Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Massey of Darwen and Lord Dubs

Committee stage & Lords Hansard
Tuesday 9th March 2021 Lords Chamber

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

My Lords, I will speak to Amendments 1, 2, 9 and 13 in this group. The thrust of these amendments is to provide that the presumption against prosecution applies only after 10 years instead of five years.

First, I thank the Minister for her explanatory letter, which touches on issues raised by these amendments and, of course on the whole Bill. It was a very clear letter, and I know that she is committed to working collaboratively and will be sensitive to concerns, so I look forward to productive sessions.

My noble friend Lord Dubs and I will speak from the perspective of the Joint Committee on Human Rights, which last year carried out an inquiry on the Bill and produced a report in October. These amendments today address specific issues but it is worth saying that the committee, informed by expert opinion, had many overarching concerns about the Bill and seeks reassurances. We felt that the Bill creates problems for compatibility with the UK’s international legal obligations and simultaneously does not resolve any of the concerns that are supposedly the rationale for the Bill—that is, repeated MoD investigations.

The committee came to the conclusion that Clauses 1 to 7 could lead to impunity, violate the right to a remedy for genuine victims and undermine the UK’s international obligations to prosecute international crimes. These issues are covered in chapter 3 of the JCHR report. Of course, other noble Lords will speak on these clauses shortly. The Government argue that the Bill merely introduces a presumption against prosecution rather than a statute of limitation. However, there may be difficulties in bringing a prosecution after only five years. The prosecutor must only prosecute in exceptional circumstances; the prosecutor then needs to give “particular weight” to the adverse, or likely adverse effect on the person of conditions suffered during the demands of operations overseas. There may be a situation where a person has been previously investigated and there is no new compelling evidence. Another hurdle is that the consent of the Attorney-General is required.

The Law Society in its written evidence to the committee concluded that the presumption against prosecution creates a “quasi-statute of limitation” which is “unprecedented” in the criminal law and presents a “significant barrier to justice”. As the JCHR report points out, the MoD consultation in 2019 proposed a presumption against prosecution after 10 years; in the Bill, that has been halved to five years. That is a very short time in the circumstances of overseas armed conflict. There are many other practical reasons why a prosecution may not be possible in this time due to the protracted nature of the conflict, unlawful detention of the victim or persistent physical or mental distress. The British Red Cross has pointed out that safe access to evidence in such scenarios is difficult to obtain. Paragraph 64 of our report states:

“At a minimum the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”


The Minister discusses many of these concerns in her letter and points out that most claims by service personnel are brought within the six-year date of knowledge timeframe. That does not satisfy the concerns of the JCHR, or indeed those of other organisations such as the UN Commission on Human Rights. Other amendments in this group oppose the question that Clauses 1 to 7 stand part of the Bill. The amendments I present here are less drastic but, taken together, they would ensure that the “presumption against prosecution” does not apply until 10 years instead of five years after the day on which the alleged conduct took place. I beg to move.

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow my noble friend Lady Massey, as a fellow member of the Joint Committee on Human Rights. I appreciate that this House has a wealth of military experience. I am humbled by the knowledge that there is such experience in the House, and I fully respect the Members who have served so gallantly and at senior levels. I cannot match that, but I did once pay a very brief visit to Afghanistan, to Camp Bastion and Kandahar, during difficult times there, and saw for myself for just a few days the conditions there during a tense period. It hardly qualifies me to be an expert, but it means that I have some strong visual impressions of what the situation there was like.

My noble friend Lady Massey has already spoken to amendments that would have the effect that the presumption against prosecution would apply after 10 years instead of five. My amendment would remove the presumption against prosecution altogether, as recommended by the recent report of the Joint Committee on Human Rights, although I am bound to say that many of the arguments used in relation to five or 10 years would also apply to removing the presumption altogether.

The Service Prosecuting Authority has been in charge of the prosecution process, and there is no suggestion of excessive or unjustified prosecutions. Indeed, there are already some safeguards. The Service Prosecuting Authority would bring a prosecution only, first, where there was sufficient evidence that the accused committed the offence and, secondly, where the prosecution was in the public interest. These seem to be pretty good safeguards and would prevent vexatious or unfounded prosecutions.

As they stand, Clauses 1 to 7 of the Bill would contravene the United Kingdom’s international obligations under international humanitarian law, specifically the law of armed conflict. They could also contravene the United Nations Convention against Torture. There would be the risk of prosecution of our armed forces under the laws of another state and, above all, the risk of prosecution under the terms of the International Criminal Court. That court has the jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel if the UK is “unwilling or unable” to do so. It would be hazardous in the extreme to pass a Bill with measures in it that would run the risk of our service men and women being prosecuted by the International Criminal Court.

