Amendment 11

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (1st Day) – in the House of Lords at 5:30 pm on 24th November 2020.

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Lord Dubs:

Moved by Lord Dubs

11: Clause 1, page 2, line 8, at end insert—“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statementThis amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.

There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.

The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”

That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.

I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:

“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”

He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:

“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”

The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,

“extremely limited in its oversight mechanisms” and summarised its safeguards as “woefully inadequate”.

We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.

The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.

Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.

It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.

Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.

We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.

For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.

The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:

“The use of CHIS requires deep expertise and close consideration of the personal qualities” of that particular undercover operation,

“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]

I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.

Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other” judicial “authority”.

The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The quote concludes that

“it is in principle desirable to entrust supervisory control to a judge”.

Such scrutiny could be highly compelling for the potential use of CCAs.

These judicial commissioners, who already exist, as I said, are well practised in making complex assessments of sensitive material in an independent, detached manner at short notice. We therefore reiterate that this recommendation—I here join with my noble friend Lord Dubs—is for scrutiny. We want to see amendments to the Bill that create judicial commissioners who should be mandatory for each CCA application. As my noble friend Lord Dubs said, there should be prior judicial authorisation. If this were introduced, there would be no need for the urgent procedure that my noble friend said could be a standby if necessary because, as I mentioned, there is a roster of these judges and there is always somebody available 24/7 to meet the demand of urgency. They are highly expert and capable of making quick decisions on sensitive, complex material. On this basis, I urge the Government to introduce this component into the Bill: greater scrutiny by a cohort of judges who already perform a role that is not dissimilar.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 5:45 pm, 24th November 2020

My Lords, I shall speak to Amendment 46 and its Scottish equivalent, Amendment 73, which I trailed briefly at Second Reading. I do so with the support of the noble Lords, Lord Butler and Lord Carlile, and the noble Baroness, Lady Manningham-Buller.

My report A Question of Trust, published in 2015, recommended a new authorisation and oversight structure in relation not to undercover operatives but to other covert powers exercised by intelligence agencies and the police, including the interception of communications and equipment interference. Its most radical recommendation was to introduce a requirement of prior approval by judicial commissioners—the senior judges in what is now known as IPCO, whose functions were so well described just now by the noble Baroness, Lady Kennedy —before warrants for the exercise of such powers could enter into force. That principle was given effect in the Investigatory Powers Act 2016.

I was converted to the idea of prior judicial approval by detailed observation of the practice in the United States and Canada, both of which introduced such systems many years ago after well-publicised abuses of executive power. Their systems work well and so, I believe, does ours. I have great respect for the formidable array of noble Lords, led by the noble Lord, Lord Dubs, who, by signing some of the amendments in the group, have proposed extending that system to the authorisation of CHIS criminality. However, an amendment to that effect was heavily defeated in the Commons. Where an alternative presents itself that offers adequate protection and a realistic chance of making its way into the Bill, I am concerned that we should not miss the chance to consider it. That alternative, as set out in my amendments, is notification of criminal conduct authorisations to judicial commissioners in real time, or as close to real time as is reasonably practicable. I will try to explain it.

The person who approves the interception by a public authority of telephone communications must assess the likely operational dividend against the likely intrusive effects—a task that judges are abundantly suited to perform, usually on the basis of a careful written assessment. Whether to use and how to task a CHIS requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship.

It may sometimes be decided at very short notice to authorise participation in criminality to preserve a CHIS’s cover and his or her safety. The person who tasks a CHIS, including by authorising criminality, thus takes on a weighty duty of care towards not only any potential victims of that crime but an often unpredictable human being for whom exposure could mean injury and even death. Where non-police CHIS are concerned, that person is also licensing a private individual, rather than an agent of the state, to commit crime.

As someone who until this year was an investigatory powers commissioner himself in Guernsey and Jersey, I frankly admit that this is not a function I would have felt well equipped for. Some judges, I am sure, are made of sterner stuff: with a great deal of training, I accept that prior judicial authorisation might well be made to work. My points are simply that this is a long way from the classic realm of prior judicial approval; that it is an uncomfortable solution, a feeling that I was interested to hear is shared by the noble Baroness, Lady Chakrabarti; and that there is an alternative which has not already been rejected.

