Amendment 3

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (1st Day) – in the House of Lords at 2:15 pm on 24th November 2020.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

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

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, Amendment 3 is linked to Amendment 5, which is at the nub of all this. I am supported in that amendment by the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Warsi.

Over many years, including in recent days, when the devil is in the detail in general and when the rule of law is in jeopardy in particular, your Lordships’ House really comes into its own. This is necessarily the case when, as with this Bill, the proceedings in the other place were so truncated and when such a complex but vital area of policy was not foreshadowed in an election manifesto. I say that to emphasise the importance of your Lordships’ consideration of the detail of the Bill.

I will begin with two preliminary points that are vital background to Amendment 5, in particular. To head off the noble Lord, Lord Cormack, at the pass, I will try to use the phrase “undercover operative” instead of “covert human intelligence source”, or CHIS. I cannot say “undercover officer”, because of course, so many of the people involved in this activity are not officers of any state agency. They are not James Bond or even Constable Bond, they are members of the community, including the criminal community, as we know.

First, I accept that undercover operatives must sometimes commit crimes in the public interest. It is unsavoury, but it is vital sometimes to keeping their cover or just operating. As we heard from the Minister a few moments ago, that includes the offence of being a member of a banned organisation, but might also include being in possession of banned items in such an organisation or in a criminal fraternity of some kind, and the crimes might go further still into minor property offences, and, who knows—subject to the public interest, in a particular, very dangerous but potentially life-saving operation. I want to put that on the record at the outset.

Secondly, I must accept that current litigation still before the courts that challenges the legal foundation of present arrangements whereby undercover operatives will sometimes be authorised and guided in crimes connected with their work potentially risks the viability of current arrangements in a way that would not be satisfactory to me or anyone trying to discharge the burden of government.

This amendment has been drafted with the acceptance that the Bill is necessary to create a clearer statutory foundation than is currently the case, but there is a very important difference between regularising current arrangements—necessary and even vital evils in the public interest—and, on the other hand, violation of the rule of law. It can be a very fine line, and it is that line that I attempt to correct and safeguard with Amendment 5.

Amendment 5 removes the current “lawful for all purposes” civil and criminal immunity used in the Regulation of Investigatory Powers Act and is completely appropriate in that place for the purposes of surveillance; in other words, a necessary and proportionate interference with people’s privacy. It may be perfectly appropriate for surveillance, subject to appropriate checks and balances, but not, I would argue, for other criminal offences. They may be significant property offences or even offences against the person, or other serious interferences with, if not violations of, people’s rights and freedoms. That is why “lawful for all purposes” is not appropriate. We could even be getting into physical harm to people, which does not happen in the case of privacy intrusion or surveillance by themselves.

In Amendment 5, I have sought to replace complete and advance immunity with, effectively, a public interest defence—a public interest safeguard in relation to any decision to prosecute an undercover agent who had been properly authorised and had done his or her best to do their duty under cover of that authorisation. Any prosecutor considering whether to bring charges against them would have to take into account the nature of the authorisation and the compliance with it in the public interest. To be clear, in the overwhelming majority of cases, the likelihood and desire to prosecute an undercover operative for just doing their duty would not be in the public interest, which, I suspect, is the position now.

Amendment 5 also provides a safeguard in the event that some rogue or perverse prosecutor does not take the hint and decides to go ahead and bring charges anyway, notwithstanding the public interest in the undercover operative, and others like him or her, doing their best in very difficult and possibly life-threatening circumstances. If that rogue prosecutor were to bring charges against our innocent and brave undercover operative, any lawyer in any court would be able to take into account the authorisation, its nature and compliance with it when considering any potential defences to charges of criminal conduct. That might well include public interest and reasonable excuse defences where they exist in a statutory context of a particular offence, or, where none existed, we would be in the territory, as would be the case today, of those rare but nonetheless important defences such as self-defence, including defence of other people, and even necessity and duress.

The criminal lawyers among noble Lords will know that those defences are rarely successful, but it is rarer still that an undercover operative is prosecuted for just doing their job. My point here is to give comfort to the undercover operative that, were a rogue prosecutor to go after them unfairly and perversely, the court would be able, through the provisions in my amendment, to activate such common-law defences, or any potential defences, by way of the criminal conduct authorisation.

The final part of this amendment relates to the current “lawful for all purposes” immunity from civil redress. This is important too because in the context of these vital, necessary operations, there will sometimes, sadly and even tragically, be collateral civilian damage.

Think, for example, of a properly authorised high-speed car chase in which an undercover operative, or CHIS— I ask the noble Lord, Lord Cormack, to forgive me— is authorised to breach the usual traffic laws, speed limits and so on, and a completely innocent bystander is seriously injured. We would not want the “lawful for all purposes” provision in RIPA to mean that the innocent bystander had no redress against any agency or agent of the state. What should happen is that the state agency that had authorised the undercover operative, or CHIS, ought to pick up the tab and settle the claim in reasonable terms. If it chose not to do so and started quibbling with the agent, officer or undercover operative, it would therefore be open to a court when considering a dispute between a first and second defendant to take into account the criminal conduct authorisation in relation to any potential civil liability on the part of that person and the quantum of damages.

Why do I say that this amendment is so much better than the “lawful for all purposes” immunity currently provided in the Bill? First, if the rule of law means anything at all—in our nations at least, as opposed to elsewhere—it must mean that there is one law of the land that binds everyone. If any of us during our normal lives thought, for example, that terrible violence was about to be done to someone in a neighbouring property, and there was no time to call the police, if we broke into that property in good faith to try to save the neighbour, we would rely on the kind of public interest consideration that I have attempted to set out in a statutory formulation for the purposes of undercover operatives.

We as ordinary citizens are of course not in that situation on a daily or regular basis, and that is why we do not need such a complex system of authorisation. However, the underlying principle should be the same. The law is, and has always been, capable of recognising difficult, grey areas of life and practice but does not like giving advance blanket immunities to agents of the state, because it is dangerous. In other places, tyranny has followed in the wake of such a provision.

That is the constitutional and theoretical point: one law for everybody is a concept that members of the public understand well. We know their feelings of outrage when there is any suggestion of hypocrisy, whether in following lockdown laws or any other aspect of the law. People like the idea that, in the United Kingdom, there is one law for everyone.

The second practical issue regarding any necessary criminal conduct by undercover operatives is that, in practical terms, the only real safeguard in the context of a fast-moving undercover situation is that which operates in the mind of the operatives themselves: the possibility that their conduct will be second-guessed after the event, albeit through highly sympathetic eyes. But the idea that because they have an advanced ticket, whatever they do, subject to the authorisation, will not be examined is a step too far and a recipe for abuse.

We know that abuses by undercover operatives have emerged in recent years and have partly led to the ongoing Mitting inquiry. It is unfortunate that the Government feel the need to legislate in advance of the conclusion of that inquiry, but, given the pending litigation, one can forgive that. However, it is harder to forgive going further than my suggestion, which is to put the status quo in relation to the public interest on a statutory footing, rather than to make a further land grab, as it were, for total and advance immunity.

