Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord McNicol of West Kilbride Excerpts

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

What I am hearing from charities that work tirelessly on the ground is that police sometimes—perhaps with the best of reasons or intentions—leave young people, very often girls, inside gangs, despite suspecting that those girls are probably victims of trafficking. The truth is that, to the officers, the girls are more valuable as spies than they are as victims, but, in my view, no result in a case is worth crossing that line or turning a blind eye to a very vulnerable child’s needs. Just as we do not believe in sending children into battle in the Armed Forces, we should not believe in sending them to battle crime among gangs in the depths of crackdowns and in the backrooms of pubs. I hope that the Minister will reconsider these issues when she responds.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Lord, Lord Judd.

We will go to the noble Baroness, Lady Jones, and if we can reconnect with the noble Lord, Lord Judd, we will bring him in after the noble Lord, Lord Russell. I call the Baroness, Lady Jones.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an issue that I have raised several times in your Lordships’ House: the issue of child spies. We even had a debate on it about 15 or 18 months ago in Grand Committee. Everybody I have ever mentioned it to—either out in the wider world or here in your Lordships’ House—is absolutely horrified at the idea that the police or the security services use children as spies. Other noble Lords have mentioned how damaged these children probably are. The fact is that the police find them when they are committing crimes, so they catch them doing something criminal. Anecdotally, I have heard that the children are given the option of being arrested and taken away, or they can go back into the gang. I have absolutely no way of knowing whether this is true, but it sounds like blackmail to me. So in addition to the police not rescuing these children, the children are sent back into danger.

I said in my Second Reading speech that I would stop this process immediately. Luckily, the noble Lord, Lord Young, was faster in putting the amendment down, because his support is obviously going to carry a lot more weight than mine. It struck me at the time, however, that anyone can be horrified by this. You do not have to be a right-on, woke Greenie. It is horrifying to all of us.

I have put down an amendment about vulnerable people, which I consider children to be as well, and it covers anyone who is a victim of modern slavery. Quite honestly, we have heard from the Government that this whole Bill is all about protecting the country and the people of Britain; but it is not protecting some people. Some people are not getting the protection that the Government are offering to others. If we are not protecting vulnerable people or children, what do we think we are protecting: a way of life that we can be proud of? I really do not think so.

Personally, it is unforgivable seeing these children used as pawns and spies to somehow find out what we think might be useful information about criminal gangs. It is worse than state-sanctioned child abuse: it is state-sponsored child abuse, and the Government should be thoroughly ashamed of trying to put this into legislation. I would like to see the Government more inclined to taking these children out of criminality and actually saving them from the sort of life that they have been leading, rather than pushing them back into greater danger and possibly greater criminality.

I have met police whistleblowers: I think they are astonishing, because they go against their group and their friends; it is incredibly difficult. Two of the whistleblowers I have met suffer from PTSD. The PTSD is not from confessing what they did but from the work they did when they were undercover, because being undercover is highly stressful. The “undercover” I mean is not necessarily to do with drug gangs or terrorist organisations; quite often, when it comes to political groups or campaigns or NGOs, officers are sent in for years. We have heard about relationships lasting seven years, children being fathered and that sort of thing. When you are undercover that long, you do suffer trauma. It is extremely difficult to come out of that and feel normal again, because you have hidden so much of yourself and so much of your life from other people.

One of the whistleblowers I am talking about is absolutely divorced from reality; he finds it extremely difficult to feel any emotion. He told me when his father died, he could not cry, and he still has not been able to cry, some years later, because of the trauma he suffered as an undercover police officer. The other one, who I know quite well, told me he has the opposite problem: he is extremely emotional and cries very easily at all sorts of things because of the trauma he suffered as an undercover police officer. Can anyone please tell me that children are less vulnerable to that sort of trauma than adults? Of course not; children are more susceptible to that sort of trauma. I do not care how many children it is; one is too many. Those children will suffer, possibly for the rest of lives. We as a nation really should not be causing that.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Young of Hornsey.