The distinction between the tasking of CHIS and the operation of other forms of covert surveillance is recognised in other jurisdictions. It was North American traditions of judicial authorisation, as I have mentioned, that inspired A Question of Trust and the Investigatory Powers Act 2016. But the Canadian CSIS Act, much praised for its other qualities in previous debates on the Bill, does not, so far as I can see, provide for independent authorisation of CHIS criminal conduct. Nor are judges involved in the tasking of undercover operatives by the FBI. Otherwise, illegal activity requires approval by, at most, a senior field agent or, for more serious crimes, the US Attorney’s Office. Nor, if I recall rightly, was the Strasbourg case cited by the noble Baroness, Lady Kennedy—Szabó and Vissy—one that concerned the tasking of undercover operatives.

There is also precedent in our own law for a system of real-time notification to judicial commissioners, such as I propose in these amendments. It is the system introduced in 2013, when the “spy cops” scandal first broke, to monitor undercover police deployments of less than 12 months’ duration. It has operated satisfactorily since then, judging by the annual published reports of IPCO and its predecessor body. Indeed, the wording of my amendment is taken with little alteration from the relevant statutory instrument of 2013/2788. I add that any reservations I have about involving judges in the highly sensitive and fact-dependent decision to authorise criminal conduct are multiplied severalfold by the proposal that a hard-pressed Secretary of State should be given this responsibility. Accordingly, with respect to the very distinguished names that it has attracted, I am not at all convinced by Amendment 15.

Real-time notification would bring real advantages. It concentrates the minds of authorising officers to know that their authorisation will soon be on the desk of a High Court judge, sometimes before any criminality has taken place. Some officers will seek preliminary advice or guidance before acting, a course that it is open to IPCO to encourage, and that is of particular value for those authorities that make only occasional use of a power. Notification may prompt questions, observations or recommendations for that case or for the future. This is the core of IPCO’s demanding oversight work, much of which is implemented by its highly skilled inspectorate and whose detail is only hinted at in IPCO’s annual reports. A serious error report under Section 231 of the Investigatory Powers Act 2016, as we have discussed previously, may be accompanied by a notification of affected persons that they have a right to apply to the Investigatory Powers Tribunal, at least in any case where the judicial commissioner judges that to be in the public interest.

Accordingly, I commend Amendments 46 and 73 to the House as a workable alternative, given the stance of the Government, and one that is perhaps more suited to the particular skills of our judges in the very particular circumstances in which CHIS handling takes place.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, it is a great pleasure to follow the noble Lord, Lord Anderson, in speaking to my Amendment 76. I must apologise because I was not able to be present for Second Reading; it clashed with the Medicines and Medical Devices Bill, to which I had tabled several amendments. If I had been able to speak, I would have supported the intention to place on a statutory basis the covert activity covered by the Bill. Equally, I would have sought that that should have taken place within appropriate boundaries and safeguards. Rather, as the noble Lord, Lord Cormack, said earlier, the debate this afternoon has reinforced in me the need for this Bill to be seriously amended to make sure that those safeguards are in place. It also underpins the importance of the amendments in this group and the role of the independent Investigatory Powers Commissioner, who monitors the use of these powers through inspections, as we have heard, and publishes an annual report.

Amendment 76 is very much probing in nature to ask the Minister about the role of police and crime commissioners. It follows from discussions with the West Midlands PCC, David Jamieson, and has the support of my noble friend Lord Bach, the PCC for Leicestershire, who will speak later to this group of amendments.

As we have heard, police forces are subject to IPCO inspections, yet as I understand it, under current legislation, there is no role for PCCs in relation to covert intelligence. The argument made by PCCs is that as they are responsible for holding the chief constable to account, they should at least have some strategic oversight into the inspection process. Locally, my own force, the West Midlands Police, has previously arranged for briefings from the IPCO in the inspection outcome, and those engagements have been extremely useful in understanding how the force is complying with RIPA and providing reassurance in respect of the powers used. The PCC holds the chief constable to account in a number of ways, but partly through an annual report to the strategic policing and crime board on the use of RIPA. This is presented and discussed in private session in recognition of the highly sensitive nature of the activity.

