amendment 22 is agreed to, I cannot call Amendments 23 to 30.

Amendment 22

Moved by

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[Baroness Massey of Darwen (Lab) [V]]

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.

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

My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is a real pleasure to take part in this debate. I am sorry that my noble friend Lord Dubs will not be joining us, but I am speaking before my noble friend Lord Judd—they have both spent many decades of their lives fighting for civil liberties. They will remember, I am sure, Maria Fyfe, who entered Parliament in 1987 and did so much over the years to champion women’s representation, but who sadly died this morning. I am sure that they and others will join me in sending condolences to her family and comrades in Scotland.

I shall speak specifically to Amendment 22 in the names of my noble friends Lord Hendy and Lord Hain, and moved very able by my noble friend Lady Chakrabarti, but I also support the other amendments in this group which argue that, should this Bill become law, CCAs could be used only to prevent or deter serious crime. The terms “preventing disorder” and being

“in the interests of the economic well-being of the United Kingdom”

are so imprecise that almost any campaigning group or trade union could be included. These criteria are potentially political and could be used simply to defend the status quo against anyone who challenges it.

It seems quite odd that this legislation could not wait until the findings of the Undercover Police Inquiry. As the inquiry progresses, it is hearing that police have been used to spy on any number of groups that were deemed to be “anti-establishment”, even when they were humanitarian organisations such as Operation Omega, which tried to provide humanitarian aid to then East Pakistan. One police officer sent into the group has said:

“They weren’t hurting anyone, they weren’t disturbing anyone. Okay, you could argue that we don’t like to see these things posted on our lampposts, you know, stuff like that.”


He was then asked:

“Did you hear them promote or encourage public disorder?”


He replied:

“That’s a difficult one to answer, because a lot of organisations recommend demonstrations and activity that would bring their cause to the attention of the press and thereby to the rest of the population.”


A demonstration is of course a legitimate form of campaigning, but it is unfortunately seen as illegitimate in some quarters.

The undercover work extended into the trade union movement. Trade unions are a legitimate and essential part of our democracy, as guaranteed by the ILO since 1949. Member countries, including the UK, are required to guarantee the existence, autonomy and activities of trade unions, and to refrain from any interference that would restrict this right or impede their lawful exercise. Despite this, the Metropolitan Police Special Branch established the industrial intelligence unit in 1970 to monitor what it saw as growing industrial unrest. There is, we understand, a present day equivalent in the industrial liaison unit of the national domestic extremism and disorder intelligence unit.

I have no idea what justification could possibly have been used to send spies into humanitarian organisations, political parties or trade unions, but I suspect that preventing disorder and it being in the interest of economic well-being of the United Kingdom will have been used. There can be no justification for this and it should be removed from the Bill.

On Monday we heard the Statement in the other place that there would be no inquiry at this time into the murder of Pat Finucane—even though there is no doubt that there was state collusion in his assassination. After 30 years, the Government will still not shine a light on this atrocious event. His death should serve as a reminder that Governments and their agents can lose the capacity for moral judgment when they convince themselves that only they serve the greater good.

We were told on Tuesday that these examples happened a long time ago and that things have changed. But while the Bill continues to cover more than serious crimes and includes subjective actions such as disorder and economic well-being, it is a danger to anyone involved in politics and trade unionism. We should never grant the legal right for covert actions against citizens whose only crime is to disagree with the Government of the day. This amendment would go some way to achieving that.

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For that reason, I believe that this group of amendments has raised some very important points indeed, which we must all take seriously. I do not want to live in a society in which the police have this as a useful technique, with certain, modest restraints. I want to live in a society where this is not normal and where, if it is needed, exceptionally, those grounds can be properly justified in terms of national priorities, in the interests of our people as a whole. Good will between the public and the police is crucial to our stability as a society, and the holding of public confidence in the police is crucial too. We must be careful that we do not place that in jeopardy.

[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.

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[Baroness Massey of Darwen (Lab) [V]]

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

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

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.

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

We now come to the group beginning with Amendment 39. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that, if Amendment 39 is agreed to, I cannot call Amendment 40.

Amendment 39

Moved by

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Lexden Excerpts

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

With those words, I hope that the noble Lord will feel happy to withdraw his amendment.

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

My Lords, I have received no requests to speak after the Minister, so I call the noble Lord, Lord Paddick, to conclude the debate on this group of amendments.

