Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Finally, I would remind the House that we are talking about children who have already been let down by the institutions of state, their families and their peers. These are not children who have a clear idea of where their best interests lie, otherwise they would not be available for this task. The least we can offer, and the most we still have available, is robust and thoughtful guidance that puts the best interests of all children beyond doubt.

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

My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.

First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:

“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]


I believe that she was right to say what would happen if a judicial commissioner expressed that view.

However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.

It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.

As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.

The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.

[The Deputy Speaker (Lord Alderdice) (LD)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.