My Lords, it is a pleasure to open this debate. I am struck by the importance of the legislation on which I will make my first contribution to the House.
Before commencing, I wish to express my thanks to the House for the warm welcome I have received since taking up my appointment. I owe particular debts to my supporters, my noble friends Lady Goldie and Lord McInnes, for their good humour and encouragement; to Black Rod, Garter and the clerks of Parliament for their patience and tolerance; and to my noble friend Lord Courtown for his wise guidance in the customs and practices of this place. Your Lordships will, I hope, realise that, should I offend against these, the cause lies in my obtuseness rather than in my noble friend’s instruction.
I recognise that I am filling the place of my noble and learned friend Lord Keen of Elie. I am too new in this place to speak of his reputation here, but I can say that his high standing in our profession is a consequence not only of his matchless forensic skills but of the kindness and courtesy that he shows to all and the care with which he led the Scottish Bar as Dean of the Faculty of Advocates.
I hope I will not trespass further on the patience of the House if I take the opportunity given by my maiden speech to make some reference to myself and to the place from which I have taken my title: the village of Dirleton, in East Lothian. It is a place of great beauty. Moreover, there are aspects of its history and geography which may provide your Lordships with matter for reflection.
I know that many of your Lordships are familiar with the area. Some of your Lordships may have tested your skills against the famous golf courses which lie round about. There are other diversions too: yachting and skiff rowing from North Berwick around the islands just off the coast, which fired the imagination of the young Robert Louis Stevenson. The islands may be viewed from the fine beaches, looking across to the Kingdom of Fife at magnificent and ever-changing vistas of sea and sky.
All sorts of sporting clubs and associations of other sorts flourish. At the recreation ground and elsewhere in North Berwick, I played bowls, hockey, football, rugby, highland games, tennis and, not least, cricket—a sport which suffers in East Lothian not so much from want of enthusiasm among its players but from the shortness of the season and the unpredictability of the weather.
Dirleton lies in an area of rich, fertile soil, and we can anticipate that our farmers may soon be able to take advantage of new opportunities arising out of the implementation by this Government of their popular mandate. We can anticipate, too, that more boats may set out along the waters of the Firth of Forth to work fisheries which will be richer, better managed and replenished by the more directed and more sustainable management policies which the policy of this Government will allow to be established.
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Lord Rosser (Lab) [V]
I thank the noble and learned Lord, Lord Stewart of Dirleton, for his clear explanation of the content and purpose of the Bill. I congratulate him on this, in his fine maiden speech, which I know the House will have appreciated and enjoyed. The noble and learned Lord specialises in criminal law and has already had a distinguished legal career, being called to the Bar in 1993, appointed Queen’s Counsel in 2011 and, last month, being appointed Advocate-General for Scotland, succeeding the noble and learned Lord, Lord Keen of Elie.
The noble and learned Lord’s title is, as I said, Lord Stewart of Dirleton. Dirleton, near North Berwick, is, as he said, in one of the many beautiful and scenic parts of Scotland, by the coast and adjacent to one of the best-known golf courses in the world: Muirfield. I found his references to the village of Dirleton both interesting and moving.
The noble and learned Lord has joined the relatively small group who have made their maiden speech as a Minister at the Dispatch Box. We welcome him most warmly to this House and look forward to what I am sure will be many further thoughtful and compelling contributions from the Dispatch Box.
Security is a top priority for us. Our first responsibility is to keep this country and our citizens safe. We recognise the importance of our police and security services, including the National Crime Agency, and thank them for the vital work they undertake on our behalf. We also recognise the importance of covert human intelligence sources and the results they achieve. The director-general of MI5 has said:
“Since March 2017, MI5 and Counter-Terrorism Police have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.
In other words, this kind of activity and operation is saving lives by stopping terrorist attacks on our citizens.
The data available also indicates that in 2018, for example, covert human intelligence operations disrupted threats to life, led to the seizure of thousands of kilograms of class A drugs, safeguarded more than 200 vulnerable people, and took firearms and rounds of ammunition off the streets. Covert human intelligence operations also play a significant role in stemming and preventing vile crimes such as child sexual exploitation, and organised black markets in, for example, vital medicine.
