Iraqi Interpreters

Baroness Chakrabarti Excerpts

Thursday 14th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I would not use the word “shameful”. In total, from Iraq, we relocated, with their families, 1,328 people. Of course, 7,000 Afghan nationals have now been resettled in the UK under the Afghan relocations and assistance policy, otherwise known as ARAP.

[Baroness Chakrabarti (Lab)]

My Lords, given the circumstances, surely the eight in question could be granted visas today or tomorrow. More generally, it would seem that successive Governments have been quicker to assert human rights violations as justification for war over there than as justification for refuge over here. Might this not be a moment to legislate to give clearer statutory obligations on future Governments in relation to those foreign nationals who put themselves in harm’s way in support of the British state and its military operations?

[Baroness Williams of Trafford (Con)]

As I say, I agreed with the premise of the question of the noble Baroness, Lady Coussins. We must also guard against the people whom we settle here not being thoroughly vetted, because, clearly, we have a security obligation to this country as well, but the premise in relation to those who have given their lives and time for us in war-torn countries is absolutely right.

Metal Theft

Baroness Chakrabarti Excerpts

Thursday 14th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I am very happy to convene a meeting, but I would say that the NICRP does share intelligence between forces and utility companies, which does help with crime prevention and investigation. It helps with information, good news and developing best practice. It manages a central industry and police intelligence database of metal theft, to track trends and to link crimes and intelligence on offenders. It also has a RAG rating database of scrap metal dealers—going back to the noble Lord’s point earlier—in order to focus enforcement on those known to be involved in crime.

[Baroness Chakrabarti (Lab)]

My Lords, since when is self-financing by industry or any other victims of crime a constitutionally appropriate approach to the enforcement of the criminal law? I give the Minister another opportunity to answer the principal question: what additional funding will the Government provide for the enforcement of this crime that is costing hundreds of millions of pounds to our economy?

[Baroness Williams of Trafford (Con)]

Seed-corn funding is generally pump-prime funding, which is then intended to be self-financing ongoing, and the agencies and organisations involved are actually supportive of this model of funding.

Black Dog Crisis Management Company

Baroness Chakrabarti Excerpts

Monday 11th October 2021 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what were the reasons for the Home Office hiring the Black Dog crisis management company; and what processes were followed before the firm was engaged.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I know that the House and the noble Baroness will not mind if I spend a few seconds in paying tribute to my colleague, friend and all-round wonderful man, the right honourable James Brokenshire MP. I have received messages from across the House and I know others will have done. I know that those will be a huge comfort to Cathy and his children.

To answer the Question, the company was engaged in November 2020 to provide external debriefing of a complex critical incident that had occurred in the context of migrant crossings of the channel. The company had supported the Home Office and other departments previously and was recognised for its subject matter expertise in the debriefing of complex critical incidents. The company was engaged directly as a single tender action for which justification was provided due to urgency.

[Baroness Chakrabarti (Lab)]

I am certainly grateful to the Minister for that. I believe that I can speak for all of us on this side of the House in seconding those sentiments about James Brokenshire—a truly kind man and serious public servant.

To return to the question of crisis management in the Home Department, might it not be better for enhancing the reputation of the department to move away from private consultancy and to commission a public, statutory, judge-led inquiry into misogyny and the neglect of women in policing and the criminal justice system, in the light of the abduction, rape and murder of Sarah Everard?

[Baroness Williams of Trafford (Con)]

My Lords, I am sure that the terms of reference and the details of that inquiry will be laid out in due course, but I will certainly take the noble Baroness’s points back.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I begin by adding my fulsome welcome and congratulations to the noble Lord, Lord Sandhurst. His expertise and lengthy public service speak for themselves. I hope he will forgive me for saying that he is one of the kindest lawyers I have met, at a time when kindness is perhaps in short supply in public discourse. I am sure that he will be a huge asset, not just to the Benches opposite but to your Lordships’ House.

