Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Rooker and Lord Paddick

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

[Lord Rooker (Lab) [V]]

My Lords, the noble Baroness, Lady Jones, is absolutely right to bring forward her amendment to the Motion. I might want to criticise the details, which I do not intend to do, but she is right to do so. In fact, it would have been inconsistent with her rigid approach to the Bill for her not to do so. So, to that extent, I support her right to table the amendment; there is no question whatever about that. It gives me an opportunity to further vote for the Bill because I will not support the amendment to the Motion.

The noble Lord, Lord Marlesford, just made a point about the open society. This is a problem and there is a disquiet here. As an open society, we need to protect our openness. However, when that openness is the very thing used to undermine and smash our open society, we have to say no. We have to have a process that defends our open society and is consistent with the rule of law. The Bill is perfect for that. I have no doubt that in future the Bill will be amended, but the language that has been used about it is extravagant and misleading.

I see that on Twitter it is described as the “Spy Cops Bill”. It has nothing to do with spy cops. It is completely different and that can be misleading. If I was a CHIS in Scotland, I would be a bit concerned at the moment about becoming a whistleblower because I am not sure whether the Scottish Government are fully behind the process.

Perhaps I may briefly also express thanks. I have not been involved in the detail but I took up the Minister’s opportunity for a discussion with the Bill team and some of the advisers, which I found useful. Indeed, as a result, they published more information. The case studies, which I used extensively on Report, should have been deployed even more. There has been a communication issue regarding the Bill, which I find a fault because the Government have not defended and promoted some of its practical aspects as much as they could have.

The Bill protects covert human intelligence sources. It makes sure that they are not put at risk by being tested by the criminal gangs they may have been sucked into involuntarily, as mentioned in some of the examples used in the case studies. It is not the case that all people knowingly go down that route; they get sucked in by their employers. As a non-expert in this area, I found the newly published guidance incredibly helpful.

My final point is on the pejorative language used, such as when quangos are dismissed as not important. Most of the quangos listed in the Bill are non-ministerial government departments and should not be dismissed by saying, “Oh, it doesn’t matter”. I find that kind of language unacceptable among parliamentarians because it deliberately seeks to mislead the public regarding what the Bill is about. It should stop.

[Lord Paddick (LD) [V]]

My Lords, I have a lot of respect for the noble Baroness, Lady Jones of Moulsecoomb, and we support the spirit of her amendment to the Motion to the extent that we oppose the granting of legal immunity. We believe that the Bill undermines the rule of law—that is, the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes. As a result of the Bill, that is called into question, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hendy, have said.

Where a police officer or member of the security services tasks a covert human intelligence source to commit an act defined in law as a crime, the person tasked will no longer be subject to publicly disclosed legal codes and processes. An existing system that has worked effectively for decades, whereby informants and agents are tasked to commit crime and the decision, almost without exception, not to prosecute is taken by the relevant prosecuting authority, after considering all the facts, will be swept aside.

It is to be replaced with what we consider an unsafe and undesirable power, vested in the hands of the police, the security services and numerous other public authorities, to grant legal immunity with no prior judicial authority. The main issue is not, as the noble Baroness, Lady Jones, says in her amendment to the Motion, that there are insufficient safeguards or oversight, although this is arguably true. It is the fact that immunity can be granted at all, making the illegal legal. That is the fundamental issue for us on these Benches. I expect the legality of this aspect of the Bill to be challenged in the courts. That said, the House fully debated this aspect of the Bill, and without the support of the Labour Party leadership, we on these Benches were unable to remove it.

Contrary to the amendment to the Motion in the name of the noble Baroness, this House has clarified the existing position and improved the Bill, to ensure that innocent victims of crimes committed by those instructed to do so by state agents can seek compensation. Contrary to her amendment to the Motion, undercover policing is not being expanded by the Bill, although the Bill has shone more light on this aspect of policing. The number of public authorities that can deploy covert human intelligence sources has been reduced by the Bill. The directed criminal activity of those informants and agents has been placed on a statutory footing, rather than the Bill enabling it to increase.

From the start, we recognised the need to place the tasking of covert human intelligence sources to commit crime on a statutory basis, which this Bill does. We have improved the Bill in some important respects—the safeguards for children and vulnerable adults, for example, despite our fundamental misgivings over immunity. Therefore, with regret, we cannot support the noble Baroness’s amendment to the Motion.

