Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Anderson of Ipswich (CB)]

I join other noble Lords in welcoming the Minister and the noble Lord, Lord McLoughlin, to their place. I do so with open arms, if the Minister will forgive a reference to that delightful Dirleton hostelry.

The Bill, like the litigation which forced it into being, is welcome. I have a wish list, but time requires me to come straight to the nub: the linked questions of immunity, authorisation and oversight. The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious. There are three central ways in which that potential might be mitigated. The first way is to remove the immunity and retain the existing discretion of the CPS to prosecute for a criminal offence within the scope of the authorisation. I have two questions for those who promote this option. Is it fair for a CHIS who does no more than he is asked by the police to be at risk of prosecution? With that in mind, how often has the CPS considered it to be in the public interest to prosecute a CHIS who has not exceeded his authority? The noble Lord, Lord Paddick, with all his experience, suggested seldom or never. I keep an open mind but wonder whether removing immunity would be a safeguard more apparent than real.

The second way is to provide for prior approval of authorisations by the judicial commissioners of IPCO. I recommended this approach for some other covert powers in my report A Question of Trust, and was glad to see it followed in the Investigatory Powers Act 2016. However, context is everything and I will make three comments. Deciding how to task a CHIS, against a nuanced and rapidly changing background of personal relationships and group dynamics, is less obviously within the competence of a judge, or indeed any external person, than a decision to intercept a line or hack a device. Internal, not external, authorisation is provided for by Section 20.1(12) of Canada’s CSIS Act, of which the House has heard mention today, although it is fair to say that some form of external approval for CHIS criminality, whether by judges or lawyers, is required in some circumstances in Australia and the US. Finally, and without being defeatist, it is right to acknowledge that an amendment to require prior judicial approval was heavily defeated in the other place.

That leaves the third way: beefing up oversight by requiring a judicial commissioner to be informed every time a CCA is issued. That solution was adopted in SI 2013/2788, when the spycops revelations first surfaced, to deal with undercover police deployments of less than 12 months.

Having worked intensively with IPCO’s chief inspector for CHIS in the Channel Islands, where I was Investigatory Powers Commissioner until this summer, I have the highest praise for IPCO’s inspection work. Much of it is below the waterline in the form of inspections, oral feedback, classified detailed reports, observations and recommendations requiring speedy action. A sense of it is given publicly at paragraph 5.19 and onwards of IPCO’s March 2020 annual report.

The real-time notification of CCAs to a judicial commissioner would have three further advantages. First, the knowledge that their decision would go straight to the desk of a High Court judge or equivalent would concentrate the minds of authorising officers. Secondly, it would eliminate the gap of up to a year between authorisation and annual inspection, potentially assisting in the termination of any ill-advised authorisations, difficult though that will always be. Thirdly, it would help to promote a culture in which informal advice is sought before an authorisation was issued—something that happens a good deal in practice and is particularly valuable for authorities that do not make much use of CHIS. This third approach is no panacea and will not be strong enough for some, but it deserves at least to be debated and I will table an amendment for that purpose.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

[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 (Lord Alderdice) (LD)]

The noble Baroness, Lady Jones of Moulsecoomb, has withdrawn so I call the noble Lord, Lord Anderson of Ipswich.

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

My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.

First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.

Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?

The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?

The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.

The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).

How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.

In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.

Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this group—because I gave my views on the importance of removing both civil and criminal immunity in the earlier discussion—save to take the opportunity to wholly welcome the cogent, powerful and accessible report of the Joint Committee on Human Rights, and to congratulate my noble friends Lady Massey and Lord Dubs, as well as all the other members of that committee. The committee has been one of the greatest success stories coming from the Human Rights Act. Some once thought the Act would be just a recipe for litigation, and human rights would be just a box of lawyers’ tricks to wield in court, but the Joint Committee on Human Rights has been the missing ingredient that allows for human rights principles to be included in the consideration of legislation before it is even passed. I say this knowing that that the Minister will take that report incredibly seriously when he considers his approach to the next stage of the Bill.

On civil immunity, it is worth saying that, for a lot of victims, this is as important as criminal immunity. For a lot of innocent third parties, who may have lost property or even suffered grave injuries through no fault of their own, it is very important that there is the possibility of compensation. It may not be enough for it to be left to the CICA, although I will be interested in what the Minister advises. It would seem completely unconscionable for a state agent to be authorised to commit a crime, for an innocent citizen to suffer grave damage to property or person and for there to be no mechanism for them to have compensation. Further, the civil courts, when combined with investigative journalism, have been a place where a great many scandals and human rights violations of recent decades have been exposed, so “lawful for all purposes” is just as potentially worrying in the civil context as it is in relation to the criminal law.