This is particularly important when we remember that possibly the overwhelming majority of these operatives are not trained officers of the security services and agencies, or even the police. These are members of the community, and many, if not the bulk, are members of the criminal community. An ethical check and a practical disincentive from overstepping the mark is incredibly important.

I wonder how reasonable and sensible it is to think that these authorisations can be very narrowly and particularly drawn. Is it really possible to authorise criminal damage to x amount and not y amount in a fast-moving situation? Is it really reasonable to authorise a common assault but not one occasioning actual bodily harm? I do not know whether that is practical. I look forward to hearing from the noble Lord, Lord Paddick, in particular; unlike most of us, he has been an undercover police officer.

I commend to noble Lords a short comment piece in today’s Independent by Neil Woods, who was an undercover officer involved in drugs policing. He talks about immunity as the aspect of the Bill that really changes everything, more than anything else. I do not say this to minimise other noble Lords’ attempts at various safeguards but the full wealth of amendments that have been tabled, few of which we will even get to today, highlight the many complexities and practical difficulties with alternative approaches.

For example, there are real constitutional and practical questions about involving judges before the fact rather than adjudicating afterwards, which is their normal constitutional role. I understand the instinct; I am in two minds about it, and possibly even sympathetic to it. However, it is one thing to involve judges in issuing a search warrant, or even a warrant for covert human intelligence, which is far more intrusive than a search; I suspect that some will have concerns about judges authorising criminal conduct in advance of its perpetration.

It seems to me that this anti-immunity amendment is far simpler and less ethically difficult. It does less violence to the overall scheme of this legislation as it is currently crafted and gives real protection to undercover agents. It protects them from unlawful proportionate orders and from criminal conduct authorisations that were perhaps disproportionate and possibly breached the Human Rights Act to some degree. The amendment has been drafted so that if agents act in accordance with an authorisation, the nature and compliance will be taken in account—regardless, to some extent, of whether the authorising officer got the balance completely right. The individual ethics of the undercover operatives themselves must always be at play. The “I was just following orders” defence should never be a good one in British law, I suggest.

I believe that the amendment is the best possible safeguard in this very serious legislation. It recognises the really difficult work that undercover operatives have to engage in but none the less protects the rule of law and the wider community. I beg to move.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 2:30 pm, 24th November 2020

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and support the amendments in her name and the names of the noble Lord, Lord Paddick, the noble Baroness, Lady Warsi, and myself.

I want to emphasise the point made quite rightly by the noble Baroness, Lady Chakrabarti: the rule of law should never be placed in jeopardy. I shall concentrate on the position of immunity from civil redress and give examples from the Northern Ireland perspective, where we have had widespread experience.

On the one hand, this legislation seeks to regulate in statute the use of undercover operatives. On the other hand, it gives CHIS handlers a licence to kill. The recruitment of agents is of course necessary as part of intelligence-led policing; any such recruit should be a fit person, properly recruited with free and informed consent and operating to high rights standards in police- led operations.

These amendments seek to preserve the current legal status quo whereby those authorised to engage in criminal conduct are not rendered immune from either civil or criminal liability. Instead, compliance with an authorisation will be relevant to any public interest consideration to prosecute, any existing legal defences and any court considerations of civil liability and/or damages.

As I said, Northern Ireland has particular experience to note. We are a living example of what happens when, unfortunately, the state, or the state through its agents, commits serious crimes including murder. Consider the continuing investigation into the agent known as Stakeknife, otherwise known as Freddie Scappaticci. Probably dozens were murdered on the instructions of those in command and control of the IRA, with the knowledge and approval of those in command and control of a British security agency. Ken Barratt, a British agent, was involved in the murder of the lawyer Pat Finucane, which a former Prime MinisterDavid Cameron—conceded involved shocking levels of collusion. There is also the case of Mark Haddock, an RUC Special Branch agent believed to have been involved in more than 20 murders.

Northern Ireland is a lesson from history, particularly regarding the issues thrown up by the amendments in the names of the noble Baronesses, Lady Chakrabarti and Lady Warsi, the noble Lord, Lord Paddick, and myself. Serious crimes and murder committed by state agencies or agents of the state lead first to a generation of victim and survivors, secondly to alienation and thirdly to conflict. Yet this legislation would allow agents to commit serious crimes, with extravagant powers given to handlers and a severe deficit in relation to authorisation and post-operational accountability.

The noble Lord, Lord Patten, carried out a review of policing in Northern Ireland. It reported in 1999 with 175 recommendations; the report formed the basis of the Police (Northern Ireland) Act 2000 and the new Police Service of Northern Ireland, including the Office of the Oversight Commissioner and the Police Ombudsman for Northern Ireland—all the architecture of new policing. I am sure that the noble Lord, Lord Cormack, will be aware of that as a former chair of the Northern Ireland Affairs Committee.

Of the 175 Patten recommendations on new policing arrangements, accepted but not addressed, was the recommendation:

“There should be a commissioner for covert law enforcement in Northern Ireland.”

Consequently, there is no dedicated Northern Ireland covert oversight agency, and the UK arrangements to interrogate phone tapping or search authorisations should be more extensive.

This legislation compounds the problem with even less oversight of the authorisations that would arise under the provisions than is the case currently. The Bill is deeply problematic because it would work against the need to tackle criminality and paramilitarism—issues to which all of us in your Lordships’ House are opposed. There is a need to ensure that those who are authorised to engage in activities are not rendered immune from prosecution, because all of us should act within the law.

I hope that the Minister will respond positively to these amendments. There can be, as the noble Baroness, Lady Chakrabarti, said, only one law of the land that binds every one of us, and we should all be able to adhere to it.

Photo of Baroness Warsi Baroness Warsi Conservative 2:45 pm, 24th November 2020

My Lords, I will speak to Amendments 3 and 5, to which I have added my name alongside those of the noble Baronesses, Lady Chakrabarti and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. As I said at Second Reading, no one can reject the importance of covert human intelligence sources or the need to protect them, and no one can doubt the importance of putting existing practices, the status quo, on a statutory footing. Existing practices, as far as they relate to the security services, have been part of security services guidelines for nearly a decade; they have served and continue to serve us well. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position. These amendments seek to do that without making all conduct lawful for all purposes and without granting absolute immunity, ensuring that victims, often innocent bystanders, are not left without any form of redress.

The amendments would preserve the current legal status quo. Those who are authorised to engage in criminal acts would not be rendered immune from either civil or criminal liability. Instead, the current public interest consideration not to prosecute, existing legal defences and any court considerations as to civil liability will remain. At Second Reading, the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and other noble Lords reminded the House of a fact that I hope my noble and learned friend the Minister will acknowledge, because it has been repeated in today’s debate; namely, that large numbers of individuals for whom this immunity and lack of appropriate safe- guards in legislation would operate as a carte blanche to commit offences—these covert human intelligence sources, these agents—are not in fact all trained security agency officers or undercover police, as the Bill has presented them. Many are criminals who are still engaged in criminality, because that is what allows them to inhabit the spaces where they can go unnoticed. They include, as was said at Second Reading,

“extremely troubled, volatile and vulnerable people, including children.”—[Official Report, 11/11/20; col. 1071.]

