Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Paddick

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

[Lord Paddick (LD)]

My Lords, I shall speak to Amendments 63, 65 and 80, in my name and that of my noble friend Lady Hamwee, in this group. They attempt to get to grips with the plethora of organisations that the Bill seeks to authorise to grant criminal conduct authorisations. I remind noble Lords that this is to grant legal immunity to covert human intelligence sources, informants or agents, and authorise them to commit acts that, under any other circumstances, would be a crime, but because these public authorities have said so, they are no longer crimes.

Unlike existing legislation that limits legal immunity to agents of the state engaged in property interference, intrusive surveillance, equipment interference and interception—all exclusively targeted on the most serious criminals and only with prior approval given by an investigative powers commissioner and often a Secretary of State—this Bill seeks to give public authorities the power to grant immunity to anyone, often criminals, for almost any crime that can be imagined with no prior authorisation outside their own organisation. One would hope that the number of public authorities would therefore be extremely limited, and that evidence would be produced to justify their inclusion.

I am taken back to a recent statutory instrument—the Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020—which added to the list of public authorities that can access communications data; that is, who contacted whom, from where, and when, but not the content of the communication. In the overall scheme of things, it is fairly low-level data. The Home Office had agreed to include more public authorities on the basis of detailed business cases submitted by each authority.

When I asked to see the business cases, I was told that I could, although the Home Office arranged for me to see them only 45 minutes before the statutory instrument was due to be approved on the Floor of the House. Will the Minister allow Members of this House to see the business cases that form the basis of the Home Office deciding which public authorities should be allowed to grant criminal conduct authorities, preferably not 45 minutes before we consider this issue on Report?

Our Amendment 63 would limit those public authorities that can grant CCAs to the police, the National Crime Agency, the Serious Fraud Office and the intelligence services, as it appears to us to be self-evident why these organisations may need to grant authority to agents or informants to commit crime. The other public authorities require justification, hence my request that noble Lords be able to see the business case justifying each of the other public authorities, albeit redacted and viewed in private.

Our Amendment 65 specifically singles out the Home Office, although it might be seen as a typical example—an example of a type of public authority—for further scrutiny. On the face of it, it sounds that, in theory, if not in practice, the Home Secretary could authorise a criminal to commit a crime and give that criminal legal immunity, whether directly or by ordering one of her officials to do so on her behalf. Giving power to politicians to authorise criminals to commit crime and to be able to grant those criminals immunity from prosecution, with no prior independent oversight, raises some worrying spectres.

Our Amendment 80 is consequential. At this stage, I will listen carefully to the concerns of other noble Lords and to the response from the Minister. I beg to move.

[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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Massey of Darwen and Lord Paddick

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

[Lord Paddick (LD) [V]]

My Lords, in moving Amendment 6, in my name and that of my noble friend Lady Hamwee, I will speak also to the other amendments in this group.

Section 27(2) of the Regulation of Investigatory Powers Act 2000 states:

“A person shall not be subject to any civil liability in respect of any conduct of his which … is incidental to any conduct”


that, for the purposes of this Bill, is authorised by a criminal conduct authority. Our Amendment 6 removes this immunity from civil liability. My support in the last group should make it absolutely clear to the Committee that I feel that that is the solution to this problem. It would be only in the very unfortunate circumstance that those amendments are not incorporated into the Bill that I would revert to this amendment.

This part of RIPA was intended to deal with the interception of communications. This might involve placing a listening device in a car or a room or intercepting phone calls, text messages or emails. This could be done only if it was authorised in advance by an Investigatory Powers Commissioner and by the relevant Secretary of State, and against only the most serious criminals, such as terrorists. While intercepting communications is a serious matter, the physical or financial harm to the—suspected—very bad person targeted is likely to be minimal.

The criminal conduct authorities—CCAs—under this Bill authorise undercover operatives to commit crimes in which innocent members of the public could be involved and seriously harmed. A frequent scenario in the past would have been recruiting a member of a gang of armed robbers, who was allowed to participate in an armed robbery during which, by either accident or design, the undercover operative working for the police may have harmed the security guard, potentially very seriously.

Noble Lords will also be familiar with—and other noble Lords have already mentioned—undercover police officers befriending and entering into sexual relationships with environmental activists. Despite the Government’s implied promise at Second Reading that such things would never happen again, in fact, what the Government have said is that an undercover operative would never be “authorised” to have sex with someone they were tasked to enter into a relationship with, not that it would never happen again.

There are two clear and distinct issues here, where someone may seek civil damages. One is where the handler authorises a CHIS to engage in a crime in a way that is not lawful, necessary or proportionate. The other is where the CHIS, whether an undercover officer or, potentially, a member of a terrorist group who passes information back to the police, goes beyond the authority of a CCA.  This could be something

“incidental to any criminal conduct”

they have been authorised to do.

An undercover police officer could argue that he had no choice but to become intimately involved with the activist he was tasked to befriend, and that even if the sexual activity was not specifically authorised, it was “incidental to” the conduct that he was authorised to engage in. To grant him, and potentially the police force concerned, immunity from being sued for damages in such circumstances is repugnant. This illustrates that RIPA was never intended for, and is ill suited to, granting immunity under criminal conduct authorities. 

The Government will say that, even if the CHIS evades civil action, the police force that tasked him, for example, will not. However, that seems to be cast into doubt by what the Minister said in the first group about the extent of the immunity granted, in that that immunity would extend also to the person tasking the CHIS. Again, there are two distinct issues with this.  The first is that if the conduct authorised under a CCA is “lawful for all purposes”, it seems to me that the police force, too, is immune from civil action. The second is that—I speak from personal experience in the police service, as others have—racist and sexist behaviour in police forces reduced only when police officers and their police chief found themselves personally liable for their behaviour. If they had not acted in the course of their duties as a constable, the chief constable could deny vicarious liability, and the officer would be personally liable for any damages. It is the threat of legal action, whether criminal or civil, that ensures that handlers and CHISs keep within the law. Removing civil liability from a CHIS would remove another important check on their behaviour.  

We cannot support Amendment 8, for a number of reasons. First, it says that criminal conduct under the authority of a CCA is lawful for the purpose of the criminal law. Clearly, we do not agree with that. As I have argued in the previous group, we do not believe that that should be the case. Secondly, it requires the authorising body to indemnify the CHIS against having civil action taken against him. For the reasons I have just explained, the personal liability of the CHIS in such circumstances is an important check on their behaviour. 

Amendment 71 would allow a complaint to be brought before an Investigatory Powers Tribunal, which may award compensation. But there is normally a time limit of one year after the taking place of the conduct to which the complaint relates, which seriously reduces the scope for compensation to be applied for, compared with the normal seven-year limit for other civil actions. I do, however, believe that the proposal has some merit, and perhaps with further adjustment it may be more acceptable. I beg to move.

[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.