Looking to the IPCO report of 2018, which is the latest I could find published on the web, there is a specific and lengthy section on law enforcement agencies. It looks at how it has used powers under the Investigatory Powers Act, including covert intelligence sources and surveillance activities under RIPA. The IPCO noted in general that the existence of experienced and specialist teams was important to establishing and maintaining a good level of compliance. It concluded that, although standards vary across law enforcement agencies, the appropriate processes are in place and cases are handled in compliance with the code of practice. This is good to hear, but what if a police force was found to be performing inadequately? What intervention, for instance, would take place with the chief constable and how could that happen without the involvement of the PCC? I would be grateful if the Minister could respond to the question.

The advent of this Bill provides an opportunity to address the issue and formally add a provision that gives PCCs a strategic oversight role in IPCO inspections of local police forces. Of course that has to be strategic, recognising the sensitivity of the work. I am not proposing an exact mirror of the role that PCCs have, for example, in relation to Her Majesty’s Inspectorate of Constabulary and fire and rescue service inspections. As a minimum, I ask that PCCs should be engaged in a debrief following the inspection in order to understand any urgent issues and how the force needs to address them. This is not a major amendment, but it is important that we understand how the accountability of chief constables operates in the process. If the IPCO finds that a police force is not acting satisfactorily, it is important that appropriate action is taken.

Photo of Baroness Clark of Kilwinning Baroness Clark of Kilwinning Labour

I wish to speak to Amendment 77, which has been put down in my name and that of my noble friend Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb. It has been drafted by the National Union of Journalists. The amendment seeks to ensure that any new powers enshrined in the Bill do not override existing legal protections on press freedom.

The amendment requires a judicial commissioner to give approval for authorisations to identify or confirm journalistic sources, and would require the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the current law.

The Investigatory Powers Act 2016 introduced a requirement that when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. The amendment simply seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to carry out their role. These protections are enshrined in the Investigatory Powers Act 2016, and I understand that they honour a manifesto commitment in the Conservative Party manifesto for the 2015 general election. This followed on from detailed and sustained representations by the National Union of Journalists and others outlining serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, therefore rendering journalists unable to uphold their own ethical commitments to professional privacy.

These are, of course, fundamental rights in a free society, and there has been considerable case law on these issues, including at the European Court of Human Rights, which underscores the importance of the principle. The case law has accepted that such protections are required by Article 10 of the European Convention on Human Rights on freedom of expression. The fear is that the Bill is creating an avenue to access confidential journalistic material and sources without any prior judicial oversight. This may not be the Government’s intention, and this amendment would ensure that the current legislative framework of protections is maintained.

The right to protect journalistic sources is recognised by international law, the United Nations, the Council of Europe and many other international institutions as a key element of freedom of expression. Indeed, the Government themselves have spoken in support of that principle on many occasions. I do not intend to press the amendment to a vote on this occasion but would be grateful for an explanation of the Government’s thinking on this issue, given their previous support for the principle of the protection of journalistic sources.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour 6:00 pm, 24th November 2020

My Lords, I, too, remind colleagues that I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs. I will be brief in supporting my noble friend’s excellent contribution on Amendments 11 and 59 concerning the requirement for prior judicial approval of criminal conduct authorisations, also mentioned by my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Anderson of Ipswich.

The amendments are based on the JCHR’s examination of the Bill and refer to chapter 7 of its report. Paragraph 94 refers to lack of prior independent scrutiny or approval of CCAs, and paragraph 95 gives examples where the Bill is in contrast to other investigative procedures, highlighted by my noble friend.

Retention of data is also an issue. Privacy is a vital right protected under Article 8 of the European Convention on Human Rights, but the authorisation of criminal conduct risks more damaging human rights violations, including physical violence. Paragraph 97 of the report states that

“the Bill as it stands imposes no requirement that the belief of the individual making the CCA that it is necessary must be a reasonable belief”.