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In summary, a key point of the amendment is clarification of the exceptional circumstances in which it would be “appropriate” for a child or vulnerable adult to be given a CCA. Secondly, appropriate adults should be mandatory for young people and vulnerable individuals and must be self-evidently independent. The state surely cannot be seen to be complicit in and to legitimate further exploitation of already vulnerable children and adults unless there really are no other options on the table and all possible safeguards have been implemented.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

After the noble Lord, Lord Russell of Liverpool, I will call the noble Lord, Lord Judd.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord McNicol of West Kilbride 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 McNicol of West Kilbride) (Lab)]

The noble Lord, Lord King of Bridgwater, is unavailable, so I call the noble Baroness, Lady Manningham- Buller.

[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.

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I hope I have provided reassurance throughout these debates that there are robust safeguards in place to prevent the misuse of this power. Independent oversight is just one example, but it is very important. Recognising this, and the strength of feeling in this debate, I encourage noble Lords to support the amendment in the name of the expert noble Lord, Lord Anderson, if he pushes it to a vote.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received two requests to ask short questions from the noble Lords, Lord Blunkett and Lord Hain, who I will call and then call the Minister. I call the noble Lord, Lord Blunkett.

[Lord Blunkett (Lab) [V]]

I congratulate the Minister on her tenacity and her grasp of detail, which is reassuring and refreshing. Would she consider providing a regular quarterly update to the Home Secretary in addition to the annual report to which she has referred—part of which is redacted and part of which is on public record? In that way, there is at least some responsibility in the political arena as an ongoing feature of the new pattern, which is clearly going to involve Amendment 33 and the consequentials.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords in this group who have paid their respects and tributes to my right honourable friend James Brokenshire. I will ensure that he gets all the comments in the form of a consolidated Hansard, so that he can see what kind things people have been saying about him.

I reassure noble Lords that the decisions taken when drafting this Bill have been informed by the input of operational partners. This includes the circumstances where it is necessary to authorise a CHIS to participate in criminal conduct to ultimately ensure that we can prevent terrorism, crime and harm to the public.

However, we have been robust in ensuring the power is only as broad as it is truly necessary to be. For that reason, we have restricted the public authorities able to authorise a CCA from those able to authorise a CHIS more broadly. It is also for that reason that we have reduced the statutory purposes for which a criminal conduct authorisation can be granted from the six that are available for a Section 29 CHIS use and conduct authorisation under RIPA. The remaining purposes have been included because there is operational evidence that they are required to keep us safe. I gave examples for each purpose in Committee and I am not going to repeat them all here, but I will highlight the impact this might have of the daily lives of the public.

The noble Lord, Lord Carlile, has given two examples. Another example, which the noble Lord, Lord Kennedy, alluded to is food crime—such as the extension of meat durability dates leading to out-of-date food being consumed. It is damaging and, as he said, it can be dangerous to public health, but it might not meet the serious crime threshold. I again offer reassurance, particularly to the noble Lord, Lord Beith, that the necessity and proportionality requirements apply for all authorisations. Activity could not be authorised if it was more serious than the activity it seeks to prevent and that is the test.

The noble Lord, Lord Kennedy, asked me about other forms of legitimate activity. Normal trade union activity would of course be perfectly outwith the test that I have just outlined.

I understand that the intention behind Amendment 11 is to prevent CHIS being authorised to act as agents provocateurs. However, the amendment as drafted goes much broader than that. It seeks to prohibit any CHIS from being authorised to encourage or assist in the commission of any offence. That would impose broad and clearly unintended constraints on criminal conduct authorisations.

I sought to provide reassurance on the issue of agents provocateurs in Committee, where I stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. But perhaps I can be even clearer: CHIS cannot be used to entrap people in crimes in the manner suggested. Article 6 of the ECHR, which protects the right to a fair trial, prevents this happening. I also point noble Lords to the publicly available Undercover Policing: Authorised Professional Practice, which states in very clear terms that an undercover officer must not act as an agent provocateur. I understand that noble Lords may wish to test the opinion of the House, but I hope I have provided the necessary reassurance on this point.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received two requests to ask short questions, from the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Chakrabarti. I call the noble and learned Lord, Lord Mackay of Clashfern.