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These judicial commissioners, who already exist, as I said, are well practised in making complex assessments of sensitive material in an independent, detached manner at short notice. We therefore reiterate that this recommendation—I here join with my noble friend Lord Dubs—is for scrutiny. We want to see amendments to the Bill that create judicial commissioners who should be mandatory for each CCA application. As my noble friend Lord Dubs said, there should be prior judicial authorisation. If this were introduced, there would be no need for the urgent procedure that my noble friend said could be a standby if necessary because, as I mentioned, there is a roster of these judges and there is always somebody available 24/7 to meet the demand of urgency. They are highly expert and capable of making quick decisions on sensitive, complex material. On this basis, I urge the Government to introduce this component into the Bill: greater scrutiny by a cohort of judges who already perform a role that is not dissimilar.

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

My Lords, I shall speak to Amendment 46 and its Scottish equivalent, Amendment 73, which I trailed briefly at Second Reading. I do so with the support of the noble Lords, Lord Butler and Lord Carlile, and the noble Baroness, Lady Manningham-Buller.

My report A Question of Trust, published in 2015, recommended a new authorisation and oversight structure in relation not to undercover operatives but to other covert powers exercised by intelligence agencies and the police, including the interception of communications and equipment interference. Its most radical recommendation was to introduce a requirement of prior approval by judicial commissioners—the senior judges in what is now known as IPCO, whose functions were so well described just now by the noble Baroness, Lady Kennedy —before warrants for the exercise of such powers could enter into force. That principle was given effect in the Investigatory Powers Act 2016.

I was converted to the idea of prior judicial approval by detailed observation of the practice in the United States and Canada, both of which introduced such systems many years ago after well-publicised abuses of executive power. Their systems work well and so, I believe, does ours. I have great respect for the formidable array of noble Lords, led by the noble Lord, Lord Dubs, who, by signing some of the amendments in the group, have proposed extending that system to the authorisation of CHIS criminality. However, an amendment to that effect was heavily defeated in the Commons. Where an alternative presents itself that offers adequate protection and a realistic chance of making its way into the Bill, I am concerned that we should not miss the chance to consider it. That alternative, as set out in my amendments, is notification of criminal conduct authorisations to judicial commissioners in real time, or as close to real time as is reasonably practicable. I will try to explain it.

The person who approves the interception by a public authority of telephone communications must assess the likely operational dividend against the likely intrusive effects—a task that judges are abundantly suited to perform, usually on the basis of a careful written assessment. Whether to use and how to task a CHIS requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship.

It may sometimes be decided at very short notice to authorise participation in criminality to preserve a CHIS’s cover and his or her safety. The person who tasks a CHIS, including by authorising criminality, thus takes on a weighty duty of care towards not only any potential victims of that crime but an often unpredictable human being for whom exposure could mean injury and even death. Where non-police CHIS are concerned, that person is also licensing a private individual, rather than an agent of the state, to commit crime.

As someone who until this year was an investigatory powers commissioner himself in Guernsey and Jersey, I frankly admit that this is not a function I would have felt well equipped for. Some judges, I am sure, are made of sterner stuff: with a great deal of training, I accept that prior judicial authorisation might well be made to work. My points are simply that this is a long way from the classic realm of prior judicial approval; that it is an uncomfortable solution, a feeling that I was interested to hear is shared by the noble Baroness, Lady Chakrabarti; and that there is an alternative which has not already been rejected.

The distinction between the tasking of CHIS and the operation of other forms of covert surveillance is recognised in other jurisdictions. It was North American traditions of judicial authorisation, as I have mentioned, that inspired A Question of Trust and the Investigatory Powers Act 2016. But the Canadian CSIS Act, much praised for its other qualities in previous debates on the Bill, does not, so far as I can see, provide for independent authorisation of CHIS criminal conduct. Nor are judges involved in the tasking of undercover operatives by the FBI. Otherwise, illegal activity requires approval by, at most, a senior field agent or, for more serious crimes, the US Attorney’s Office. Nor, if I recall rightly, was the Strasbourg case cited by the noble Baroness, Lady Kennedy—Szabó and Vissy—one that concerned the tasking of undercover operatives.