The report concludes that:

“Bringing CCAs within the review function of the IPC provides some reassurance of independent scrutiny of their use after the event. However, this is insufficient protection for human rights”, and the Bill must be amended accordingly.

Photo of Lord Hain Lord Hain Labour

My Lords, I shall speak to my Amendment 15, and I am grateful to my noble friend Lady Kennedy of The Shaws, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, for having added their names. I am also grateful to my noble friend Lord Blunkett, a former Home Secretary, who would also have added his name had not the list been full.

This amendment is very straightforward. It ensures that:

“The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by the Secretary of State.”

My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000RIPA—which was updated by the Investigatory Powers Act 2016. When I was Secretary of State for Northern Ireland in 2005-07, I regularly signed warrants to place under surveillance dissident IRA splinter groups planning to kill, bomb and fundraise through drug and other crimes, and I signed warrants for surveillance on loyalist paramilitaries and hardcore criminals. If the Home Secretary was not available, I also signed warrants that he would normally have signed, sometimes with very short notice, in real time—on one occasion, to prevent Islamist terrorists in a south London house unleashing a bomb in London.

The point that I wish to underline is that these were absolutely essential security and policing operations, yet they required ministerial authorisation at a high level. Why was that so? Because ultimately that brings ministerial responsibility and therefore direct accountability. The operational decision was for the police or intelligence services, but the accountability was ultimately governmental and political. The time has come to bring that principle into the sphere of undercover policing, because it has involved far too many abuses for decades and, if there is not the same kind of accountability as for surveillance, there will inevitably be even more abuse.

I met undercover officers doing brave work trying to prevent dissident IRA splinter groups and loyalist groups killing and bombing. I was also briefed about vital undercover work around Islamist terrorist cells to prevent terrorist bombing and killing. In other words, I have direct experience of how undercover officers can perform vital functions to save lives and prevent crimes or terrorist attacks. But I am also due to give evidence early next year in what is described as a non-police, non-state core participant role to the official inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because undercover policing has got out of control and needs to be made accountable. That is important.

From 1969-70, undercover officers spied on me at anti-apartheid and anti-racist meetings, including when I was an MP in the early 1990s. As confirmed by evidence given to the Mitting inquiry, a British police or security service officer was in almost every political meeting that I attended, private or public, innocuous and routine, or serious and strategic, like stopping all white apartheid sports tours and combating pro-Nazi activity. Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London office of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose apartheid security service operations in the UK? Why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb in June 1972? It was so powerful that it could have blown up me, my family and our south-west London home were it not for a technical fault in the trigger mechanism. Scotland Yard’s bomb squad, then chasing down the IRA, took it away and made it safe, but I heard nothing more.

Another victim was ecological activist Kate Wilson, whom I mentioned at Second Reading. Agree or disagree with her views and actions, she is not a criminal. Kate was at primary school with my two sons in the 1980s, and our families remain friends. Undercover officer Mark Kennedy formed an intimate and what she described afterwards as an abusive relationship with her for over seven years, even reporting back to his superiors on contacts with my family when I was a Cabinet Minister. I would like to think that a Home Secretary presented with a warrant to assign Kennedy to target Kate Wilson would at least have asked, “Why are our police wasting their time targeting her, an environmental activist, instead of drug barons, human traffickers, criminals and terrorists?” A warrant procedure would force police chiefs to stop and ask that question too, instead of morphing policing from the overtly criminal into the covertly political sphere.

Another widely reported example was referred to by my noble friend Lord Dubs. Doreen Lawrence, now my noble friend Lady Lawrence, is a law-abiding citizen, yet her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder? A warrant procedure would have forced police chiefs to stop and ask that question, too, instead of morphing policing from the overtly criminal into the covertly political sphere.

Why did an undercover officer going under the name of Sandra infiltrate the north London branch of the Women’s Liberation Front between 1971 and 1973? She conceded to the Mitting inquiry that she failed to discover any useful intelligence whatever. Some of the meetings were attended by just two activists, she reported. She told the inquiry on Wednesday 18 November, last week:

“I could have been doing much more worthwhile things with my time.”