Even professional agents are not and should not be above scrutiny. They should remain, as they are now, incentivised to exercise their necessary criminal conduct responsibly. We are of course still in the midst of a public inquiry that is hearing how even professional covert human intelligence sources have succumbed to the abuse of authority and have even fallen into inciting rather than preventing crime. This Bill in its current format would have far-reaching consequences far beyond professional security services agents and trained undercover police officers. It therefore must not be presented by the Government in narrow terms, even if that is simply to win support for the Bill.

Examples have been given during the passage of the Bill that include criminal damage to premises and the personal property of innocent bystanders by those working, for example, for the Food Standards Agency at the less severe end, through to sexual offences by criminals posing as gang members at the other. Surely we cannot be comfortable about creating a culture of absolute immunity in this space, nor should we easily sweep away the protection currently afforded to victims of crime who currently have access to redress via criminal proceedings brought either through state or private prosecutions and civil action in the civil courts or an application for compensation through the Criminal Injuries Compensation Authority. An absolute immunity would sweep away all these protections, which I believe would leave us in breach of the European convention, which at Second Reading my noble friend said the Government were seeking not to do.

The four people who have put their name to these amendments are very different people, from very different parts of the United Kingdom, and indeed from different communities, different backgrounds and different political parties. This is not a party-political issue but a national interest issue. At any one time we are the custodians of the core values of our country, one of which is that the rule of law is essential. So I encourage my noble friends and colleagues to think again to ensure that the Bill seeks to put the current position on a statutory footing but does not extend ways which the Government have stated in the past are not their intent and would cut across the very British and indeed deeply conservative principle of our commitment to the rule of law.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, it is always a pleasure to follow the noble Baroness, Lady Warsi, and I share her abhorrence of the idea of absolute immunity, to which she spoke so eloquently. Over 800 years, we have evolved a system of dealing with crime in this country where the guilt or innocence of an individual is established by a tribunal of ordinary citizens. In serious crime we rely on a jury, and in lesser, summary offences on a magistracy drawn from the community. The standard of proof is high. So the outstanding feature of the British approach to criminal activity is that the ultimate decision on guilt and on punishment is not in the hands of an agent of a government department. The judge who presides over a trial in a serious case is fiercely independent. The prosecutor, as exemplified by the CPS and the Director of Public Prosecutions, is also independent of government. It is necessary to restate these principles when faced with a Bill such as this, where the proposition is that an agency of the state, whether the security services, the police or a gaggle of government agencies, should authorise criminal activity and can do so without any independent check.

We have to this point had such a check. Authorisation of criminal activity for the purposes of covert intelligence does not of itself relieve the individual of criminal liability. Whether an individual is prosecuted is a matter for the discretion of the CPS and ultimately the Director of Public Prosecutions. There is a further procedure where a covert intelligence gatherer is protected from the results of his criminality. Your Lordships may not be aware of the role of the brown envelope. Very often, when a person is an informer or is otherwise acting on behalf of the security services or the police, it is deemed necessary that he should stand his trial along with the people against whom he has informed, for the obvious reason of protecting his role and his safety. In such circumstances, a brown envelope will be handed to the judge out of court to inform him of the true position of the defendant and his motivation. Sometimes that will result in a reduced penalty and sometimes it results merely in the early release of the individual from whatever sentence of imprisonment is passed on him. To my mind, the system we operate at the moment gives greater protection to the individual and to the public while preserving a proper measure of control.

As for civil liabilities, it is clearly highly undesirable that a victim, whether direct or indirect, of the covert agent should have no remedy. Obviously, where an individual is authorised to engage in certain conduct that causes harm, he does not pay any damages himself; it is the state that stands behind him and pays the price. If this Bill means that no civil liability at all accrues to the covert agent, or to the state behind the covert agent, it is not the agent who will gain anything but the state. We will see when the overseas operations Bill comes before the House that the abolition of civil liability for the individual soldier’s acts benefits not him but the state, which pays the damages.

It is for these reasons that I wholly support the amendments in the group. They would preserve the discretion of the CPS and the DPP to make prosecution decisions in the public interest. They would also leave it open to the defendant to run the defence that he was acting on behalf of the state and consequently did not have the necessary intent to commit a crime. It so happens that I ran exactly that defence some years ago in a trial that lasted many weeks and was held entirely in camera, thus permitting the defendant to reveal the authorisation of his conduct—a fact that was not actually in dispute. Finally, by leaving open the question of civil liability, the victim would still be able to claim damages. I would like the Minister specifically to deal with the issue of immunity from suit at the hands of the victim, which could benefit only the state.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 3:00 pm, 24th November 2020

My Lords, it is a pleasure to follow the noble Lord, Lord Thomas of Gresford. I love these two amendments because they get to the heart of one of the two biggest problems with the Bill, which is immunity. I take the point from the noble Baroness, Lady Chakrabarti, about using the phrase “undercover operatives”. I have personally been saying “police spies”, which is a more generally understood concept for people outside the Chamber.

The Minister did not answer my questions in the previous debate. He did not address the proceeds of crime or the concept of ongoing crime that is not specifically given immunity but will happen anyway. Is that given immunity as well?

The Government are claiming that the Bill just puts everything on a regular footing and that we can all relax because we know exactly what will happen, but it is in fact nothing to do with that. It is about heading off all the legal uncertainty caused by the current legal challenge—the spy cops inquiry. It is nothing to do with protecting the general public. I find it infuriating that the two groups that are constantly referred to as being vulnerable to this legislation are paedophiles and terrorist organisations when we all know perfectly well that other organisations will be contaminated by this system and have undercover operatives and police spies. It will be unions and political groups, such as campaign groups, as we are seeing at the moment with the spy cops inquiry.

It is obvious that the Bill hugely expands the state’s ability to authorise criminal conduct and grant legal immunity to criminals. It is worrying that criminal conduct will go unpunished because of the Bill, but also, as several noble Peers have already mentioned, that the victims of these crimes will have no legal rights. They are left by the Government as collateral damage, which we have again seen in the spy cops inquiry. We have seen just how badly people have been harmed by undercover policing: innocent women’s lives ruined, children fathered by police officers using fake identities who then run off and avoid all their parental responsibilities because they have another family elsewhere who they want to go back to, and people betrayed by state agents.

The Bill’s provisions will prevent any entitlement to compensation for the damage caused by a police spy. You were tricked into a sexual relationship with a police officer? Too bad. Your house was burgled by a police spy? Too bad. You were beaten up by a gang acting as informants for the police? Too bad. Innocent people will be hit by the Bill. It is so obviously wrong. Innocent lives will be ruined. Surely the Government understand this and can see that it is wrong to try to legislate like this.

