Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Naseby 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 West of Spithead (Lab) [V]]

My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.

For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.

Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.

[Lord Naseby (Con) [V]]

My Lords, it is a privilege to follow the noble Lord, Lord West. I am not a lawyer but I have had the privilege to serve in both Houses for nearly 50 years now, and prior to that I was in Her Majesty’s forces. I specialise globally in south and south-east Asia, where I worked for a number of years. I am essentially a practical man. I have suffered a death threat from the IRA, so I have seen the rough side of political life as well.

We need to understand what it is that we ask the men and women to do who safeguard our communities, our society, our country. That cannot possibly be an easy job. It is a very taxing job and we need it to be done within a framework of surveillance and some control, but not such that they are restricted or confined, as the noble Lord just pointed out. There is a practical side. It would never work if you went too far that way, and frankly, Amendments 1 and 2 do that. I am not reassured by the views of Justice. I am particularly not reassured by the stated views of some of the NGOs and others in what I would call the human rights vehicle. Therefore, I will not support Amendments 1 and 2.

I understand why Amendment 3 has been tabled. As I read it, it seems to weaken the current situation, but I will listen to what my noble friend the Minister has to say. I also understand why Amendment 4 was tabled, but perhaps it would undermine the Bill in a way that is not obvious to me, as a non-lawyer.

Turning to Amendment 21, the noble Lord, Lord Anderson, is a very persuasive and clearly very thorough lawyer, and I am pleased to hear that he has had discussions with my Front Bench. I shall listen with care to what the Minister says on Amendment 21 in particular. However, I urge all of us to reflect on the reality of life today. We live in a very difficult world, and we need to make sure that the honest, genuine people who want to help maintain the security of our country and to keep our people safe can do their job properly, so that our society can flourish.

[Lord Rooker (Lab) [V]]

My Lords, I am very pleased to follow the noble Lord, Lord Naseby.

I see that the clear intention behind Amendments 1 and 2 is to abandon the concept on which the Bill is based and maintain the current legal status. I have read the briefing from Justice. I am not a lawyer, but it is not clear to me. To describe CHISs as often

“ordinary untrained members of the public”

or even seasoned criminals is undermined by virtually all the case studies in the business case provided to all Peers in the past few days. I have missed one speech this afternoon, but to the best of my knowledge, nobody has referred to any of the case studies. I will not go into detail on this group, but I will probably refer to them in the next group. But referring to CHISs in this way is almost emotive and misleading rather than being clear.

As I understand it, the current procedure to safeguard the covert human intelligence source includes the fact that the CHIS must give informed consent. The criminal conduct authority is specific and must be understood by the CHIS. The authorising officer must assess that the CHIS is capable of carrying out the activity safely. The handler, of whom I understand that there are almost always two per CHIS, is responsible for the CHIS’s security and welfare. The handlers in turn are supervised by the controller, and the authorising officer—not the handlers nor the controller—is responsible for granting the CHIS authorisation under RIPA.

I have heard one or two speeches today in which the process has seemed to be that the handlers are doing everything: authorising and in control of everything. This is not the case. Of course, the authorising officers cannot authorise themselves. In addition, a whole range of other people is involved: operational security advisers, looking at the activities planned; legal advisers; and possibly behavioural psychologists. The idea that the CHIS is on their own—which “ordinary untrained” implies—is put to rest in the case studies to which I referred, the fact sheets provided to all Peers and the CHIS code of practice, including the new draft one published this month.

I do not propose to go into any further detail on this, but I can tell your Lordships one thing: I have not the slightest intention of abstaining on Amendments 1 and 2. They should not be in the Bill, and if they are pushed to a vote, I will vote against them. It is as simple as that, as far as I am concerned.

The only other point I want to make on this group is in support of Amendments 21 and 22. I listened to the noble Lord, Lord Anderson, in some detail. It was most unfortunate that we needed that short adjournment, but it gave me a chance to reread proposed new paragraphs (a), (b) and (c) while no speeches were being made, so it was useful to that extent.

Given the chain of authorising and managing a CHIS and the management systems involved in the various organisations concerned, it might be thought that the actions envisaged in Amendment 21 would be impossible. It is therefore absolutely right to challenge the idea that conspiracy or malfeasance could not take place: we know they could. It will be incredibly difficult, given the structure involved in managing the CHIS, but it is important that structures are put in place to deal with such an outcome of the actions listed in Amendment 21.

It is self-evident to me that anyone who is damaged should be able to claim compensation. I think the very last point the noble Lord, Lord Anderson, made to the Minister was very telling: how can you claim under the Criminal Injuries Compensation Act if the original authorisation says it is not criminal? I am sure the Minister has come armed with information to answer that, but I look forward with interest to hearing it.

I repeat that I will not vote for Amendments 1 and 2: they should not be anywhere near the Bill, in my view, and the Official Opposition advice to abstain is not correct in the circumstances. I will not: I will vote against.

--- Later in debate ---

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I intervene briefly to support Amendments 5 and 16. The experience of so many noble Lords in this debate has been salutary. In Committee I expressed my views on the need for supervision of authorising conduct under the Bill prior to the event—I emphasise “prior”—preferably by judicial authority. I will not elaborate on what I have already said, save to repeat that from the highest level of the judiciary down, it has been my experience that there is always availability, 24 hours a day, seven days a week. I have never had to make an application in the course of advocation as counsel, but I have had to make emergency applications and judges have always been available. In my experience—limited as it was as a law officer not directly involved—I never had any anxiety that there were no judges available to take decisions.

The noble Lord, Lord Anderson of Ipswich, with his great experience, queried the use of the judiciary, as I understand his speech. I see no difficulty in the Lord Chief Justice selecting a number of High Court judges who, despite the views of the noble Lord, Lord Blunkett, would have had the necessary skills to adjudicate on these matters. They are probably unsurpassed in the range of decision that they must take: quite a few of them are life or death matters, which I will not elaborate on. Members of the judiciary from the highest to the lowest level must make difficult decisions well beyond their training and well beyond what they had thought that they might have to adjudicate on.

This has been a fascinating debate. At this hour I will not go on, save to say that authorising conduct of this kind is a very serious matter. Trying to square authorising breaches of the law with the rule of law is mind-boggling. I shall not attempt it. All I will say is that I support Amendments 5 and 16.

[Lord Naseby (Con) [V]]

My Lords, I speak briefly to a number of amendments. First, on Amendment 5, I do not believe whatever I have heard, even from my noble friend who spoke before me, that there is sufficient experience and competence on this kind of activity in a judicial world for a clear decision to be made. Therefore, I do not support having judicial approval.