Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Rogan Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[The Deputy Chairman of Committees (Lord Rogan) (UUP)]

We now come to the group beginning with Amendment 57. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the House that, if Amendment 57 is agreed to, I cannot call Amendment 58.

Amendment 57

Moved by

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Clause 1 agreed.

[The Deputy Chairman of Committees (Lord Rogan) (UUP)]

We now come to the group beginning with Amendment 63. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that if Amendment 63 is agreed to, I cannot call Amendments 64 to 69.

Clause 2: Authorities to be capable of authorising criminal conduct

Amendment 63

Moved by

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Amendment 75B not moved.

[The Deputy Chairman of Committees (Lord Rogan) (UUP)]

We now come to the group consisting of Amendment 75C. I remind noble Lords that anybody wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.

Amendment 75C

Moved by

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[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.

The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.

During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.

First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.

My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.

Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.

My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.

To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.

[The Deputy Speaker (Lord Rogan) (UUP)]

The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

My Lords, not for the first time in consideration of this Bill in Committee, the noble Lord, Lord Hodgson of Ashley Abbots, comes to your Lordships’ House with an excellent amendment, a very good idea and an even better speech, which I cannot improve on. Transparency does influence conduct, and the information that he suggests ought to be included in reports speaks to common sense. We ought to know on a regular basis the number and nature of criminal conduct authorisations issued under the new legislation, the operational benefits that have been obtained from those authorisations and, crucially, the kind of damage to property and people—the incidental harm—that has come about as a result of those criminal conduct authorisations.

I do not want to labour the point—it has been a long Committee—but I want to have one final attempt at putting a question to the Minister to which I do not think I have yet heard the answer. This is my last opportunity to put this in Committee before we go forward to Report.

Why is it necessary to go further than the status quo in the scheme for this legislation? Why cannot undercover operatives, whether they are highly trained police or MI5 officers, or whether they are—and perhaps they are in greater number—members of the civilian community, including the criminal community, just be subject to the current law, which is that when they are authorised to do this work, including with criminal conduct, they will know that their conduct will be second-guessed after the fact? They currently have the ultimate incentive —and we have the ultimate safeguard—to behave proportionately and as well as possible, which is that they might, just possibly, if they over-step the mark, be subject to legal sanction after the event. That is the law that applies to uniformed police officers and people driving police cars and ambulances at high speed, with a very strong public interest defence. It is probably a presumption against prosecution, but it is that tiny risk of being judged after the fact that makes most people behave well according to the criminal law. Why should that be replaced with a total, advance and blanket immunity from prosecution and civil liability? Why quite go so far and therefore cause some of the greatest concerns that have been excited by this legislation?

I hope that the Minister will not mind me putting that fundamental, simple question one more time. I look forward to her answer, and indeed to our further work at the next stage of the Bill’s passage.