Photo of Baroness Bryan of Partick Baroness Bryan of Partick Labour

My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions.

Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state.

At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity?

The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that

“nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act” and that

“there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations”—[Official Report, 11/11/20; cols. 1046-47.] but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy.

In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities

“clear and detailed guidance that they must follow in deciding whether to grant an authorisation.”—[Official Report, 11/11/20; col. 1045.]

The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed “serious errors”. It says:

“In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services.”

These were the very criteria used to issue the erroneous CCA in the first place.

I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, on the evidence I see great merit in these amendments. Our history of criminal law shows that the state has always gone to considerable lengths to protect those who assist it in the detection of crime. The prosecution service and judiciary have ensured that that works. I echo what the noble Lord, Lord Thomas of Gresford, said a few moments ago—that the system works well. My experience from a different perspective is that is so.

The question for this House is what is wrong with the current law and why it needs to be changed, because it has worked well. [Inaudible.] Of course, if one is going to a system where the authorisation authorises the commission of a crime, it is very important that we know how precisely that authorisation will be drafted. Precision was unnecessary under the present law, but it will be in future, bearing in mind the civil and criminal immunity that it grants. Therefore, I asked whether I could be shown examples of what it was intended to do. I wanted that in particular in areas of substantial difficulty relating to drugs and youth gangs, and I ran into a difficulty.

I understand the position of the officers with whom the noble Baroness put me in touch, who take the view, with which I profoundly disagree, that providing examples, even hypothetical ones, might endanger future operations of the police. That presents us with a difficulty, because we can neither look at what is wrong with the current system nor properly examine the future system.

Of course, we could take matters on trust, but I would be very reluctant to do so. I do not wish in any way to cast any doubt on the good faith, hard work or enormous risks that people take, but errors of judgment and maybe more have been traversed in the past. I need not set out the details of those, although I will if necessary at a later stage in Committee.

Therefore, I have given some thought to how the House deals with a very difficult problem—being satisfied that changes are needed and that the changes will work better. I ran into that insuperable problem on evidence only yesterday and so have not had the opportunity to discuss this more widely with the Minister. But under Standing Order 8.118, a public Bill can be committed to a committee, either in its entirety or in an issue, so that the committee can examine the Bill. This happens rarely; it happened with the Constitutional Reform Act, which is why I happen to know of this process. I have also inquired whether such a committee could take evidence in private, and it can; it can operate without transcripts being taken and, of course, what it publishes will be private. We can see whether this is necessary in the course of examining the Bill, but we ought not to make changes to the law and impose a new regime without proper evidence—and that is the responsibility of the legislature.

What we should consider, which I do not want to propose now but want to raise as an idea, is that at the conclusion of the Committee it may well be desirable, because the evidence cannot be given in public, for a small committee of the House, which can look at the matter, representing all the different interests, to take evidence and report. Immediate objection would be made that it is very difficult to report, but I do not agree. There was a case that concerned a real threat to life, with which I was involved, known as WV. We were able to report in detail the circumstances of that case without in any way compromising the life of the person involved. There are techniques for doing that.

I hope that the Minister will either come to a view that more evidence can be provided openly or, if that is not possible, consider the alternative of having a committee that can look at this and report to the House that, for reasons that cannot be set out, there are deficiencies in the law, and the new system will work well. At the moment, I regret to say that I cannot see this change to the law being necessary, and I foresee tremendous difficulties with going to the new system, particularly bearing in mind the way in which the police have discharged so badly in many cases the crafting of search warrants. That can obviously be put right, but commission of crimes cannot.

Photo of Lord Hendy Lord Hendy Labour 3:15 pm, 24th November 2020

My Lords, it is a particular pleasure for me to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, and support the amendment moved by my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie and Lady Warsi. Without that amendment or another to the same effect, I shall have no alternative but to vote against this Bill. As a matter of conscience, I cannot support a Bill that gives the state the power to grant immunity for future crimes committed by agents on its behalf. This is contrary to the rule of law, as so many noble Lords have said.

The rule of law prescribes that all are bound equally to observe the law, not least the criminal law. Giving the state the power to exempt prospectively its agents from criminal law is the contrary of that principle. The rule of law is an easy phrase; it has a particular poignancy to someone like me, who has 48 years of practice at the Bar. But the fact is that it is a foundation stone of democracy, a point made so eloquently by the noble and learned Lord, Lord Judge, in the debate on the internal market Bill. Without respect for the rule of law, we face the dark prospect of anarchy or, worse, fascism.

Let me make my position clear through a number of propositions. First, I accept that every state necessarily deploys undercover agents to protect itself and the rule of law. Secondly, I accept that in the course of their work, on occasion, it will be found necessary to break the law, including the criminal law. Thirdly, I have no problem with the state, through the Director of Public Prosecutions or the CPS, considering after the event whether a prosecution is warranted by applying, as they do, and should do, the public interest, the objective and the proportionality of the crime committed, the possible defences to a prosecution, to the European Convention on Human Rights and their experience and discretion.

The evil here is the prospective immunity to be granted based only on an assessment of the possible situation. A decision to prosecute or not should be granted only retrospectively when the facts and circumstances of the alleged crime are known. This is the status quo. As far as is known, it has worked satisfactorily for the last 200 years. I have enormous sympathy and support wholly what the noble and learned Lord, Lord Thomas, said a moment ago and reiterate the question that he posed. What evidence justifies changing this system? Of course, we should bear in mind the point made by the noble and learned Lord, Lord Mackay, at Second Reading—if I do him justice—that if the object of conduct that would otherwise be a crime is to prevent a crime, the conduct will not in any event amount to a crime or be susceptible to prosecution. The noble Lord, Lord Thomas of Gresford, made that point a moment ago more eloquently than me.

My noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi, have reminded us that this Bill does not confine CCAs to professional undercover officers of the state, responsible, trained and alive to the requirements of the rule of law. CCAs are proposed by the Bill to be granted to lay persons, often or usually criminals, deficient in civic responsibility and careless of the demands of the rule of law. Many will have only the weakest grasp of the limits of the criminal conduct authorised by their CCA. They should not be given carte blanche; it is right that they should be in fear of retrospective review and the possibility that the CPS might charge them.

I find myself unable to trust prospectively either the officer granting the CCA or the agent to whom it is given. Only a retrospective review, by a professional prosecutor when all the circumstances are known, is tolerable. A particular source of my lack of trust is the evidence presented to the undercover police inquiry chaired by Sir John Mitting, in which I represent a number of trade unions. The conduct of those who directed the undercover officers was not such as to encourage trust. One thousand groups, campaigns and unions were spied on. So far, it is not evident that any useful information was gleaned to prevent crime. As one undercover officer put it, the only useful information revealed by her infiltration of a women’s liberation group was that it was not likely to be violent, cause disorder or commit a crime.