[Lord Paddick (LD)]

My Lords, I thank the Minister for her words and I thank all noble Lords who contributed to this debate.

I do not think that the Minister addressed the points made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, from the human rights perspective. What justification is there for public authorities to grant CCAs where it is difficult to see such CCAs being proportionate to the crimes that they seek to address? Authorising an undercover operative to commit a crime is very serious and needs to be proportionate to the harm that it seeks to address. Obviously, it will help when we see the business cases; I am very pleased that the Minister has agreed that we can look at them.

Can public authorities be added by statutory instrument? The Minister said that it will be via the affirmative procedure. I have already given the example of where authorities were added to those that could access communications data and the House was not able to properly scrutinise that statutory instrument because we were not given access to the business cases until the last minute. If that repeats itself, we will not be able to scrutinise adequately the addition of public authorities by statutory instrument.

The noble Lord, Lord Cormack, talked about being very troubled and the Bill going too far, which leads us on to the noble Lord, Lord King of Bridgwater; I look forward to the jousting between the noble Lord and myself on these sorts of issues. The noble Lord said that I gave the impression that there was something very new in what is being discussed here and that it was a well-established practice. If only he were right. The point is that the granting of legal immunity to people who are being authorised to commit crime is a completely new scenario that no public authority in the past has been able to do—except the Crown Prosecution Service, after the event. I accept that this is a very dangerous world, as the Minister started her remarks with, and that 27 terrorist attacks have been prevented as a result of actions—but not, I would humbly suggest, by the actions of the Gambling Commission or the Food Standards Agency.

The Minister talked about the horsemeat scandal and how it had the potential to undermine public confidence in the food supply. How can getting a CHIS to commit a crime be proportionate to addressing an undermining of confidence, in the human rights sense of proportionality? She talked about the Home Office and the power being specifically required for Immigration Enforcement—so why not, on the face of the Bill, authorise Immigration Enforcement within the Home Office, rather than the Home Office in its entirety? In the communications data statutory instrument, which authorises public authorities to access communications data, the Military Police, not the Armed Forces generally, is authorised. Why not authorise just Immigration Enforcement and not the Home Office?

The noble Baroness, Lady McIntosh of Pickering, asked: why not call in the police to deal with criminality that these other public authorities have responsibility for? The noble Lord, Lord Anderson of Ipswich, gave some very good reasons why that might be the case, such as that it might not be high on the list of police priorities. But that then comes back again to the question of necessity. He felt that they needed to demonstrate a need—we will look to see whether these agencies have demonstrated the need when we look at the business cases—and that training was essential; he was hoping that it would be alongside police colleagues, but the Minister did not seem to think that that would be the case. He raised this other interesting issue about the fact that, if these agencies do not use this power very much—that is, if they are not exercising it—they will need to be trained more frequently because they are not used to using it. This raises more concerns, in my mind, about these other agencies. The noble Lord also talked about safeguards, as we have discussed in other parts of the Bill.

Clearly we will return to this issue on Report. At the moment, I beg leave to withdraw the amendment.

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Amendment 75 not moved.

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

My Lords, we come to the group beginning with Amendment 75A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Lexden Excerpts

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

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, I ask the noble Lord, Lord Anderson of Ipswich, not just to resume his speech—we look forward greatly to the rest of it—but, if he would be so kind, to repeat the last few statements he made, because sadly they were inaudible.

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

I am grateful, and apologise for what seems to have been something of a crossed line.

I dealt with proposed new paragraph (a) in Amendment 21, so will move on to proposed new paragraph (b). I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy than for misconduct in public office, but that is because, if the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy.

However, I believe that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences, if the CCA has first been declared a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or a criminal court. The Minister and the Bill team have been extremely helpful in explaining their thinking on this; I believe that there is nothing between us on this point. I would be most grateful if she could confirm—this is the third confirmation I am asking for—that this is the Government’s understanding of the law.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS in Northern Ireland are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect are the powers vested in judicial commissioners under the Investigatory Powers Act. Section 231 provides for serious error reports, and Section 232(2) provides for the Investigatory Powers Commissioner to

“provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”,

presumably including the CPS. Could the Minister confirm, fourthly, that this is also the Government’s understanding?

