Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Parkinson of Whitley Bay Excerpts

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

[Lord Thomas of Gresford (LD) [V]]

I congratulate the noble and learned Lord, Lord Stewart of Dirleton, on his excellent maiden speech. He referred to many sports in Dirleton, and I was hoping that he might mention the excellent North Berwick Rowing Club. I think he should have a word with his noble friend— I refer to the noble Earl, Lord Courtown—or with my noble friend Lord Paddick, who spoke third in the debate. I promise that, if he joins us in the House of Lords eight, we will overlook his youth. I also welcome the noble Lord, Lord McLoughlin, to the House, but he should be aware that the West Derbyshire by-election of 1986, where he narrowly but fairly defeated that outstanding Liberal Chris Walmsley, has not faded from memory in some quarters.

This Bill has some extraordinary features. Suppose an official from the Gambling Commission believes, quite unreasonably and without any basis, that, in his view, it is necessary, in the interests of the economic well-being of the United Kingdom, to infiltrate a perfectly lawful organisation—say, a trade association or, as the noble Lord, Lord Whitty, mentioned a moment ago, a trade union. Under this Bill, he may authorise a 16 year-old to commit a criminal act and give him full immunity against criminal prosecution or civil liability, removing any consideration as to whether, even in part, he himself had a criminal intent or was incited to the sort of abuses to which the noble Lord, Lord Hain, referred.

It is obviously right that there should be a framework that is open and transparent to control the exercise of state power to authorise the commission of criminal offences, but it must be a tight framework. The noble and learned Lord, Lord Stewart, referred to authorisations that will have strict parameters and be tightly bound—but only by the word of the authoriser of the CHIS, his immediate controller.

I will analyse the scenario I set out. What is the rationale for putting into the hands of an official of the Food Standards Agency, or similar organisations, the extraordinary power to authorise criminal acts? Is it for labelling or pursuing dodgy hamburger vendors? This power should be used in the public interest and only in the pursuit of serious crime by professional criminal investigation agencies.

As for immunities, should not the decision as to what is in the public interest remain with the CPS or the Director of Public Prosecutions and not with the initial authoriser? Why should that official, unchecked, exercise this power on his own subjective belief as to its necessity and proportionality? Surely his belief should be, and be seen to be, reasonable? I agree with my noble friend Lord Beith that, as with ordinary warrants, he should be required to obtain the prior consent of a judge or, as in other covert operations, judicial commissioners. A judge would have the power to interrogate the authoriser to establish that he has a rational base in law for issuing an authorisation. As the noble Lord, Lord Rosser, pointed out, there is a duty High Court judge on hand 24 hours a day.

The Bill permits the commission of crime by an agent or CHIS infiltrating a perfectly lawful organisation —for example, a protest group. If such lawful groups need to be infiltrated to ensure public order, it is curious that this Bill should permit the infiltrator to commit crime. I would like to know from the Minister whether an authorisation issued under the Bill could permit a CHIS to act as an agent provocateur, stirring up crime where none exists. This Bill should be limited to national security and the detection and prevention of crime.

However, the most glaring anomaly is that the Bill would permit authorising the CHIS to commit murder, rape or robbery anywhere in the world without any of the limitations set out in other similar jurisdictions—Canada, the US or Australia—and with immunity from prosecution or civil liability, rather than prosecutorial discretion. Is the European Convention on Human Rights a sufficient safeguard? The Minister will find that his colleagues want to scrap it.

This is a very specific question and I would like the Minister to answer it: do the Government concede at last that convention rights bind an agent of the Crown acting outside the jurisdiction in, for example, Europe, the USA or the Republic of Ireland? The Bill should be clear as to what is or is not within its scope, territorially and in substance. In Committee, I hope to pursue safeguards for children, which other noble Lords have addressed, and redress for victims. I am sure there will be many other issues.