The reputation of our Armed Forces has traditionally been second to none. I am concerned that, all over the world, people are looking at this legislation and wondering whether there is not some constraint on the reputation of our Armed Forces or, indeed, whether that reputation might not suffer through this legislation. I very much hope that, when we come to it, we shall be able to amend the Bill so as to strengthen the position of our Armed Forces, either by getting rid of Clauses 1 to 7 altogether or at least increasing the time period from five to 10 years. I am happy to be a member of the Joint Committee on Human Rights, and our report has set a very good basis for the debate that is to follow.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Dubs

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

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

My Lords, the noble Lord, Lord Paddick, has spoken with great clarity and authority on the amendments in this group. I will speak to the human rights perspective of Amendment 63 as set out in the Joint Committee on Human Rights’ report on the legislative scrutiny of the Bill. Chapter 6 is concerned with public authorities granted power to authorise crime, as stated by the noble Lord, Lord Paddick.

Paragraph 75 of the report states:

“We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary … However, the Bill proposes granting the power to make CCAs … to a substantially wider range of public authorities”.


That concerns us. It goes on:

“This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being … extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.”


There are two key questions here from a human rights perspective. As the report states,

“the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.”

The Government have provided little justification for the authorisation of criminal conduct by such bodies as the Gambling Commission, the Food Standards Agency and others. The Home Office published brief guidance and a series of operational case studies, which provide examples of authorisation by CHIS in the cases of the Medicines and Healthcare products Regulatory Agency, Her Majesty’s Revenue & Customs and other hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency.

The question must be asked as to why the police or other bodies focused on the prevention of crime should not take full responsibility for authorising criminal conduct that may fall within the purview of these organisations. We are all aware that the police, in carrying out their responsibilities, have vast networks of agencies whom they consult in the course of their duties. They know whom to consult for specific issue as and when such consultation is needed. It is inappropriate and irrelevant to name other specific agencies, whose role is not protecting national security and fighting serious crime.

One of the witnesses to the inquiry carried out by the Joint Committee on Human Rights said:

“If the government believes it is necessary for each of these bodies to have the power to grant authorisations, it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”


No such detail is supplied by the Government. It is therefore impossible to assess how agencies whose primary function is not serious crime or national security can, or indeed would want to, be involved formally in granting CCAs. I look forward to the Minister’s explanation.

[Lord Dubs (Lab) [V]]

My Lords, I support Amendment 63. I very much agree with the comments made by the noble Lord, Lord Paddick, and my noble friend Lady Massey, so I shall be brief.

Like my noble friend, I speak as a member of the Joint Committee on Human Rights. It seems to me that authorisation that goes beyond the police, the National Crime Agency, the Serious Fraud Office and the intelligence services is a step too far. There has to be clear indication by the Government as to why such authorisations are necessary; so far, that indication has not been forthcoming. The list of agencies covered by this provision is so wide—not just Customs and Excise, the Environment Agency, the Food Standards Agency and many other bodies. There is no justification for extending the provisions of the Bill to that extent.

I am very concerned about one other matter. As the Joint Committee on Human Rights noted, under Section 35 of RIPA, the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise covert criminal conduct. I accept that this power has been used sparingly in the past, but—[Inaudible.]—if additional authorities that have little or no relationship to those permitted to make CCAs—[Inaudible.]—regulatory oversight.

In a previous amendment, the noble Lord, Lord Hodgson, indicated that using subordinate legislation to extend powers was going rather too far, and it applies in this instance as well. Surely, it is bad enough having a list of these bodies that—[Inaudible]—but adding to them in the future by a parliamentary process that allows for very limited scrutiny. We all know that subordinate legislation can go through, we cannot amend it and it is—[Inaudible]—because of our relationship with the Commons; therefore, this is potentially an abuse of power. For all those reasons, I support Amendment 63.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Dubs

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

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

My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.

Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:

“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,


which has already been quoted by the noble Lord, Lord Young,

“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”

The best interests of the child must be at the core of all our concerns.

The JCHR report concludes:

“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”


The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.

I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.

The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.

I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?

Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.

[Lord Dubs (Lab) [V]]

My Lords, when I originally looked at this Bill and thought about it in relation to children, I felt that there might be some justification for using children as CHIS in the most exceptional circumstances. I am now doing something that is not very fashionable. I am changing my mind in the light of what I have heard in the debate so far, especially from my noble friend Lady Massey and the noble Lord, Lord Young. I now believe that there should be no circumstances in which children should be part of this process. It is wrong and cannot be justified. The highest standards of human rights would be fully met if we said that children should be totally exempt. There should never be any circumstances in which the end would justify the means. I have been persuaded by the argument. Maybe one does not often admit this publicly, but I am prepared to do so here and now.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Dubs

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

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

My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, with his eloquence and experience. I shall speak to Amendment 8.

I am a member of the Joint Committee on Human Rights. This committee scrutinised the Bill, received expert opinion on it and made the report referred to earlier, most recently by my noble and learned friend Lord Falconer of Thoroton. This report raises many issues of human rights that will need to be teased out and possibly resolved as we go through this Bill.

Amendment 8 is there so that victims of criminal conduct carried out under criminal conduct authorisation can access compensation. This is from paragraphs 104 to 110 in chapter 8 of the report. The report notes that the Bill as introduced is potentially incompatible with human rights legislation. Article 1 of the European Convention on Human Rights requires the UK to secure the rights of all those within its jurisdiction, including victims of crime. Where crime also amounts to a human rights violation, the victim has a right to an “effective remedy” under Article 13, mentioned earlier. A victim also has a right, under Article 6, to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.