This Christmas tree Bill, with significant ambitions and implications for the rule of law, was railroaded through the other place with unseemly speed. So I hope that, with the breadth of expertise in your Lordships’ House, we will give each of its clauses an extremely anxious scrutiny in the weeks and months ahead. I am completely with the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett on the need to deal with indefinite detention, and with so many other persuasive arguments that have been made around the Chamber. However, I shall use my too-short time today to touch briefly, perhaps predictably, on Parts 3 and 4, which, in my view and that of so many others, violate fundamental rights and freedoms, and threaten our democracy itself.

A hallmark of many authoritarian Governments is the perverse contrast between a light and cosy touch in relation to the activities of the super-wealthy and powerful in society on the one hand and a clampdown on non-violent—I repeat, non-violent—dissent and cultural difference on the other. As the right honourable Member of Parliament for Maidenhead said at Second Reading in the other place:

“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”


She went on to say she would

“urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.”—[Official Report, Commons, 15/3/21; col. 78.]

Goodness me—if only we could vaccinate Home Secretaries before they took office rather than waiting for an immunity from authoritarian instincts that may come afterwards.

The parts of the Bill to which the former Prime Minister was referring have not been significantly amended since those comments. I suggest, along with others from whom we have already heard, that Parts 3 and 4 do not walk her suggested fine line against authoritarian populism; they scrub that line virtually out of existence. Non-violent—I repeat, non-violent, which is what Part 3 is about—on-street assembly and dissent is as much a fundamental freedom, including under the convention on human rights, as voting in fair and regular elections. Indeed, the franchise was not won for most ordinary people in this country, less than a hundred years ago, without a great deal of just the kind of protest that would be criminalised by this Bill, which will be added to an already crowded statute book of broad public order powers ripe for use and misuse by accident or design against noisy, impactful or disruptive protest—as defined by the Home Secretary, for many years to come. Goodness me, will the Home Secretary not become, perhaps not Henry VIII but Henrietta I?

While some noble Lords have expressed their concerns about counterproductive protest tactics, I have concerns about our counterproductive responses, at a time when the BBC has just this afternoon broken the story of a report that demonstrates that an overwhelming majority of young people are hugely concerned about climate catastrophe, to the point where it is affecting their mental health.

While Part 3 jeopardises the freedoms of everyone, Part 4 deliberately and maliciously targets one of the smallest, most vulnerable and even demonised minorities in our nations. I congratulate my noble friend Lady Whitaker for her tour de force today, but also for so many years of advocacy in defence of that community. To be clear, Part 4 is reminiscent to me of the infamous treatment of the east African Asians, who were rendered second-class citizens by euphemistic legislation—in that case, the Commonwealth Immigrants Act 1962— which was none the less obviously focused on them. It criminalises the Travelling way of life and creates a crime of “intending to reside” on land without consent when, as we have heard, there is inadequate land provision for these communities and already plenty of—and too much—civil and criminal law used against them.

I hope noble Lords will forgive me but, in my humble opinion, it is just as racist to target the nomadic lifestyle as it would be to single out the special food, dress, language or prayers or any other group. These illiberal provisions, in particular, violate fundamental rights and freedoms and pour lighter fuel on the so-called culture wars. I look to my noble friends, noble and learned friends, other friends, and noble Lords across the House to demonstrate the principle and courage required to defeat them—otherwise, I do not know what we are for.

Policing: European Championship Final

Baroness Chakrabarti Excerpts

Thursday 15th July 2021 Lords Chamber

[Baroness Williams of Trafford (Con) [V]]

My Lords, the noble Lord touches on a point when he says that some of the stewarding was deficient on the day. However, I would like to put this in the context of the whole of the Euros tournament. The vast majority of events ran smoothly, and it is a real shame that a few people have ruined it for the majority. It is also of great regret that some 19 of our brave police officers were injured on the day.

[Baroness Chakrabarti (Lab) [V]]

Does the Minister agree that stewards are not paid, trained or kitted out to be substitute security staff, let alone riot police? Many were incredibly brave, sustaining injuries and trauma. Will the Government ensure that every single steward who worked last Sunday—for the minimum wage, I might add—is provided with counselling from the public purse?