As has been mentioned by the noble Baroness, Lady Jones, what of the systematic abuse of women, over 30 of whom were groomed into having sexual and intimate relationships with men with fake identities—often those of dead children—fake beliefs and fake personalities? This was not a tactic devised by a couple of rotten apples; it was conduct reported to those in charge and clearly authorised by them. Whether or not this was a crime I leave to the criminal lawyers, but it inspires no trust in the issue of CCAs by such senior officers. The inquiry has revealed that undercover police committed crimes. One, for example, is said to have acted as an agent provocateur in planning to firebomb a well-known store.

I have one final point in support of Amendments 3 and 5. Currently, as I understand it, an undercover officer may not be instructed by superiors to commit a crime. If the Bill becomes law, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained a CCA. That will be a disciplinary offence, potentially justifying dismissal. It is a powerful argument against prior authorisation. I do not think that many rank-and-file officers would wish to be put in that position.

Photo of Baroness Blower Baroness Blower Labour

My Lords, it is a great pleasure to follow my noble friend Lord Hendy and the noble and learned Lord, Lord Thomas of Cwmgiedd, who spoke before him, and to support the amendments in the names of my noble friend Lady Chakrabarti, the noble Baronesses, Lady Warsi and Lady Ritchie of Downpatrick, and the noble Lord, Lord Paddick. It is a great pleasure to be in the House and listen to such eloquent speeches on a very significant matter.

The Bill before your Lordships is flawed. It is indeed so flawed that, without Amendments 3 and 5 being accepted, it will find it difficult to see how I will ever vote for it. As I said at Second Reading, of course I want to live in a well-regulated society. I therefore recognise, as I am sure all your Lordships do, that covert operations or information from covert human intelligence sources is sometimes necessary and that it may involve criminal activity.

Having accepted that, I also want to live in a society—in a state—that observes the rule of law, with a legal system in which there is one law for all. At the outset of the passage of the Bill, there were attempts to make the case that the Bill would merely, but importantly, put on a statutory footing practice that had been in place over the years. Such attempts are no longer in play, because the Bill plainly does something entirely other: it creates immunity for CHIS. As we have already heard, immunity is serious: it creates a situation in which criminal conduct is no longer a crime and in which acts, elsewhere considered criminal, are lawful for all purposes. I cannot sign up to this proposition.

An argument may be advanced that, without such complete and blanket immunity, CHIS might be deterred from fulfilling the covert function. I cannot accept that as reasonable, in a state that accepts the necessity of the rule of law. Surely the present status quo, in which the authorisation can be advanced in defence, is sufficient. If CHIS are to be granted immunity without let, hindrance or potential consequences, the notion of safeguards is absent. We have to be mindful that many CHIS are from the criminal community. The status quo provides that necessary and proportionate acts can be carried out to prevent further crime. “Necessary and proportionate”, in conjunction with the CHIS being aware of the potential consequences of their actions, should be the safeguard to ensure that conduct is with due caution, rather than abandon. I am grateful to Justice for its briefing on this and other points.

If the Minister for Security in the other place was correct in saying:

“A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed”,—[Official Report, Commons, 15/10/20; col. 611.]

where is the rule of law and the equality before the law, so that there is one law for all? This proposition is excessive when considered in conjunction with the equivalent legislation in Canada, for example, which affords a defence to prosecution, rather than complete immunity.

There is also the matter of victims. If, legally, no crime has been committed, given the CCA, access to redress is removed, whether through criminal or civil proceedings or by recourse to the Criminal Injuries Compensation Authority, as alluded to by my noble friend Lady Chakrabarti and the noble Baroness, Lady Warsi. Victims must have their rights protected, as they are by Article 13 of the ECHR. If domestic legislation fails to provide an effective remedy, the UK will be in violation of Article 13. I do not believe that noble Lords and noble and learned Lords would find that an acceptable proposition.

Prior to having read the Justice briefing, I was unaware of this from the former Supreme Court Judge Lord Bingham:

“the purpose of the criminal law” is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

This amendment would provide that, although CHIS may engage in criminal conduct to prevent further crime, it cannot be without caveats. Such criminal conduct must comply with an existing authorisation and that will be relevant to any public interest consideration as regards prosecutions. The safeguard is needed to ensure that the rule of law obtains. As the noble Lord, Lord Thomas of Gresford, said, 800 years of principles of law are potentially at stake.

In conclusion, to ensure that it has been heard by the Minister, I repeat the question posed by my noble friend Lady Bryan: can the noble Lord respond on criminal proceedings taken against CHIS in the past, under the current arrangements—the status quo? The amendments can save us from a Bill that would do immense damage to the rule of law in the UK and I am therefore happy to support them.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 3:30 pm, 24th November 2020

My Lords, as the noble Baroness, Lady Chakrabarti, said in her opening remarks, these amendments are about maintaining the status quo—the public interest defence. She described additional safeguards against a rogue prosecutor—potentially of self-defence, necessity and duress—but of course these mechanisms are already in place, and they are put into the amendment to provide clarity.

I am very glad to have heard from the noble Baroness, Lady Richie of Downpatrick, with her valuable experience in Northern Ireland. As the noble Baroness, Lady Warsi, said in her very powerful remarks, the co-signatories to the amendment are from very different backgrounds. I remind the Committee that I was a police officer for over 30 years and was at one time a controller of informants—covert human intelligence sources, as we now call them.

As I said, these amendments, to which I have added my name, are about keeping the status quo by ensuring that there is a legal power that allows public authorities to authorise CHIS to participate in crime but leaving the question of immunity from prosecution to prosecutors, looking at all the circumstances after the fact.

At Second Reading, the Government made two arguments against maintaining the status quo: first, that it is “undesirable” for the police, for example, to authorise people to commit crime, and, secondly, that it is “unfair and unreasonable” for CHIS to operate under the possibility that they might be prosecuted. In other words, the status quo is not desirable, not fair and not reasonable.

Let me deal, first, with the argument that it is “undesirable”. Can the Minister please explain to the Committee the difference between it being undesirable to create an express power for public authorities to authorise activity that remains criminal and it being undesirable to create an express power for public authorities to make criminal activity legal? Or, to put it another way, what is more or less desirable—a public authority telling someone to commit crime or giving a public authority the power to say something that is a crime is not a crime?

Is it not fundamental to the rule of law that the law applies to everyone equally and that it is clear what is and is not a crime? The Government propose to make legal an act that would otherwise be a crime, and to make the criminal law apply to everyone, except CHIS, who are authorised under CCAs. For example, Section 11 of the Terrorism Act 2000 would in effect change to “a person commits an offence if he belongs or professes to belong to a proscribed organisation, unless he is authorised to belong to it by a criminal conduct authority, in which case he does not commit an offence”. The law, in effect, becomes “it is an offence/it is not an offence, and it applies to some people but not all”.

