Covert Human Intelligence Sources (Criminal Conduct) Bill

Committee (1st Day)

Clause 1: Authorisation of criminal conduct

Amendment 1

1: Clause 1, page 1, line 10, leave out “in the course of, or otherwise in connection with, the conduct of” and insert “by” Member’s explanatory statement This amendment is to probe why the criminal conduct cannot be described more simply; and how close must the connection be in order to fall within section 26.

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.

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: 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.

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

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

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

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

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

My Lords, I am going to speak quite a lot of times today. I do not really want to apologise for that, but I do want to explain it: I have been interested in this particular area of policing for more than a decade, ever since I found out that the Metropolitan Police was actually spying on me, tracking my movements and reporting back on what I was doing. At the time, I was an elected councillor in Southwark, an elected Assembly Member and, for a year of that time, I was Deputy Mayor of London—when there was only one Deputy Mayor of London, not all these other deputy mayors. At the time, I think I was quite naive about the fact that the police did this sort of thing. When I got into it, of course, it became obvious that they do quite a lot of it.

The spy cops inquiry that is happening at this moment—actually, it is not happening at this moment, it is taking a break, but it will be happening again in 2021—has made it obvious that there are huge problems with this area of policing. This Bill does not solve them, and in fact it goes further—it makes more problems than it might be said to solve. I did try to be a core participant in the spy cops inquiry, but the judge at the time ruled that, because I had been spied on by the ordinary police, not by undercover police, I did not qualify. That was obviously a matter of huge sadness to me.

I congratulate the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, on tabling these amendments, because they are, I would say, quite necessary. For example, the language is quite confusing. I am going to say it in my own words, because we have had some very good lawyerly comments on this, but I thought I should say it in the way that I see it. These amendments would replace

“in the course of, or otherwise in connection with, the conduct of”

a covert human intelligence source, or a police spy, with the word “by” a police spy. These are important amendments to probe how tightly or loosely criminal conduct can be authorised. The Minister needs to give a clear and thorough explanation of the intention behind the words

My Lords, I rather wish this Bill were called the “Authorised Criminal Conduct Bill”. I find it very difficult to get my mouth around this very cumbersome title, and I utterly loathe the term “CHIS”. I wonder if my noble and learned friend who will reply could earn himself undying gratitude from those of us who care about the English language by coming up with something else.

These are probing amendments, and they seek essentially one thing: clarity. The noble Baroness, Lady Hamwee, made that very plain in her admirably brief introduction to this short debate. Clarity is of such importance when we are swimming in such murky waters and dealing with such very questionable matters.

The noble Lord, Lord Anderson of Ipswich, said that he felt the matter of retrospection had probably been dealt with by the remarks of, I think, the Solicitor-General in another place. But there is still a certain lurking doubt, and it would therefore be good to put something on the face of the Bill while it is in your Lordships’ House to make it plain beyond any peradventure that retrospective authorisation is not possible.

I do not want to detain the House any longer, but clarity, I would emphasise, is what we are after here.

My Lords, I can be very brief, because others have put the point so well and also because of the next debate to follow. I would simply say that this degree of micro-precision becomes particularly important because the Bill goes further than the status quo and creates these advanced criminal and civil immunities. I will leave it at that, because I think we are all really quite keen to hear the Minister’s response.

As drafted, the Bill refers to criminal conduct as conduct

“in the course of, or otherwise in connection with”

the conduct of a covert human intelligence source, and as

“conduct by or in relation to the person”

who is specified as the covert human intelligence source. As has been said, the amendments would establish that criminal conduct is conduct by the covert human intelligence source in the absence of any explanation as to why the additional words to which I have referred are needed, and what the consequences would be, and for whom, if they were not in the Bill. A further amendment in this group also puts on the face of the Bill that a criminal conduct authorisation cannot retrospectively give clearance for behaviour that has already happened before the date the authorisation is given.

The Joint Committee on Human Rights also raised these issues in its report on the Bill when it said that the definition of what amounts to “criminal conduct” for the purpose of an authorisation is wider than simply criminal activity by a covert human intelligence source, and referred to the wording which the amendments in this group would delete. The only explanation for this which the Joint Committee on Human Rights could find was in the draft code of practice, which states that

“a criminal conduct authorisation may authorise conduct by someone else ‘in relation to’ a

covert human intelligence source,

“namely those within a public authority that are involved in or affected by the authorisation.”

No doubt the Government will wish to respond in some detail setting out why the words “in connection with” and “in relation to” are essential, what exactly they mean and, giving examples, explaining why it is considered necessary to enable a public authority to authorise criminal conduct by someone other than the covert human intelligence source, which some might feel is rather at odds with the title of the Bill.

My Lords, having made my maiden remarks at Second Reading, it is a pleasure now to assist the House in scrutinising the detail of this legislation. I hope to reassure noble Lords with regard to the scope, safeguards and limits to conduct that can be authorised under a criminal conduct authorisation. I recognise the feeling of the House on the last appearance of the Bill as a recognition of the complexities and difficulties which attach to this field of criminal investigation.

With regard to the remarks by my noble friend Lord Cormack, he will perhaps recollect that when I spoke at Second Reading I recognised the inelegance of the expression “CHIS”, and I fully share his concerns about it. However, until such time as we have evolved a suitable replacement, if that is possible, I trust I will not trespass on his patience if I continue to use the expression.

The Bill is drafted to allow things to be authorised which are certainly connected to the conduct of the CHIS but not the same thing as it: actions which are connected to the activities of the CHIS but which are not the CHIS activities themselves. This is deliberate and it is to allow for activity which facilitates and supports the core conduct of the CHIS, most obviously to allow the CHIS to avoid detection in order to remain in place and to provide the intelligence needed. The purpose of the expressions “in connection with” and “in relation to” is to ensure that such activity may be authorised. This language also serves the function of ensuring that the scope of a criminal conduct authorisation is properly limited. It helps to make it clear that it is not the case that any and all criminality by a CHIS may be authorised. It cannot be some private venture that the CHIS has involved himself or herself in. The criminal conduct to be authorised must be connected to the conduct of a CHIS and to the criminal conduct authority.

I will provide an example of circumstances where an authorisation may be “in connection with” the conduct of a CHIS, to use the expression in the Bill. This relates to the membership of a terrorist organisation. As discussed in the House at Second Reading, in order to operate CHIS in terrorist organisations, they often need to be members of those organisations. Being a member of such an organisation is connected to the conduct of a CHIS but is not necessarily the same thing. With regard to