Clause 1 - Authorisation of criminal conduct

Part of Covert Human Intelligence Sources (Criminal Conduct) Bill – in the House of Commons at 1:04 pm on 15th October 2020.

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Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office) 1:04 pm, 15th October 2020

Indeed, and the guidance is important. It is helpful to have that published, but of course, guidance is guidance, and it can be changed much more easily than an Act of Parliament. The concern that I and many Members have is that there is little by way of meaningful limits and protections in the Bill, which is where they really require to be.

I will now address the amendments that I have tabled, and I shall seek to do so as swiftly as possible, because I realise that we are under a degree of time pressure. Amendments 20 and 21 cover the question of civil redress. The Government’s proposition is that, essentially, this is a statutory embodiment of existing practice and guidelines. In fact, the truth of the matter is that the Bill goes much further than the MI5’s current guidelines. The guidelines from 2011 state that

“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution”,

and that authorisation

“may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”

The Bill goes much further than that. It states, in effect, that authorised crimes are lawful for all purposes, which means not only that an agent would be exempt from prosecution but that victims would be barred from seeking redress in the civil courts. Cases where civil claims have arisen from the use of covert activities in relation to the animal rights movement, for example, would not have any legal redress in the courts under the Bill. Essentially, the thinking behind amendments 20, 21 and others is that the independent oversight in the Bill simply is not there. We all know—it is human nature, as much as anything else—that if people are left to mark their own homework, they will always give themselves an A*. Frankly, for matters as important as this, we need something a bit more substantial.

The test for authorising criminal conduct in clause 1 is currently that the person authorising the conduct must believe that it is “necessary” and “proportionate” to do so. Amendment 14 is a very modest amendment that would mean it should be not just believed but “reasonably” believed that it is necessary and proportionate. That is not the most significant bar that will have to be crossed, but the fact that it is not there illustrates just how widely the Bill is drawn.