Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

The Government are therefore asked once again to reconsider this SI and to include within it express statutory limits on the kind of criminal action that can be authorised. It is of course accepted that the mandatory application of finer points of the law in the potential context of immediate and present danger is a step too far. However, murder and torture are extremely serious crimes and as such need to be expressly forbidden. Furthermore, the fact that the phrase in question in this statutory instrument is left open, without express limits in the main Act, surely conveys the message that both murder and torture are, under certain circumstances, acceptable.

I welcomed the CHIS Act in so far as it placed the process of authorising criminal conduct on a statutory footing, as I said. However, a clearly stated prohibition under any circumstances of murder and/or torture would further assist in clarifying the operational environment and ensure that the UK upholds human rights laws. I beg to move.

What is within the scope of this order, and what we do regret, is the authority level of the officer—particularly in the police—who can authorise an agent or informant to commit crime. In urgent cases this can be a police inspector. I was a police inspector at the age of 24. The Government may say that only specially trained inspectors can authorise the deployment of CHISs and that this will be written into the CHIS code of practice, but my understanding is that that is not contained in either primary or secondary legislation. Can the Minister confirm that it would not be unlawful for any police inspector to grant such an authority, even if it were against the code of practice? On that, the Explanatory Memorandum says that

“the formal process to update the Code is under way.”

Can the Minister confirm that, as this statutory instrument is already in force, these changes have already come into effect but the code of practice that underpins it is not yet in place?

The Explanatory Memorandum goes on to say:

“The updated Code will be subject to Parliamentary scrutiny upon the laying of an additional SI in due course”.

Can the Minister confirm whether this has happened, or when it is likely to take place? Will it be subject to the negative or affirmative procedure?

There is a world of difference between deploying an agent or informant benignly into a scenario and authorising that agent or informant to commit a crime; it is a degree of magnitude more serious, no matter what the crime is, yet the authority levels set out in this statutory instrument are the same as for a simple deployment with no authority to commit crime.

I refer back to the debates that we had during the passage of the original Bill. The noble Baroness, Lady Manningham-Buller, referred to the impeccable and courageous agents deployed by the security services, perhaps conjuring up the image of James Bond in the public imagination. I contrasted this characterisation with the fact that most informants employed by the police are criminals. I would go further, and refer to the activities of undercover police officers that have recently been the subject of both a public inquiry and successful action in the courts.

The Government will say—indeed, the Minister said during debates on the Bill—that undercover officers would never be authorised to have sexual relations with activists. In an action brought against the Metropolitan Police Service and the National Police Chiefs’ Council, where the claimant successfully argued that her human rights—her right to freedom from inhuman and degrading treatment, her right to privacy and her right to freedom of expression—had been infringed, the Investigatory Powers Tribunal at the Royal Courts of Justice found:

“We are driven to the conclusion that either senior officers were quite extraordinarily naive, totally unquestioning or chose to turn a blind eye to conduct”—

sexual relationships—

“which was ... useful to the operation”.

According to the BBC report of the case dated 30 September, the tribunal also found that the failure of the Met and the NPCC to guard against the risk of undercover officers entering into sexual relationships with women amounted to unlawful discrimination against women. The tribunal concluded:

“Our findings that the authorisations”—

under the Regulation of Investigatory Powers Act 2000—

“were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’ revealed disturbing and lamentable failings at the most fundamental levels.”

This was not in the era of “Life on Mars”, when I joined the Metropolitan Police in the mid-1970s; this was this century. The officer concerned was not deployed undercover in connection with this case until 2003. This is not ancient history but at a time when the current commissioner and I were both senior Metropolitan Police officers, although neither of us had anything whatever to do with the case that I am describing. I am simply making the point that the senior officer in charge of the Metropolitan Police today was a senior officer in the Metropolitan Police when this happened, in terms of temporal proximity. The Government cannot say with confidence that that was a long time ago and the officers around at that time, who oversaw undercover officers and allowed that sort of thing to happen, are no longer serving.

Trust and confidence in the police have been severely undermined by recent events, as the Government have themselves admitted, yet here we are, allowing relatively junior police officers to authorise criminals and undercover police officers to commit crime with ineffective judicial oversight. The authority levels, as set out in this statutory instrument, are too low, the range of offences that agents and informants can commit is too wide, and the judicial oversight is not stringent enough. The Government are asking us to trust the police to authorise criminals to commit crime by passing this statutory instrument into law, while at the same time telling the public not to trust police officers, particularly lone male officers in plain clothes. We regret this statutory instrument for the reasons that I have set out.

