Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Rooker Excerpts

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

[Lord Marlesford (Con) [V]]

My Lords, in nearly 30 years in your Lordships’ House, I have never seen a piece of legislation that has made me more uneasy than this Bill. To me it is counterintuitive to give anyone the power to pre-empt the application of the criminal law .

I of course support the need to do all that is necessary to protect our national security and to detect and prevent serious crime, but it should have been possible to find other means. To choose this moment to extend in legislation the legality of law-breaking seems most unwise. This, after all, is a time when Russia is without compunction using, both at home and abroad, deadly poisons to eliminate its enemies. When it succeeds, it denies it. When it fails, its leader blithely explains that when it wants to kill, it succeeds.

I give one simple and deliberately irrelevant example. If a burglar is killed by a householder protecting himself or his family, it is unlikely that a jury will convict him of murder or even manslaughter. That does not mean, however, that we should legislate to give ex-ante immunity to householders who kill burglars.

I have one more word on journalists. I tried to persuade your Lordships to require judicial authorisation for any requirement to force journalists to reveal their sources in cases covered by the Bill. The amendment was defeated by seven votes but I was comforted by the fact that three former Cabinet Secretaries voted for it.

The Bill will now pass, and I shall vote for it, but let us agree, at least informally, that its implementation should be monitored with rigour. All societies must defend their security but open societies must take especial care of how they do so. Yesterday, President Biden told the American people that

“we’ll lead not merely by the example of our power but the power of our example.”

[Lord Rooker (Lab) [V]]

My Lords, the noble Baroness, Lady Jones, is absolutely right to bring forward her amendment to the Motion. I might want to criticise the details, which I do not intend to do, but she is right to do so. In fact, it would have been inconsistent with her rigid approach to the Bill for her not to do so. So, to that extent, I support her right to table the amendment; there is no question whatever about that. It gives me an opportunity to further vote for the Bill because I will not support the amendment to the Motion.

The noble Lord, Lord Marlesford, just made a point about the open society. This is a problem and there is a disquiet here. As an open society, we need to protect our openness. However, when that openness is the very thing used to undermine and smash our open society, we have to say no. We have to have a process that defends our open society and is consistent with the rule of law. The Bill is perfect for that. I have no doubt that in future the Bill will be amended, but the language that has been used about it is extravagant and misleading.

I see that on Twitter it is described as the “Spy Cops Bill”. It has nothing to do with spy cops. It is completely different and that can be misleading. If I was a CHIS in Scotland, I would be a bit concerned at the moment about becoming a whistleblower because I am not sure whether the Scottish Government are fully behind the process.

Perhaps I may briefly also express thanks. I have not been involved in the detail but I took up the Minister’s opportunity for a discussion with the Bill team and some of the advisers, which I found useful. Indeed, as a result, they published more information. The case studies, which I used extensively on Report, should have been deployed even more. There has been a communication issue regarding the Bill, which I find a fault because the Government have not defended and promoted some of its practical aspects as much as they could have.

The Bill protects covert human intelligence sources. It makes sure that they are not put at risk by being tested by the criminal gangs they may have been sucked into involuntarily, as mentioned in some of the examples used in the case studies. It is not the case that all people knowingly go down that route; they get sucked in by their employers. As a non-expert in this area, I found the newly published guidance incredibly helpful.

My final point is on the pejorative language used, such as when quangos are dismissed as not important. Most of the quangos listed in the Bill are non-ministerial government departments and should not be dismissed by saying, “Oh, it doesn’t matter”. I find that kind of language unacceptable among parliamentarians because it deliberately seeks to mislead the public regarding what the Bill is about. It should stop.

[Lord Paddick (LD) [V]]

My Lords, I have a lot of respect for the noble Baroness, Lady Jones of Moulsecoomb, and we support the spirit of her amendment to the Motion to the extent that we oppose the granting of legal immunity. We believe that the Bill undermines the rule of law—that is, the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes. As a result of the Bill, that is called into question, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hendy, have said.

Where a police officer or member of the security services tasks a covert human intelligence source to commit an act defined in law as a crime, the person tasked will no longer be subject to publicly disclosed legal codes and processes. An existing system that has worked effectively for decades, whereby informants and agents are tasked to commit crime and the decision, almost without exception, not to prosecute is taken by the relevant prosecuting authority, after considering all the facts, will be swept aside.

It is to be replaced with what we consider an unsafe and undesirable power, vested in the hands of the police, the security services and numerous other public authorities, to grant legal immunity with no prior judicial authority. The main issue is not, as the noble Baroness, Lady Jones, says in her amendment to the Motion, that there are insufficient safeguards or oversight, although this is arguably true. It is the fact that immunity can be granted at all, making the illegal legal. That is the fundamental issue for us on these Benches. I expect the legality of this aspect of the Bill to be challenged in the courts. That said, the House fully debated this aspect of the Bill, and without the support of the Labour Party leadership, we on these Benches were unable to remove it.

Contrary to the amendment to the Motion in the name of the noble Baroness, this House has clarified the existing position and improved the Bill, to ensure that innocent victims of crimes committed by those instructed to do so by state agents can seek compensation. Contrary to her amendment to the Motion, undercover policing is not being expanded by the Bill, although the Bill has shone more light on this aspect of policing. The number of public authorities that can deploy covert human intelligence sources has been reduced by the Bill. The directed criminal activity of those informants and agents has been placed on a statutory footing, rather than the Bill enabling it to increase.

From the start, we recognised the need to place the tasking of covert human intelligence sources to commit crime on a statutory basis, which this Bill does. We have improved the Bill in some important respects—the safeguards for children and vulnerable adults, for example, despite our fundamental misgivings over immunity. Therefore, with regret, we cannot support the noble Baroness’s amendment to the Motion.

I thank the Minister and the Bill team for their work on the Bill; our Labour colleagues and their staff for their assistance and co-operation on those aspects that we were able to agree on; and those on the Cross Benches who have liaised with us. I also thank my staff and colleagues for their help with what has been a very difficult Bill for me, personally, because of my previous professional experience of this difficult area of policing and because of my knowledge of the very real opportunities that the Bill presents for corruption and malpractice. The amendments that this House has introduced are the very minimum required and we will resist any attempt to remove any of them.