Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Falconer of Thoroton and Lord Alderdice

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

[Lord Stewart of Dirleton (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

United Kingdom Internal Market Bill

Debate between Lord Falconer of Thoroton and Lord Alderdice

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

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

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

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord Callanan, referred to the idea of new professions being invented. If this happened, there would be a professional body that would need government recognition in some form. Could he give us an example, perhaps, of a new profession emerging without a professional body in relation to which there is a substantial risk? If there is no such example or evidence, it is incredibly unconvincing. The second and separate example he gave was an existing profession giving rise to a particular requirement that would create a barrier to entry in one part of the United Kingdom for another. Could he give an example of when that has happened in the past?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Alderdice

Monday 15th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

I think that the mood of the House is that we should move to a vote on this matter, but perhaps I may deal with two points. It was disappointing that the Minister did not choose to answer them. I know that if I had been a Minister, I would have been provided with material that would have answered the points, and it was disappointing that what he sought to do was political burlesque.

I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for being the only person who gave a reasoned argument about why I was wrong. With the greatest respect to the noble and learned Lord, I submit that he is wrong because he has failed to deal with the Charlwood case, in which the issue which contributed to making it hybrid was two parishes saying, “We want to be in this county, governed by them and not in that county”. That was accepting the principle that localities are really interested and that it is a local issue as to which group they elect to local authorities and local councils. That was important in relation to it. I respectfully say to the noble and learned Lord, whom I respect greatly in every single respect, that he has had no opportunity to read either the opinion or what was said in relation to the Bill that I refer to, which is my fault rather than his. The threshold is whether or not there is an argument about it. No one other than the noble and learned Lord said that it was not arguable. I had the support of the former Attorney-General—

[Lord Alderdice]

My Lords, the noble and learned Lord must understand that many of us did not choose to make the argument, not because we do not feel strongly about it or do not have a very clear and argued case in our minds, but because we did not want to disadvantage the House in moving on to the Second Reading debate.

The noble and learned Lord must not mislead the House on this point, particularly when he talks about locality. The reality is that locality applies to every single constituency throughout the land. The point made by the noble Lord, Lord Grocott, is that if the Examiners start to meet, there is no reason why every single constituency might not come forward. It is not necessarily a matter of a week or 10 days at all. The question of locality is properly considered by the Boundary Commission when every constituency can look at local interest; it is not on a political motion about hybridity.

[Lord Falconer of Thoroton]

I apologise to the noble Lord, Lord Alderdice, for not knowing what his arguments were, but as he did not express them and I am not able to mind read, I could not deal with them. The Boundary Commission will not deal with the Western Isles and Orkney and Shetland because the effect of the Bill—this is my point—has been kept completely separate and out of the arrangements; therefore, their locality has been protected and no one else's has. I ask noble Lords to consider whether there is an argument about hybridity in this case. I say to those behind me as well as those in front of me, please address this as an issue on which this House has a good reputation. I beg leave to seek the opinion of the House.