Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Lord Mackay of Clashfern Excerpts

Tuesday 12th October 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness for tabling this regret Motion for debate today. It brings the House back to the detailed, thoughtful and vital discussions which were held on what is now the Act during its passage earlier this year.

The first priority of any Government, and of this Opposition, is to ensure the safety and security of our communities. We pay tribute to those who serve honourably and put themselves in harm’s way to protect us, and to prevent and disrupt serious criminal activity. The Act addresses the necessary, though difficult, use of covert human intelligence sources to combat serious crime. The key purpose was to place the authorisation of CHIS activity on a statutory footing, where previously there was not that underpinning. The version of the Act which was passed was not the draft that a Labour Government would have passed but we did support it, as urgently needed legislation which created that statutory footing and contained some improvements on the status quo.

I recognise the significant contribution that this House made to improving the Act as it passed through Parliament, including securing extra protections for children and vulnerable people, ensuring access to compensation for innocent victims, and increasing oversight mechanisms. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, for his work on securing notification of all authorisations to the Investigatory Powers Commissioner, providing real-time oversight by the IPC.

The order about which today’s Motion is tabled makes a series of changes in secondary legislation which are consequential to the Act. They include: updating requirements to keep records of authorisations granted under the Act, extending some existing safeguards on matters subject to legal privilege to the new authorisations, and updating the designations of the rank of a person able to grant an authorisation with a public authority. Here I should say that I listened with great interest to what the noble Lord, Lord Paddick, said about the relative seniority of police officers needed for particular authorisations. I look forward to the Minister’s response to the questions which he raised.

The Motion, however, deals with a wider issue which was debated as part of our deliberation on the then Bill. During its passage, colleagues from across the House sought a wide array of improvements to the Bill. The Labour Party particularly sought for the Government to look seriously at the possibility of prior judicial authorisation as a gold standard. We also tabled amendments in the Commons and supported amendments in this House, including those tabled by the noble Baroness, Lady D’Souza, on the key issues raised in today’s Motion. These were changes which would have put explicit limits on the type of activity that could be authorised on the face of the Bill itself. As a House, this was one of the issues we sent back to the Commons for further consideration, although we were ultimately unsuccessful.

The Human Rights Act is a proud achievement of the previous Labour Government. It provides safeguards to this Act and to all public authorities that take action under it. Adding explicit limits to the face of the Bill would, though, have provided clarity and reassurance, and positioned the protection of human rights as an integral part of this package. But as the noble Lord, Lord Paddick, said, this argument was had and lost when the Bill was before Parliament.

As has been well rehearsed, the inclusion of limits has been modelled by countries which are our allies and have similar judicial systems to ours, and with which we co-operate on security matters: Canada is the obvious example, a point made by the noble Baroness, Lady D’Souza. While those countries are able to do this, these Benches and our Commons colleagues remained unconvinced by the Government’s argument that we could not.

I will be interested to hear the Minister’s response to the questions put to her by noble Lords across the House today, particularly on what ongoing monitoring there will be of the operation of the Act and whether amendments of any kind are required. Specifically, will oversight of the Act be led by the IPC’s oversight of the practical arrangements? Presumably, any concerns which could be raised will be addressed by the IPC.

[Lord Mackay of Clashfern (Con)]

My Lords, it is worth reminding ourselves that the original Bill contained a restriction in relation to the Human Rights Act. The person operating under this Bill with authority will operate on behalf of Her Majesty’s Government and will therefore be bound by the authority of the Human Rights Act in relation to the activities which they can undertake. That is an important consideration which was raised in the debate on the Bill.

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

My Lords, the CHIS Act was the final Act on which my right honourable friend James Brokenshire and I worked. I know noble Lords will agree on several aspects of how we worked; we engaged extensively across both Houses, and we saw compliance with the Human Rights Act as central to the Bill—as my noble and learned friend Lord Mackay just mentioned—and safeguards as incredibly important to it. As an earlier speaker said, it puts beyond legal doubt the deployment of CHIS for criminal activity.

