Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

I referred in Committee to our swimming in murky waters on this Bill. Nothing brought that home more clearly this afternoon than the impassioned speech of the noble Lord, Lord Paddick, who talked about his personal experience of handing out brown envelopes stuffed with cash to members of the criminal fraternity for what they had done to help solve a greater crime. However, while we accept that, we must also accept—I say this very gently to the noble Baroness, Lady Jones of Moulsecoomb, for whom I have high regard—that we are not just dealing with police spies. We are also dealing, in the very deep waters of international relations, with those whom in an earlier debate the noble Baroness, Lady Manningham-Buller, reminded us are among the bravest of the brave. I do not particularly like the Bill but I utterly accept the necessity for it. I hope we can improve it on Report and that, in the context of these amendments, we can make it abundantly plain that anyone who suffers as the result of an action of a CHIS, deliberate or otherwise, will be adequately and properly compensated.

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a privilege to follow the noble Lord, Lord Cormack, and I associate myself with his remarks about the noble Baroness, Lady Chakrabarti, and her desire to clarify and improve the Bill. In no way should her motives or actions be impugned.

Because this will be a long debate, I will speak only briefly about Amendments 21 and 22, to which I have added my name. If we are to legislate and to put this regime on to the statute book, we must have absolute clarity. The amendments establish that degree of clarity in relation to criminal and civil responsibility. I attach particular importance to the issue of criminal responsibility because in such a matter, it is very important that we keep alive elements of deterrence to show that the law can act swiftly and clearly if people corruptly misconduct themselves in public office or go much more seriously into criminality in authorising crimes. The noble Lord, Lord Anderson, set out with admirable clarity the changes that are required. I would not think that assurances given by a Minister would be adequate in this case. A statutory regime must start and end with a statute.

[Lord West of Spithead (Lab) [V]]

My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.

For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.

Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.

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[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I do not wish to address at any length the various competing amendments that are being suggested. Speaking for myself, I believe that pre-authorisation in one of the forms suggested is the obvious way forward. I have absolute confidence in the ability of the judicial commissioners to assess and make a judgment and, although I have much sympathy with the view that things are better now than they were in the past, we simply cannot ignore past experience, as we are constantly reminded.

As my second choice, I would go for real-time notification. I tabled Amendment 34—this is the subject on which I wish to speak—to clarify the position as to what happens if, after notification, the judicial commissioner expresses the view, or says, “This should not have happened.” It is clear from the way the Bill is drafted that, as the term “notification” is used, everything that is done prior to any decision by the judicial commissioner would remain authorised. The amendment proceeds on that basis and seeks to make that clear. However, what then happens if the judicial commissioner says, “Well, this should not have been granted”? It is very important when we try to clarify the law and put it on a statutory basis that we do not engage in a fudge. The word “notification” is used deliberately to provide for notification, but it simply does not say what happens when the commissioner makes a decision. This amendment makes it very clear that, if the judicial commissioner says that this should not have been authorised, then, subject to unwinding under a degree of judicial supervision, the activity must stop.

I have had very helpful discussions. I pay tribute to the Minister for organising this and to the officials who have been clear in some of their views. However, it has been explained to me that, in these circumstances, it is thought that, if the activity has not started, it would stop; but if it has started, it must be for the authorising officer to consider what to do. This is plainly not good enough. First, the judicial commissioner is not giving advice but making a determination; although not they are not sitting as a judge, it is as close to a judicial decision as you can get. Secondly, if the judicial commissioner says that this should not have been granted, can the authorising officer say that he is acting lawfully by going on with the activity? Thirdly, in those circumstances, is the officer at risk of committing the offence of misconduct in public office? It would be extraordinarily difficult to see how he could continue. What happens during the process of a criminal trial if a person continues in such circumstances? Does all this have to be disclosed?

Worst of all, what is to happen when the Investigatory Powers Commissioner publishes in his report that he said, “This should not have been granted” but the police or security services went on with it? As I understand it, the justification for opposing this, or saying that it is unnecessary, is, first, that the judicial commissioner is not making a decision but merely giving advice. With respect, that is pure sophistry. Secondly, it is said that you cannot have unwinding under judicial control as judges are not experienced in this sort of matter. I ask those who have doubts about the ability of judges to protect people to read the decision to which I was a party in a case called WV in 2011. In respect of a person who provided very valuable information to the police, the judiciary had to act to protect the person concerned, but in circumstances where in no way could that person be identified.