The effect of accepting these amendments is to say that, of course, belonging to a terrorist group is an offence, but it is clearly not in the public interest to prosecute this person because he was asked to belong to, or to continue to belong to, a proscribed organisation by an agent of the state, and that was necessary and proportionate. Immunity from prosecution should be based on an independent prosecutor deciding whether it is in the public interest to prosecute, not on an agent of the state saying that this crime is not a crime, as many noble Lords have said.

At Second Reading, the Minister—the noble Baroness, Lady Williams—said:

“It is also undesirable to create an express power for public authorities to authorise activity that remains criminal.”—[Official Report, 11/11/20; col. 1115.]

Paying criminals to pass information to the police is undesirable, and paying terrorists to pass information to the security services is undesirable, as is paying those employed by hostile foreign powers to commit treason by passing information to the UK—it is all undesirable, or murky waters, as the noble Lord, Lord Cormack, said on the last group—but, however undesirable those things are, they are necessary. Although it may be undesirable to create an express power for public authorities to authorise activity that remains criminal, it is necessary, and it is not as undesirable as the alternative. To quote the noble Lord, Lord Anderson of Ipswich, for whom I know the whole House, including the noble Baroness the Minister, has the highest regard:

“The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious.”—[Official Report, 11/11/20; col. 1064.]

I shall now deal with the “unfair and unreasonable” argument. At Second Reading, the noble Baroness the Minister said that

“it seems unfair and unreasonable for the state to ask an individual to engage in difficult and potentially dangerous work while leaving open the possibility of the state prosecuting them for the exact same conduct. That tension has existed for many years.”

It has, but we need a reality check here. What might seem unfair and unreasonable to the Government, and indeed to some noble Lords, is not the same as what might seem unfair and unreasonable to undercover operatives, who, whether they be criminals or undercover cops, have willingly volunteered to do this work not for years or for decades but, I am sure, for well over 100 years.

If a handler thought that it was unfair and unreasonable, he would not authorise a CHIS to participate in crime; if a CHIS thought it was unfair and unreasonable, he would not participate in crime. What the noble Baroness the Minister seems to want to address is a sense of unfairness and unreasonableness which the Government have but which is not shared by the overwhelming majority of those who are directly affected—the handlers and the undercover agents.

The second question that has to be asked is: what is the possibility of the state prosecuting them, and is the status quo a real deterrent? The noble Baroness the Minister—again, at Second Reading—talked about what would happen if a CHIS were to undertake criminal activity that fell outside the strict parameters of a CCA:

“The prosecuting authorities are in a position to consider whether to bring a prosecution. This has been done before and will be done again if required.”—[Official Report, 11/11/20; col. 1115.]

So the answer is, “It has been done before and will be done again if necessary”, but it has not been done so often as to put off either undercover police officers or criminals from participating in criminal activity at the request of their handlers, who have willingly engaged on the understanding that, provided you stick to what you have been authorised to do, the CPS is unlikely to prosecute.

There have, no doubt, been rare occasions when a criminal has asked for a written guarantee of immunity and has backed away when it could not be given, but the system has clearly not been seen by the overwhelming majority of those involved—neither the handlers nor the undercover operatives—as unfair or unreasonable, no matter what we might think, otherwise they simply would not do it. In any event, any guarantee of immunity would be conditional only on the CHIS doing precisely what he is authorised to do, which in itself presents problems, as we will see in future groups.

I argue that the potential unintended consequences of what is proposed in the Bill on the question of immunity, as the noble Lord, Lord Anderson of Ipswich, pointed out, are too high a price to pay just to make us feel better, because we feel it is unfair and unreasonable not to give immunity up front. CHIS engage willingly in criminal activity at the request of their handlers, despite the possibility of prosecution. The proposed solution, to a problem that does not exist, is startling and the potential for abuse obvious, which is why I support the amendments.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, who brings experience that none of the rest of us who have spoken in the debate have. It has been a powerful and significant debate. It arises because, under the Bill, a consequence of authorising criminal conduct is that it is rendered “lawful for all purposes”, which creates an immunity both from criminal prosecution and from civil liability for the person carrying out the authorised crime.

As this debate has identified, that gives rise, in effect, to two issues. First, it is a departure from the existing arrangement whereby the effect of the Upper Tribunal’s decision in the third direction case was that the relevant authorities had the power to authorise the criminal conduct, but the power to authorise it did not render it immune from prosecution. In consequence, it was a matter for the relevant prosecutor to determine whether or not the fact that the CHIS was acting in accordance with the authority given to him meant that the CHIS—I apologise to the noble Lord, Lord Cormack —should not be prosecuted.

From the point of view of the Government—and very much of this debate—reasons have to be given why that principle is being departed from. The arguments fluctuate between, “It’s a useful power to have, for the prosecutor to determine”, to, “Actually, it makes no difference”. Can the Minister give an authoritative answer to the question why it is immunity now, rather than depending on prosecutorial discretion? In particular, is it because it makes no difference? Has it made a difference in the past and, if so, why is the principle being departed from?

Noble Lords speaking in this debate have asked penetrating questions. The noble and learned Lord, Lord Thomas of Cwmgiedd, said, in effect, “Tell us why the policy is being changed.” We on this side of the House want to hear answers to those questions before we make up our minds on this issue. The second and separate issue—here, we believe there is definitely a defect in the Bill—is that the consequence of the “lawful for all purposes” approach is that there is plainly no remedy for the victims of the conduct authorised by the criminal conduct authorisation. That is fundamentally wrong.

The Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill report of the Joint Committee on Human Rights addresses this issue in detail at pages 28 to 31. It draws attention to three points. First, the effect of the Human Rights Act is that victims of crime are entitled to be protected by Articles 1 and 2, and there needs to be an effective remedy. If they are the victims of crime and yet the crime is lawful because of that Act, how is that consistent with the duty of the state under the Human Rights Act? Can Minister answer that?

Secondly, what is the position in relation to criminal injuries compensation schemes? If it is rendered lawful, does the victim of such a crime have the right to make a claim under the scheme? Thirdly, if it is rendered lawful, that brings to an end the right to civil liability. Why is that not a breach of the obligation on the state to protect victims of crime under the Human Rights Act? Surely, the right course is not to deprive the victims of any remedy but, if necessary and appropriate, to ensure that the CHIS, acting in accordance with a due authority, is indemnified in respect of any liability he or she may have to a victim.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 3:45 pm, 24th November 2020

My Lords, Amendments 3 and 5 from the noble Baroness, Lady Chakrabarti, seek, as she said, to maintain the status quo but on a statutory footing. They would maintain the existing legal position whereby an undercover operative, a CHIS— I demur from the noble Baroness’s use of the phrase “police spy”, which, in addition to pejorative overtones, carries an undercurrent of the 19th-century Russian novel—could still be prosecuted for the activity that the state had tasked them to do.