I move on, more briefly, to civil recourse for the innocent victim of an authorised crime. I start from the position that some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation, not from the person who was authorised to commit the crime but from the authority which authorised it or from the state more generally. Proposed new paragraph (c) in Amendment 21 seeks confirmation of what I do not believe to be in dispute: that compensation may be obtained from the Investigatory Powers Tribunal in a case brought by an innocent victim. That is the fifth thing I ask the Minister to confirm.

That may, however, not be the most practical of remedies. Judicial commissioners have the power to tip someone off that they may have a remedy in the IPT when they consider that to be in the public interest but, as the noble and learned Lord, Lord Falconer, and I suggested in Committee, there may be very limited circumstances in which that will be possible; there might well be risks to the operation and to the CHIS if unconnected persons were informed that their injuries were attributable to an undercover operative. The judicial commissioners are likely to have that well in mind, hence the importance of Amendment 22, which in the case of injury to an innocent victim would ensure that an application could be made in the normal way to the criminal injuries compensation scheme. That would have the great advantage of affording compensation to the innocent victim without it being necessary to disclose to the victim the status of the person—the CHIS—who inflicted the injury.

In their response last week to the Joint Committee on Human Rights, which was published by the Joint Committee at 11 this morning, the Government state that, having considered the question in detail, they have concluded that

“nothing in this Bill would frustrate a victim’s ability to recover compensation for injury or loss through that scheme.”

That is certainly encouraging, but I am afraid that the mouth of this particular gift horse needs a little more inspection. If actions committed pursuant to a valid criminal conduct authorisation are, in the words of Section 27(1), “lawful for all purposes”, can the Minister explain how injuries caused by such acts can be criminal injuries for the purposes of the compensation scheme? That is the sixth and final assurance I request from the Minister.

There is often an argument for making things clear in statute, even if satisfactory assurances can be given. Accordingly, if the Government accept the thrust of these amendments but have difficulties with the drafting, I shall certainly look constructively on any commitment to come back at Third Reading with revised drafts. I shall listen carefully to what the Minister says in response. Depending on the content of that response, and if no commitment is given to accept these amendments or come back to them at Third Reading, on Wednesday I may test the opinion of the House on either or both of Amendments 21 and 22.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, who is next on the list, has been replaced by the noble Lord, Lord Rosser.

[Lord Rosser (Lab) [V]]

My Lords, speaking for the Opposition, we support the essence of this Bill. As noble Lords from all sides of the House have said in earlier debates, this Bill addresses a necessary—if at times uncomfortable—reality, which prevents crime and keeps us safe. We pay tribute to those in our security services and elsewhere for the work they do on our behalf.

There has been much discussion in this House on the detail of what is before us. I very much respect the strongly felt concerns raised by my noble friend Lady Chakrabarti. I take what she said, as I do all her contributions, in the constructive spirit in which I know it was intended. However, we have reservations about the effect of the amendments she has tabled. The current status quo is that criminal conduct authorisations are given without formal accountability, and prosecutorial discretion becomes a factor only if a CHIS is caught and arrested for the offence. For the overwhelming majority of cases, prosecutorial discretion never becomes relevant. In the circumstances that a CHIS, having been authorised, is caught carrying out that criminal act, the CPS will be made aware of the authorisation and will not prosecute, on the basis of overriding public interest. The CHIS does not now, and will not under this Bill, have immunity for committing an unauthorised offence.

We therefore believe that the Bill reflects the status quo in practice. We feel that putting this on a statutory footing, with authorisation conferring immunity—with appropriate safeguards—is the best way. We seek to add provisions into the Bill on immunity plus safeguards, including on the function of the Investigatory Powers Commissioner, looking at every authorisation and possible prior judicial authorisation—to which my noble friend Lord Dubs referred—which will preserve the use of CHIS criminal conduct authorisations in the national interest while ensuring that there are safeguards for every authorisation.

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[Baroness Wheatcroft (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Blunkett, who speaks with deep personal experience and authority. I listened to the passionate debate on the previous group of amendments, and now on this group. The noble Lord, Lord Dubs, made his case for Amendment 5 in his usual persuasive manner, but I favour a slightly different approach, not least for the reasons outlined by the noble Lord, Lord Blunkett. Hence I will speak to Amendment 16, as introduced so effectively by the noble Lord, Lord Hain, and supported by the noble Lord, Lord Cormack.