The activity the Bill deals with is not new: it has been taking place under existing practices for years. The Bill provides the statutory footing and increased oversight that have so far been missing.
My Lords, I too welcome the noble and learned Lord to this House and congratulate him on his maiden speech and appointment as Advocate-General for Scotland. If noble Lords think that he has been put in to bat a little early, I can reassure him that I made my maiden speech the day after my introduction; needs must when the devil drives.
First, I should perhaps explain my experience on these issues. When I was in the police, we used to call most covert human intelligence sources “informants”, who were mainly criminals recruited and run by “handlers”. The way in which handlers used, rewarded and authorised informants to participate in crime was controlled by “controllers”. I used to be a controller. I also had the enormous privilege of visiting MI6 and GCHQ to be briefed on the work of all the security services as part of this House’s consideration of the then Investigatory Powers Bill, including examples of who their CHIS were and how they were recruited and used.
Secondly, I came to my own conclusions about this Bill, having read the Investigatory Powers Tribunal judgment dated 20 December 2019 that prompted it. I am grateful for the briefings from Justice, Reprieve and the NUJ, among others, some of which I agree with and other aspects I do not.
There are two fundamental issues in the Bill on which the Government have, to date, not been as clear as they could be. The first is that it is not just about one issue, and it certainly does not simply maintain the status quo, as the Government have suggested. The reason for the Bill is to give absolute legal clarity that handlers can authorise their covert human intelligence sources to participate in crime. They have been doing that with little difficulty for decades but the Investigatory Powers Tribunal’s split decision called into question whether there was any legal authority for the police and the security services to authorise CHIS to commit crime. If providing that legal authority was all that the Bill did, it would maintain the status quo and I would have no argument with it.
My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.
The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.
As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.
No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.
Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,
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Lord Mackay of Clashfern (Con) [V]
My Lords, I warmly welcome the noble and learned Lord, Lord Stewart of Dirleton, to his office and to his place in this House. We are both members of the Faculty of Advocates, and I am delighted by his present appointment. I am unable to comment on the full state of his speech because I gather that some parts of it were constrained, but I congratulate him warmly on that passage which was his own, and which, as has been said, contained some very moving matters relating to the village of Dirleton, which I know well. I look forward to many contributions from him in this House, and hope and pray that he enjoys his tenure here.
It is with a certain amount of nostalgia that I take part in this Second Reading. In 1992, I was responsible for the first reference in Parliament to a Bill concerning the security and intelligence services, on the invitation of my good friend Lord Hurd of Westwell. I am very sorry that for a long time he has been unable to participate in the business of this House.
I have tried to look at this matter in a somewhat theoretical way, and I entirely accept that much must be discussed in Committee, but it is clear that criminal organisations depend for their success on elaborate machinations, which they strongly endeavour to keep secret. To overcome this secrecy, the forces of law and order have found it necessary to enable covert human representatives to infiltrate these machinations, or to participate in them, thus appearing to breach criminal law.
Apart from a few statutory offences, our criminal law requires, as an essential to conviction, that the accused is motivated by a criminal intention. It is clear that a covert representative of law and order has no such motivation and, therefore, is not guilty of a criminal offence when he or she infiltrates or participates in a criminal operation for the pure purpose of investigating or bringing it to conclusion. Again, it is clear that such an activity may involve danger, and it is obviously right that he or she should not face, as an additional danger, a risk of prosecution. This Bill is a clear and systematic way of obviating that risk—even in a case where the statute which is relevant to the operation does not require a criminal intention for its breach. I support this Bill wholeheartedly, subject to the many detailed considerations already mentioned by your Lordships, which I certainly agree should be thoroughly considered. My point is that, if the real intention of the convert human intelligence is for the purpose of investigating and stopping the criminal activity concerned, they do not have a criminal intention.
My Lords, I too would like to welcome the noble and learned Minister to the House and to his new role. Not many find their maiden speech to be that of introducing a Bill to the House, and I congratulate him on the necessarily blended speech.
I welcome the Government’s move to provide a statutory basis for covert human intelligence sources to participate in criminal conduct, where it is necessary and proportionate to do so for a limited set of specified purposes. We recognise the heavy duty placed on government to protect its citizens, and this Bill is a necessary step so that those undertaking these activities with a view to protecting the public can be clear in their status and duties.
