Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I warmly welcome the noble and learned Lord, Lord Stewart of Dirleton, to his office and to his place in this House. We are both members of the Faculty of Advocates, and I am delighted by his present appointment. I am unable to comment on the full state of his speech because I gather that some parts of it were constrained, but I congratulate him warmly on that passage which was his own, and which, as has been said, contained some very moving matters relating to the village of Dirleton, which I know well. I look forward to many contributions from him in this House, and hope and pray that he enjoys his tenure here.

It is with a certain amount of nostalgia that I take part in this Second Reading. In 1992, I was responsible for the first reference in Parliament to a Bill concerning the security and intelligence services, on the invitation of my good friend Lord Hurd of Westwell. I am very sorry that for a long time he has been unable to participate in the business of this House.

I have tried to look at this matter in a somewhat theoretical way, and I entirely accept that much must be discussed in Committee, but it is clear that criminal organisations depend for their success on elaborate machinations, which they strongly endeavour to keep secret. To overcome this secrecy, the forces of law and order have found it necessary to enable covert human representatives to infiltrate these machinations, or to participate in them, thus appearing to breach criminal law.

Apart from a few statutory offences, our criminal law requires, as an essential to conviction, that the accused is motivated by a criminal intention. It is clear that a covert representative of law and order has no such motivation and, therefore, is not guilty of a criminal offence when he or she infiltrates or participates in a criminal operation for the pure purpose of investigating or bringing it to conclusion. Again, it is clear that such an activity may involve danger, and it is obviously right that he or she should not face, as an additional danger, a risk of prosecution. This Bill is a clear and systematic way of obviating that risk—even in a case where the statute which is relevant to the operation does not require a criminal intention for its breach. I support this Bill wholeheartedly, subject to the many detailed considerations already mentioned by your Lordships, which I certainly agree should be thoroughly considered. My point is that, if the real intention of the convert human intelligence is for the purpose of investigating and stopping the criminal activity concerned, they do not have a criminal intention.