There is also precedent in our own law for a system of real-time notification to judicial commissioners, such as I propose in these amendments. It is the system introduced in 2013, when the “spy cops” scandal first broke, to monitor undercover police deployments of less than 12 months’ duration. It has operated satisfactorily since then, judging by the annual published reports of IPCO and its predecessor body. Indeed, the wording of my amendment is taken with little alteration from the relevant statutory instrument of 2013/2788. I add that any reservations I have about involving judges in the highly sensitive and fact-dependent decision to authorise criminal conduct are multiplied severalfold by the proposal that a hard-pressed Secretary of State should be given this responsibility. Accordingly, with respect to the very distinguished names that it has attracted, I am not at all convinced by Amendment 15.

Real-time notification would bring real advantages. It concentrates the minds of authorising officers to know that their authorisation will soon be on the desk of a High Court judge, sometimes before any criminality has taken place. Some officers will seek preliminary advice or guidance before acting, a course that it is open to IPCO to encourage, and that is of particular value for those authorities that make only occasional use of a power. Notification may prompt questions, observations or recommendations for that case or for the future. This is the core of IPCO’s demanding oversight work, much of which is implemented by its highly skilled inspectorate and whose detail is only hinted at in IPCO’s annual reports. A serious error report under Section 231 of the Investigatory Powers Act 2016, as we have discussed previously, may be accompanied by a notification of affected persons that they have a right to apply to the Investigatory Powers Tribunal, at least in any case where the judicial commissioner judges that to be in the public interest.

Accordingly, I commend Amendments 46 and 73 to the House as a workable alternative, given the stance of the Government, and one that is perhaps more suited to the particular skills of our judges in the very particular circumstances in which CHIS handling takes place.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Anderson, in speaking to my Amendment 76. I must apologise because I was not able to be present for Second Reading; it clashed with the Medicines and Medical Devices Bill, to which I had tabled several amendments. If I had been able to speak, I would have supported the intention to place on a statutory basis the covert activity covered by the Bill. Equally, I would have sought that that should have taken place within appropriate boundaries and safeguards. Rather, as the noble Lord, Lord Cormack, said earlier, the debate this afternoon has reinforced in me the need for this Bill to be seriously amended to make sure that those safeguards are in place. It also underpins the importance of the amendments in this group and the role of the independent Investigatory Powers Commissioner, who monitors the use of these powers through inspections, as we have heard, and publishes an annual report.

Amendment 76 is very much probing in nature to ask the Minister about the role of police and crime commissioners. It follows from discussions with the West Midlands PCC, David Jamieson, and has the support of my noble friend Lord Bach, the PCC for Leicestershire, who will speak later to this group of amendments.

As we have heard, police forces are subject to IPCO inspections, yet as I understand it, under current legislation, there is no role for PCCs in relation to covert intelligence. The argument made by PCCs is that as they are responsible for holding the chief constable to account, they should at least have some strategic oversight into the inspection process. Locally, my own force, the West Midlands Police, has previously arranged for briefings from the IPCO in the inspection outcome, and those engagements have been extremely useful in understanding how the force is complying with RIPA and providing reassurance in respect of the powers used. The PCC holds the chief constable to account in a number of ways, but partly through an annual report to the strategic policing and crime board on the use of RIPA. This is presented and discussed in private session in recognition of the highly sensitive nature of the activity.

Looking to the IPCO report of 2018, which is the latest I could find published on the web, there is a specific and lengthy section on law enforcement agencies. It looks at how it has used powers under the Investigatory Powers Act, including covert intelligence sources and surveillance activities under RIPA. The IPCO noted in general that the existence of experienced and specialist teams was important to establishing and maintaining a good level of compliance. It concluded that, although standards vary across law enforcement agencies, the appropriate processes are in place and cases are handled in compliance with the code of practice. This is good to hear, but what if a police force was found to be performing inadequately? What intervention, for instance, would take place with the chief constable and how could that happen without the involvement of the PCC? I would be grateful if the Minister could respond to the question.

The advent of this Bill provides an opportunity to address the issue and formally add a provision that gives PCCs a strategic oversight role in IPCO inspections of local police forces. Of course that has to be strategic, recognising the sensitivity of the work. I am not proposing an exact mirror of the role that PCCs have, for example, in relation to Her Majesty’s Inspectorate of Constabulary and fire and rescue service inspections. As a minimum, I ask that PCCs should be engaged in a debrief following the inspection in order to understand any urgent issues and how the force needs to address them. This is not a major amendment, but it is important that we understand how the accountability of chief constables operates in the process. If the IPCO finds that a police force is not acting satisfactorily, it is important that appropriate action is taken.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.

The JCHR made the very good point in the conclusion of its report that

“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.

It also made the important point:

“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”


The Minister has just reminded us of the duty of care to a CHIS.