However, while welcoming the intent behind this Bill, I am concerned that safeguards should be properly scrutinised, in particular when they concern the treatment of children. Sadly, we know that children are used and abused in evils such as county lines, child sexual abuse and other serious crimes. In facing these, there is an understandable temptation, however small, to make use of children as assets for the forces of law and order. We should never lose sight of the fact this places and keeps children in situations of harm and of increased risk. The primary concern must always be that, when children find themselves in vulnerable situations, we look after them as children first and foremost rather than assets for fighting organised crime. We must guard against the temptation to undermine that essential principle in the pursuit of security. Regardless of the children’s age—I note that they are usually 15, 16 and 17 and few in number—we must still treat them as legally children. They are not to be used and must be protected.
Therefore, how can using a child as a CHIS and in doing so placing them at greater risk of harm ever be in their best interest? Allowing these children to act illegally only worsens this. It is preferable for children never to be used. I am confident that the majority of noble Lords would agree, including the Minister. However, I recognise that there may be rare instances in which children are being used. If this is to be the case, then fixed protections need to be put in place. Although there are guidelines in the code of practice for children used as CHIS, this requirement should be made statutory so that there is sufficient legal weight. Vague phrases like “exceptional circumstances” must be met with explanation and guidance rather than leaving it open for interpretation and even manipulation.
My Lords, I too welcome the Minister to this House. To declare an interest, I am what is described as a “non-police, non-state core participant” in the Undercover Policing Inquiry, and I am due to give evidence early next year. I was targeted by undercover officers for some 30 years, including when I was an MP. But what troubles me most are the clear abuses practised by undercover officers involving people I know well.
Ecological activist Kate Wilson is not a criminal. She is a principled radical activist. She was at primary school in London with my two sons. Our families shared holidays and often visited each other’s homes. She was targeted by undercover officer Mark Kennedy, who formed an intimate and what she described afterwards as abusive relationship with her over seven years. He even reported back to his superiors on contacts with my family when I was a Cabinet Minister. Why were police targeting Kate instead of drug barons, human traffickers, criminals and terrorists?
Doreen Lawrence, now my noble friend Lady Lawrence, was a law-abiding citizen when her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder?
Undercover officers attended anti-apartheid meetings in my parents’ living room from 1969 through the early 1970s and reported back that I was a speaker at anti-racist meetings when I was an MP in the early 1990s. Why were they not targeting those responsible for, among other things, crimes in London of fire bombing and murder by the oppressive actions of the apartheid state? Why did they show no interest whatsoever in discovering who in South Africa’s Bureau of State Security was responsible for sending me a letter bomb in June 1972 capable of blowing my family and our south-west London home to smithereens were it not for a technical fault in the trigger mechanism?
My Lords, speaking from Berwick-upon-Tweed, it is a pleasure to welcome the noble and learned Lord, Lord Stewart, from just up the road in Dirleton. I wish him well in the House.
My interest in this Bill is as a former member of the Intelligence and Security Committee. I am in no doubt at all that human intelligence continues to be essential in preventing terrorist attacks, disrupting violent criminal gangs and tracking down prolific sex offenders. I also accept that law-breaking is inevitably a feature of some of those from whom we get human intelligence. In my mind, there is a distinction to be drawn—the noble Lord, Lord Hain, touched on this—between two different kinds of sources. One is described by intelligence services as an “agent” but, as my noble friend pointed out, by police as an “informant”. This is usually a person already involved in a terrorist, criminal or hostile state activity who has turned, induced to give information that may save lives, but they cannot retain their cover among people involved in that activity if they refuse to participate in anything that is against the law.
The other scenario is the undercover police officer who is sent to infiltrate an organisation but is still accountable to the police force for his or her actions. The noble Lord, Lord Hain, pointed to some of the dangers that arise from the misuse of that sometimes necessary process. However, all these activities require some legislative basis. A nod and a wink that, if the intelligence is good, they might not be prosecuted is not adequate, but a general immunity also presents problems, as my noble friend Lord Paddick made clear. Therefore, the Bill is necessary, but it requires further scrutiny and amendment to deal with some of the issues in it, and I want to pick out some of the main concerns.