I thank the Minister and the Bill team for their work on the Bill; our Labour colleagues and their staff for their assistance and co-operation on those aspects that we were able to agree on; and those on the Cross Benches who have liaised with us. I also thank my staff and colleagues for their help with what has been a very difficult Bill for me, personally, because of my previous professional experience of this difficult area of policing and because of my knowledge of the very real opportunities that the Bill presents for corruption and malpractice. The amendments that this House has introduced are the very minimum required and we will resist any attempt to remove any of them.

Investigatory Powers Bill

Debate between Lord Rooker and Lord Paddick

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Paddick]

I am grateful to the Minister and to other noble Lords who have contributed to this debate. As regards the comments of my noble friend Lord Carlile of Berriew, despite my request that he specifically address the issue of internet connection records, I did not hear him do so. We are not against the bulk acquisition of communications data in general or per se. We oppose only the bulk acquisition of internet connection records as part of those data.

On the question my noble friend Lord Carlile raised about the codes of practice, of course they are comprehensive. However, through this amendment we are trying to prevent internet connection records being acquired in bulk, which is allowed for in the codes of practice.

The noble Lord, Lord Rooker, was of a different opinion from the one that I quoted—that the Bill was draconian. I am grateful to him for giving me the opportunity to emphasise to the House that it was the current Labour shadow Home Secretary, Diane Abbott, who described the Bill as draconian.

[Lord Rooker]

For the avoidance of doubt, I understood that—that was the point I made.

[Lord Paddick]

I did not suggest in any way that David Anderson agreed with this amendment, or that the lists of everybody’s websites would be read, as the noble Lord, Lord Rooker, suggested.

As regards the comments made by my noble friend Lord Campbell of Pittenweem, he referred to case studies in the David Anderson report on bulk data. I cannot emphasise this enough to noble Lords: internet connection records do not currently exist. The telecommunications companies will have to create them. Therefore any case studies in David Anderson’s report do not relate to the bulk collection of internet connection records. Internet connection records do not exist, so they cannot be collected in bulk at the moment.

I acknowledge the great experience of the noble Lord, Lord King of Bridgwater, and his passion about these issues. He emphasised that everything needs to be done to prevent a terrorist attack, and I agree with him 100%. The point that I made in my opening speech when I quoted David Anderson directly, saying that it was a direct quote from him, was that GCHQ, MI5 and MI6—the agencies responsible for keeping us safe from terrorism—say that they do not need internet connection records. Even the Minister said that at present there is no anticipated need to collect internet connection records to prevent a terrorist attack.

I am very grateful to the right reverend Prelate the Bishop of Chester for saying that we are making a fundamental point here. The difference between today’s debate and Monday’s debate is that requiring individuals’ internet connection records has to be based on reasonable suspicion. Thanks to the intervention of the Labour Front Bench, the level of the seriousness of the crime that needs to be suspected before those records can be handed over is higher than the Government first suggested. However, this power would allow everybody’s internet connection records to be acquired in bulk by the security agencies with no reasonable suspicion at all.

--- Later in debate ---

[Lord Paddick]

My Lords, Amendments 250A and 251A, in my name and that of my noble friend Lady Hamwee, relate to technical capability notices through which the Secretary of State can require an operator to have a capacity to provide any assistance necessary that might be required to give effect to the powers under the Bill. We have received representations on behalf of operators asking that those notices should be specific about the distinct service or product to which the notice applies, rather than a blanket, “You must have the capability to do anything we may require you to do under the powers contained in legislation”. Amendment 250A is intended to have that effect, while Amendment 251A tries to limit the scope of technical capability notices. The power to issue a technical capability notice applies to any provider capable of being considered a telecommunications provider under the very broad definitions in the Bill. It would not be proportionate or necessary for this power to be so broad. The amendment aims to narrow the definition to exclude services that are not primarily communications services, even when there may be a communications element. Whether the wording of our amendment achieves that is a matter for debate, but that is what is intended. I beg to move.

[Lord Rooker]

Could the noble Lord list the operators to which he referred?

[Lord Paddick]

I can certainly tell the noble Lord that Yahoo! was one of the operators, but I do not have a list to hand.

