Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

I am sorry to interrupt the noble Baroness, but we are struggling to hear her. Is it possible for her to speak closer to the microphone?

[Baroness Whitaker (Lab) [V]]

Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.

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[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but there are other rights which could be breached as the Bill stands. There are considerations relating to public morality and the exercise of democracy—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.

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[Baroness Whitaker (Lab) [V]]

Thank you. As I am on the phone, it probably will work.

My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but other rights could be breached as the Bill stands, and there are considerations relating to public morality and the exercise of democracy that lie behind the Human Rights Act which need addressing. It is not satisfactory that the crimes that may be committed are not specified, as they are in Canada and the USA. We need an assurance that the Government will retain the Human Rights Act. Will the Minister please provide that? Following the noble and learned Lord, Lord Hope of Craighead, can she confirm that the UN convention against torture could be engaged when any authorisation is made? How will crimes not specified in the Human Rights Act, such as rape or sexual exploitation, be prohibited? This is particularly disturbing when those making the authorisations will be not independent or judicial but members of the very organisation which wants the authorisation.

I will make four specific points. First, allowing any crime in the interests of economic well-being and preventing disorder allows for undemocratic and oppressive activities. How will the cited brake of the Human Rights Act constrain these? Secondly, why is it appropriate for the Competition and Markets Authority to commit crimes? This is intrusive. How will it be accountable? Thirdly, leave to compel access to journalistic sources is a very serious step and should be granted by a judicial figure, not the recipient authority. Fourthly—here I echo very many other noble Lords—is the very disturbing element, not new to this Bill, that children can be invited to cultivate deception and entrapment. How does that accord with the rights of the child and the paramount importance of their welfare, as my noble friend Lady Massey asked? The draft code helpfully provided by the noble Baroness is explicit about the use of so-called juveniles—that is, children—as covert sources. Surely this is justified only when their own safety is at risk from the activities that they are asked to spy on. The draft code says that such authorisations must be given taking account of the best interests of the child. Does fostering morality have no place in welfare or in best interests?

In her helpful meeting on the Bill, the Minister said that we must live in the real world. I hope that one of the differences between these Benches and those of the Government is not trying to make a better world rather than accepting a world where crime reduction depends on the exploitation and debasement of children. I look forward to the noble Baroness’s answers.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

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

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord. I would like to speak briefly to Amendments 1, 2, 4, 10, 13 and 38, just to make these brief comments. I share the concern of, among others, the Law Society of Scotland that what the Bill proposes here in its original form, without these amendments, does not provide the necessary clarity. Indeed, if anything it seems to increase the uncertainty between national security law and the way that criminal law operates in practice.

The question I would like to put to my noble and learned friend the Minister is: does he share my concern that there may be a flood of cases in the courts to clarify the original wording without these amendments? It appears in the original wording of the Bill that there are no limits on the types of criminal conduct which could be permitted under this authorisation. Is my understanding in that regard correct?

I should perhaps state that when I was calling to the Faculty of Advocates, there were a number of courses that I had not taken as an undergraduate, because my first love being Scots law, then Roman law, I wanted to go off and practise European law—which I did, in a very modest way. I remember the sheriff who marked my criminal law paper actually wrote on it, “This candidate does not have a criminal mind”. I have always taken that as a compliment, but I am not quite sure it was entirely meant like that.

With those brief remarks, I will be very grateful if my noble and learned friend could clarify if my concern is well meant, or if he could put my mind at rest in this regard.

[Baroness Whitaker (Lab) [V]]

My Lords, I would just add, in respect of Amendment 37, that we are rightly chary of imposing retrospective guilt, so how can it be right to impose retrospective immunity for something that was accepted at the time of perpetration as a crime not conferring immunity? When it was committed, the perpetrator therefore could be said to have had criminal intent.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

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

Debate on Amendment 11 resumed.

[Baroness Whitaker (Lab)]

My Lords, in speaking to Amendment 77, I should first declare that my daughter wrote on this subject in a book on powers of investigation and human rights. I should also add that the noble Lord, Lord Marlesford, very much regrets that he is unable to speak to this amendment, which he warmly supports.