First, there is a strong case for prior authorisation by a judge of all but the most urgent cases. If it is needed for interception or for a simple search warrant, how much more is it needed for a criminal act—perhaps a serious criminal act?
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The village of Dirleton features the castle—set in beautifully landscaped grounds—a village green, a primary school and two hotels, where visitors may regain their strength ahead of more sightseeing. The parish church in Dirleton dates from the 17th century. Inside is a list of the names of those of the parish who fell in two world wars. The church is set in surroundings of especial beauty, north of the village green and north of another smaller green, on which stands the war memorial where, again, the names of those who fell are inscribed.
This 11th day of the 11th month brings to mind those names on the war memorial, so familiar to me from their being called over at Remembrance Sundays. Some are the names of families who flourish in East Lothian to this day. But today calls to mind also those others who lie in the churchyard and the cemetery on the way out of the village—names from the rest of the United Kingdom, the Commonwealth and allied countries. Those graves remind us of service and sacrifice in a common cause to preserve our institutions and to keep alive our common hope for a brighter future. We will remember that the sacrifice in that common cause continued after those great wars were brought to an end, and continues today—sacrifice of life, of mental health and of emotional well-being.
Watching the business of the House and the range of expertise and experience your Lordships bring to the scrutiny of that business, I am conscious of the honour done to me by admission to your number. I am conscious, too, that I have no family history of service in this place, as do some of your Lordships, and that I have been appointed to my place, whereas many of your Lordships come here after having sought and won popular mandates from electors, whether in local or devolved government or in the other place. But I seek to assure your Lordships that in my role as law officer, I will seek not only to uphold the law but to try to maintain the spirit and traditions of your Lordships’ House.
The legislation we bring forward is a necessary piece of legislation; it will ensure that our intelligence agencies, law enforcement bodies and those public authorities that also have vital investigative functions are able to continue to deploy tools they need to keep us safe from harm and to prevent serious crime. The recent incidents in Nice and Vienna, and the increase in the threat level here in the UK, show that the need for robust tools with which to tackle terrorism remains as important as ever.
Covert human intelligence sources—I will use the convenient, if inelegant, acronym, CHIS—are agents: undercover officers who help to secure prosecutions by infiltrating criminal and terrorist groups. This technique has been used to disrupt terrorist plots, including one by Zakariyah Rahman against the then Prime Minister in 2017; drugs offences, including enabling the largest ever seizure of heroin destined for the United Kingdom in 2019; and child sexual exploitation and abuse, including attempts by individuals to take indecent images of children.
It is appropriate to reflect today on the role that our intelligence agencies play in war and conflict. A notable success of the intelligence agencies was the discovery and arrest of German spies in the United Kingdom at the outbreak of hostilities in 1914—a success built on the effective use of what we now call CHIS, alongside other techniques. The courage and ingenuity of the double-cross network, a CHIS network which did much to protect allied lives in the Second World War, often at grave cost, comes to mind also as we pause to remember today.
In order to build credibility and the trust of those under investigation, there are occasions where CHIS may need to participate in criminality themselves. This is an inescapable feature of CHIS use. Without this, it would not be possible to utilise CHIS as an intelligence tactic. The Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to ensure that there is a clear and consistent statutory basis to authorise participation in conduct which could otherwise be criminal, where this is necessary and proportionate to what is sought to be achieved. Let me say at the outset that the purpose of this Bill is not to extend the range of activity which public authorities are able to authorise—the Bill does not do this.
The Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes. I recognise that this is a departure from the existing approach, whereby authorised criminality can still be considered for prosecution by the prosecution services. This approach is a deliberate policy decision. It aligns with other investigatory powers and the approach taken elsewhere in RIPA, including other CHIS authorisations. It also provides greater certainty for CHIS that they will not be prosecuted for activity the state has asked them to commit. We think it is right and fair to provide this certainty, and it may also help to recruit and retain CHIS in the future and maximise the intelligence we can gather through this technique.
Of course, this is not a blanket immunity from any criminal prosecution. Criminal conduct authorisations are tightly bound with strict parameters which are clearly communicated to the CHIS. A CHIS will never be given authority to participate in all or any criminality and were they to engage in criminality beyond their authorisation they could be prosecuted in the usual way.