Investigatory Powers Bill

Debate between Lord Rooker and Lord Paddick

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I shall also speak to Amendments 137B to 137F in my name and that of my noble friend Lady Hamwee. We return to the issue of informing innocent people when they have been subjected to targeted surveillance by law enforcement or the security and intelligence agencies. The European Court of Human Rights said in 2007:

“As soon as notification of targeted surveillance can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.

When we raised the issue in Committee, the Minister raised a series of quite reasonable objections, which we have tried to address in this new amendment.

In Committee, the Minister said:

“It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact”.

Of course, we agree. We therefore restrict the notification requirement to targeted interception warrants, where a person’s communications are intercepted, and targeted examination warrants, where communications are acquired in bulk and a UK citizen’s communications are among those acquired in bulk and the security and intelligence agencies wish to examine those communications. The provisions would also apply where a targeted equipment interference warrant is used. This would ensure that only when the specific individual’s communications are intercepted or equipment interfered with would notification have to be considered.

In Committee, the Minister said that,

“we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution”.

We have therefore written into the amendment that notification shall not be given if the person is suspected of being involved in terrorism-related or other criminal activity.

In Committee, the Minister said that,

“suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case”.

Of course, we agree. The amendment now states that notification shall not be given if it might prejudice any continuing or anticipated investigation concerning the subject of the surveillance or any other person.

The Minister said in Committee that our amendment,

“would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them”.

We do not agree. We hope that the number of occasions when completely innocent people are targeted will be small and the amendment now includes the provision that notice should not be given if the Investigatory Powers Commissioner determines that it is in the interests of national security, or the public interest in preventing or detecting serious crime, that it is not given. In most cases, this will be obvious and require no further justification from the public authorities.

The Minister in Committee further objected that notification would,

“not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public”.—[Official Report, 5/9/16; col. 858.]

It has not been the long-standing policy of successive Governments to deny that the security services kept a record of the details of every phone call made in the UK until recently and it is not a reasonable argument simply to say, “That’s what we’ve always done”. However, we have taken on board the Minister’s other criticisms and included in the amendment that notification,

“shall include no details of the methods used or any other matter which might hinder any future investigation”.

Having, I believe, dealt with all the objections the Minister raised in Committee, I hope the Minister responding will reconsider whether post-event notification could, in the circumstances I have described, be allowed, and that the Government will accept the amendment.

Amendments 137B to 137E are related to Amendment 137A, to the extent that they seek to tighten up on error reporting. Amendment 137B deletes the phrase “the Commissioner considers that” from Clause 209(1), so that the commissioner must report a serious error whether or not they consider it so. Whether the error is serious should be an objective test, not a subjective consideration by the commissioner. Amendment 137C deletes the condition that,

“it is in the public interest for the person to be informed”.

Surely, if the error is serious it should be reported—or, to put it another way, surely it must always be in the public interest if the error is serious.

Amendment 137D would delete the provision stating that notification should be given only if the error has caused “significant” prejudice or harm to the person concerned, and adds wording so that the clause would state that they should be notified if the error,

“has caused or may cause prejudice or harm to the person concerned”.

The argument here has echoes of an amendment that the Government rejected earlier on Report—that asking a commissioner to make a decision on whether the prejudice or harm is significant muddies the waters.

Amendment 137E would delete Clause 209(9)(b), which defines a relevant error. There appears to us to be no need to describe in regulations the kind of error to which these provisions relate. We believe that the definition in Clause 209(9)(a) is sufficient.

Amendment 137F relates to the final paragraph of Clause 209, which states that the Investigatory Powers Commissioner should,

“keep under review the definition of ‘relevant error’”.

We have added a requirement that any recommendations should be included in reports made under Clause 212, which covers annual and other reports required from the Investigatory Powers Commissioner.

I beg to move Amendment 137A.

[Lord Rooker (Lab)]

Can the noble Lord explain proposed new subsection 3(b)? Could the subject of a warrant challenge that subsection using other legislation —on the fact that there are “no details”, for example? Is it open to challenge by that person, using any of the other laws on the statute book?

[Lord Paddick]

I am grateful to the noble Lord, Lord Rooker. I have absolutely no idea whether they could or could not.

[Lord Rooker]

I submit that they could. The lawyers will find a way to fill the courts with challenges from the crooks and spivs we are trying to protect the British public from. But I will wait for the Minister’s technical answer, rather than the one I gave.