She worked for the Met’s special demonstration squad. She went on:

“Women’s liberation was viewed as a worrying trend … There was a very different view towards the women’s movement then as compared to today.”

Sandra told the inquiry that she did not think that her work

“really yielded any good intelligence”.

That is nice to know now, over 40 years later, but why was there no proper accountability for her deployment? I like to think that a Secretary of State might have asked a few questions if a request came to authorise her infiltration of a women’s rights group. Knowing that the Home Secretary would take a look, maybe police chiefs would never have deployed Sandra on this scandalous and wasteful mission.

In each of these cases, the police were on the wrong side of justice, the law and history: harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom, instead of pursuing crimes by the apartheid state in our country; infiltrating the family of a climate change activist, instead of combating climate change; covering up for a racist murder, instead of catching the murderers; and targeting women’s rights campaigners, instead of promoting gender equality, including within the police of that time. Why were undercover police officers trying to disrupt all of us, diverting precious police resources away from catching real criminals, such as drug traffickers, human traffickers, terrorists and criminal gangs?

When I give evidence next year to the undercover inquiry, I will also show that there was a systematic pattern of malevolence, deceit and exaggeration by undercover officers. One, named as Mike Ferguson, claimed to be my right-hand man when I chaired the campaign to stop sports apartheid tours by all-white rugby and cricket teams. It was a straight lie; I had no right-hand man. If he is the person I vaguely recollect, he was on the periphery of the central core around me. Mike Ferguson claimed our campaign intended to attack the police at Twickenham when England played the Springboks—a lie. We did not. He also claimed that we planned to sprinkle tin tacks on the pitch—another lie. We did not, and indeed were at pains to avoid personal injury to players, as we ran on to pitches in acts of nonviolent direct action, sometimes being beaten up by rugby stewards or the police. Mike Ferguson reported that we planned to put oil on Lord’s cricket pitch and dig it up—again a lie. We never did. Giving evidence only the other week, another undercover officer who had infiltrated our campaign admitted that this allegation about oil and digging up pitches was false. Undercover officers also played agent provocateur on occasion, daring militant but non-violent protesters into criminal activity.

A warrant procedure would have forced police chiefs to stop and ask serious questions about all this before seeking authorisation from the Home Secretary over Mike Ferguson’s role, instead of morphing policing from the overtly criminal into the covertly political sphere.

This is not ancient history; it has happened over recent decades and could well be happening still. There needs to be a structure of proper accountability to ensure that undercover policing or covert surveillance through embedded agents is performing a legitimate function, not an illegitimate one, as in the examples I have mentioned, including those involving me. Otherwise, how do we stop legitimate undercover police or intelligence work sliding over into the illegitimate and the blatantly political? Even in our era of modern legislatively accountable policing and intelligence work, things are still going badly wrong, such as when counterterrorism police recently put non-violent Extinction Rebellion on their list of terrorist groups, doubtless for undercover operations, which are presumably continuing now, as well.

This covert human intelligence sources Bill does not address any of the key questions that I have asked, which is why I believe that the amendment, which would ensure that a warrant was signed by a Secretary of State before undercover policing was authorised, is vital and why I hope that it will be put to a vote on Report.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 6:15 pm, 24th November 2020

My Lords, I have previously today made a case against permitting the authorisation of criminal conduct by an organ of the state without any independent check or oversight. The noble Lord, Lord Dubs, in introducing his amendment, referred to the Finucane case and the strong comments made by Desmond de Silva QC in his inquiry, calling for a strong framework of control.

This group of amendments puts forward alternative approaches. I prefer the approach of the noble Lord, Lord Dubs, which is simple and straightforward in operation. An application to a judge who is always available 24 hours a day for prior authorisation is, in my opinion, far preferable to the giving of notice after the authorisation has been made. The noble Lord, Lord Hain, strongly made that point. He pointed to the fact that the police being out of control in many ways lies behind the institution of the Mitting inquiry. He asks: who is the target, and why?