While it is right to provide this certainty to CHIS and to their handlers, it is of course important—vital—that this is subject to robust and independent safeguards. Let me briefly set out how the Bill ensures this.
All authorisations are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. Authorising officers have clear and detailed guidance that they must follow in deciding whether to grant an authorisation. We have published draft updates to the code of practice alongside this Bill that sets out some of that detail. I encourage all noble Lords to read that. The updates to the code will be subject to a full consultation and debate in both Houses in due course.
Authorisations are then subject to robust, independent oversight by the Investigatory Powers Commissioner—the IPC—who conducts regular and thorough inspections of all public authorities and publishes an annual report of his findings. The IPC sets the frequency of these inspections himself, and public authorities must provide unfettered access to documents and information. The IPC will report on the use of criminal conduct authorisations in his annual report, and this will identify any errors, provide statistics on the use of the tactic and may identify whether there are any training needs. Public authorities must take steps to implement recommendations given by the Investigatory Powers Commissioner’s Office—IPCO—with progress assessed at the next inspection. The IPC also has powers to provide independent remedy; for instance, to inform a person if they have been the subject of a serious error, or to refer a matter to the independent Investigatory Powers Tribunal.
I know that some will think that we need to enhance the role of the IPC in this process. The Government are committed to ensuring that there is robust oversight of criminal conduct authorisations, but that this is not at the expense of ensuring that the tactic remains operationally workable and reflects the live and complex human elements of CHIS, which we do not see in our other investigatory powers. For this reason, we do not think that prior judicial approval is appropriate for this tactic and believe that the authorising role best sits with the highly trained authorising officer within the public authority, as it does at present. The authorising officer will be able to consider the necessity and proportionality of the conduct, but will also consider the safety of the CHIS and the human element of the specific situation. The IPC then provides an important retrospective oversight function, which I have set out.
I want also to draw attention to the additional safeguards in place for vulnerable individuals and juveniles. These safeguards are clearly set out in the CHIS code of practice. It makes clear, for example, that juveniles or those who are vulnerable are authorised as CHIS only in exceptional circumstances. However, there may be occasions when these individuals are able to provide intelligence to disrupt criminal groups. I know that might sound uncomfortable, but it might be necessary to stop criminal groups continuing to exploit those individuals and prevent anyone else being drawn into them. In these instances, significant additional safeguards are in place to ensure that the best interests of the juvenile are a primary consideration in all operations. Those are set out in detail in the code of practice, which has legal force and includes a requirement for an appropriate adult to be present at all meetings where a CHIS is under the age of 16 and to be considered for 16 and 17 year-olds, and the rationale documented if an appropriate adult is not present.
I turn briefly to the upper limits of conduct that can be authorised. These are contained in the Human Rights Act 1998. It is unlawful for any public authority to act in a way incompatible with the European Convention on Human Rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. We have not drawn up a list of specific crimes that may be authorised or prohibited as to do so would place into the hands of criminals, terrorists and hostile states a means of identifying a CHIS, creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public. We have taken this approach in response to a detailed assessment of the specific threats we face in this country. No two countries face the same threat picture or, indeed, have identical legal systems. In particular, we must consider the specific counterterrorist effort in Northern Ireland. However, through the safeguards and the independent oversight that sits alongside an authorisation, there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations or, indeed, activity that is not necessary or proportionate.
Let me, finally, just pause on the list of public authorities that can authorise this activity. The number of public authorities able to authorise this conduct has been restricted from those that can authorise the use and conduct of CHIS generally. We expect wider public authorities to be low-volume users of this power because an authorisation can be granted only where it is necessary and proportionate to what is sought to be achieved. However, there will be occasions where CHIS play a critical role in providing the intelligence needed for these wider public authorities to identify and prevent criminal activity. These authorisations will be subject to the same safeguards and independent oversight I have already outlined, including by the Investigatory Powers Commissioner. We have published case studies that give examples of the use of this tactic by wider public authorities. I give the example of where the Food Standards Agency may authorise a CHIS to participate in criminal conduct. This may relate to the relabelling of produce to misrepresent its quality and fitness for consumption. Those are criminal offences, but by authorising a CHIS to participate in this activity the Food Standards Agency might be able to gather intelligence to seize unfit produce and identify those responsible for the fraudulent activity.
