Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

1: Clause 1, page 1, line 10, leave out “in the course of, or otherwise in connection with, the conduct of” and insert “by”
Member’s explanatory statement
This amendment is to probe why the criminal conduct cannot be described more simply; and how close must the connection be in order to fall within section 26.

[Baroness Hamwee (LD) [V]]

My Lords, this may look like a very long group, but it almost entirely concerns a couple of points, so I hope it need not detain your Lordships too long. Amendments 1, 2, 4, 10, 13 and 38 are probing. I appreciate the need for precision in legislation, which—I hope the drafters will not take this amiss—often means the wording can be a bit clunky. I would therefore be grateful for a detailed unpacking of two points on the wording.

First, I wondered whether

“criminal conduct in the course of … conduct”

is something to do with how Section 26 of the Regulation of Investigatory Powers Act 2000 is constructed. Section 26(1) applies to

“the conduct and use of covert human intelligence sources.”

Is there a concern that there is a need to provide for something different to that? Is there a concern that what is to be covered cannot be separated from that? For instance, there might be a need for separate authorisations. In other words, why not have a straight- forward authorisation of criminal conduct by a CHIS? It may be because it needs to be made clear that there is no wholesale authorisation of criminal conduct by a CHIS, but surely that would be only when they are acting as a CHIS. Would not the authorisation cover that? I would be grateful if the Minister could unpack that phrase for the Committee.

The second phrase is conduct “in connection with” the conduct of a CHIS. How closely connected must the second category be? I am particularly concerned to be clear whether this is to catch, or ensure that it does not catch—it occurs to me that “catch” may not be the best term here—the person giving an authorisation, the person to whom he reports and anyone overseeing that authorisation. I would be concerned if it applied to that person inciting or being an accessory to a crime, or conspiring. Would this not mean that someone is authorising himself? What is intended by this? I have omitted to welcome the Minister to what I assume is his first outing in a Committee; can he be clear about the position of those who in other situations—ordinary criminals, if you like—would be an accessory to, inciting or conspiring in a crime? Amendment 40 addresses the same point, although the phrase is conduct “in relation to” a CHIS.

Amendment 37 has been tabled to probe whether the authorisation can be retrospective, relating to past conduct. I note that Amendment 50 from the noble Lord, Lord Davies of Gower, which we will come to next week, would allow for retrospective authorisation, subject to criteria. I do not want to steal his thunder; no doubt he will talk about the operational realities which will sometimes make it very difficult to anticipate what will happen on the ground. If there is to be immunity for conduct which has been authorised ex post facto, the criteria and limitations will be very important. I beg to move Amendment 1.

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

My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for each of the probing amendments in this group. Most of them, as the noble Baroness has said, are directed at essentially the same point: the intended scope of criminal conduct authorisations. I echo her remarks in finding the phrases she identified less than clear.

For me, the underlying question is whether it is intended that the conduct of any person other than a CHIS should be entitled to the protection of a criminal conduct authorisation, and if so in what circumstances. Are we talking about protections from criminal and civil recourse for the CHIS handler, controller or authorising officer, or more generally for the public authority that employs them, or are we talking about the protection of other people who are neither a CHIS nor employed by the authorising authority? I hope the Minister will make the position clear and, if he does not favour the simpler formulations in these amendments, explain why.

Amendment 37 raises a slightly different issue. It suggests that an authorisation cannot be retrospective, which is surely right and was confirmed by the Solicitor-General at Second Reading in the other place when he said:

“The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation”.— [Official Report, Commons, 5/10/20; col. 707.]


A close reading of the Bill confirms that, on balance, it does not provide for retrospective authorisations: the new Section 29B(6), for example, refers to what

“could reasonably be achieved by other conduct”,

not to what could reasonably have been achieved. However, this is indirect and intricate stuff; clarification in the Bill would be welcome, and this amendment provides it.

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[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

I have received no requests to speak after the Minister, so I now call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, I start by apologising to the noble Lord, Lord Cormack: I do not like the term CHIS either—and I find it even more difficult when I try to render it in the plural, which I think lengthens the “i” in the middle.

The noble Lord, Lord Anderson, and other noble Lords made my points much more crisply than I did. On the point about retrospection, I certainly do not want to rely on an imbalanced interpretation—albeit accompanied by what I would have to describe as an assertion rather than an explanation from the Dispatch Box. Of course, after this debate, I will read Hansard to see whether I have missed something, and my apologies if I have.

To take up the point made by the noble Baroness, Lady Jones, we should be able to express issues such as this in our own words, and I am still having difficulty doing that, but I am most alarmed that my points raised wider issues than I had anticipated: in particular, who is covered by the authorisation. I have not heard any argument that a person who gives the authorisation must not authorise what he himself does. I think I am right to be concerned about this rendering lawful incitement, being an accessory and conspiring—it can go much wider than membership of an organisation. Understandably, the example which the Government have chosen to put forward is something that sounds relatively mild.