The noble Baroness, Lady Chakrabarti, referred obliquely in the debate on the second group today to concerns that this involves the judge, if he is approached, in the commission of a crime which has not yet happened. I disagree: the role of the judge—or, as the noble Lord, Lord Hain, would have it, the Secretary of State—is not to authorise the crime but to ensure that all the safeguards are in place against abuse of a necessary but dangerous tool in the detection of crime. That is an important part of the framework for which Desmond de Silva called.

After the event notice given to the Investigatory Powers Commissioner is proposed by the formidable array led by the noble Lord, Lord Anderson of Ipswich. The problem with their solution is that, in my view, it has no teeth. I listened to the noble Lord’s exposition. He thought that a decision referring to the authorisation of a CHIS depended on a close consideration of the character of the CHIS in the very difficult circumstances in which he might find himself. He said that it was too unpredictable and that he would not himself find it an easy decision to make. It would be an uncomfortable position. However, his proposal requires confidence that the security services, the police or other authorities will properly give a full explanation of what they have authorised to the IPC. This was an issue raised by my noble friend Lord Macdonald, as quoted by the noble Baroness, Lady Kennedy.

A case in 2019 showed that the intelligence services kept their errors secret. As Megan Goulding of Liberty said after the judgment,

“they’ve been trying to keep their really serious errors secret—secret from the security services watchdog, who’s supposed to know about them, secret from the Home Office, secret from the prime minister and secret from the public.”

The Investigatory Powers Commissioner, Lord Justice Adrian Fulford, a man of great integrity and experience, as I know, said that MI5 had a “historical lack of compliance” with the law. He said that the Security Service would be placed under greater scrutiny by judges when seeking warrants in future. He compared the service to a failing school which needed to be placed in “special measures”.

Amendment 47 in the names of my noble friends Lord Paddick and Lady Hamwee would indeed give teeth in that, if the commissioner is not satisfied with the authorisation, conduct will not be lawful and ultimately the Director of Public Prosecutions would become involved—that is if the model suggested by the noble Lord, Lord Anderson, received the favour of the Government. The reformulation of the Anderson amendment in Amendment 73 again has no teeth.

The refining of the amendment proposed by the noble Lord, Lord Dubs, put forward by the noble Baroness, Lady Kennedy of The Shaws, to appoint experienced judicial commissioners is preferable. Authorisation would require the approval of a judicial commissioner before it took effect. Further it ensures that the judicial commissioner has to be satisfied that there are reasonable grounds for the authorisation and it specifically contains the safeguard that conduct contrary to the European convention is not authorised. Since the Government suggest that the only control on the authorisation should simply be the convention rights granted by the ECHR, so that they are not broken, I cannot see what objection the Government could have to such a proposal. Of course, I believe it preferable to specify in the Bill the particular offences which cannot be authorised, but that is a matter for later argument.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, this is another fascinating debate. A number of your Lordships are seeking to put forward solutions to what I think is a gaping hole in the Bill. I was glad to add my name to the amendment tabled by the noble Lord, Lord Hain. We have had some powerful speeches not only from the noble Lord, Lord Hain, who speaks with truly unique personal experience as well as experience as a very accomplished Secretary of State, which I saw at first hand in Northern Ireland, but we have other suggestions put forward, most notably by the noble Lord, Lord Anderson, and the very powerful quartet of the noble Lords, Lord Anderson, Lord Butler of Brockwell and Lord Carlile, and the noble Baroness, Lady Manningham-Buller, and we heard a powerful speech a moment or two ago from the noble Lord, Lord Thomas of Gresford.

Fundamentally, what it comes down to is this: what we are doing in the Bill is giving authority for people to commit crimes. We all accept the basic necessity when it is a matter of national security. I am not convinced, and I will need a lot of convincing, that we have to give similar powers to the Environment Agency, the Competition and Markets Authority, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. There are others on this list, such as the Serious Fraud Office, the National Crime Agency and the intelligence services, that one would approve, but wherever one is approving, one is giving potentially a vast range of people the authority to authorise crimes and to launch these agents into a world where they can do great damage to individual innocent people. We touched on this earlier when we talked about compensation.