It has been a pleasure to make my maiden remarks on this issue. I am of the strong view that this Bill is both necessary to ensure that our operational agencies are able to keep us safe, and welcome in that it provides legal clarity through an express power and sets out the robust safeguards to ensure that an authorisation is tightly bound, necessary and proportionate. CHIS do a difficult and important job in providing intelligence that other investigatory tools cannot access. This Bill provides certainty that operational agencies can continue to utilise this tactic and that they are able to best ensure that they keep us all safe. I beg to move.
It is well understood that in order to achieve their objective of protecting our citizens from acts of terrorism and vulnerable people from other awful crimes, covert human intelligence sources may need to commit criminal conduct. Being embedded in a proscribed organisation is, of course, an offence in itself. Such activity must be tightly controlled, but it is necessary to achieve the successful infiltration of the activities of criminal and terrorist organisations and networks to gather intelligence and to thwart or bring an end to their activities.
This vital and necessary activity cannot continue in the shadows without boundaries and safeguards. We acknowledge the importance and necessity of putting covert human intelligence sources activity on a proper statutory footing, and we strongly support that aim. This is not the first piece of legislation that brings activities that have been going on in the shadows into a statutory and regulated framework. The Investigatory Powers Act 2016 had a similar purpose in relation to surveillance and phone tapping, and the Bribery Act 2010 also provided for the authorisation of criminal acts in pursuit of those involved in crimes covered by the terms of that Act.
The crucial issues for this Bill are those of safeguards and oversight. We will be pushing to introduce proper oversight, increased scrutiny and further legal protections into the Bill. The question of safeguards and checks on activity of this kind is a serious issue for any democratic society. It is vital, too, that there is public confidence in how our security services and other agencies that use covert human intelligence sources are exercising the power of authorised criminal conduct.
We also have to be clear about what we expect of those engaged in covert human intelligence activity, the standards we should set and how we expect them to be implemented. We recognise that the Human Rights Act is mentioned on the face of the Bill, and that no authorisation should be made in contravention of the European Convention on Human Rights. The accompanying memorandum to the Bill states:
“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”
We will, however, be pressing the Government to go further and will be tabling an amendment, based on the Canada model, to put explicit limits on what can be authorised by placing protections against the most serious crimes, including murder, torture, and sexual violence, in the Bill.
The Government need to make it clear beyond any doubt that the activities of covert human intelligence sources under this Bill are not, and will not ever be, free from Human Rights Act considerations and that there will not be any deliberate attempts to prevent the Human Rights Act from coming into play.
We will be seeking to strengthen both prior and post-authorisation oversight. As it stands, the Bill provides for self-authorisation by an agency of criminal conduct. There is no need to obtain a warrant, for example, beforehand. I am conscious of what the noble and learned Lord said, but we have areas of law at present where judges are available 24 hours a day, and we will pursue the issue of prior judicial oversight in respect of this Bill.
As drafted, the Bill requires the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in the annual report, including statistics on the use of the power, the operation of safeguards and errors.
It is not sufficient for this somewhat vague requirement to be on an annual basis. Every authorisation should be notified to the commissioner within a few days, and the Intelligence and Security Committee should have more detail about the use of the powers under the Bill, and in what context, if there is to be meaningful reassurance to the public on the operation of safeguards and the use of the powers. We will be tabling amendments on these issues.
The Bill provides that authorisations for participation in criminal conduct may be granted only if it is necessary in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom. We need to have clarity about what is within the scope of that framework of the necessity criteria, which cannot and should not encompass any lawful activity, including legitimate trade union activity. We will be pursuing this issue in Committee.
There is also a proportionality test in respect of authorisations for participation in criminal conduct. What must be considered before deciding if an authorisation would be proportionate is covered in the code of practice. There is a question, however, of whether those required considerations should not be strengthened by being written into the Bill—a point that might be relevant to other parts of the code of practice.
On the impact of the Bill on those affected by it, we will be pursuing the issue of the safety of juveniles and vulnerable people acting as covert human intelligence sources. We will also want to be satisfied that there are measures in place to prevent a disproportionate gendered impact, or impact on black, Asian and ethnic-minority communities, of the use of the powers under the Bill.
