Domestic Abuse Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

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

I shall speak very briefly on Amendments 178 and 188. I thank the Minister for moving them and express my support.

In the traditional approach to domestic abuse, we looked separately at the responsibilities of local authorities, health authorities, the police, the courts and those responsible for offenders. We generally also legislated separately. The modern approach is to try to tackle domestic abuse by a combined approach that tries to ensure that all who have an interest in doing what can be done to see that domestic abuse is properly tackled and prevented—local authorities, health authorities, educational authorities, the police, the courts and those responsible for offenders—work together under a single piece of legislation, under a single strategy and with single guidance. For England the Bill will do that, and I believe it will do so better still when it is amended in the way urged in the many powerful speeches made and the careful amendments proposed in this House.

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.

Domestic Abuse Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

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

I will speak in support of Amendments 101, 176 and 177 to this absolutely excellent Bill, which is so clearly and urgently needed.

My experience has taught me for some time that the best method of dealing with domestic abuse is to ensure that there are properly co-ordinated approaches, particularly among the specialist services, at a local or community level, underpinned by clear national powers and funds properly targeted at the right priorities. To this end, it is important not only that funds are directed at providing financial assistance to the services that protect and deal with victims in every local authority but that the local authorities and the various justice agencies work closely together to provide integrated specialist services to try to prevent domestic abuse and to deal with the consequences, particularly for the victims, including child victims. I therefore strongly support Amendments 101 and 176.

I will add a word about Amendment 177. Unfortunately, because of the way in which devolution has proceeded in Wales, there is a very complex distribution of powers. It gives rise to what is aptly described as a “jagged edge” at the interface between those services for which the Welsh Government and Senedd are responsible, such as local authorities, health boards, social care and Cafcass, and other services, such as the police, for which the Home Secretary is responsible. As set out in the report of the commission I chaired, which was published last October, a long-term solution may be to devolve justice to Wales, but that is not a subject on which I wish to say anything this evening. What is important to address in the meantime is the working together of the relevant bodies; in particular, the co-ordination of the different legislation in Wales and the different structures of government.

In the report of the Commission on Justice in Wales, we drew attention to the leadership that the Welsh Government could show in deciding to tackle this, and to the success of the subsequent legislation—the Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015—and the various other initiatives taken in Wales. The Act imposed on local authorities in Wales duties to prepare and implement strategies to tackle domestic abuse and to pursue other initiatives. The commission drew attention to the collaboration between the police and the Welsh Government in addressing these and similar issues, and to the structures that existed at local government level for this. Despite that, I think that this amendment is necessary to ensure that there can be no doubt about the statutory underpinning of the current structure of devolution of these distinct services.

This Bill—here and in other places—needs to ensure that until the jagged edge is eliminated, provision is made to strengthen the interface while acknowledging distinct governmental responsibilities. Amendment 177 is therefore particularly to be welcomed. Getting the legislation right so that it addresses the jagged edge is one thing. What is important, as Welsh Women’s Aid has so eloquently stressed, is ensuring that the Bill, when it becomes an Act, and the Welsh Act are implemented in a co-ordinated manner, that the services work together and that, above all, as so many noble Lords have said, there is proper funding, for without that none of this will work. I hope that the Minister will be able to accept all these amendments.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support all these amendments, which are very sensible and practical. I will take them in reverse order.

Getting the PCCs involved is a great idea—I am just astonished that it is not happening already. The earlier grouping considered the provision of refuges for people fleeing domestic abuse. I support the comments of my noble friend Lady Bennett of Manor Castle on that, but I stress the importance of seeing refuges as part of an ecosystem of services available for survivors. I have visited refuges; they do their best and, obviously, they are safe and protected. At the same time, however, it is much better for survivors to stay in their own homes if they want to. The perpetrators—the abusers—ought to be the people who get ostracised from their communities and thrown out of the family house. I do hope that this will be possible. It would need adequate provision by specialist domestic abuse services, as would be required by Amendment 176, which I strongly support.

In those situations where a person does have to leave their local area, Amendment 101, moved by the noble Baroness, Lady Burt, would ensure that they do not fall into destitution while they start piecing things back together. I was very struck by the excellent speech of the noble Lord, Lord Polak. I liked his urging the Government to be bold. Quite honestly, this is a great Bill and if they were to make it really wonderful, it would look so good for the Government; let us face it, they need some good optics these days. To be bold on this and actually do something for children—to mop up the school meals mess—would look great. So, I urge the Minister—all the Ministers—to think very hard about accepting almost all the amendments, which are being put in what I would call a very helpful way, to make this very good Bill a great Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

34: After Clause 2, at end insert—
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted, the person who granted the authorisation must be immediately informed and all further activities that will or might be undertaken pursuant to the authorisation must cease forthwith, subject to the power of the Judicial Commissioner to allow actions specified by the Judicial Commissioner to continue for the purpose of discontinuing the activities for which authorisation had been granted.”Member’s explanatory statement
This amendment is to ensure that on a determination by a Judicial Commissioner that an authority should not have been granted, activities under the authorisation cease forthwith.