In answer, first, to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, it has been a deliberate decision to draft the legislation in a way which renders correctly authorised conduct lawful in order to provide greater certainty and protection to undercover operatives—CHIS—where they are carrying out activity that they may have been authorised to undertake. To expand that in answer to the matters raised by the noble Baroness, Lady Chakrabarti, this approach is in keeping with other powers in relation to the investigation of crime, such as interference with equipment, interference with property, and the Regulation of Investigatory Powers Act, including an underlying Section 29 covert human intelligence source use and conduct authorisation.

As noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct. That answers a point raised by the noble Lord, Lord Hendy, in his contribution to the debate.

The noble Baroness, Lady Chakrabarti, has framed her argument in terms of an illustration: a passer-by breaking into a house to save a neighbour. The analogy is that, in that position, the passer-by would have had available to them legal defences, and that the undercover operative—the CHIS—should simply rely upon the discretion of prosecutors rather than enjoy at the outset the full protection of the law for activities carried out within the narrow and tightly constrained boundaries of the criminal conduct authorisation.

We consider the analogy drawn by the noble Baronesses inapposite. The CHIS is not a mere passer-by stumbling across wrong-doing, but rather is placed deliberately in the company of wrong-doers by the state to help the state, or is someone who may have come into contact with wrong-doers and gone on to offer assistance to the police or investigating authorities. In so doing, such a person will often be asked to go along with the criminal activity of those people to earn their trust, so that their criminal activity may be frustrated. They do so in the public interest and often at risk of harm. Our position is that if the state thinks that it is right to ask them to act in this way and can consider the matter in advance, it is not comparable to the situation of a member of the public acting as a good citizen, responding to an unexpected event and going to the assistance of a fellow citizen in danger.

It is a credit to the skill of the handlers, and to the commitment and trust of covert human intelligence sources, that they have been prepared to continue with the prospect of prosecution always alive. However, as we understand the situation, we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do. This tension has existed for many years and it is right that we use the Bill to resolve it. In fact, making this legal position clear is likely to help with the recruitment and retention of human intelligence sources.

It would also be undesirable from a legal perspective to create an express power for public authorities to authorise activity which remained criminal. However, I reassure the noble Baroness that where a CHIS, or an undercover operative, commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can of course consider it in the normal way. The Bill does not prevent those impacted by an authorisation seeking redress. I include in that the matter raised by noble Lords in relation to civil redress. The Investigatory Powers Tribunal has the same powers to grant remedy as other courts.

The noble Baroness, Lady Warsi, and the noble Lord, Lord Hendy, were concerned that the Bill may be seen as something which allows a CHIS carte blanche to commit criminal activities. That is not the case. Criminal conduct authorisations are tightly drawn. Persons acting undercover will be working within a relationship with their handler, who is trained and experienced in conducting such work, and subject to a powerful oversight regime. A CHIS will never be granted carte blanche to commit any or all crimes. This is communicated clearly to people finding themselves in that situation, appointed to that position or recruited to that position. Where a covert human intelligence source commits criminality outside the tight provisions of the authorisation, the prosecuting authorities will consider the matter in the usual way.

In response to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Blower, and the noble Lord, Lord Paddick, it is the case—as I think the noble Lord acknowledged, albeit with substantial caveat—that covert human intelligence sources acting outside authorised conduct have been prosecuted in the past. The Bill ensures that that can happen in future if the boundaries of the authority under which they work are transgressed. It is precisely to combat the sort of outrages identified by the noble Baroness, Lady Jones of Moulsecoomb, that the Bill is framed. That is why it seeks to build on the oversight of the commissioner and the Investigatory Powers Tribunal.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked about the visibility of authorisation forms and the effectiveness of the regime. I assure him and others in the Committee that there will be oversight of the new regime. That is the role the Investigatory Powers Commissioner’s Office plays in overseeing all authorisations. That body will provide public commentary on the effectiveness of the regime as part of the reports which it prepares. It has access to all documents and all information bearing upon the CCAs about which we were speaking.

The noble Baroness, Lady Blower, spoke about the situation applying according to the law of Canada. We have looked carefully at the provisions applying in countries with legal systems similar to ours. However, similar though the legal system of Canada is, none the less there is a different regime of control, as the security imperatives in Canada are different from ours.

Finally, I shall comment on the observations by the noble Lord, Lord Paddick. We consider that the status quo is not desirable in the current situation. We acknowledge the decisions in the Third Direction case. We look to place the activities of people fulfilling these necessary functions on a statutory basis. I think—if I have gauged correctly the views of the Committee—that placing these powers on a statutory footing is more or less universally considered desirable. Clearly where we will potentially be at odds is in the framing of the terms of the statute. However, my respectful conclusion is to say that the continuation of the status quo is not desirable.

For the reasons that I have identified, we consider it desirable—in spite of the qualifications and concerns raised by the noble Lord, Lord Hendy, and others—to render the situation whereby criminal conduct, tightly defined in individual circumstances, will be identified in advance rather than excused retrospectively.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Paddick.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I thank the noble and learned Lord for his remarks. He is right that there is widespread support for placing the involvement of covert human intelligence sources in crime on a statutory footing. The issue is immunity, to which these amendments are directed. Will the Minister clarify? He says that the change that this Bill brings about around immunity is to provide greater certainty and protection. It is an assertion, but the noble and learned Lord has not produced any evidence about why greater certainty and protection are needed.

The Minister went on to say that noble Lords have accepted that leaving a CHIS under the threat of prosecution is unfair and unreasonable. I do not know whether he was temporarily distracted, or whether he did not understand what I said, at length: while we and the Government may think that it is unfair and unreasonable, clearly CHIS and their handlers, in the overwhelming majority of cases in the past, have not felt that it is unfair and unreasonable, because they have carried out this activity without a promise upfront of immunity from prosecution.

The Minister also talked about covert human intelligence sources sometimes walking away and losing valuable evidence because there was not this promise up-front of immunity. Can the noble and learned Lord tell the Committee how many times, or in what percentage of cases, that has happened? The Committee must know the nature and extent of the problem that this Bill is trying to address in terms of immunity, bearing in mind the overwhelming downsides to following a particular path.

Finally, can the Minister address what my noble friend Lord Thomas of Gresford described as the brown envelope issue, where, for example, a member of an armed gang who is an informant appears in the dock alongside the fellow criminals and, out of sight, the judge is tipped off that the informant helped the police and so should be treated more leniently? What happens when that member of the gang does not appear in the dock with all the others, clearly giving away the fact that he is a police informant and placing his life at risk?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 4:00 pm, 24th November 2020

My Lords, the noble Lord clearly heard what I said about the view that we have lost intelligence and failed to recruit CHIS, and that failing to introduce a power in these terms is likely to impair the recruitment and retention of CHIS. I do not have to hand the figures that he seeks, but I undertake to write to him.