[Baroness Williams of Trafford (Con) [V]]

I understood the noble Baroness to say that stewards were not paid, and then that they were paid the minimum wage. However, no matter what, yes, they should be trained; yes, they are brave and we are grateful to them; and, yes, there are lessons to be learned from that event.

Domestic Abuse Bill

Baroness Chakrabarti Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Baroness Stroud (Con)]

My Lords, I commend my noble friend Lady Meyer on her courage and resilience in tabling this amendment again today. I first had the privilege of meeting her and hearing her story many years ago, and since then she has been a tireless campaigner on this issue despite, as we have seen both today and in Committee, often intense and personal challenge.

As we have heard, parental alienation is a devastating form of abuse that can extend for decades and have deeply traumatic effects on both the children and the excluded parent. There has, however, been strong resistance to recognising this as a form of abuse. Those who oppose it argue that abusive parents may themselves use the defence of parental alienation to continue their abuse. Surely, though, this is precisely why we have judges. We must have confidence in our courts and our police to make these judgments, just as they have to make countless others every day of the week.

The amendment seeks insert into the legislation the line

“such as a parent’s behaviour deliberately designed to damage the relationship between a child of the parent and the other parent”.

I am hopeful that the Government should be able to confirm that this is indeed included in the definition of coercion, as my noble and learned friend Lord Mackay and my noble friend Lady Meyer have requested. This addition would specifically draw attention to parental alienation while simultaneously giving the family courts a sound basis on which to better distinguish between genuine and false allegations of parental alienation. The amendment identifies parental alienation and protects those who are vulnerable from exploitation of the law.

The dynamics expressed in the amendment are important for a number of reasons. Alienation adversely affects the psychological development of a child in that it prevents a natural, healthy bond and relationship with a parent. A child needs to be nurtured and protected by its mother. Erica Komisar, a leading expert in attachment theory and the neuroscience of motherhood, highlights that children are at a higher risk of social, emotional and developmental issues when the essential presence of a mother is missing. But it is equally important that the child should have a relationship with their father. In a major study by the Journal of Applied Economics entitled The Impact of Income and Family Structure on Delinquency, it was found that when the interactions between a parent and a child diminish, such as in the case of parental alienation, the child perceives a decline in that parent’s benevolence. If the decline is sufficient, the child will accept its implications and move to feelings of abandonment, alienation and a lack of trust. Both the parent and the child are worse off.

Research from the Institute for Family Studies has also found that, controlling for race and parental income, boys raised without their father are much more likely to use drugs, engage in violent or criminal activity and drop out of school, while girls are more likely to engage in early sexual activity or have a child out of wedlock. The consequences of parental alienation can be deep and severe on the next generation.

There can be no doubt that judicial decisions in cases involving children must take account of all aspects of the family dynamic, including all types of abuse. There is a need for qualified professionals to assist the court in assessing whether there is abuse and, if so, its severity and how it should affect child/parent residence and contact arrangements. But the need for expertise in handling these delicate situations should not dissuade us from addressing this often hidden but deeply damaging form of abuse.

The Bill is strengthened if it captures all forms of domestic abuse and improves outcomes for those who are vulnerable to experiencing it, and we look to the Minister today to confirm that the concept of alienation is included within the definition of domestic abuse.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I too wish to pay tribute to the noble Baroness, Lady Meyer, for her two decades of campaigning after a horrific experience that most people would not be able to turn into such a positive contribution. I wish her, the co-signatories to the amendment and all Members of your Lordships’ House a happy International Women’s Day. It is a celebratory moment, as well as a moment of remembrance which was started over 100 years ago by radical working women.

I also pay tribute to the noble Baroness, Lady Meyer, for doing something that seems all too rare in our polarised and sometimes even toxic public discourse. She has listened. I did not participate in this part of the debate in Committee, but I was struck by her speech and by the contributions that were informed by the work of various women’s organisations, and survivor organisations in particular, about the contested or loaded nature of the term “parental alienation”. I am not a psychologist, a social worker or an expert on this topic, but I was moved by contributions from those who are, not least the noble Baroness, Lady Bennett of Manor Castle.