[Lord Parkinson of Whitley Bay (Con)]

My noble and learned friend Lord Garnier will speak next, but this pause gives me the opportunity to remind noble Lords about the advisory four-minute time limit for Back-Bench contributions. This is only advisory, but it would be a courtesy to the large number of Peers who want to contribute. I hope that my noble and learned friend Lord Garnier will set a fine example.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I would like to add my congratulations to our three new noble Lords who have made their maiden speeches. I warmly welcome the noble Lord, Lord Walney, to the House and congratulate him on his maiden speech today, which was very heartfelt and personal. He will be a very welcome addition, having served with such distinction in the other place. My noble friend Lord McLoughlin will remember that he was my first Whip when I was first elected to the other place in 1997. I set particular challenges, as I think I was the last MP to serve as a dual mandate MEP at the same time, so I am grateful to him for his kindnesses to me at that time.

I would like to pay a particular welcome to—

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt my noble friend, but we are struggling to hear her in the Chamber. If she could perhaps speak a bit closer to the microphone, that might help.

[Baroness McIntosh of Pickering (Con) [V]]

Thank you.

I would like to pay a particular warm welcome to my noble and learned friend Lord Stewart of Dirleton, and say what a lovely part of the world he lives in. My father partly grew up in North Berwick, and my grandfather had a pharmacy there, so it is an area with which I am extremely familiar. I would like to join him in paying tribute to his predecessor. I am sure he will serve the House with distinction in his new office, and I look forward to working with him on this Bill.

I have a number of questions that I would like to explore both today and, more particularly, in Committee. In particular, I would like to explore a point raised by my right honourable friend Dr Julian Lewis, who of course is chairman of the Intelligence and Security Committee at the moment. He said:

“What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute.”


And, he asks:

“Why the reason for that change?”—[Official Report, Commons, 5/10/20; col. 655.]


I would like to preface all my remarks with that question, because it would help me understand, in particular, the need for the Bill and why the Bill is coming forward at this time.

I would also like to particularly press my noble friend the Minister, when she sums up the debate, on the inclusion of new agencies. I have some sympathy with the background to this: I served as chairman of the Environment, Food and Rural Affairs Committee in 2012-13, at the time of the “horsegate” scandal. This was a fraud, passing off horsemeat as beef; it was a multi-million pound criminal scam. So I can understand why the Government are seeking to empower the Food Standards Agency to do more investigations than previously, as it really was better done by the FSA than perhaps the City of London Police at that time.

Equally, the Environment Agency has been given a further power, and I would like to understand, in particular, how that will be used and to ensure that it will not be used beyond the remit set out in the Bill today, particularly for the purposes for which it is necessary. Fly-tipping and other offences are obviously on the increase, and we perhaps do need these powers, but I would like to understand them.

I would also like to understand what the role of the local authorities will be, presumably in working closely with the Food Standards Agency and the Environment Agency and their CHIS agents in performance of the duties under this Bill, and to what extent they might be covered by the Bill.

I also share the concern expressed by others on the better protection for children acting as CHIS under the Bill, and I look forward to exploring these issues during the passage of the Bill.

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[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

I am sorry to interrupt the noble Baroness, but we are struggling to hear her. Is it possible for her to speak closer to the microphone?

[Baroness Whitaker (Lab) [V]]

Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]

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[Baroness O’Loan (CB) [V]]

The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to

“pay … attention to public authorities’… power to grant … authorisations.”

It does not provide proper authorisation or audit.

The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:

“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”


I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.

The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.

As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.

The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.

As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.

Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness has gone well over the advisory limit of four minutes. Perhaps she will conclude her remarks there.

[Baroness O’Loan (CB) [V]]

The Minister stated that this is needed for the MoD and, no doubt, for the security service. It raises problems for our relations with other states. We need processes to ensure the constant flow of information. To do that, we must amend the Bill.

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[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but there are other rights which could be breached as the Bill stands. There are considerations relating to public morality and the exercise of democracy—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am sorry, Lady Whitaker. We will try and return to you if we can find a microphone that works. We will go straight on to the noble Lord, Lord Judd.