The issue of a route for redress and civil claims for wholly innocent victims is one we will also be raising in Committee. While those most likely to be affected by the criminal conduct of a covert human intelligence source are those with whom an agent is engaging in order to thwart criminality, there will inevitably be occasions when a wholly innocent person ends up with a material loss as a consequence of the actions of a covert human intelligence source. In addition, we will also want to be satisfied of the necessity for the non-security agencies covered by the Bill to have the power to authorise criminal conduct by covert human intelligence sources.
This is not a retrospective Bill but it has to be made clear that those seeking justice for what has happened in the past can still do so. There is an ongoing inquiry into undercover policing chaired by Sir John Mitting. Its recommendations should be implemented and victims should not be denied access to justice. Likewise, we are committed to a full independent public inquiry into the events at the Orgreave coking plant in June 1984. There are also outstanding issues in relation to the unlawful blacklisting scandal and the finding of the Metropolitan Police’s internal investigation that,
“on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven’.”
The kind of powers that the Bill covers and their use need to be on the statute book and not, as now, be powers in the shadows.
We are committed to keeping our people and our country safe. To deliver that, law enforcement bodies and our security services have to be able to carry out their vital and necessary work, which includes the activities of covert human intelligence sources and the authorisation of criminal conduct to which the Bill relates. We are mindful that public confidence in our law enforcement and security agencies is dependent on their proven ability to protect us from acts of terrorism and other vile crimes
We will be seeking to improve the Bill, particularly on the vital issue of strengthening safeguards and oversight so that the public can also have full confidence in the covert human intelligence process and how it is being implemented, including the manner and purpose for which the powers are being used on behalf of all of us.
Of course there are peripheral issues that the Bill provides an opportunity for us to address, but on providing legal authority for participating informants, as we used to call them, or criminal conduct authorities as they are now called, there is no argument and I will support the Bill in that respect.
The Bill, however, goes much further—unacceptably far—and makes everything that the covert human intelligence source is authorised to do by the criminal conduct authority “lawful for all purposes”, including immunity from civil liability, and including any conduct that is incidental to what CHIS are authorised to do. For example, had the Bill been in force at the time, the undercover police officer who was authorised to form a relationship with an environmental activist could have argued that sleeping with her was “incidental to” what he had been authorised to do, and that he therefore could not be sued.
The status quo is the following: the Crown Prosecution Service examines what happens in such cases after the event, and independently decides whether a crime has been committed, whether there is a 51% or more chance of conviction, and whether prosecution is in the public interest. Rarely—the Government’s position is never—does the Director of Public Prosecutions grant immunity to a CHIS prior to the event. To date, the status quo has rarely, if ever, caused any problems. It has been put to me that the status quo does cause problems, in that sometimes, when a handler asks an informant to participate in crime, the criminal concerned backs away because they want a promise of immunity in writing, and the handler cannot give it. We need to examine carefully and in detail whether such a cast-iron guarantee is necessary or desirable.
This Bill as drafted would allow a police officer or member of the security services, with no independent judicial oversight, to grant total immunity to a criminal to participate in an armed robbery, for example. Rarely, if ever, would immunity not be given prior to the CHIS being asked to participate in crime—a complete reversal of the status quo. At the moment, the CPS almost always decides that it is not in the public interest to prosecute in such cases, but the Bill makes anything done in accordance with a criminal conduct authority not a crime. What is in law a criminal act becomes a lawful act for the person authorised that would no longer rest on the public interest test. This is not preserving the status quo by any stretch of the imagination.
The Government will tell us that that is akin to granting immunity to those involved in the interception of communications and, indeed, immunity is to be provided by the same section of the same Act that makes properly authorised communications interception “legal for all purposes”. However, interception of communications has to be authorised by a Minister of State in advance, having already been approved by an Investigatory Powers Commissioner against someone suspected of the most serious criminality.
However, under this Act, authorising a criminal to take part in an armed robbery, in which innocent people could be seriously injured, will not be done in advance by anyone outside the police. Even officials in the Home Office, potentially on instruction from government Ministers, could otherwise grant immunity to someone to commit crime, with no prior judicial oversight and little post-event scrutiny. Is that what we want?