It seems that the noble Baroness, Lady Meyer, has indeed listened and has attempted in her reformulation to address behaviour rather than syndromes in a precise way that is more appropriate to legislation on difficult issues. I have no doubt that many abusive men will seek to use the term “alienation” as a stick with which to beat the surviving former partner, but, equally, I have no doubt that men and women are capable of weaponising their children during terrible relationship breakdown. I also have no doubt that this is a gendered world and a very unequal one, whether we like it or not, and that this inequality affects women, but also men and boys. It is a very vicious spiral indeed.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

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

I hope I have sufficiently set out the Government’s position on each of these issues and demonstrated a willingness to seek agreement where possible. The Government seek to put this Bill on to the statute book as soon as possible and I therefore hope we can reach agreement on all issues today. I beg to move.

[Baroness Chakrabarti (Lab) [V]]

My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.

While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.

Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?

In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.

However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?

As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.

[Baroness Hamwee (LD) [V]]

My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.

The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.

The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that

“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]

We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.

On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.

The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be

“inappropriate to create an exception to the effect of”

CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.

--- Later in debate ---

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.

Motion B1 (as an amendment to Motion B)

[Baroness Chakrabarti]

Moved by

Leave out “not”.

[Baroness Chakrabarti (Lab) [V]]

[Inaudible]—my noble friend Lord Adonis, in particular with regard to the exchange between them, so I would like to test the opinion of the House.

Domestic Abuse Bill

Baroness Chakrabarti Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Donaghy, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

My Lords, first, I apologise for missing the Second Reading of such important and much awaited legislation. Secondly, I apologise for a further glaring error. Last week, at Third Reading of another Bill, I failed to thank the wonderful professionals in the Public Bill Office—Theodore Pembroke, Olivia Crabtree, Mary Harvey and their colleagues, and in the Government Whips’ Office—Victoria Warren, Anishaa Aubeeluck and their team—for their patient and expert support on the scrutiny of Bills to all Peers, without fear or favour. Where would we be also without the virtual proceedings and digital teams? Thirdly, I express my admiration for all noble Lords to whom I listened—on Monday and today—for their many hours of compassionate discourse, not least for those who spoke so bravely from personal experience.

I support the amendments in the name of my noble friend Lady Lister, in particular Amendments 152 and 190. There is much in this Bill that aims to provide legal and procedural protections for victims of domestic abuse, and which I commend. If this is not accompanied by an equivalent economic protection—in particular for those reliant on benefits—as a matter of pure, practical logic, these legal protections will prove inadequate.

There was a debate earlier about legal provisions and definitions. These are genuinely complex and difficult. The amendments designed to disapply the benefit cap for 12 months for a domestic abuse survivor making a new universal credit claim in their own name seem uncontroversial. As we have heard, domestic abuse is devastating for anyone, regardless of their sex—or that of their partner—and regardless of nation, region or community, or even of wealth. However, access to sufficient resources for shelter and refuge for oneself and any children are essential to escape, survival and recovery. This is one reason why private client lawyers and higher courts devote so much time and energy to issues of financial relief for wealthy people, often from all over the world.

Adequate resources for escape, survival and recovery are no less important for people without wealth, including the many reliant on benefits. There are now many more, because of the pandemic. They cannot look to lawyers and the courts for financial protection and support. Instead, they must look directly to the Government. This group of survivors is in even greater need of escape routes which are either practically cut off or made much more perilous as a result of the benefits cap, combined with the prohibitive levels of rent, especially in London and the south-east.

The hard evidence shows that, unless disapplied, the cap will overwhelmingly hurt women more than men, and black women in particular. It needs to be spelled out that this is because they are less likely to be in work or have earnings above the threshold. In many cases, responsibility for childcare—or the abuse itself—has prevented them working or being able to find work.

Escaping an abuser is hard enough without the disincentive of being unable to provide decent shelter, food, clothing and remote learning access for your children afterwards. I fear that it would look completely otherworldly if your Lordships’ House did not address the huge barrier to escape that not lifting the benefit cap for survivors presents.