New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.

A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a

“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”

That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.

The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.

New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—

“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”

We would take out “reasonably”.

The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.

Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.

On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.

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

My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s

“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”

In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:

“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”


Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that

“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].

Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation

“may be granted by the authorising officer where they believe that the authorisation is necessary”.

Section 6.3 states:

“The authorising officer must also believe that the authorised criminal conduct is proportionate”.


The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.

My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.

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

My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?

First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, Amendment 55 in my name is in this group. The amendment seeks to place on the face of the Bill a clear prohibition on three grave criminal acts, namely murder, torture and sexual violations. It is narrower in its application than other amendments in this group, to avoid any confusion about the scope of these prohibitions. Therefore, references to “too broad” and “too open to interpretation”, such as threats to economic well-being and damage to property, are omitted. An added clause, referring to the discretion of the state not to prosecute the commission of even these major crimes, provides a further lack of restriction in exceptional cases.

Of course, there is no doubt of the need for the Bill to protect informants in their often dangerous but vital work. But the Bill as it stands puts the executive authorities and their agents above the law, a concern widely expressed at Second Reading. No state should authorise serious crime without limits. The Government’s justifications for allowing these grave crimes have still not been fully dealt with—for example, why the Human Rights Act, according to previous statements on the part of the Government, would not apply to informants’ criminal actions, or why listing prohibitions would somehow expose informants to additional danger. These are among the remaining ambiguities in the Bill.

We might learn from the original RIPA legislation, which necessitated later additional amendments to prevent its scope inexorably increasing over the years. The law must be accessible and clear. There is an opportunity here and now to make this Bill fit for purpose by incorporating the three main prohibitions limiting the sanctioning of grave crimes which are themselves contrary to the terms of the ECHR, to which the UK is party. To omit these limits, the Bill damages the integrity of criminal law and suggests that the state may tolerate, or even encourage, the most serious offences in the UK law.

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

My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.

First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.

As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.

What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.

It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.

I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

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[Baroness Chakrabarti (Lab) [V]]

I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?

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

[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS

“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]

Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.

Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.

I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:

“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]


If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

I will add one last thought. The Investigatory Powers Commissioner has to make an annual report to the Prime Minister, and the Prime Minister has to publish that report and lay it before Parliament. So there is continuing annual oversight of this—something that has never happened on the same scale before. That is a very important addition.

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

My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.

Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.

Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.

Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.

That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.

The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.

The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.

I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.

Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.

For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.

I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.

My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?

Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.

We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.

I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.

I look forward to the Minister’s response. There are a number of areas to cover here for the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, before I speak to the details of Amendment 3 in my name, I will comment briefly on the speech made by my noble friend Lady Chakrabarti. I am totally with her in saying that there are dangers in this Bill, and some of the amendments are very crucial indeed. I also agree with her that we must always be vigilant to protect the rule of law, human rights and civil liberties. Indeed, she has done that all her life, since the time she ran the organisation Liberty in such an effective manner. I have listened hard to what she has said, and I believe that the most effective safeguards would be some kind of prior oversight to check an organisation before it went ahead. I believe that is probably the most important safeguard. I look forward to debating the amendment to that effect in the next group.

In the meantime, I turn to Amendment 3. Its purpose is to amend the Bill so that victims of criminal conduct carried out under a CCA can access compensation. I speak as a member of the Joint Committee on Human Rights, and I am very much influenced in my contributions to this debate by the conclusions of the committee’s report, which has been widely praised across the House. The report noted that the Bill as introduced was potentially incompatible with human rights legislation, specifying:

“Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.’”


People may ask at that point about the criminal injuries compensation scheme. I put it this way: since the Bill would authorise criminal conduct lawful for all purposes, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. Seemingly, this would also prevent a claim for compensation under the criminal injuries compensation scheme. This is not a novel proposal. The amendment is very close to the regime in Australia, which provides

“indemnification for any participant who incurs civil liability in the course of an undercover operation”.

The most usual and commonly quoted example, which my noble friend Lady Chakrabarti mentioned, is when a CHIS is driving a getaway car for a gang at high speed and has an accident. Under the Australian regime, the system would provide indemnification in the course of an undercover operation. In other words, in Australia, a civil claim can be brought against the perpetrator by the victim and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The amendment would ensure that the person authorised to carry out criminal conduct would not suffer the consequences of civil liability. It would also ensure that the victim of that conduct would obtain civil redress, while allowing secrecy to be maintained.

