Covert Human Intelligence Sources (Criminal Conduct) Bill

Report (1st Day)

Clause 1: Authorisation of criminal conduct

Amendment 1

1: Clause 1, page 1, leave out line 17 Member’s explanatory statement This amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.

My Lords, I shall be speaking to Amendments 1 and 2, which are linked. For the avoidance of doubt, I shall be pressing Amendment 1 and, if necessary, Amendment 2, but they are linked. They are for the purposes of removing the total criminal and civil immunity for undercover agents authorised under this measure and would replace that with public interest defences and public interest consideration.

This seems to me, first, to better reflect in the new statute the status quo in our law and practice, which was originally advanced publicly as the motivation for this legislation. Secondly, therefore, it seems to me to create a better, safer balance between, on the one hand, empowering undercover agents to protect their cover when engaging in very important life-saving undercover operations of a kind that we have heard about at length during the passage of the Bill—and, on the other, protecting all of us, especially wholly innocent citizens, from potentially grave crimes and abuses of power by undercover agents for many years into the future. I remind noble Lords that we are not just talking about intelligence and police officers; we are talking about a much larger number of agents of the state who are members of the community, including the criminal community, whose co-operation is, of course, sometimes rightly sought by state agencies.

At this point in the proceedings, I thank the Minister, the new Advocate-General for Scotland, who is not due to speak in this debate, for his wholly courteous engagement with these amendments, both publicly and privately. By doing so, I emphasise the importance of our ability to disagree well and in good faith with each other, in this Chamber at least.

I have been a student of constitutional law all my adult life, and, in particular, I am an admirer of attempts at embedding the rule of law in great old democracies such as the United Kingdom and the United States. I am sure that I am not alone in still feeling quite shaken by the scenes from the American Capitol last week. They demonstrate, to me, at least, that this is no time for complacency when it comes to democracy and the rule of law; it is no time for any complacency on either side of the Atlantic, even on the part of those public commentators who have said that no such scenes and grave abuses of executive power could ever transpire here. That is not a sensible position.

Why is that of particular concern? It is certainly not the status quo whereby people are administratively authorised to keep their cover and the fact that they were authorised would be taken into account by any police officer, prosecutor or court looking at this conduct after the fact. Why does the advance and total immunity go so much further and create such a danger? Well, it is because it will make such a difference to the ethical behaviour of the agent of the state in the heat of the moment. The difference between knowing that you are doing your best, doing right, doing it in the community interest and in an authorised fashion but none the less knowing that you will be held to account, or at least that your actions will be examined after the fact, is a very important ethical constraint on all of us, whether ordinary citizens or uniformed police officers, who, by the way, enjoy no such blanket immunity from the criminal law as is proposed here. It is a very important ethical constraint, and ultimately it is incredibly important, because most undercover agents and their criminal conduct will never see the light of day.

This is not just about criminal immunity, as others have described very eloquently. Civil immunity could deprive victims of criminal activity by these undercover agents. Under the legislation as I read it, something as simple as high-speed driving above and beyond the speed limit, causing death or serious injury to a completely innocent third party, would now lead to no civil liability whatever, which means no recompense for someone who was the victim of authorised conduct under this law. That is unnecessary collateral damage; it is collateral damage too far. Under current arrangements, that would be the case.

The Government, Ministers and noble Lords have yet to point to a single example under the current public interest-type approach of an authorised agent being prosecuted for just doing their job in the public interest. Not a single example has been presented in many hours of debate on this Bill, which begs the question as to why such a breath-taking advance immunity from civil liability or criminal sanction should be in place.

As I have said, Amendment 1 would remove the lawful-for-all-purposes total criminal and civil immunity from the measures in this Bill, and Amendment 2 would replace that blanket immunity with, in effect, a public interest defence, so that any police officer or prosecutor looking at the conduct of an authorised agent would see a de facto public interest presumption against prosecution if the person had clearly acted as authorised, necessarily and proportionately.

Under my amendments, if a rogue prosecutor ploughed on in any event, those public interest considerations would then be open to any court that found itself dealing with such dilemmas. As I have said, these cases just have not been brought. The Government are going too far in addressing a problem that simply does not exist. The only answers that I have ever heard as to why they need to go so far is for the purposes of certainty for these undercover agents committing crimes. But a little bit of uncertainty is a very important incentive to ethical conduct when dealing with what are potentially very serious crimes.

This Bill is very dangerous in its current form. It could be improved today, on Report, without doing harm to its overall scheme or to the underlying intention that Ministers have explained time and again. Amendments 1 and 2 are a very easy and simple way in which to improve the Bill. If we allow it to pass unamended today, with this total advance impunity for agents of the state, a great many of them from all sorts of agencies listed in the Bill, we will open the door to countless abuses of power and scandals in relation to criminality, and abuses of human rights, potentially for many years into the future. That is not something that your Lordships’ House ever wants to do lightly.

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

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

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

[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.]

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.