Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Russell of Liverpool Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, this is a fascinating if somewhat one-sided debate. I will suggest in a minute why I think that is the case and why that gives the Government a problem. I thank the Minister who, with her usual courtesy, went out of her way to have a meeting with me with her Bill team last week. I am extremely grateful for that.

It is crystal clear from the Bill’s passage in the Commons, from Second Reading and from today that both Houses have significant concerns about the use of children as CHIS. I will make my comments across all the amendments in this group, but I will try to put them in the context of why I think Her Majesty’s Government have a problem.

The fact that so many of us are so uneasy about this subject is, to me, clear evidence that we are unconvinced. We have yet to hear a compelling, clear and detailed articulation of why this is necessary in the first place. As the noble Lord, Lord Young of Cookham, said in his excellent opening speech, why, for example, did Her Majesty’s Government not conduct a child rights impact assessment on the Bill? I address that directly to the Minister, and I would like her to give me and the noble Lord, Lord Young, an answer to that, if not today, in future in writing. The template exists—why was it not used?

We feel that the onus is firmly on the Government to persuade us, and they have not yet done so. We need facts; we need solid data, redacted as appropriate, about previous and current deployments to demonstrate their necessity and value in the absence of viable alternatives. We need the evidence of their worth. We need a detailed and clear explanation of what is meant by “exceptional circumstances”, and we need examples to illustrate this. We do not have this.

Earlier this afternoon, the noble Lord, Lord Anderson of Ipswich, made what I thought was a very compelling case, which I ask the Minister to reflect on carefully. He recalled that in the passage of the Investigatory Powers Act 2016, a process went through whereby the different authorities concerned spoke in private to a group of people—including the noble Lord, Lord Anderson—probably made up largely of judicial commissioners who are privy to the Official Secrets Act and can be entirely relied upon. They in turn were able to disseminate what they had heard and to give their judgment on the value, or otherwise, of it. I think that, in this case, that might be a very useful precedent to consider following. Subsequently, the noble Lord, Lord Anderson, said that after that process there was a second stage, where those findings from that first group were relayed to both Houses of Parliament. That apparently was extremely effective, so we do not necessarily need to reinvent the wheel; I think we do have a precedent.

If the Government fail to convince us that there is a real need for and demonstrable value in using child CHISs, then it is highly probable that on Report there will be a strong case and significant backing for amendments, such as Amendments 43 and 52, which will simply prohibit their use, full stop. However, if the Government are able to convince us that this is a necessary evil, we are in a different but still problematic place. To their credit, both the Minister and her colleague, James Brokenshire, have made it clear that they acknowledge and even share some of our concerns. In that spirit, I appeal to them, and to the Bill team, to work with us to discuss and embed much more substantial and overt safeguards into the Bill on Report. Amendments 48, 51 and 60 are perhaps a good starting point.

As I said at Second Reading, we are dealing, thankfully, with a very small number of child CHIS deployments. If we can be persuaded that they are necessary, can we not create a watertight process which will mollify critics, put in place forensic scrutiny and oversight and which will, above all, focus on the best interests not of the police, or whichever authority it is, but of the child?

I think all of us who have spoken today are entirely at the Minister’s disposal and wish to work with her, should she so wish, to try to put our shared concerns to rest. But, as I said earlier, if the Government are unable to persuade us with strong evidence that there is a compelling justification for using child CHISs, many of us will feel compelled to insist upon prohibition. This is the Government’s challenge.

[Lord Judd (Lab) [V]]

My Lords, I thank unreservedly the noble Lord, Lord Young of Cookham, for the way in which he introduced this amendment. It was a challenge to us all. In protecting the values of our society, of which we like to speak so often, and in protecting the young and the vulnerable, there have to be some absolutes. I am glad that some of the other amendments have drawn attention to other vulnerable people who have been through nightmare experiences, and to whom the damage from being used in this way can be quite incredible.

We have to take seriously—again—the point that I have made several times this afternoon. I am afraid that we could be giving those who seek to undermine our society a victory, because they have provoked us into a situation in which we have acted against what we know to be essential. Nobody can calculate the damage to young people of being used in this way. Very few can really understand or analyse the damage done to other vulnerable people by being used in this way.

So, if we are going to stand firm for the society in which we believe, we must not allow ourselves to give in on these things; we must have absolutes. I therefore counsel those who have moved important amendments raising very serious points about “exceptional circumstances” to consider that probably, in this situation, there are no exceptions. We have to make our stand absolute and, in that way, we can win the battle for humanity that we are determined to win. I thank the noble Lord, Lord Young, for having challenged us so clearly.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

I have received requests to speak after the Minister from the noble Lord, Lord Russell of Liverpool, and the noble Lord, Lord Kennedy of Southwark. We will start with the noble Lord, Lord Russell of Liverpool.

[Lord Russell of Liverpool (CB)]

I thank the Minister for her very full reply. I asked whether the approach of my noble friend Lord Anderson of Ipswich in 2016 to the scrutiny of the Investigatory Powers Act, as it went through both Houses, might not be a model to follow. In our meeting last week, the Minister discussed with myself and those of us who are sceptical about the use of child CHIS for evidence the requirement for this. To convince us, she was kind enough to indicate that the 17 cases that we know of through IPCO produced a result that was deemed, in the balance of all things, positive and justified the use of those cases. In the absence of that sort of evidence, those of us whose primary concern is the best interests of the child are understandably very cautious and a little sceptical. We are willing to be convinced but we need the evidence to be convinced, please.

[Baroness Williams of Trafford (Con)]

I will reiterate what I said, which is that I am trying to work out a mechanism for sessions that might be helpful but not leaked, and perhaps where we can give some working examples—again, perhaps in private. We will try to do that if not before Report then during it, but before we come to this amendment.