This amendment is fully in keeping with the overall intentions of the Bill, but it would provide an important safeguard. Otherwise, individuals will lose out badly through personal injury or by having their car damaged. At present, they are unable to obtain civil redress, and my amendment would put that right. It is an important but straightforward amendment. The principle is easy and I hope that the Government will find their way to accepting it. I beg to move.

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

My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.

Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances

“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”

There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct

“authorised by a criminal conduct authorisation”,

not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.

Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Lord, but there is a little bit of interference.

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

[Inaudible]—in relation to matters for which a judicial commissioner is responsible. Could the Minister confirm, fourthly, that this is the Government’s understanding also?

I move on now, more briefly, as noble Lords may be relieved to hear, to civil recourse for the innocent victim of an authorised crime—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I do not know if the noble Lord, Lord Anderson, can hear me in the Chamber. I am afraid that we have some interference on the line, so we might need a short adjournment for five minutes while we sort it out.

--- Later in debate ---

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, I ask the noble Lord, Lord Anderson of Ipswich, not just to resume his speech—we look forward greatly to the rest of it—but, if he would be so kind, to repeat the last few statements he made, because sadly they were inaudible.

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

I am grateful, and apologise for what seems to have been something of a crossed line.

I dealt with proposed new paragraph (a) in Amendment 21, so will move on to proposed new paragraph (b). I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy than for misconduct in public office, but that is because, if the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy.

However, I believe that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences, if the CCA has first been declared a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or a criminal court. The Minister and the Bill team have been extremely helpful in explaining their thinking on this; I believe that there is nothing between us on this point. I would be most grateful if she could confirm—this is the third confirmation I am asking for—that this is the Government’s understanding of the law.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS in Northern Ireland are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect are the powers vested in judicial commissioners under the Investigatory Powers Act. Section 231 provides for serious error reports, and Section 232(2) provides for the Investigatory Powers Commissioner to

“provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”,

presumably including the CPS. Could the Minister confirm, fourthly, that this is also the Government’s understanding?

I move on, more briefly, to civil recourse for the innocent victim of an authorised crime. I start from the position that some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation, not from the person who was authorised to commit the crime but from the authority which authorised it or from the state more generally. Proposed new paragraph (c) in Amendment 21 seeks confirmation of what I do not believe to be in dispute: that compensation may be obtained from the Investigatory Powers Tribunal in a case brought by an innocent victim. That is the fifth thing I ask the Minister to confirm.

That may, however, not be the most practical of remedies. Judicial commissioners have the power to tip someone off that they may have a remedy in the IPT when they consider that to be in the public interest but, as the noble and learned Lord, Lord Falconer, and I suggested in Committee, there may be very limited circumstances in which that will be possible; there might well be risks to the operation and to the CHIS if unconnected persons were informed that their injuries were attributable to an undercover operative. The judicial commissioners are likely to have that well in mind, hence the importance of Amendment 22, which in the case of injury to an innocent victim would ensure that an application could be made in the normal way to the criminal injuries compensation scheme. That would have the great advantage of affording compensation to the innocent victim without it being necessary to disclose to the victim the status of the person—the CHIS—who inflicted the injury.

In their response last week to the Joint Committee on Human Rights, which was published by the Joint Committee at 11 this morning, the Government state that, having considered the question in detail, they have concluded that

“nothing in this Bill would frustrate a victim’s ability to recover compensation for injury or loss through that scheme.”

That is certainly encouraging, but I am afraid that the mouth of this particular gift horse needs a little more inspection. If actions committed pursuant to a valid criminal conduct authorisation are, in the words of Section 27(1), “lawful for all purposes”, can the Minister explain how injuries caused by such acts can be criminal injuries for the purposes of the compensation scheme? That is the sixth and final assurance I request from the Minister.

There is often an argument for making things clear in statute, even if satisfactory assurances can be given. Accordingly, if the Government accept the thrust of these amendments but have difficulties with the drafting, I shall certainly look constructively on any commitment to come back at Third Reading with revised drafts. I shall listen carefully to what the Minister says in response. Depending on the content of that response, and if no commitment is given to accept these amendments or come back to them at Third Reading, on Wednesday I may test the opinion of the House on either or both of Amendments 21 and 22.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, who is next on the list, has been replaced by the noble Lord, Lord Rosser.

