Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I agree with everything she said. I also have a daughter who is a journalist so, for me, this is quite personal. I also care very much about the truth, and journalists are often the people who give us the truth in any particular situation.

I have signed Amendment 77, and I thank the noble Baroness, Lady Clark of Kilwinning, for it. It is slightly awkwardly included in this group, but it addresses the specific issue of protecting journalism and journalistic sources. We need that in the Bill. We have put it into other Bills, such as counterintelligence or counterterrorism Bills, and it would easily go into this one as well. It would make sure that we have a clear commitment to journalism. I realise that this is not particularly comfortable for this Government, which have criticised a lot of lefty journalists—as well as lawyers—but it is incredibly important.

This group generally shows broad support across your Lordships’ House for the principle that judicial authorisation must be built into the Bill. It must not be arbitrary or a rubber-stamping exercise; it has to be the real stuff. In many ways, comparing it with search warrants issued by a magistrates’ court is much too weak a comparison. High-level crimes can be authorised in the Bill, with deep and lasting consequences. There must be high-tier judicial oversight and approval to match.

The question is whether we can build consensus around a way forward. Amendment 61 in the name of the noble Baroness, Lady Kennedy of The Shaws, is perhaps the easiest solution to this problem. It sets up the judicial commissioner as the proper overseer and sets out the legal test that must be met to grant an authorisation. In particular, it tests the reasonableness of granting authorisation and explicitly protects against breaches of human rights, which we will come to later. Overall, the Government are being offered a selection of solutions to a problem. I hope that they take one of them.

[Baroness McIntosh of Pickering (Con)]

I will speak to Amendments 12 and 61 in my name and that of the noble Baroness, Lady Kennedy of The Shaws. I am grateful to the Law Society of Scotland for its briefing. I am not particularly well qualified to speak on these issues, as many who have already spoken have direct experience in this regard, but I believe in due process and natural justice. I am concerned that we are reversing activity that was criminal and making it legal.

As the Law Society of Scotland has pointed out, scrutiny of the exercise of these powers lies with the Investigatory Powers Commissioner, who is required to produce an annual report. However, this is scrutiny after the event. It will be limited and may not provide us in Parliament with the robustness that the exercise of these powers commands. Therefore, given the nature of the policy, there should be checks and balances to ensure the effective operation of these organisations to ensure that there is public confidence in the use of these powers by providing limits on their use and adequate scrutiny.

I am attracted to Amendments 12 and 61, which the noble Baroness, Lady Jones of Moulsecoomb, referred to, as well as to Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich, which have many elements that commend themselves. Amendments 12 and 61 ensure that criminal conduct authorisations receive prior approval from a judicial commissioner. In the debate last week—which seems a long time ago— there was a great coalition of views around whether approval should be given by a judge, a judicial commissioner or a member of the Investigatory Powers Commissioner’s Office. I would be guided by those with much greater experience than I have in that regard.

However, it is important for there to be greater scrutiny before criminal conduct authorisation is granted, rather than after the event. In terms of due process, it should not be for the organisations, in the words of the noble Baroness, Lady Kennedy of the Shaws, to mark their own homework. The issue should not be simply for a senior official in the departments—I am particularly concerned about the Food Standards Agency and the Environment Agency—and we will come on to explore those in greater detail. In the words of the Law Society of Scotland,

“The Bill authorises persons within the relevant organisations to act with impunity where authorised by indicating that the criminal law will not apply to them in undertaking acts which would otherwise result in prosecution and conviction. In most circumstances, what will happen is that justification of the criminal conduct will be sought after the event”.


I put it to the House this afternoon that that is unacceptable, and authorisation should be granted—preferably judicial authorisation, in the best format possible—before the act that would otherwise deemed to be criminal actually takes place.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, I am pleased to follow the noble Baroness, Lady Jones of Moulsecoomb. I support and will speak to Amendments 17 and 72 in the name of the noble Lord, Lord Anderson of Ipswich.

I am sure that my noble and learned friend will be taken back to his law school days, as I have been, by the discussion of what is reasonable and what is the test of reasonableness in any given circumstances. I prefer Amendments 17 and 72 to Amendment 16 and others; I hope that, if they are pre-empted, this can be resolved on Report.

I entirely support what the noble Lord, Lord Anderson of Ipswich, said. He has gone through the draft code of practice, as he was invited to do by the Minister. I especially support his argument that the code is missing from the Bill. It is not sufficient as an understanding: I want to see it in the Bill in the circumstances that the noble Lord set out, in both the English and Scottish versions.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

The noble Lord, Lord Judd, has withdrawn so I call the noble Lord, Lord Thomas of Gresford.