Therefore, it seems that the question of this amendment is straightforward. If a police officer or a member of the security services who has granted authorisation continues and does not accede to the judge’s decision, this says that we are a country that does not abide by the rule of law. In my respectful submission, it would be very difficult to see how this could be judged internally and it would do our security services great damage if it related to something overseas.

However, as this last remark shows, what I fear for in this is the damage that continuing with activity if the judicial commissioner says no will do to the security services. If the Minister opposes this amendment, I would ask her to set out what is to happen; we cannot leave this point undealt with. If it is possible, I ask her to deal with three of the main scenarios. If no activity has happened, surely the activity must not proceed. If activity has started, it must be stopped and unwound. I would hope for an assurance that, once the views of the judicial commissioner have been expressed, the activity would not go on.

This amendment seeks to deal with a subject that may be uncomfortable for people to face up to: that you have an authorising officer who says, “Yes, I think this is all right” and then a judge says, “No, it wasn’t.” We need clarity. When you think about this question, it shows the dangers of not having pre-judicial authorisation in a system. I suspect what will happen—this is why it is a great pity that we have not been able to go into this in much more detail with examples of what actually happens—is that once a judge says, “This should not have been granted” we will probably gradually move to a system of pre-authorisation.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I very much enjoyed the previous speech, which gave me much information about a great number of things. I thank the noble and learned Lord, Lord Thomas.

My noble friend Lord Dubs has set out the parameters of Amendments 5 and 23 and my noble friend Lord Rosser has made incisive comments on them. I will add just a few comments in support of my noble friend’s arguments. Basically, the issues in the amendments are covered in Chapter 7 of the Joint Committee on Human Rights report on CHIS, entitled “Adequacy of oversight mechanisms”—surely absolutely essential. The Joint Committee had several concerns about this part of the Bill.

First, the Bill does not suggest any independent scrutiny of criminal conduct authorisations before they are made and acted upon. Secondly, the process of granting CCAs will be kept under review by the Investigatory Powers Commissioner in the oversight of CCAs after the event. He or she will not be informed of the authorisations at the time they are made, so how can prompt scrutiny take place? It is worth repeating those points, which were made by my noble friend Lord Dubs.

The Joint Committee on Human Rights report quotes Sir Desmond de Silva’s report on the death of Patrick Finucane. He accepts as legitimate the running of agents within terrorist groups as at the heart of tackling terrorism but says that the

“agent-running must be carried out within a rigorous framework. The system itself must be so structured as to ensure adequate oversight and accountability.”

Those conclusions are consistent w\ith the requirements of human rights law. There must be effective safeguards against abuse. The question is: does the Bill provide that rigorous framework of oversight and accountability? The amendments query that. In its submission to the JCHR, the law reform and human rights organisation Justice said that the Bill is

“extremely limited in its oversight mechanisms”

and that its safeguards were “woefully inadequate”.

The draft code of practice published with the Bill describes how the CCA practice will operate. Only a designated officer within a public authority may make a CCA, and this must be made in writing unless urgent.

Oversight of the Investigatory Powers Commissioner —who must be a senior judicial figure, of course— applies to CCAs. The IPC has the powers to conduct investigations, inspections and audits, but these are oversight functions only. The IPC does not have the capacity to investigate every time a CCA is used. The IPC role is restricted to covering the use of the power to grant CCAs in the annual report to the Prime Minister. This can be redacted before going before Parliament.

Reprieve has said:

“Once more, the oversight powers in this Bill are far weaker than those operated by the UK’s intelligence partners. The FBI has repeatedly released details of the number of crimes committed by its agents as part of efforts to increase transparency over the use of this power.”


There is currently a lack of prior independent scrutiny or approval for CCAs, as described in the report of the Joint Committee on Human Rights. This contrasts with, for example, police search warrants and phone tapping.

The Bill requires amendment—and these amendments in particular—to remedy this lack of prior judicial approval for CCAs, with provision for urgent cases, and I strongly support Amendments 5 and 23.

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[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

[Lord Thomas of Cwmgiedd (CB) [V]]

I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.