--- Later in debate ---

The noble Baroness, Lady Williams, was kind enough to invite my noble friend Lord Blunkett and me to discuss our amendment with her last week, and I am grateful for that. It is a mystery that, unless she surprises me, she has not been able to persuade the Home Secretary to accept it, because it would add accountability and therefore—I stress this—legitimacy to CHIS work. Surely we should all share the common aim of deploying the limited resources of undercover police officers, who do dangerous jobs, to catch real criminals, such as drug traffickers, human traffickers, terrorists and criminal gangs, not political activists challenging the prevailing orthodoxy of the time, whether on anti-apartheid, racism, women’s rights or climate change. I will await the noble Baroness’s reply before I decide whether to beg leave to divide the House on my Amendment 16.

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

My Lords, in speaking to Amendments 33, 37, 44 and 46, which are also signed by the noble and learned Lord, Lord Mackay, and the noble Lords, Lord Butler and Lord Rosser, I first pay tribute to the Minister and the Bill team, who offered to co-operate with me on these amendments and have been as good as their word. They now give more complete effect, in language approved by parliamentary counsel, to the homemade amendments that I moved in Committee. The lead amendment is Amendment 33; Amendment 37 mirrors it for Scotland; and Amendments 44 and 46 are consequentials.

The amendments provide, in summary, not for prior judicial authorisation but for judicial scrutiny of another kind: the real-time notification of authorisations to a judicial commissioner, as soon as reasonably practicable and in any event within seven days. That should be seen very much as an outer limit for notification that should, so far as possible, be in real time. It will be open to the Investigatory Powers Commissioner to encourage not only prompt notification but pre-notification for informal guidance, as already occurs in some other surveillance contexts. This might be particularly useful for bodies that do not make frequent use of the power.

The case for real-time notification, as I shall call it, has been put most persuasively by those who signed the equivalent amendments in Committee—the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Butler and Lord Carlile. I shall summarise it as briefly as I can.

My immediate reaction to this Bill was to support prior judicial authorisation. I championed the use of prior judicial approval for other investigatory powers in my report A Question of Trust, and was delighted to see this in the Investigatory Powers Act 2016. I accept that it might also be feasible in this context, given sufficient judicial training, yet I have reservations about prior judicial approval in this Bill, not only for the pragmatic reason that the Government have so firmly set their face against it. Handling and authorising a CHIS is a highly specialised function that requires a close and dynamic understanding not only of the details of the operation but of the characters of those involved. That is not something that a judge, let alone a Secretary of State, will necessarily have the capacity to pick up. It differs considerably from the classic judicial exercise of weighing the benefits of tapping a phone or an undersea cable against the associated intrusion of privacy.

The person who tasks a CHIS, including by authorising criminality, effectively takes on a long-term duty of care, not only towards any potential victims of that crime but towards a CHIS for whom exposure could result in injury or death. Perhaps it is for that reason that the American and Canadian models of prior judicial authorisation, both of them inspirations for A Question of Trust, are not applied in either country to the tasking of a CHIS to commit crimes.

The main objection offered to these amendments in Committee was to the insufficient sharpness of their teeth. It is true that real-time notification may mean that the judicial commissioners are powerless to stop a particularly rapid deployment. It is also true that criminal deployments of this kind cannot just be turned on and off like a tap, but I say three things in response.

First, precisely the same result may arise under a system of prior judicial authorisation, for such a system, like its equivalents in other areas of investigatory powers, will inevitably involve an urgency procedure: deploy first, seek authorisation later.

Secondly, there is an existing precedent for real-time notification—the deployment of undercover police under the so-called relevant sources order of 2013, which, judging from IPCO’s annual reports, works well. The knowledge that a CCA will go straight before a senior judge is a useful discipline for authorising officers. My experience of IPCO, and my own work until last year as Investigatory Powers Commissioner in the Channel Islands, is that the prospect of an interrogation, investigation, recommendations and a possible serious error report are, from the police’s point of view, striking enough to encourage a high standard of conduct, but not so intimidating as to encourage the concealment of honest error. Further assurance would be given by Amendment 34 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, which I will leave him to develop but which I support for making this explicit in the modern practice of undercover policing.

Thirdly, though the precise mechanism may still be in dispute, it is clear that neither RIPA nor this Bill provides for complete immunity from prosecution for those who authorise criminal conduct. I mentioned earlier the assurance of the Bill team, which the Minister repeated just now, that nothing in the statute prevents the prosecution of an authorising officer for misconduct in public office—for example, a corruptly obtained authorisation. She has also accepted that such immunity as provided by Section 27 of RIPA will be removed if an authorisation is found by a competent civil or criminal court to be either not necessary or not proportionate.

I propose to move these amendments on Wednesday, subject to one point on Amendment 37, the Scottish one. The Minister updated us on engagement with the Scottish Government during the first grouping. Were the Scottish Government to indicate before Wednesday’s debate that they would not recommend a legislative consent Motion, with the result that Scotland is carved out of the Bill, I would not wish to move Amendment 37.