Since the Bill would render all authorised criminal conduct “lawful for all purposes”, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. It would seemingly also prevent a claim for compensation under the criminal injuries compensation scheme.

My amendment mirrors the regime in Australia, which, as the report states,

“provides indemnification for any participant who incurs civil liability in the course of an undercover operation.”

In other words, a civil claim can be brought against the perpetrator by the victim, and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The effect of this provision would be to ensure that the person authorised to carry out criminal conduct

“would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”

This Bill has been described as promoting the concept of “one size fits all”, framed more eloquently by my noble friend Lady Chakrabarti. It is simply not acceptable or possible to do that. In relation to my Amendment 8, I have mentioned specific issues on human rights legislation, which is the core of the report I have quoted today. I look forward to the Minister’s response.

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights, along with my noble friend Lady Massey, and I am speaking in support of Amendment 8. My noble friend has put the case so well that I am just going to add one or two very minor comments. I am going to do so by quoting from the recommendations in the report that the Joint Committee put forward—a report that has set the tone for much of the debate and many of the amendments that we are discussing today. To quote from the recommendations:

“By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.”


I will go on very briefly to the next recommendation in the Joint Committee’s report, which is:

“The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability.”


This is a very clear proposal, and this is a very clear amendment that would safeguard the rights of individuals who will otherwise have no rights left if the Bill goes through unamended.

United Kingdom Internal Market Bill

Debate between Baroness Massey of Darwen and Lord Dubs

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

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

My Lords, we have heard some amazing and inspiring speeches. The noble and learned Lord, Lord Judge, spoke of the “lamentable provision” of Clause 47. As has been voiced so eloquently this evening, I fear that there is too much that is lamentable in Part 5 of the Bill.

As a member of the Joint Committee on Human Rights, I shall speak to Amendments 164 and 165, which relate to the committee’s inquiry and report on this Bill. The committee expressed a number of reservations about the Bill, and considers it hard to reconcile the Bill with government statements that it is compatible with human rights. The Human Rights Act 1998 makes it unlawful for public authorities, including Ministers, to act incompatibly with the rights guaranteed by the European Convention on Human Rights. By stating that Section 6 of the HRA does not apply to the making of regulations under Clauses 44 and 45, the Bill removes a prohibition on Ministers making regulations that violate human rights. The committee concluded that it could not see why this provision would be necessary unless the Government were contemplating regulations that did not comply with human rights.

This amendment fulfils the requirement stated in the conclusion of the JCHR report:

“The Bill should be amended to make clear that Minsters making regulations must comply with the rights recognised in the Human Rights Act 1998.”


This is surely an ethical principle, about which the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady Altmann, spoke so eloquently.

Amendment 165 seeks to omit Clause 47(3). In its report, the Joint Committee on Human Rights concluded that it

“does not consider it constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”

I note that the Constitution Committee has echoed this concern. The Bill as it stands would remove the power of the courts with regard to their option to strike down legislation made by Ministers if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Clause 47 would insulate secondary legislation that breaches human rights from the usual consequences of a successful legal challenge. This clause should clearly be removed, as should all of Part 5 of the Bill.

[Lord Dubs (Lab) [V]]

My Lords, I am also a member of the Joint Committee on Human Rights and I support what my noble friend Lady Massey said in putting forward the committee’s views and concerns. The noble and learned Lord, Lord Judge, spoke for me—and for virtually the whole Committee—in his opening speech. I think I agree with every contribution made so far, so I shall be brief.

On the front of the Bill, under the heading “European Convention on Human Rights”, it says:

“Lord Callanan has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the United Kingdom Internal Market Bill are compatible with the Convention rights.”


Every Minister has to certify a Bill’s compatibility with the human rights convention.

The courts cannot strike down primary legislation but can make only a declaration of incompatibility. However, secondary legislation is different; the courts can strike it down if it is incompatible with the rights guaranteed by the European Convention on Human Rights. Why is there a difference? I believe that it is because, while primary legislation can be and is fully debated and amendable by both Houses, in contrast secondary legislation inevitably has a less thorough process of parliamentary scrutiny. That is why these amendments are so crucial. Clause 47(3) would require the regulations under Clauses 44(1) and 45(1) to be treated as primary legislation under the Human Rights Act. That would, therefore, prevent the courts striking them down if they were found to be incompatible with human rights.

The Joint Committee on Human Rights concluded:

“The Committee does not consider that it is constitutionally acceptable for ordinary delegated legislation to be treated for the purposes of the Human Rights Act as if it were primary legislation passed by Parliament.”


The Constitution Committee of this House echoed that point. It was

“concerned that clause 47 seeks to alter the scheme provided in the HRA without wider consideration of its constitutional implications and compliance with the UK’s international obligations under the Convention.”

I know that the Government have occasionally said that they do not like the Human Rights Act, but we should not seek to undermine it by a back-door approach. We surely need a proper debate on the Act, not to have something slipped in in this way.

I shall certainly vote against the Government on all the amendments to Part 5, but I draw particular attention to this, in the hope that the Government will never again try to use such a tactic to undermine the Human Rights Act.