On the “brown envelope” scenario, when it is drawn to the attention of a presiding judge passing sentence that a member of a criminal organisation—a gang, a conspiracy or whatever—has actively assisted the police and the investigating authorities in bringing the prosecution, it is important that we maintain a proper boundary. A person becoming aware that the police are aware of criminal activity, who elects to go to the police in their own interests in order to assist them, and by so doing earns a degree of mitigation, is very different from a person becoming a CHIS in the course of criminal activity, or one who is associated with criminal organisations for that direct and specific purpose. The noble Lord shakes his head, but I insist that we must maintain boundaries. A person who, during or prior to a prosecution, assists the prosecution and the police, is different from a person inserted into an organisation with the purpose of deriving intelligence about its activities.

The noble Lord, Lord Thomas of Gresford, spoke about the appointment of a committee to look into these matters; as he said himself, this was a matter which occurred to him shortly before this debate. I will look into the implications and communicate further with him.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

This Committee has made it a privilege to be a Member of your Lordships’ House, which today I have heard at its best, expressing with great care and detail the sheer strength, depth and wisdom of noble Lords’ concerns about the Bill in its current form. Many other noble Lords have similar concerns, but for various reasons were unable to participate. The noble Baroness, Lady Ritchie, rightly pointed up the Northern Ireland experience, and with all matters of human rights and the rule of law, we ignore that voice and that particular experience at our peril.

The noble Baroness, Lady Warsi, rightly pointed out that supporters of these amendments come from all sides of the House. That should give the Minister pause for thought. So much has been said in these polarised times in our nations about extremism versus moderation. Sometimes I do not even know what these words mean any more, save that the ultimate moderation that holds our nations together is the rule of law. My friend—if not my noble friend—the noble Baroness, Lady Warsi, rightly describes this as a very conservative principle and tradition. However, equally for liberals and progressives, there can be no human rights or even democracy without the preservation of the rule of law.

The noble Lord, Lord Thomas of Gresford, pointed to our legal traditions, but also made a particular point about successful work of his own at the Bar deconstructing the mens rea of someone who had no criminal intent because they were acting in the public interest; that ties in with my amendment very well indeed. The noble Baroness, Lady Jones of Moulsecoomb, may have used colourful language which offended the Minister, but it is how many members of the public will feel about what is being provided for here without the safeguard of the amendments that I have put forward.

My noble friend Lady Bryan was right to point up the excellent briefing from Justice. I neglected to declare an interest as a member of Justice, but I hope that noble Lords will forgive me, because I suspect that many of them, particularly noble and learned Lords, are members of that wonderful law reform organisation. My noble friend Lady Bryan made the crucial point: where are the hard cases of undercover operatives who are just doing their work and doing no more than necessary being prosecuted by rogue prosecutors against the public interest and common sense, because we have not seen them?

Of course, there is only one thing better than one Lord Thomas, and that is two Lords Thomas contributing so eloquently to a debate, particularly when one of them is the former Lord Chief Justice of England and Wales. I will let that hang in the air for a moment, because I know that the Minister will not have ignored that very powerful intervention from the noble and learned Lord, Lord Thomas of Cwmgiedd. What is wrong with the current law? Where is the evidence? How can we do our duty without the ability to examine the case for moving from the status quo that has served our nations so well in this difficult and grey area and held the ring for so long?

My noble friend Lord Hendy was absolutely right to bring up the ongoing Mitting inquiry, in which he represents some of those who have been subject to abuse of power. There have been abuses under the current law; how much greater will the possibility of abuse be if we cross this Rubicon into granting blanket advance immunities to so many agents of the state, including from the criminal fraternity?

What of the victims, as my noble friend Lady Blower so rightly pointed out? She reminded us of perhaps the greatest jurist of my lifetime: Lord Bingham, who articulated equality before the law as a vital rule of law principle. She also reminded us that Article 13 of the ECHR requires an “effective remedy” for victims of crime. I know that the Minister attempted to address this, but how can “lawful for all purposes” possibly square with giving an appropriate remedy to a victim of a crime that is suddenly rendered no longer a crime?

The noble Lord, Lord Paddick, has been a police officer for 30 years, and, as my noble and learned friend Lord Falconer suggested, that gives his practical experience in the field particular weight. I imagine that noble Lords listening and those who will read his intervention tomorrow will be very careful to consider his wholesale dismantling of the argument against maintaining the so-called tension, which operates as a safeguard against the abuse of power. It is good for operating on the mind and ethical framework of any CHIS or undercover operative, particularly one who is not even an officer of the state but is a mere agent and, I repeat, quite possibly from the criminal fraternity.

My noble and learned friend Lord Falconer also rightly took us to the very powerful report from the Joint Committee on Human Rights, which expresses so many concerns about the Bill in its current form. There is so much potential for violations of human rights and abuse if the Bill is unamended. I have tried to engage constructively by way of this amendment, which does minimal violation to the scheme of the Bill and addresses the problem posed by the ongoing litigation but, none the less, preserves the status quo that has served us so well and is about preserving the rule of law.

It is said to be a breach of the rules of theatre to break the fourth wall, but, for all its beauty and glory, your Lordships’ House is not a theatre; it is a legislature. I want to be fair to the Minister, who is new to your Lordships’ House and to this Bill and who cannot possibly have been involved in the earlier stages of the policy formulation that led to its precise drafting. It is very difficult to be in the Chamber for one of these Committees, to listen to all the arguments—particularly when they are so powerful and come from all sides—and to respond on the spot, on your feet and immediately, as he has had to do. None the less, I hope that he will listen to the sheer breadth and depth of concern, which might well be addressed by way of my amendments or something like them.

The noble and learned Lord takes issue with my analogy about other citizens and passers-by. He says that these agents of the state are not mere passers-by, but that argument cuts both ways. The mere passer-by is mostly not from the criminal fraternity and normally does not have a vested interest, of whatever kind, in getting a particular outcome, quite possibly, even as an agent provocateur, as we have seen in the past. Why should an undercover operative, a CHIS, quite possibly a civilian or even someone from the criminal fraternity, have a protection in law that even a uniformed police officer does not have when he or she puts themselves in harm’s way on a daily basis? The so-called tension is a healthy one, and it should not be resolved by way of the absolute immunity that is the ultimate evil in this Bill.

Finally, I am beginning to suspect that the “lawful for all purposes” formulation was not adopted with a great deal of deliberation. I am beginning to suspect that it was used because it was used before and is in the framework of RIPA, where it is, pretty much, appropriate because that is about surveillance. As the Minister has said, it has been used in certain narrow confines before, but this Bill authorises unlimited criminal conduct and, potentially, very serious crimes, as the Joint Committee on Human Rights has pointed out. Therefore, a “lawful for all purposes” advance immunity that is appropriate for bugging, surveillance and minor criminal damage is simply not acceptable or conscionable in this case.

I am hoping that the Minister will graciously listen, consider, go back to his team and talk to his colleagues. In that hope and optimistic belief, I beg leave to withdraw Amendment 3—but only for today.

Amendment 3 withdrawn.

Amendments 4 and 5 not moved.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees 4:15 pm, 24th November 2020

We now come to the group beginning with Amendment 6. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.