Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Paddick Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, I too welcome the noble and learned Lord to this House and congratulate him on his maiden speech and appointment as Advocate-General for Scotland. If noble Lords think that he has been put into bat a little early, I can reassure him that I made my maiden speech the day after my introduction; needs must when the devil drives.

First, I should perhaps explain my experience on these issues. When I was in the police, we used to call most covert human intelligence sources “informants”, who were mainly criminals recruited and run by “handlers”. The way in which handlers used, rewarded and authorised informants to participate in crime was controlled by “controllers”. I used to be a controller. I also had the enormous privilege of visiting MI6 and GCHQ to be briefed on the work of all the security services as part of this House’s consideration of the then Investigatory Powers Bill, including examples of who their CHIS were and how they were recruited and used.

Secondly, I came to my own conclusions about this Bill, having read the Investigatory Powers Tribunal judgment dated 20 December 2019 that prompted it. I am grateful for the briefings from Justice, Reprieve and the NUJ, among others, some of which I agree with and other aspects I do not.

There are two fundamental issues in the Bill on which the Government have, to date, not been as clear as they could be. The first is that it is not just about one issue, and it certainly does not simply maintain the status quo, as the Government have suggested. The reason for the Bill is to give absolute legal clarity that handlers can authorise their covert human intelligence sources to participate in crime. They have been doing that with little difficulty for decades but the Investigatory Powers Tribunal’s split decision called into question whether there was any legal authority for the police and the security services to authorise CHIS to commit crime. If providing that legal authority was all that the Bill did, it would maintain the status quo and I would have no argument with it.

Of course there are peripheral issues that the Bill provides an opportunity for us to address, but on providing legal authority for participating informants, as we used to call them, or criminal conduct authorities as they are now called, there is no argument and I will support the Bill in that respect.

The Bill, however, goes much further—unacceptably far—and makes everything that the covert human intelligence source is authorised to do by the criminal conduct authority “lawful for all purposes”, including immunity from civil liability, and including any conduct that is incidental to what CHIS are authorised to do. For example, had the Bill been in force at the time, the undercover police officer who was authorised to form a relationship with an environmental activist could have argued that sleeping with her was “incidental to” what he had been authorised to do, and that he therefore could not be sued.

The status quo is the following: the Crown Prosecution Service examines what happens in such cases after the event, and independently decides whether a crime has been committed, whether there is a 51% or more chance of conviction, and whether prosecution is in the public interest. Rarely—the Government’s position is never—does the Director of Public Prosecutions grant immunity to a CHIS prior to the event. To date, the status quo has rarely, if ever, caused any problems. It has been put to me that the status quo does cause problems, in that sometimes, when a handler asks an informant to participate in crime, the criminal concerned backs away because they want a promise of immunity in writing, and the handler cannot give it. We need to examine carefully and in detail whether such a cast-iron guarantee is necessary or desirable.

This Bill as drafted would allow a police officer or member of the security services, with no independent judicial oversight, to grant total immunity to a criminal to participate in an armed robbery, for example. Rarely, if ever, would immunity not be given prior to the CHIS being asked to participate in crime—a complete reversal of the status quo. At the moment, the CPS almost always decides that it is not in the public interest to prosecute in such cases, but the Bill makes anything done in accordance with a criminal conduct authority not a crime. What is in law a criminal act becomes a lawful act for the person authorised that would no longer rest on the public interest test. This is not preserving the status quo by any stretch of the imagination.

The Government will tell us that that is akin to granting immunity to those involved in the interception of communications and, indeed, immunity is to be provided by the same section of the same Act that makes properly authorised communications interception “legal for all purposes”. However, interception of communications has to be authorised by a Minister of State in advance, having already been approved by an Investigatory Powers Commissioner against someone suspected of the most serious criminality.

However, under this Act, authorising a criminal to take part in an armed robbery, in which innocent people could be seriously injured, will not be done in advance by anyone outside the police. Even officials in the Home Office, potentially on instruction from government Ministers, could otherwise grant immunity to someone to commit crime, with no prior judicial oversight and little post-event scrutiny. Is that what we want?

The second major issue about which the Government have not been clear is who these covert human intelligence sources are. In their briefings, the Government have placed the emphasis on CHIS being undercover police officers or officers of the security services working undercover. The majority of covert human intelligence sources are criminals, members of terrorist organisations and drug gangs, or those inside other organisations that the police or security services have a legitimate interest in. This legislation, as drafted, will predominantly protect criminals, not undercover cops.

Other safeguards are needed, such as to prevent CHIS from acting as agent provocateurs and to protect child CHIS. We must carefully scrutinise which authorities can grant immunity. Other matters, considered in the other place and recommended by NGOs, such as prior authorisation and limitations on what crimes can be authorised, would be necessary only if the immunity provision remains part of the Bill. It should not remain part of the Bill. This is not a party-political issue; this is a rule of law issue. We have a lot of work to do.