[Lord Rosser (Lab) [V]]

Amendments 5 and 23, tabled by my noble friend Lord Dubs, provide for prior judicial oversight. They have the Opposition’s support. A criminal conduct authorisation would not have effect until approved by a judicial commissioner, unless it was urgent, in which case it would come into effect immediately but with the proviso that it must receive judicial approval within 48 hours.

Amendment 17 provides that, where a criminal conduct authorisation is granted, the Investigatory Powers Commissioner must be notified of certain details, including the purpose and extent of the deployment, before the CHIS can be deployed. In urgent cases, notification can be given afterwards—as soon as reasonably possible, but within seven days. We will support Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It provides a further form of prior oversight to help ensure that the criminal conduct authorisation will not be used in an inappropriate manner.

We support Amendment 33 in the lead name of the noble Lord, Lord Anderson of Ipswich, which provides that the Investigatory Powers Commissioner must be informed of an authorisation as soon as reasonably practicable, and within seven days at the latest. It also represents a significant improvement in the Bill, in which the noble Lord, Lord Anderson, has played a key role. It enables an effective and powerful independent and impartial check on the use of criminal conduct authorisations, which will help to ensure that the bodies being given the power to authorise criminal conduct by covert human intelligence sources use that power appropriately and lawfully, in the knowledge that they will be held to account, albeit probably afterwards, by the Investigatory Powers Commissioner.

Amendment 34 would make it explicit in the Bill that, if the Investigatory Powers Commissioner thinks an authorisation should not have been granted, the authorisation will be cancelled. We support that. However, there are benefits from prior independent oversight that post-notification oversight does not provide: namely, the opportunity to prevent something out of order occurring before it happens. Prior judicial consideration is about approving or otherwise beforehand what is said needs to happen, and why. Post authorisation, it is about what actually happened and why. Both forms of consideration are important.

The absence of prior independent scrutiny for criminal conduct authorisations under this Bill is not in line with procedures that apply to other investigatory functions, although I appreciate that it has been argued that these investigatory functions are not similar to the authorisation of a CCA. Police search warrants require a magistrate to be satisfied that there are objective reasonable grounds for them. Targeted interception of communications or phone tapping must be approved by the Secretary of State and authorised by a judicial commissioner before being carried out—a double lock which the Investigatory Powers Commissioner says ensures that all investigatory powers warrants issued are necessary, proportionate and lawful. The power to require telecommunications operators to retain communication data for investigatory purposes can be used by the Secretary of State but must be approved by a judicial commissioner.

If these requirements for prior judicial approval, including in some instances a double lock of independent scrutiny, are needed for search warrants, phone tapping and retention of data, surely they are even more necessary for the potentially more damaging human rights violations, including physical violence, that could arise from the authorisation of criminal conduct by a covert human intelligence source.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be

“proportionate to what is sought to be achieved”

and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.

The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.

Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.

I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.

In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,

“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]

Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

The noble and learned Lord told the Committee that new Section 29B was

“drafted to align with the existing Section 29”,

and that the amendment would

“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.]

it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.

The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.

Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be

“relied upon for as short a duration as possible.”

The power should remain “operationally workable”; I think four months fulfils that.

The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.

To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.

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

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

[Lord Thomas of Cwmgiedd (CB) [V]]

I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

Moved by

[Lord Anderson of Ipswich]

22: Clause 1, page 3, line 16, at end insert—
“( ) Notwithstanding section 27, injury sustained by any person shall not be excluded from the scope of the Schemes provided for by the Criminal Injuries Compensation Act 1985 and the Criminal Injuries Compensation (Northern Ireland) Order 2002 by virtue of the fact that the conduct causing such injury was authorised under this section.”Member’s explanatory statement
This amendment seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.