Okay—there is no Lord Mackay, so I call the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

I am grateful to the Minister for her comments, but I fear that she has misread Amendment 11. It does not ban CHIS from encouraging or assisting crime, because of course they would have to do that very commonly as part of keeping their cover. If one looks at Amendment 11, one sees that it is about an authorisation, which cannot be

“for the primary purpose of … encouraging”

crime or “otherwise seeking to discredit” an organisation —that is, an organisation that is not actually committing crime in the first place. Of course, Article 6 will not help if there is no prosecution and trial, so I have yet to see a safeguard against agents provocateurs.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

Does the Minister wish to reply? No? Okay—I call the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, I thank all noble Lords for their contributions, but, first, I send my best wishes to the right honourable James Brokenshire. James and I have known each other for a very long time—since my policing days—and he is such a lovely guy. I really hope that he recovers completely from the terrible situation that he is in.

I particularly thank the noble Baroness, Lady Jones of Moulsecoomb, my noble friend Lord Beith and the noble Lord, Lord Judd, for their support. The noble Lord, Lord West of Spithead, gave no reason why the ISC did not want these powers limited to serious crime, when so many other aspects of the Regulation of Investigatory Powers Act are limited to serious crime, and arguably this is more serious than those powers.

I was a little confused by the noble Lord, Lord Carlile of Berriew, who gave two examples of very serious criminal offences, which are of course covered by those aspects of the power that refer to the prevention and detection of crime. We are talking here about something that has an impact on the economic well-being of the UK that is not a crime, because if it was a crime it would be covered by that other aspect. I am sure that they were very important cases, but they were cases of crime, not simply impacting the economic well-being of the United Kingdom.

It sounded as though the noble Lord, Lord King of Bridgwater, was talking about the deployment of covert human intelligence sources, rather than authorising those CHIS to commit crime. I do not understand this from what anyone has said, including the Minister: if something threatens the economic well-being of the UK but is not a crime—if it was it would be covered by one of the criteria of preventing or detecting crime—how can it be necessary and proportionate, unless it also involves an issue of national security, to authorise somebody to commit a crime to deal with something that is not a crime?

On that basis, because there has not been a satisfactory response, I wish to test the opinion of the House on Amendment 9. In the meantime, I beg leave to withdraw Amendment 7.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord McNicol of West Kilbride Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

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

My Lords, I am required to inform the House that the Scottish Government informed the UK Government that they would be unable to recommend legislative consent for the devolved elements of this Bill, and we have tabled amendments in advance of this debate that remove from the Bill provisions that are within the legislative competence of the Scottish Parliament. The content of the Bill does not invoke the legislative consent process in Wales or Northern Ireland.

We have engaged closely with the Scottish Government over many months, during the drafting of the legislation and throughout its passage. Where the Scottish Government have identified concerns, we have sought to remedy them. An example of that is an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service to provide the Lord Advocate with visibility of criminal conduct in Scotland.

The Scottish Government, however, required further amendments to the Bill in areas which the Government cannot support; namely, placing express limits on the face of the Bill. The Government’s position throughout this process has been based on advice from operational partners to ensure that the Bill is workable in practice and has no unintended consequences for the safety of the public, or a CHIS, and we have had clear advice from operational partners in all parts of the UK that placing limits on the face of the Bill will lead to CHIS testing and increased initiation tests. We remain open to further discussion with the Scottish Government, to ensure that operational agencies continue to have access to the tools required to keep us safe.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I call the Minister to make a Statement on legislative consent.

[Baroness Williams of Trafford (Con)]

I have just done that.

Clause 4: Corresponding provision for Scotland

Amendment 1