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

I beg to move.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

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

The noble Lord, Lord Hodgson of Astley Abbots, was right to remind us that the Bill has extraterritorial effect and of the abuses of the recent past, not just in relation to undercover policing in the UK but to the horrors of the so-called war on terror. It is not just the noble Lord, Lord Paddick, who brings so much to these debates. I hope noble Lords will all agree that the noble Lord, Lord Cormack, spoke with particular wisdom and balance. I shall stop there and look forward to, no doubt, further wisdom from the noble and learned Lord, Lord Thomas of Cwmgiedd.

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

My Lords, I shall speak briefly as my noble friend Lord Anderson of Ipswich has almost precisely expressed the views that I share.

I support the more specific amendments, particularly the first paragraph of the amendment in the name of the noble Lord, Lord Cormack, and spoken to by the noble Baroness, Lady D’Souza. I do not address the under-18 issue because that is a separate and difficult point. What we are concerned with is the question of serious crimes such as murder, sexual offending and serious violence. This point only arises or becomes of any importance if there is no pre-authorisation provision. I considered each of the arguments that have been outlined as to why this is unnecessary, first, as regards human rights. I must say, in respect of the amendment in the name of the noble Baroness, Lady Hamwee, that to frame something in terms of the Human Rights Act in this area is fraught with difficulty and uncertainty. Framing it in terms that ordinary people can understand and follow is difficult.

My noble friend Lord Anderson dealt with the testing argument and I need say nothing more about that. Perhaps the Minister can assure us regarding what the noble Baroness, Lady Chakrabarti, has just said and put an assurance into the Bill.

I want to deal with one further matter: the position of the IPC. Of course it can be said that if a serious crime of the kind we are contemplating were ever to be committed, it would immediately come to light by a post-occurrence investigation by the IPC. However, I cannot imagine anything more damaging to the security services, the police or any other body than for them to be put in such a position. It can never be necessary or proportionate to murder or torture, and it can never be necessary to commit rape. It would bring enormous confidence to everyone in the security services, for which I have the greatest admiration, as do many noble Lords who have spoken, if it were known that there are certain things that those bodies can never be authorised to do. I cannot understand why the Government are so reluctant to concede on that.

There may of course be matters that I or Members of the House do not know about, which is why it becomes important to consider the matter that I raised on Tuesday—namely, asking for a report from a trusted body or individual or to a Select Committee where the evidence justifying such a course that the Government appear to want to take could be explained.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

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

My Lords, it is a great privilege to follow the noble Lord, Lord Blunkett, who has brought to bear his own experience on this issue. I would like very briefly to speak in favour of all these amendments. In essence, there are five main proposals before the House, some with variance. They are as follows: first, leave it as it is and rely on the discretion of the prosecutor; secondly, have authorisation in all cases either by the secret services or by the Competition and Markets Authority, or any of the authorities, and, in due course, review by the Investigatory Powers Commissioner; thirdly, pre-authorisation either by a judge or by the Investigatory Powers Commissioner or a Secretary of State; fourthly, pre-authorisation, except in an emergency, by the same people; and, fifthly, real-time notification.

I agree with the noble Lord, Lord Blunkett, about the comment made last week by the noble Lord, Lord Cormack—who spoke very wisely, as he often does, in saying that we should attempt to find the best solution. The difficulty is knowing how to do that without evidence as to the pros and cons. None of this is easy and getting it wrong will be very damaging to all concerned. Perhaps I may illustrate that by taking one of the alternatives and saying what it would be helpful to know. I shall take the example of real-time notification.

The first question I would like answered is: if the authorities can tell the Investigatory Powers Commissioner within seven days, why is it not possible in most cases to notify in advance? It would certainly be far safer to do that. Secondly, if this course is adopted, will each change have to be notified? Thirdly—this is the most serious question—what will happen if the Investigatory Powers Commissioner says that the authority should not have been granted? Will the authorisation cease immediately; and if it did not, what would the consequences be under the Human Rights Act, for example, for those affected? Presumably, any disallowance or contrary views by the IPC would not be retrospective. Fourthly, would not the report at the end of the year identifying that authority should not have been granted be more damaging than trying to stop that mistake in the first place by pre-authorisation?

