Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Alderdice Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

Amendments 4 and 5 not moved.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

We now come to the group beginning with Amendment 6. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.

Amendment 6

Moved by

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[Lord Judd (Lab) [V]]

My Lords, we are indeed fortunate to have working for us, in both Houses, the Joint Committee on Human Rights. I find its reports invariably well argued and well researched. The arguments and logic of those reports are not to be easily dismissed. We have been fortunate this afternoon to hear the noble Baroness, Lady Massey, and my noble friend Lord Dubs putting their experience on the committee at our disposal. They have argued the case very well.

It is unthinkable that innocent members of the public who are adversely, and perhaps grievously, affected by covert action have no clear means of recourse. That needs to be clarified and written into the Bill. It is also important that those involved in all such covert action, which must be authorised by people with judicial authority and experience—the will of the House has come across clearly in all the debate—have limits on what can and cannot be done, and who is to be held responsible and in what way. These amendments help to clarify that situation. In that sense, they should be taken extremely seriously. I am grateful to have heard the experience of those who have worked on this so thoroughly in the Joint Committee on Human Rights being shared with us this afternoon.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn so I call the noble Lord, Lord Anderson of Ipswich.

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

My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.

First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.

Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?

The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?

The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.

The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).

How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.

In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.

Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.

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[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.

I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.

I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.

The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.

I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.

A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.

Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.

These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.

The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.

On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received a request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.

[Lord Falconer of Thoroton (Lab)]

It is new, because CHIS conduct under the existing Bill significantly did not include criminal conduct. There was a little bit that was included, but this is a wholly different regime and I do not think it is right to say there is no change there. However, I did not rise to say that; I wanted to raise the point about being lawful for all purposes. If it is lawful for all purposes, tortious claims cannot be brought by the totally innocent victim—the person beaten up pursuant to the authority, assuming the person beaten up is not the subject of the CHIS but is just somebody caught up in it. Putting aside the Criminal Injuries Compensation Authority, which the noble and learned Lord will come back to us on, why should that person—singularly, throughout the whole of English civil law—not have a remedy? Is he saying that person does not have a remedy? If he is saying that they do, what is that remedy? Everyone else beaten up in the course of a crime has a tortious remedy.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Alderdice Excerpts

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

Amendment 16 not moved.

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

We come now to Amendment 17 in the name of the noble Lord, Lord Paddick. Does the noble Lord wish to move his amendment?

Amendment 17

Moved by

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Amendment 25 not moved.

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

Would the noble Baroness, Lady Williams of Trafford, like to move Amendment 26 formally?

[Baroness Williams of Trafford (Con)]

I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.

Amendment 26 not moved.

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

We now come to the group beginning with Amendment 27. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate. I should inform the House that, if this amendment is agreed to, I cannot call Amendments 28 to 31.

Clause 2: Authorities to be capable of authorising criminal conduct

Amendment 27

Moved by

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Alderdice Excerpts

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

We remain very uncomfortable with the thought of using any of the individuals I have referred to as spies, but I appreciate that that is not what the Bill is about. My final question to the Minister is this: will the Government consider applying these safeguards to all children used as covert sources and making that a formality, either through secondary legislation or at least through the code of practice?

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

The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.

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

My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.

Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that

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

Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.

I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was

“inappropriate to create an exception to the effect of criminal conduct authorisations.”

I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.

Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:

“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—


not whether any action should be taken, but what action should be taken, which implies that some action will be taken.

IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.

The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.

In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.

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[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.

[Lord West of Spithead (Lab)]

My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.

I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.

It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.

The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.

On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.

The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.

In the other place, the Solicitor-General said:

“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]


This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.

The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.

In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.