I am glad that we have brought these issues out. Clearly, we will have to consider what we do at the next stage, which is not how I would have hoped to start remarks in Committee, but there we are. For now, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Hamwee (LD) [V]]

My Lords, Amendment 6 in the name of the noble Baroness, Lady Ritchie, and our amendment, are directed to the same issue; I can only think that I may have drafted ours before I had seen hers. RIPA allows for the use of CHIS outside the UK, and the noble Baroness, with her very particular perspective, must not be ignored. As has been said, that experience should inform all of what we are discussing.

Quite apart from the propriety and ethics, how would extraterritorial jurisdiction work in this case? We cannot legislate for what other countries regard as a crime or how decisions about whether to prosecute are taken. My noble friend Lord Thomas listed the offences where there is extraterritorial jurisdiction and where prosecutions can take place here. It struck me as I was listening to him reading them that they are very close to the crimes that noble Lords are seeking to take out of the scope of criminal authorisations, which we will come to later—except that I was interested to hear the reference to domestic abuse.

I had wondered whether minds in the Government had been directed to the military and intelligence services outside the UK on this issue; my noble friend also mentioned the Baha Mousa case. But this is not the Bill for that. As he said, we have other legislation that we will come to soon, when we will also no doubt be considering the issue of rendition. But to leave open any suggestion that anyone should have free rein anywhere in the world because they are acting on behalf of the state is certainly something we want to see quashed.

[Lord Rosser (Lab) [V]]

Amendment 7 in this group would ensure that criminal conduct authorisations are not covered by the provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000, which provides that:

“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”


Amendment 9 in this group specifies that conduct outside of the United Kingdom may not be authorised under this Act and amends the Regulation of Investigatory Powers Act 2000 to similar effect as Amendment 7.

As far as I can see, the code of—[Inaudible]—covert operations occurring in UK embassies, military bases and detention facilities where the subject of investigation is a UK national or is likely to become the subject of criminal or civil proceedings in the UK, or if the operation is likely to affect a UK national or give rise to material likely to be used in evidence before a UK court.

The noble—[Inaudible.]

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which was a data-handling error of some significance. I think that if errors were made by my former colleagues and they reported them in real time to IPCO, it would react in a similar way.

[Baroness Hamwee (LD) [V]]

My Lords, the House has been privileged to hear from the noble Baroness, Lady Manningham-Buller, on this subject. My noble friend Lord Paddick and I have tabled Amendment 47 as an amendment to Amendment 46, which she supports. I am a little diffident about what may appear to be a challenge to the “quartet”, as the noble Lord, Lord Cormack, called them, of four noble Lords who all have considerable experience, in their different ways, of dealing with these issues directly. I think my points are relevant to some other amendments as well.

Our Amendment 47 explores what the next steps should be after the steps set out in subsections (8A) to (8C) in Amendment 46. My noble friend Lord Paddick will deal with what I think he might describe as the operational realities that make prior authorisation impractical. Allied to that, I note the phrase of the noble Lord, Lord Anderson, “human complexities”. I take his point about aiming for what might be possible in political terms in this area.

In our view, there should be further steps after notice has been given to the commissioner. Of course, he could and should deal with notices of criminal conduct authorisations in his annual report—in addition, he can deal with them in reports to the Prime Minister—but if the notice is to have teeth, as my noble friend Lord Thomas put it, something needs to be there to follow through. Even a decision to do nothing would be an active decision.

We propose that the commissioner should consider subsection (4) of proposed new Clause 29B—one of the new provisions in the Bill—including whether the criteria of necessity and proportionality are satisfied, and any other matters introduced under subsection (4)(c) by the Secretary of State. Of course, I am aware that the question of what is believed—whether that is an objective or subjective test—is rather begged by my amendment, but we will come to that in the debate on the next group.

Perhaps noble Lords are attracted to something like our proposal. I am sure that it would need expanding—for instance, to allow inquiries by the commissioner, questioning the person giving notice and so on. If the commissioner considers that subsection (4) has not been satisfied, we suggest that two things should follow. The first should be that the conduct would be not be lawful for all purposes, which would reintroduce the question of redress, including applications to the criminal injuries compensation fund. Secondly, the matter must be reported to the head of the relevant public authority—the National Crime Agency, the Gambling Commission, whoever. In turn, the authority should refer it to the DPP, and the usual steps should then follow. For good measure, our amendment makes direct mention of the annual report.

In other words, our amendment is a development of Amendment 46, which would introduce a circle that we think needs rounding off. I hope that, to pick up on the point made by the noble Lord, Lord Carlile, this is regarded as proportionate support. My noble friend Lord Paddick will have observations on the other amendments in this group when he speaks from our Benches.

[Baroness Penn (Con)]

My Lords, I beg to move that the debate on this amendment be adjourned.