Should this real-time notification apply to everyone? Like the noble Lord, Lord Naseby, and many others who have spoken, I have the greatest admiration for the security and secret services. But is the same true of the Competition and Markets Authority and the Food Standards Agency? We have to be careful of what can happen on people’s coat-tails.

Finally, I really do think it would be useful to have the views of the Investigatory Powers Commissioner himself on this idea. He has to operate it; does he think it practicable, and what is to happen?

I could, drawing on my own experience, try to give some more details in respect of these matters, but I fear that in doing so I might be at risk of transgressing, as would other noble Lords, by inadvertently saying something very sensitive. That is why in our previous sitting, in the debate on the second group of amendments, I suggested finding a means of ensuring that there is evidence before the House to enable it to understand the deficiencies in the present law which need to be corrected, and to scrutinise the proposals for reform and try to ensure that the proposals, if necessary as amended, will work well for the future. My general experience has been, in relation to both the police and the security services, that they are rightly reticent about putting matters into the public domain. But it is often possible to put sufficient into the public domain without damage to security and methods of operation. However, you cannot do that unless you know enough about the issues and the evidence.

It is also my experience that subjecting issues of this kind to independent scrutiny and not relying on conclusions that are put forward is in the overwhelming interest of the security services, the police and the other bodies. That is because these are difficult issues of judgment that need to be scrutinised externally and independently and then addressed so that the risk of future errors is minimised and confidence maintained. That is why I would hope that means can be found to enable the House to carry out the constitutional function I have outlined. I have suggested referring either the Bill or specific issues to a Select Committee, under Standing Order 8.118, which can take evidence in private and publish a report, or—an alternative as suggested by my noble friend Lord Anderson of Ipswich —to seek a report from an individual. I would hope that the report would enable us to do our constitutional duty, find the right answer and be able to reassure everyone that we had, on this extraordinarily difficult issue, made a decision where the safeguards were right and that was practicable. I have written to the Minister and discussed this with her. I very much hope that a way forward can be found.

[Lord King of Bridgwater (Con) [V]]

I am very pleased to follow the noble and learned Lord, who ended by saying that he wanted to ensure that the solution was practicable and workable. I strongly agree. This is the first time that I have had a chance to speak on the Bill. I straightaway echo very strongly the comments of the Joint Committee on Human Rights, which recognised that, in an increasingly dangerous and unstable world, covert intelligence has a vital role to play in protecting our country from terrorism, organised crime and the growing threats to our national well-being. I was very impressed by the information that James Brokenshire, the Minister for Security, gave on Second Reading in another place. In the year to November 2019, in London alone, covert intelligence led to 3,500 arrests and the recovery of 100 firearms and 400 other weapons, half a ton of drugs and £2.5 million in cash. I note also the evidence given that, in 2017, covert intelligence foiled an attack on No. 10 Downing Street. Having myself been a victim of the mortar attack 30 years ago on No. 10, I am sorry that we did not have better covert intelligence then.

I also recognise that this vital tool must be put on a proper statutory basis. I have to say again that it is not before time, because it was 26 years ago that the Secret Intelligence Service and the Intelligence and Security Committee, which I had the privilege to lead in its early years, was put on a statutory basis.

--- Later in debate ---

My point on competence is absolutely fundamental to the powers that are there. I hope that the Minister will address that, because it is fundamental and it is the problem of the past, alongside the abuses that took place. It must not be a problem in the future, because that will put us all at risk.

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

I can be very brief in support of Amendment 17 and its Scottish equivalent. The intention appears to be clear: that the belief of the person has to be reasonably held on an objective basis. It would, in fact, be quite exceptional to have any other provision. It seems to me that the Bill ought to be clear and, on such an important point as this, there should be no room for ambiguity or argument if this matter ever comes before a court.

[Lord Naseby (Con)]

My Lords, I listened to my noble friend opposite and his detailed, and quite persuasive, contribution. I mentioned competence in the previous group. It is absolutely vital, but I do not need to say anything further on it, because the noble Lord has covered that in great depth.

The other two amendments—Amendments 16 and 17 —both claim to be more objective, and there is a powerful case for clarity. My only other comment is on Amendment 19. I do not want to be too hurtful but frankly, all it does is complicate the whole issue by a huge margin. For anybody to balance

“the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm”,

they really need to be very experienced in the whole of this market. That is not at all possible.

It is difficult for my noble friend on the Front Bench. I can see that there is a need to get more bite into it, if possible, but it is not an easy issue. The contribution on competence from the noble Lord needs to be taken very seriously.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

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

My Lords, I, too, warmly welcome the Lord Advocate and congratulate him on his first speech. It is good to have another Lord Advocate from Scotland, with its own distinct legal system. I also congratulate the other two noble Lords on their excellent speeches.