The Motion, however, deals with a wider issue which was debated as part of our deliberation on the then Bill. During its passage, colleagues from across the House sought a wide array of improvements to the Bill. The Labour Party particularly sought for the Government to look seriously at the possibility of prior judicial authorisation as a gold standard. We also tabled amendments in the Commons and supported amendments in this House, including those tabled by the noble Baroness, Lady D’Souza, on the key issues raised in today’s Motion. These were changes which would have put explicit limits on the type of activity that could be authorised on the face of the Bill itself. As a House, this was one of the issues we sent back to the Commons for further consideration, although we were ultimately unsuccessful.

The Human Rights Act is a proud achievement of the previous Labour Government. It provides safeguards to this Act and to all public authorities that take action under it. Adding explicit limits to the face of the Bill would, though, have provided clarity and reassurance, and positioned the protection of human rights as an integral part of this package. But as the noble Lord, Lord Paddick, said, this argument was had and lost when the Bill was before Parliament.

As has been well rehearsed, the inclusion of limits has been modelled by countries which are our allies and have similar judicial systems to ours, and with which we co-operate on security matters: Canada is the obvious example, a point made by the noble Baroness, Lady D’Souza. While those countries are able to do this, these Benches and our Commons colleagues remained unconvinced by the Government’s argument that we could not.

I will be interested to hear the Minister’s response to the questions put to her by noble Lords across the House today, particularly on what ongoing monitoring there will be of the operation of the Act and whether amendments of any kind are required. Specifically, will oversight of the Act be led by the IPC’s oversight of the practical arrangements? Presumably, any concerns which could be raised will be addressed by the IPC.

The other matter, raised by the noble Baroness, Lady D’Souza, and referred to by the noble Lord, Lord Ponsonby, was limits and, following on from that, practices in other countries. We debated this point extensively during the passage of the Act and voted on it but let me again state that the limits on what could be authorised under the Bill are provided by the requirement for all authorisations to be necessary and proportionate and for authorisations to be compliant with the Human Rights Act. Nothing in the Act seeks to undermine these safeguards and every authorisation will be considered by the independent Investigatory Powers Commissioner, who will be able to ensure that this is always the case. However, on numerous occasions we went over the point that to explicitly place limits in the public domain risks creating a checklist for terrorist organisations to test for suspected CHIS and doing so would put not only the safety of the public at risk but the safety of the CHIS.

In response to the concern that the Government are seeking to repeal the Human Rights Act, let me be clear that the Government are committed to human rights and will continue to champion them at home and abroad. The Government remain a signatory to the ECHR, which provides for the right to life and the prohibition of torture or inhuman or degrading treatment or punishment. The requirement for an authorisation to be necessary and proportionate further limits the activities which can be authorised under this Act.

To address the point made by the noble Lord, Lord Ponsonby, regarding the comparative position in other jurisdictions, it is unhelpful to compare the UK legislation with that of other countries because each country has its own unique laws, public authorities and, crucially, threat picture. We know that CHIS testing takes place in the UK, particularly in relation to the unique challenges that we face in Northern Ireland, and it is important that we legislate for the particular circumstances in which we need our operational partners to operate in order to keep the public safe. I emphasise that our advice on this issue is based solely on the advice of operational partners, and I hope that noble Lords place the same weight that the Government have on their assessment of this issue.

The noble Lord, Lord Paddick, talked about the undercover policing inquiry and the separate recent ruling of the IPT. I have repeatedly made it clear to this House, as he referenced, that the conduct that is the subject of the inquiry was completely unacceptable and should not have taken place. It is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of a deployment. Nothing in this Act changes that. The noble Lord quoted from the IPT’s judgment that the authorisations made under RIPA were fatally flawed, but the court did not find that the entire CHIS regime under the Regulation of Investigatory Powers Act breached article 8.2 of the ECHR. It invited the UCPI to draw its own conclusions. The tribunal is still to hold a remedies hearing in light of the findings.

There are now much more stringent safeguards in place to guard against these mistakes being repeated. In 2014, the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into force. The order applies enhanced safeguards to authorisations for long-term undercover operatives from policing or other law enforcement agencies. This includes a higher rank of authorising officer than for other CHIS and greater oversight by the Investigatory Powers Commissioner.

To answer the question asked by the noble Lord, Lord Ponsonby, all the changes were brought about to address specific concerns that were raised about law enforcement undercover deployments. They have been tested in the operational and judicial environment over the last six years and we think that they are robust and fit for purpose.