I do not have much to add to the expert introduction of my noble friend Lady Clark of Kilwinning. I simply emphasise, as a former member of the NUJ, that this amendment bears particularly on investigative journalism and the exposure of illegal, exploitative or anti-social activity: writing that could arguably impact on economic well-being or disorder and which we need to protect, in the public interest, as a keystone of democracy. The confidentiality of journalists’ sources is protected by Article 10 of the ECHR’s guarantee of freedom of expression, as my noble friend Lady Clark said. Further, any statutory provision allowing the circumvention of the existing legal protection of journalists’ sources is also dangerous because it will deter those sources from coming forward.

The Secretary of State for Justice, when Solicitor-General, said that the ability of sources to provide anonymous information to journalists needed to be protected and preserved. This will not happen if those sources are at the mercy of the wide range of covert intelligence agents that the Bill would casually authorise with no judicial oversight.

As my noble friend Lady Clark said, the Investigatory Powers Act requires prior judicial authorisation as essential when any application is made to identify confidential journalistic sources. When he was a Home Office Minister, Nick Hurd MP confirmed that these protections were necessary to comply with the Government’s obligations under Article 10, that the police require a production order from a circuit judge, under the Police and Criminal Evidence Act, and that they must, in addition, satisfy the conditions of confidentiality. We should not dilute this kind of obligation. I hope that the current provisions are not yet another attempt by this Government to muzzle, challenge and undermine one of the democratic pillars of freedom.

[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.

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[Baroness Williams of Trafford (Con)]

I think the only response to that is to thank my noble friend for taking the time to explain it to noble Lords.

[Baroness Whitaker (Lab)]

In thanking the noble Baroness for her characteristically thoughtful response and her offer to meet noble Lords, I ask her also to include a discussion of journalistic sources, because the code of practice left me with some questions. I assume that the meeting will be before Report.

[Baroness Williams of Trafford (Con)]

I am very happy either to write to the noble Baroness and outline what I said in more detail or meet with her before Report.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

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

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.

I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.

Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.

I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.

[Baroness Whitaker (Lab)]

My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti. I echo her thanks to the Minister for her offer of a briefing. I support Amendments 67 and 70. On Amendment 67, I have little to add to the clear exposition by the noble Baroness, Lady McIntosh of Pickering. This is a really intrusive provision, and the criterion of economic well-being, to which it seems to be related, is too loose to be safe as far as the liberty of a citizen goes. The authorising officer is not even a relevant professional; it is the chair of the Competition and Markets Authority.

On Amendment 70, my noble friend Lord Sikka has covered the ground most persuasively. I simply add my voice to the alarm, echoing the concerns of the noble Lord, Lord Hodgson of Astley Abbotts, that such procedures, which are important to democracy and to liberty, should be capable of amendment only by statutory instrument outside the full parliamentary powers of scrutiny.

[Lord King of Bridgwater (Con) [V]]

My Lords, I am pleased to follow the noble Baroness, Lady Whitaker, although I am afraid I do not take exactly the same approach as she has on this matter; in fact, I oppose the amendments. I understand that for many people they are probing amendments, and many might take a different view when the Minister has explained some of the background to them more fully.

I am reacting slightly to the comments of the noble Lord, Lord Paddick. The noble Lord’s speech introducing this group of amendments might have given some people listening the impression that something very new is being launched, but with his own background and personal experience he knows that we are talking about a well-established practice—the use of covert sources—which, as we know, has been a vital source of information in the prevention of much crime and terrorism in our history. We are not introducing something new here but putting an established practice on a statutory basis and putting in place a much tougher regime for its operation, one that has to be voted on by Parliament, which of course was not the previous situation.

The issue of additional authorised bodies is spoken about as though this is some huge expansion, when it is my understanding—the Minister may be able to confirm this—that it is actually a reduction in the number of bodies that can apply to use the covert-intelligence-source approach. It is not new; each of the bodies listed has previously shown an operational requirement and has been using it in practice to some great benefit for the country. Here I echo what the noble Lord, Lord Paddick said, and which others have echoed, which is an appreciation of the Minister’s email to me—and maybe her letter to others who are more present on the scene—regarding what can be advanced as evidence of where this has been valuable to the organisations concerned.

