Covert Human Intelligence Sources (Criminal Conduct) Bill

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

My Lords, it is a great relief to follow the noble Lord, Lord Butler of Brockwell, because I entirely agree with him. Agility, competence and experience in looking at a matter such as this are important. The commissioner has just that, being very flexible and close to the situation.

I have had difficulty in following some of this debate, as well as that on earlier amendments. I cannot believe that it is in accordance with the rule of law that Governments and their officials should ask people to commit crimes. That seems the very reverse of the rule of law, which says that you should not commit crimes and you should do what the law tells you to do as a general and universal rule. This Bill sets out a framework under which certain kinds of necessary activity in relation to the subject matter are defined in respect of day-to-day requirements, so that when the act is performed it is no longer a crime and therefore it is perfectly reasonable for the handler to ask the person in question, the participant, to do it. If it was kept as a crime, it would be breaking the rule of law.

I agree with the view that those initially responsible for activating this procedure need to be trained and experienced, and I have seen evidence that that is so. What I find difficult to be sure of is the exact level at which some help and advice should be given. I am confident that the Investigatory Powers Commissioner is qualified to give a view on the propriety of a particular course of action and whether it should be regarded as a crime.

As was said earlier, those who defend us when we are in the Palace of Westminster have to take serious decisions very quickly against an existing background of law. The problem in this context is that there is no particular background of law except that the actual doing of the thing is a crime at the present time. I do not agree with the view that that is a satisfactory system which should remain, but it is right that, so far as is possible, prescription of what can be done in regard to a matter of this kind should be available to the participant in advance, with as high judicial or legal authority as is appropriate in the circumstances; namely, that time may be of the essence and therefore it may be urgent to obtain advice. I agree with the view that this is best done by the commissioner.

I agree with the amendment tabled by the noble and learned Lord, Lord Thomas, if it is necessary. I have the feeling that the investigation commissioner has authority to deal with an objection of this kind in terms of the 2016 Act. I do not feel sufficiently confident to contradict the noble and learned Lord, Lord Thomas, on the need for this amendment, but I would be glad to know what the position is on the powers the commissioner has to deal with this matter.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this, currying some favour, I hope, with the Government Whip that will be taken on board when I speak in a later group to my own amendments once more. It is a great privilege to follow the noble and learned Lord, Lord Mackay of Clashfern. Your Lordships heard it from him: when is a crime not a crime—when it has been pre-authorised with immunity attached in advance? That would be a difficult thing to explain to most members of public. However, it is not so difficult, perhaps, when you compare it with intrusions into our privacy, which is where this model comes from.

The complexities of this debate just make me sadder about where we got to in the previous one. We now have to decide about safeguards, because your Lordships have potentially created a breath-taking immunity. Under existing surveillance law, there are different models: it takes a magistrate to authorise an intrusive search of your premises; it takes a Minister to authorise the tapping of your telephone; yet inserting an undercover agent—more intrusive than either of those two measures, because a human will change your behaviour, not just monitor it—is internally authorised. Now, we have gone further, and a crime can be committed, authorised by the Executive, authorised by the police for their agents, authorised by the intelligence services for their agents, and so on.

Clutching at straws for safeguards, I have to support some kind of external authorisation at the very least. If it is good enough for search warrants and telephone taps, it must be even more necessary when criminal conduct, including violent conduct, might be authorised. As for which model, I have heard the arguments either way, and I tend to think political warrantry of something so politically dangerous is problematic, and it has proved so in the past. Former Government Ministers have written in their memoirs about how tired they were when, late at night, they were making endless intrusive surveillance authorisations. It is not about hollowing out the state; it is about trying to insert independence into the realm of criminal law. I admire the thrust of the eloquent speech of the noble Baroness, Lady Wheatcroft: if Government are to do such a thing, they should take some responsibility, not just for legislation but for authorisations.

We heard from the noble Lord, Lord Butler, with his enormous experience, his prediction that there will be some low-level warrants here and a very large number of them. This would present a real problem if it was political warrantry, because Secretaries of State have a lot to do, and there are going to be a lot more warrants under this legislation than those limited to, for example, the security services.

These are all imperfect checks and balances but, on balance, at the moment I prefer judicial authorisation, even though that will, in my view, bring dangers for the judiciary. Post-notification authorisation is a very weak protection but, if it is to happen, I agree completely with the noble and learned Lord, Lord Thomas of Cwmgiedd, that Amendment 33 without Amendment 34 is pretty much a nonsense.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I gather that the noble and learned Lord, Lord Mackay of Clashfern, would like to speak after the Minister.

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

I think there is a question of consistency; if in one statute you have the word “reasonable”, while in other statutes of similar import you do not, that tends to create a difficulty. The statement the Minister made, that it is part of being a statement of this kind in an Act that the belief must be reasonable, is a reasonable explanation for not having it here.