Noble Lords will have been assisted by a host of Civil Society briefings in preparing for these deliberations. I am particularly grateful for the excellent work of the Chartered Institute of Housing and its advice on this issue: identifying gaps, sometimes of hundreds of pounds per month, between the benefits allocation for housing and what is realistic for the rental market in a relevant local authority. In some cases, that is over £400 a month; that is a small fortune for anyone on universal credit. They advised me to prepare for a counter-argument: that victims of domestic abuse should just move away from high-rent areas, perhaps hundreds of miles away, to a new and wholly strange place with, perhaps, more housing stock and lower rents; that they should take their children away from school at the same time as they are taken out of the family home; and that the survivor should give up any network of friends, family, social and emotional support in the hope of being able to just about make ends meet. I cannot believe that anyone in your Lordships’ House would put such a cruel argument in the context of domestic abuse survivors, especially during the passage of legislation specifically designed for their relief.

At the risk of tempting fate, these amendments are the proverbial no-brainer. I look forward to the Minister and all Members of your Lordships’ House giving them an enthusiastic welcome.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

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

My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.

This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.

I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.

It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.

The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.

Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.

I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.

Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.

On the one hand, we want to support and protect the people described in the amendment

“against significant harm or exploitation”.

On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.

The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.

The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.

I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.

There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.

I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.

The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.

Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.

I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.

I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.

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[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, the noble Lord, Lord Blunkett, has withdrawn, so I now call the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will be short on this, not just to please my friend the Government Whip but because I want us to move to a vote as soon as possible—certainly before the black dog that is conjured in my mind as a result of our not being able to improve the Bill so far overwhelms me. It almost certainly will if we do not achieve some improvement pretty fast. I completely associate myself with the eloquent remarks of my noble friends Lady Massey, Lord Rosser and Lord Dubs in particular, but the noble Lord, Lord Cormack, has once more spoken from such a principled position in his constructive criticism of the Bill.

Briefly, the Human Rights Act is not enough to prohibit criminal offences. The European convention and the Human Rights Act require states to have effective criminal law, but if the Act or the convention were enough by themselves, we would need no criminal law at all. Clearly that is a nonsense. These are high-level, international protections that must be implemented in detail by criminal law; otherwise, there will be violations of the very convention rights on which the Government seek to rely.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, this group of amendments is of particular interest to me as, when we first looked at the Bill in Committee, I had great difficulty in understanding why the provisions of this clause extended to the Food Standards Agency and Environment Agency. I was fortunate to have a helpful briefing arranged by my noble friend the Minister. I also looked back to the evidence we took almost 10 years ago in the Environment, Food and Rural Affairs Committee in the other place, when the “horsegate” incident arose—in which horsemeat was passed off as beef and other types of meat. Regrettably, this is a potentially multi-million-pound business, as is fly-tipping, which is the bane of public life in rural areas. As I see it, if this is organised crime perpetrated by criminal gangs, one of the only ways we can tackle it, provide evidence and bring successful prosecutions is by granting agencies the tools under this clause.

I requested case studies and I understand that this is early days and that the provisions obviously have not yet applied—perhaps my noble friend could confirm that. However, it is envisaged that the provisions under this clause would enable the Food Standards Agency to tackle the type of fraud that was experienced in the horsegate scandal and prevent it happening in the future—one hopes, at the earliest possible stage—and the Environment Agency to use the intelligence to bring a successful prosecution in incidents of fly-tipping and other forms of illegal waste disposal.

Against that background, I would like these two agencies to remain in the Bill. I presume that my noble friend will able to confirm in the absence of current case studies—which I understand to be the position—that Parliament will have the opportunity to review the arrangements through the annual IPC report. It would be helpful to have that understanding. If we were to delete the agencies entirely, as is the purpose of Amendment 27, or, as the noble Baroness, Lady Hamwee, eloquently outlined, to prevent officers of these two agencies granting CCAs, we would be tying their hands in what is a seriously fast-moving crime.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. The nature of our hybrid proceedings allows us to see her beavering away almost by candlelight, keeping warm but still with us. We have not always agreed on this Bill, but she has been a stalwart scrutineer during these proceedings.