The suggestion following on from that is that we do not really need all these bodies to be involved and that we should just give it all to the police. As I understand it, in many of these cases the introduction of a covert intelligence source in a particular area of responsibility, whether it be the Environment Agency or the Department of Health and Social Care, may often be to try to find out what is happening in the first place. That is not at a stage where you are producing masses of evidence of something that can be handed straight over to the police; it is about trying to assess whether there is some real threat or danger in these areas.

Many have cited the importance of a code of practice. I think there is general recognition that it is a pretty strong document. It is a huge improvement on what did not exist before, and it has to be voted on by Parliament, so we will have to approve its coming into operation. It will of course be binding on all parties.

The reason why I have taken part in these debates in Committee is that at present we are living in an exceptionally dangerous world. I have previously quoted the evidence from the Minister, James Brokenshire, on the amount of crime of very different sorts that one year’s covert intelligence had helped with. I see that included in that was the fact that no fewer than 27 different terrorist attacks were prevented by covert intelligence in the last three years.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Moved by

[Baroness Whitaker]

42: After Clause 4, insert the following new Clause—
“Commissioner approval for authorisations to identify or confirm journalistic sources
(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—(a) the public interest in protecting a source of journalistic information, and(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.(5) Where the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.(6) This subsection applies to all authorisations pertaining to sensitive journalistic information, material or communications data, other than when the authorising officer has a reasonable belief that any delay in the authorisation would cause an immediate threat to life, in which case the authorisation may only be granted—(a) by an official at a senior level in the agency concerned, and(b) where appropriate safeguards relating to the handling, retention, use and disclosure of the material are in place.(7) The Secretary of State may by regulations made by statutory instrument determine the appropriate agency under subsection (6)(a).(8) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(9) Any authorisation granted under subsection (6) must be reported to the Investigatory Powers Commissioner within seven days, specifying any sensitive journalistic information, material or communications data that has been obtained, or retained other than for purposes of destruction.(10) In this section “journalistic material” means material created or acquired for the purposes of journalism.”

[Baroness Whitaker (Lab) [V]]

My Lords, I speak to Amendment 42 in my name and those of my noble friend Lady Clark of Kilwinning, who regrets she cannot be here tonight, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Marlesford. I thank the National Union of Journalists for its advice and declare that I am a former member, and that my daughter has written on the subject of the amendment.

This amendment would ensure that any new powers enshrined in the Bill did not override existing legal protections on press freedom. It seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to continue to carry out their roles. As it stands, the Bill creates an avenue to access confidential journalistic material and sources without any prior judicial oversight. I hope that this is not the intention of the Government and that the current legislative framework of protections can be maintained. I intend to seek the opinion of the House if the Government cannot reassure me.

The amendment requires that a judicial commissioner give prior approval for authorisations to identify or confirm journalistic sources. The commissioner would need to have regard for both public interests in protecting the source of journalistic information, and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the requirement of the Investigatory Powers Act 2016 that, when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. Our amendment respects the contingency that there could be in some cases be an immediate risk to life. In such circumstances, it relaxes the requirement for prior approval by a judicial commissioner, so it meets government objections previously raised.

I understand that the protections enshrined in the Investigatory Powers Act 2016 honoured a commitment in the Conservative Party election manifesto. This commitment followed detailed and sustained representations by the National Union of Journalists and others. They outlined their serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, and rendering journalists unable to uphold their own ethical commitments to professional privacy.

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[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.

[Baroness Whitaker (Lab) [V]]

[Inaudible.] I thank the Minister for her typically considered response. After such a long session on Report, I will not comment in detail on the contributions, other than to say that the Government’s response to the 10th report of the Joint Committee on Human Rights—on the general point of judicial authorisation—underestimates the capacity of people trained and experienced in the judiciary to weigh up the implications of actions within a framework of the limits that should be set on behaviour. They are accustomed to doing this with a variety of warrants. The Government’s proposal, which the Minister has not offered to modify in any way, omits the essential requirement of prior authorisation; she insists that this is vital. However, judges are used to making prior authorisations very quickly. Even magistrates are woken up in the middle of the night to approve warrants. The Minister’s objections are not strong enough to warrant my withdrawing the amendment, so I wish to test the opinion of the House.