If the state is to grant advance pardon to individuals to commit serious breaches of the law, this should not be a common occurrence, and it is a decision that should be taken at the highest level. To my mind, that should be at the level of government. I accept that there might be occasions when, for matters of national security, criminal acts will need to be committed, but I have not been convinced of the need for change in the status quo regarding the way these authorisations are given. However, as the charity Justice says, it is inconceivable that the Government should not be accountable for serious criminal offences committed with their approval—but if that approval is delegated to officials, who will be accountable?

I have many qualms about this legislation. As many have remarked, the Government have repeatedly failed to make a convincing case as to why such a drastic abandoning of moral norms should be sanctioned. They have certainly failed to provide convincing arguments as to why such a broad set of agencies should need access to criminal conduct authorisation. What undercover activity does the Food Standards Agency, for instance, envisage having need of? However, while I am not comfortable with aspects of the legislation, I have no doubt of the Government’s determination to press ahead with it. It is therefore down to this House to try to make it more palatable.

As ever, the Government are keen to embrace anything that will show contempt for the European Court of Human Rights, and this obviously presents an opportunity to do that. But it is imperative that we try to stop these powers being used with impunity—and how better than by making government directly accountable? It would clearly be wrong for officials to have the power to grant immunity from prosecution to undercover agents on the basis of what they perceive as necessity without external authorisation.

The noble Lord, Lord Dubs, believes that the judiciary could provide that authorisation; the noble Lord, Lord Blunkett, pointed out the flaws in that. I would prefer it to be the Government: the shift in responsibility from Ministers to officials has become a worrying trend. It seems that senior officials are deemed dispensable these days, but Ministers are not; ministerial resignations are now very rare, although I am sure that most of us have a little list of those that we feel are long overdue. The issuing of these orders is a very serious decision, with potentially enormous effects; it would surely be appropriate for a Minister to take ultimate responsibility.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the name of the noble Lord, Lord Rosser, appears next on the list by mistake—he has already spoken—so I call the noble Lord, Lord Butler of Brockwell.

[Lord Butler of Brockwell (CB) [V]]

My Lords, in supporting the new clause in Amendment 33 and its consequentials, I am riding pillion to my noble friend Lord Anderson of Ipswich. When I heard his speech at Second Reading, I immediately felt that his approach struck the most practical balance in controlling the activities of intelligence agencies embedded in groups carrying out criminal activities. Following the noble Baroness, Lady Wheatcroft, I rather suspect that the scale of this is both at a lower level and in a larger quantity than previous speeches have suggested. One has to see the practicality of that in those terms.

My experience, both when I was in government and when I was on the Intelligence and Security Committee of Parliament, leads me to believe that control of these operations requires three things. First, it requires better precision than there has been so far in the definition of how far agents can be authorised to go in participation in criminal activities. That is fair to them, and it is fair to the authorities. Ever since the case of Brian Nelson, the Northern Irish loyalist informer, to which I referred in Committee, I have felt that it is unsatisfactory that judgments on these matters should be left open and to the discretion of prosecuting authorities after the event, although I have no doubt that the decision to prosecute Nelson—indeed, he confessed—was correct.

Secondly, there is a need for close contact and immediacy in the control exercised. These situations in which covert intelligence agents are involved are often fast-moving. Communication between agent and controller may need to be rapid, and control needs to be agile. I do not believe that that can practicably be provided by a judge or a Secretary of State.

Thirdly, independent oversight is needed in as close to real time as possible. Controllers cannot be the judge and jury in these matters—certainly not the sole judge and jury—since there is an obvious temptation to cross lines in the interests of achieving what are often laudable objectives. I am persuaded that oversight is likely to be best achieved by giving the independent Investigatory Powers Commissioner a more active and immediate role. It seems to me that the provision proposed by my noble friend in the proposed new clause achieves these objectives in a practical way, and I am glad to hear that the Minister is inclined to agree that this is a fair and effective way forward.

The Liberal Democrats’ Amendment 17 takes a similar approach and, to that extent, I am sympathetic to it, but I am sceptical about whether the requirement for “prior approval” by the Investigatory Powers Commissioner, even with a get-out clause in circumstances of urgency, would meet the requirement for operational agility—so I will stick with my support for my noble friend’s amendment.