I warmly support the idea of putting the power of these matters on a statutory basis. I wish to raise three points: first, the role of the Investigatory Powers Commissioner; secondly, the process for immunity; thirdly, the position of bodies other than the security services and the police. The observations that I wish to make on those three points have been drawn from my own experience of sitting on a large number of cases involving CHIS, the setting up of what is now the Mitting inquiry—formerly conducted by Sir Christopher Pitchford—and the setting up of the Investigatory Powers Commissioner’s Office. One of the difficulties in making observations is that, in all the hearings on which I sat and when setting up the Mitting inquiry, either the information provided to me was in circumstances of the strictest confidence or the hearings were closed.

It seems to me that three issues require further detailed consideration by this House. First, I would like to understand the reasons why we cannot follow the interception regime, with the IPC having a clear role in approving in advance except when urgency prevents. Obviously, it would have been of great advantage to know what had happened in the many years being investigated by the Mitting inquiry, but I can bring some of my own experience to bear and say that there are strong reasons for a very tight regime, particularly where the authorisation would go hand in hand with immunity. A regime for reporting a few days thereafter, put forward in the excellent speech by my noble friend Lord Anderson, would obviously need detailed consideration but, before we get to that stage, it is necessary to see whether there is justification for moving from a pre-authorisation system. There are real difficulties if the IPC says that the authorisation was wrong.

The second point can be put more briefly: I would like to see the justification for the change from the position where the CPS makes its decision on immunity. There are strong constitutional reasons for the CPS, an entirely independent prosecutor, making decisions on whether someone should be prosecuted. That is the proper constitutional route and entirely consistent with the rule of law. It would be inimical to the rule of law for immunity to be granted by an agency of the Executive, and it would be a bad example to other states.

Finally, if powers are to be granted in broad terms to the police and security services, I would like to understand the justification for granting these powers to the other bodies. It is important that these issues are examined carefully to protect confidence in the security services. We too easily forget the damage that can be done when officers, even fairly senior ones, do not do things properly. The damage, from my own experience in such cases, can be considerable indeed.

Counter-Terrorism and Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

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

In thanking the noble Lord, Lord Parkinson, for his very clear and careful introduction of the Bill, I thank him, the Home Office and the Ministry of Justice for making the changes that need to be made to sentencing legislation in the form of amendments to the code. This was a vital first act in that respect. Of course, it may not appear easy to follow as incorporated in the Bill before us, but it is plain from the way in which the code will be developed that judges will have before them all the provisions in the right place in one document. This is a huge step forward. The ministry and the Home Office deserve thanks for adhering to this Bill, unlike what happened in 2003.

I want to make three points of substance, two relating to the provisions in Part 1 of the Bill and one relating to Part 3. The first, in relation to Part 1, relates to the sentencing of youths and, in particular, Clause 4. It is clear that sentencing those under 21 is the most difficult task for a court. In relation to terrorist offences it is particularly difficult, partly because they are the people who are most suggestible or susceptible to persuasion to embark on terrorism and, in my experience, at least some of those who have committed offences have had learning or other difficulties. I think there can be little doubt that evidence exists to say that such persons are deterred by the prospect of long sentences. It seems to me that the clause ought to be examined in terms of whether the emphasis is in the right place on dealing with someone for the future and ensuring that that person does not in the longer term pursue a career of terrorism. It is an area where it is essential that the judge has full information and should be left to form a judgment.

The second point that I want to make on Part 1 is on the provisions for minimum terms, whether for life sentences, extended sentences or custodial sentences. The general principle should be that there should not be minimum terms unless there is a compelling justification. This is particularly so in relation to offences where there is a huge range of conduct that can be brought within the section, some less serious and some of the utmost severity. Section 5 of the 2006 Act is a very clear illustration of the range that can be encompassed and the difficulties to which it gives rise.

There are guidelines now and I have no doubt that the Sentencing Council will produce new guidelines to reflect the changes. The judges who try these cases are few and, by and large, the courts have been very tough. We need to be very careful in our scrutiny of the provisions for minimum sentences as applied by the Bill.

On TPIMs, perhaps I may make one or two brief observations. First, the use of control orders and TPIMs has a long history and it is clear that they have played an important role in dealing with terrorism. However, that long history makes two things clear. There needs first to be proper judicial scrutiny of all aspects of them. In looking at the amendment made by Clause 37 to the standard of proof, we need to be particularly careful about whether the test set out there is capable of good judicial scrutiny. The second concerns the need for a maximum period. There is quite strong evidence that one of the worst effects of imprisonment for public protection where there are no defined limits to the end point is that the lack of a defined limit can lead to people losing hope and becoming more dangerous. We ought to examine carefully whether we do not wish to impose a maximum, or at least subject that maximum to judicial approval.