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

I beg to move and I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

33: After Clause 2, insert the following new Clause—
“Notification to a Judicial Commissioner
After section 32B of the Regulation of Investigatory Powers Act 2000 insert—<strong>“32C</strong> Notification of criminal conduct authorisations(1) This section applies where a person grants or cancels an authorisation under section 29B.(2) The person must give notice that the person has granted or cancelled the authorisation to a Judicial Commissioner.(3) A notice given for the purposes of subsection (2) must be given—(a) in writing as soon as reasonably practicable and, in any event, before the end of the period of 7 days beginning with the day after that on which the authorisation to which it relates is granted or, as the case may be, cancelled; and(b) in accordance with such arrangements made for the purposes of this paragraph by the Investigatory Powers Commissioner as are for the time being in force.(4) A notice under this section relating to the grant of an authorisation under section 29B must—(a) set out the grounds on which the person giving the notice believes that the requirements of section 29B(4) are satisfied in relation to the authorisation; and(b) specify the conduct that is authorised under section 29B by the authorisation.(5) Any notice that is required by this section to be given in writing may be given, instead, by being transmitted by electronic means.””Member’s explanatory statement
This new clause requires a person who grants or cancels a criminal conduct authorisation under new section 29B of the Regulation of Investigatory Powers Act 2000 to give notice to a Judicial Commissioner (appointed under the Investigatory Powers Act 2016). It provides for when and how the notice must be given and requires that it contains certain information. The references in the new clause to the grant of an authorisation include the renewal of an authorisation (see section 43(5) of the 2000 Act).

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

I beg to move.

Amendment 34 (to Amendment 33)

Moved by

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich [V]]

44: Schedule 2, page 9, line 9, at end insert—
“2A_ In the heading before section 32A (authorisations requiring judicial approval), after “approval” insert “or notification”.”Member’s explanatory statement
This amendment is in consequence of the new clause which inserts section 32C of the Regulation of Investigatory Powers Act 2000 on judicial notification.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich [V]]

46: Schedule 2, page 11, line 14, at end insert—
“Coronavirus Act 2020
15_(1) Sub-paragraph (2) applies to—(a) section 22 of the Coronavirus Act 2020 (appointment of temporary Judicial Commissioners),(b) regulation 3(1) of the Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020 (S.I. 2020/360), and(c) any appointment which was made under that regulation and has effect immediately before the coming into force of this paragraph.(2) In section 22(1), regulation 3(1) or the appointment, references to functions conferred on Judicial Commissioners by—(a) the Regulation of Investigatory Powers Act 2000,(b) the Regulation of Investigatory Powers (Scotland) Act 2000, and(c) the Investigatory Powers Act 2016,are to be read as including references to functions conferred on Judicial Commissioners by those Acts by virtue of amendments made by this Act.” Member’s explanatory statement
This amendment allows for functions conferred on Judicial Commissioners by virtue of the Bill to be performed by temporary Judicial Commissioners appointed under regulations made under section 22 of the Coronavirus Act 2020.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, noble Lords can imagine that there is a lot of legislation going through this House that I oppose. In the past, I have exercised restraint and have not been disruptive with procedural Motions, but there are times when we all need to make a stand, and this Bill, for me, is one of those situations. It is a terrible piece of legislation and I cannot be complicit in it, nor in future acts of state oppression that will be the result of our passing it, and I will, therefore, divide the House.

Noble Lords have spent many days trying to improve the Bill, and we have made a few positive steps, but even if the other place does not remove most of those amendments, the Bill is still so fundamentally flawed that it should not be allowed to pass. Scotland has had the sense to refuse the Bill and I wish that we would do the same. I was subject to police surveillance for more than a decade. I did not know about it, it did not affect me, and even when I found out, it really did not affect me very much—but others in your Lordships’ House were subject to similar but much worse surveillance, and many will not even know whether they were observed and under surveillance or not. The Bill does nothing to improve that situation; in fact, it will make things worse by granting total legal immunity to undercover officers, spies and informants.

There is also the fact that the Bill has been brought forward while the Undercover Policing Inquiry is still going on. Not far from here, that inquiry is hearing evidence about police infiltration of peaceful campaign groups and unions, and undercover officers forming sexual relationships with women. The Bill learns no lessons from that inquiry and does nothing to support the victims. It actually grants much broader legal immunity to the wrongdoers.

I am also concerned that I did not get a proper answer to my repeated questions about the proceeds of crimes authorised under the Bill. My conclusion is that the police will be able to authorise people to profit from criminal activities, and that there is no way for the state to recover those profits. I hope there will not be too many miscarriages of justice and abuses of power before we revisit and repeal this legislation. With all that in mind, I am sad that I am in a minority in opposing the Bill, but I cannot in conscience abstain and accept its passage. I beg to move.

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

My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.

This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.

I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.

I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.

Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.

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

My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.

Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.

I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was

“inappropriate to create an exception to the effect of criminal conduct authorisations.”

I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.

Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:

“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—


not whether any action should be taken, but what action should be taken, which implies that some action will be taken.

IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.

The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.

In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.

[Lord Paddick (LD) [V]]

My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this

“would place sources, and the wider public, at risk.”

As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.

Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.

What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.

The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.

To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.