The second major issue about which the Government have not been clear is who these covert human intelligence sources are. In their briefings, the Government have placed the emphasis on CHIS being undercover police officers or officers of the security services working undercover. The majority of covert human intelligence sources are criminals, members of terrorist organisations and drug gangs, or those inside other organisations that the police or security services have a legitimate interest in. This legislation, as drafted, will predominantly protect criminals, not undercover cops.
Other safeguards are needed, such as to prevent CHIS from acting as agent provocateurs and to protect child CHIS. We must carefully scrutinise which authorities can grant immunity. Other matters, considered in the other place and recommended by NGOs, such as prior authorisation and limitations on what crimes can be authorised, would be necessary only if the immunity provision remains part of the Bill. It should not remain part of the Bill. This is not a party-political issue; this is a rule of law issue. We have a lot of work to do.
“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”
I agree.
I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.
I look forward to Committee, which promises improvement of an already very welcome Bill.
We trust our law enforcement agencies to act within the law, but we must protect them from themselves when the temptation arises to use children for what appears a greater good. It is unfair on those agencies not to provide clear legal parameters by which they must operate. Let us not settle for compromising the safety of children for the pursuit of a safer nation, for is it not for those very vulnerable children for whom we seek to create this safer nation? If on rare occasions children are to be used as covert human intelligence sources, there must be clear and meaningful safeguards set out in statute. I will be looking in Committee to support amendments in this space.
In each of these cases, the police were on the wrong side of justice, on the wrong side of the law and on the wrong side of history: infiltrating the family of a climate change activist instead of helping combat climate change; covering up for a racist murder instead of catching the murderers; harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom instead of pursuing crimes by the apartheid state.
Fortunately, Kate Wilson’s early eco-activism helped make climate change an international treaty. We stopped the 1970 all-white South African cricket tour; we helped bring down apartheid; and Nelson Mandela went on to be elected President. The Anti-Nazi League, of which I was a founding national officer, succeeded in destroying the fascist, racist National Front. But why were undercover police officers trying to disrupt us, diverting precious police resources away from catching real criminals?
However, perhaps I differ from other core participants in the inquiry because I do believe there can be a need for undercover officers. When I was Secretary of State for Northern Ireland from 2005 to 2007, I met undercover officers doing brave work trying to prevent dissident IRA splinter groups from killing and bombing. I also signed surveillance warrants to prevent Islamist terrorists bombing London and was aware of vital undercover work around their cells.
But where to draw the line—if indeed, it is possible to do so? How do you stop that sort of legitimate undercover police or intelligence work sliding over into the illegitimate? Counterterrorism police recently putting non-violent Extinction Rebellion on their list of terrorist groups hardly inspires confidence. Why does this Bill not even begin to answer any of these key questions?
Secondly, I am unhappy with the range of organisations in the list. If we have to include bodies such as the Food Standards Agency, which sometimes has a need for human intelligence, then ought they not to have to refer to the police and get authorisation from them or from some other external body? The authorising process is so far from the central nature of their activities that it does not seem to me a satisfactory basis for their inclusion.
Thirdly, I have long had concerns about the term “economic well-being”, which features in the Bill. It is very familiar in intelligence legislation but I do not know of a case in which a court has had to define it. It could include so many things: it can include a systemic threat to our banking and financial system but it can also include a major industrial contract that could account for a lot of jobs in Britain, even perhaps a bid for a major international event to be held here. Where do we draw the line? There is too much uncertainty around that.
My fourth point is that, as well as the Investigatory Powers Commissioner, I would want the Intelligence and Security Committee of Parliament to review on a continuing basis the ways in which these powers are used. It should not be prevented from doing so by an insistence that the issues raised by this work are strictly operational. They are not; they include moral and ethical issues that require parliamentary scrutiny in a secure form, which is what the ISC is for.
I have one final plea. This Bill is a rewrite of RIPA 2000 and the Scottish equivalent legislation. You cannot understand it without a copy of RIPA beside you, so it makes an obvious claim for consolidation as soon as possible. The law really has to be readable and intelligible to those who have to enforce and live by it.