The various safeguards that noble Lords have tried to add to the legislation are a patchwork. One could be relaxed about dispensing with some if one had others. I personally would have been much more relaxed, even about this extensive list of agencies, but for not being supported by sufficient noble Lords on that vital constitutional issue of immunity, which I am afraid has completely changed the game on CHIS criminal conduct.

I hear the arguments about the need to protect the environment and the markets, and to protect gambling from corruption et cetera, but if such scandals and organised crime were so serious, the police could be engaged to assist a relevant agency or commission in appropriate cases. That is what happens with powers to enter and powers to arrest all the time. If there was not something special about trained Security Service officers or trained police officers, we would grant a whole range of serious powers to enter and arrest to many more state departments and agencies than we do.

I understand the argument about resources because the police are so pressed, but that is an argument for giving them the financial resources and personnel they need to engage in serious crimes, including those relating to unsafe food and so on. So, I support limiting the agencies in the manner suggested by Amendments 27 and 28. We should leave it to the trained police or the trained security agencies. I would include the National Crime Agency and the Serious Fraud Office, but not a whole host of state agencies and government departments; otherwise, there could be a serious constitutional concern and a great many scandals well into the future.

[Lord Cormack (Con) [V]]

My Lords, I first raised this issue at Second Reading and I tabled an amendment in Committee.

I very rarely disagree with my noble friend Lady McIntosh of Pickering, but the logic of her argument is that you cannot tackle crime without giving a multitude of bodies the opportunity to enlist people to commit crime. I just do not accept that. I have deleted the bottom five organisations in the list—the ones on which, as the noble Baroness, Lady Hamwee, said in her admirable introduction, people have focused most attention by asking, “Why are they there?”

I completely understand the argument about police forces and the National Crime Agency, et cetera. Having had conversations with officials in the Home Office and HMRC, I even understand the introduction of HMRC into the Bill, but, for the life of me, I just cannot see why, as the noble Baroness, Lady Chakrabarti, said a moment or two ago, police forces cannot deal with such bodies as the Environment Agency, the Food Standards Agency and the Gambling Commission.

Having a proliferation of bodies that are able to sanction people to commit crimes sends out a very bad signal. We take pride in our police forces and they should of course have the resources necessary to investigate all manner of crimes. People who commit crimes, whether within the orbit of the Environment Agency or the Food Standards Agency, should be brought to justice and punished if they are found guilty. But I just do not see a justification for this long list in the Bill. I very much hope that, when the Minister comes to reply, she will be able to convert and convince me, but I really do not think that she will. Whether I move my amendment to a vote will depend on what I hear, but I give notice that I might.

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[Lord Marlesford (Con) [V]]

My Lords, we must consider carefully the extent to which the legitimate functions of the media in a free society may be compromised by requiring journalists to disclose their sources of information. Good government has maximum transparency, subject to national security. Our amendment seeks to maintain at least the present level of such transparency. I refer the Minister to Chapter 3 of the 2012 report into investigative journalism by the House of Lords Communications Committee, which was then chaired by my noble friend Lord Inglewood. I submit that it justifies our amendment.

I must make a clear distinction between the traditional printed or broadcast media and the large number of widespread, rapidly growing—and now, all too often, highly malignant—vehicles of social media. It is from social media that the new concept of fake news emerged. Social media has been weaponised by several authoritarian Governments operating through channels of dark diplomacy and is a threat to western democracies. It is therefore relevant to the objectives of the Bill and I suggest that the Government and Parliament investigate it carefully.

While unregulated social media is by its nature anarchic, traditional media in the UK is already subject to multiple levels of control and invigilation. First, there are the proprietors, who are in business for profit, influence and sometimes vaguer satisfactions. Noble Lords may remember the famous 1931 speech written for him by Rudyard Kipling, when Stanley Baldwin described the press lords as seeking

“power without responsibility—the prerogative of the harlot throughout the ages”.

Since those days, we have moved on. Today proprietors are under financial pressure, with more competition for advertisers, as well as from the views of their editors and journalists and, not least, their viewers. There is much greater awareness and intolerance of media misbehaviour than there was 90 years ago. Any statutory power to compel journalists to disclose sources should be defined clearly, with the key protection of independent judicial review on both the need and proportionality in each case.