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[Baroness Uddin (Non-Afl) [V]]

I take this opportunity to welcome the Minister and congratulate him on his thoughtful contribution and a loving tribute to Dirleton. I also extend my warm welcome to the noble Lord, Lord McLoughlin, and my noble friend Lord Walney. I was deeply moved by his plain speaking, share his pain at the hands of the party we love and assure him that there are merits in being able to reach out to create new political alliances in this House.

The Bill proposes statutory protection for public institutions to authorise informants and undercover officers to engage in criminal conduct. It does not specify limits or types of crime that may be authorised. I come to this Bill as a rights activist and would like government assurance that obstructing civil disobedience will be excluded. New clauses would enable RIPA power necessary and proportionate for criminal conduct authorisation subject to meeting three tests on grounds of “national security”, “preventing or detecting … disorder” and

“the economic well-being of the United Kingdom.”

It is worth reminding ourselves that RIPA came into being in order to improve oversight of intelligence work, and this Bill must not assume implicit immunity, breaking laws that all other citizens are expected to comply with.

Like many noble Lords, I acknowledge with thanks briefings from rights organisations, which have grave concerns. I am grateful to Reprieve, Just for Kids Law, the Pat Finucane Centre, Justice and WAR. While I do not agree with every single aspect of their views, there is consensus among them that the Bill is regressively flawed. Some go further to suggest that it is a state licence for agents and informants on the public payroll to commit crimes, which may include murder, sexual violence and torture, with impunity and without adequate redress for the victims—the core principle of our criminal justice system. I fear we may be sleepwalking once again into what the former Prime Minister, the right honourable David Cameron, referred to as the unacceptable extent of state collusion in the case of Patrick Finucane. I am troubled by the idea of the state allowing individuals to partake in criminal acts and providing them with immunity from the due process of law. By passing this Bill, I fear that we would be approving serious violations of international human rights norms and obligations. No matter how limited my voice or reach in this Chamber or beyond, I stand against everything that the Bill proposes.

We cannot overlook the lessons of survivors of sexual transgressions by officers, or so-called spy cops, currently subject of the undercover policing inquiry. Paid officers entrusted to uphold laws transcended all moral decency, shattering the lives of their victims. It is a prevalent reminder, if any were needed, of the potential consequences of unregulated individuals interpreting for themselves what their institutions required of them. This Bill seeks merely to legitimise more such acts. Regrettably, we cannot lose sight of the unlawful attempt to discredit my noble friend Lady Lawrence’s family and the families of Hillsborough victims, infiltrated in their campaign for justice for their loved ones.

My most grievous concerns are about the potential use of CCAs for children. While I note cautiously the Minister’s assurances, as a child protection officer of long standing I find objectionable the notion of legally sanctioning the exploitation of children, inciting them to commit criminal offences and placing them in harm’s way for potential abuse and long-term harm to their mental well-being. I seriously question “informed consent” in these contexts, even in exceptional circumstances.

Noble Lords will be aware that Just for Kids Law has issued legal proceedings against the Home Office concerning the use of children as spies by the police and other investigative agencies. Justice and other NGOs are asking for CCAs for children to be prohibited. Will the Government listen to their call and exclude children from the purview of the Bill?

My final point is about the potential influence of the embedded disparities of structural racism, sexism and Islamophobia—

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is already over her four minutes.

[Baroness Uddin (Non-Afl) [V]]

I am finishing, my Lords.

My final point is about the potential influence of the embedded disparities of structural racism, sexism and Islamophobia when CCAs are issued with a view to targeting specific communities and groups in the shadow or clandestine decision-making. I agree with the noble Lord, Lord Sikka, whose excellent analysis highlighted these sentiments. Given the countless individual experiences of discrimination beyond management’s eyes, there remains a lack of trust and confidence among black and minority communities in the police and intelligence services. Therefore, I do not support any government measures which infringe civil liberties, citizen rights and public trust at the peril of our democratic values and justice. I thank noble Lords for their lenience.