The SI on which the noble Baroness bases her Motion to Regret passed unopposed and, as the noble Lord, Lord Paddick, said, is not in scope of this Motion. That aside, noble Lords will recognise some of the points I am about to make from the extensive debates that took place when the Covert Human Intelligence Sources (Criminal Conduct) Act passed through the House earlier this year.

The passage of the Act provided significant opportunity for noble Lords to discuss and put forward amendments to the oversight regime for this power. Noble Lords will recall the collaborative approach we took in responding to the amendments. That included strengthening the oversight of the activity by accepting the amendment from the noble Lords, Lord Anderson—I join the noble Lord, Lord Ponsonby, in paying tribute to him—Lord Rosser and Lord Butler, and my noble and learned friend Lord Mackay, which provided real-time independent oversight of every authorisation by the Investigatory Powers Commissioner. We have a robust oversight regime in place with significant internal and external safeguards to make sure that every authorisation is necessary for and proportionate to the purpose for which it is sought.

The noble Lords, Lord Paddick and Lord Ponsonby, talked about the seniority of authorising agents. They must be appropriately trained, as I said during the passage of the Bill, and of the necessary rank. Public authorities all have their own training processes in place for their authorising officers to reflect the specialist remit in which they operate. IPCO will identify whether any public body is failing to train and assess its officers to the sufficiently high standard necessary for this very specialist type of activity.

The other matter, raised by the noble Baroness, Lady D’Souza, and referred to by the noble Lord, Lord Ponsonby, was limits and, following on from that, practices in other countries. We debated this point extensively during the passage of the Act and voted on it but let me again state that the limits on what could be authorised under the Bill are provided by the requirement for all authorisations to be necessary and proportionate and for authorisations to be compliant with the Human Rights Act. Nothing in the Act seeks to undermine these safeguards and every authorisation will be considered by the independent Investigatory Powers Commissioner, who will be able to ensure that this is always the case. However, on numerous occasions we went over the point that to explicitly place limits in the public domain risks creating a checklist for terrorist organisations to test for suspected CHIS and doing so would put not only the safety of the public at risk but the safety of the CHIS.

In response to the concern that the Government are seeking to repeal the Human Rights Act, let me be clear that the Government are committed to human rights and will continue to champion them at home and abroad. The Government remain a signatory to the ECHR, which provides for the right to life and the prohibition of torture or inhuman or degrading treatment or punishment. The requirement for an authorisation to be necessary and proportionate further limits the activities which can be authorised under this Act.

To address the point made by the noble Lord, Lord Ponsonby, regarding the comparative position in other jurisdictions, it is unhelpful to compare the UK legislation with that of other countries because each country has its own unique laws, public authorities and, crucially, threat picture. We know that CHIS testing takes place in the UK, particularly in relation to the unique challenges that we face in Northern Ireland, and it is important that we legislate for the particular circumstances in which we need our operational partners to operate in order to keep the public safe. I emphasise that our advice on this issue is based solely on the advice of operational partners, and I hope that noble Lords place the same weight that the Government have on their assessment of this issue.

The noble Lord, Lord Paddick, talked about the undercover policing inquiry and the separate recent ruling of the IPT. I have repeatedly made it clear to this House, as he referenced, that the conduct that is the subject of the inquiry was completely unacceptable and should not have taken place. It is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of a deployment. Nothing in this Act changes that. The noble Lord quoted from the IPT’s judgment that the authorisations made under RIPA were fatally flawed, but the court did not find that the entire CHIS regime under the Regulation of Investigatory Powers Act breached article 8.2 of the ECHR. It invited the UCPI to draw its own conclusions. The tribunal is still to hold a remedies hearing in light of the findings.

There are now much more stringent safeguards in place to guard against these mistakes being repeated. In 2014, the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into force. The order applies enhanced safeguards to authorisations for long-term undercover operatives from policing or other law enforcement agencies. This includes a higher rank of authorising officer than for other CHIS and greater oversight by the Investigatory Powers Commissioner.

To answer the question asked by the noble Lord, Lord Ponsonby, all the changes were brought about to address specific concerns that were raised about law enforcement undercover deployments. They have been tested in the operational and judicial environment over the last six years and we think that they are robust and fit for purpose.