This amendment proposes a process of adjudication. It starts from the assumption of there being a public interest in non-disclosure and then suggests the need for another overriding public interest before requiring disclosure. More guidance on the nature of this overriding public interest should be introduced by law, and I suggest that there are a couple of principles which should or should not be included in that definition. Embarrassment of privacy should not be included, while national security and the need to assist investigation of serious crime should, of course, be included. Embarrassment can range from media intrusion into private lives through the behaviour of politicians or Governments. The law as it has developed since the Leveson inquiry should confine itself to seeking identification and penalties for any illegal methods of intrusion in seeking information. Whistleblowers on bad practices of organisations, whether public or private, must be protected from identification and consequent persecution. Nor should any law seek to enforce the disclosure of journalistic sources that are claimed to have resulted in the embarrassment of privacy of individuals, all too often people whose lives are focused on maintaining their celebrity status while merely seeking to control the timing of their own publicity. Many so-called celebs employ a publicist to keep them in the public eye.

When we consider national security, there must be a strict test. Some secrets must be kept, especially those in the world of intelligence and nuclear weapons. Open societies must be sensitive to this. On leaks from government and leak inquiries, in my view it is for Governments to keep their own secrets. In practice, leaking is part of the process of politics and sometimes part of the machinery of government. It is rare that there is a public interest dimension against a leak that justifies compelling journalists to reveal sources. Indeed, leaking, even on sensitive issues, can sometimes be in the national interest. The leaking by Foreign Office officials to an out-of-office Winston Churchill that revealed Hitler’s preparation for war is an obvious example of a fully desirable leak.

The Conservative Party has long had a policy of a specific commitment to protect the freedom of the press. The Investigatory Powers Act 2016 provided important safeguards for that purpose. I at any rate intend to hold the Government to that obligation and to resist any attempt to make life easier for Whitehall to operate inside a cocoon of comforting but excessive security.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Marlesford. I have ringing in my ears his commitment to protecting press freedom and that, he says, of his party. I am happy to support this amendment to protect journalistic sources, and I hope everyone else will.

I hope that my noble friend Lady Whitaker will press the amendment to a vote and that everyone will support it, but when they do, I hope that some will consider why they would support this limited protection for journalistic sources yet they did not support Amendment 11 to ban agents provocateurs, which would have protected journalistic agencies as well as other parts of civil society such as human rights NGOs and trade unions. Never came there once—not from either side, I have to say—an explanation of why that protection was unnecessary.

I have yet to pay proper tribute and give proper thanks to the noble Baroness, Lady Hamwee—although I fear that she may not be on the call any more—because never has there been a more modest or consistent defender of rights and freedoms in your Lordships’ House. I say to her that I share her sense of bleakness about how little we have achieved in providing protections in this legislation. A Rubicon has been crossed and probably will be again. There will be impunity for agents of the state to commit even serious crimes; there is no judicial authorisation; and the agencies were not limited. I feel very bleak about that.

The noble Baroness, Lady Manningham-Buller, was perhaps the most eloquent voice for security, as she so often is in this debate. Like everyone else, I was moved by her story about a CHIS, an undercover operative, who told her on a radio programme that he did what he did because he had to look in the mirror and be proud of himself. However, as legislators, dare I say it, we have to look in the mirror as well.

While I support this amendment and hope it passes, I feel very bleak about other parts of civil society and ordinary citizens who are losing their very important rule-of-law protection as I speak. I fear that history will not judge us kindly, nor will critics of our unelected House. It is a very difficult system and Chamber to defend but, when I have looked for a defence, I have always thought about the importance of independence, and independent legislators at least having the ability to defend human rights and the rule of law from populist attack. I fear that we have not perhaps done our best or most successful work on this Bill.

That said, I wish this amendment every success and hope that my noble friend Lady Whitaker will press it.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The noble Lord, Lord Mann, has scratched. Accordingly, I call the noble Lord, Lord Paddick.