I believe it is absolutely crucial that these permissions are not granted without the authority of a senior judicial figure or a Secretary of State. The argument in favour of a Secretary of State, made very pointedly by the noble Lord, Lord Hain, is that there is a degree of public accountability to Parliament for decisions that, one would hope, have been taken in good faith, but which may go wrong in a bad way. What we need is for my noble friend the Minister, and, doubtless, some of her ministerial colleagues, to sit down with those who have proposed these various amendments and try to come to agreement on an amendment for Report stage that the Government can back.

This Bill as it stands just will not do. It could be called the “carte blanche Bill”; in this field, that is not acceptable. I urge my noble friend when she replies to share some reflection on that idea. The noble Lords, Lord Anderson, Lord Butler of Brockwell, Lord Hain—all these people and others—have experience that they can draw upon and advice that they can proffer. We cannot have this Bill giving so many bodies authority to authorise the commission of crimes. I keep coming back to that, because that is what we are talking about. This has to be handled with firmness, sensitivity and, above all, the knowledge that the last thing we want to become is a state in which the police have virtually unbridled powers.

Police are public servants. We all honour them; we believe we are extremely fortunate in the quality of our police forces even though there have been some terrible recent examples, some of them talked about in this broad context by the noble Baroness, Lady Jones, a little while ago. At the moment—I have half-joked about this in the House recently—we are living in a benign police state where we can be prevented and fined for seeking to sit down with members of our family. It is all very serious, and underlines the seriousness of what this Bill is about.

I beg my noble friend to listen to those who have spoken with great experience and authority, putting forward ideas that are practical and workable; some doubtless better than others, but we must have a system where a person of real seniority, answerable for his or her decisions, can give the authorisation before the crime is committed.

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

My Lords, I understand that the noble Baroness, Lady Wheatcroft, has withdrawn, so I call the noble Lord, Lord Butler of Brockwell.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I have put my name to the amendment from my noble friend Lord Anderson. Over the years of my career in government, I was involved in successive pieces of legislation governing intrusion by state institutions. They were necessitated by the European Convention on Human Rights judgments of the European Court, as well as by the growing availability of technology making such intrusion possible. It is many, many years since it could be said that the intelligence agencies could bug and burgle their way around London without let or hindrance.

This Bill deals with a specific form of intrusion—namely, infiltration into groups or activities for the purposes of gathering intelligence. That gives rise to profoundly difficult issues. The noble Lord, Lord Hain, has spoken powerfully on this issue and illustrated how things can go grievously wrong, but despite having been the victim of surveillance himself, he none the less acknowledges that such surveillance is often necessary.

I have come to the conclusion that this matter of authorising criminal human intelligence sources, who may have to be involved in criminal activity, cannot be left simply to the discretion of the prosecuting authorities after the event. I do not think that the present system works, and that is why I support this Bill. In the interests of the agent and the authorising agency, the criminal activity has to be limited, defined and, as far as possible, supervised in real time.

Earlier in the debate, the noble Lord, Lord Dubs, mentioned the case of the informer Nelson, who was involved in the murder of the lawyer Patrick Finucane. I remember that vividly because, at the time, the late Lord Mayhew, who was then Attorney-General, had to decide whether Nelson should be prosecuted. Nelson was a valued informer, whose intelligence had saved many lives, but the limits of his criminal activity had never been defined. When evidence of his involvement in the murder of Finucane arose, the late Lord Mayhew had to decide whether, despite all that was owed to Nelson as an informer, he should, nevertheless, be prosecuted for his involvement. It was an agonising decision, but Lord Mayhew, in my view, came to the correct decision, and Nelson was prosecuted. The extent of his licence to engage in criminal activity had not been defined or limited, nor was he properly supervised; that was unfair to him and the authorities.

The point of my noble friend’s amendment and the other amendments in this group is to provide such authorisation and supervision. I think we are all agreed that it is not sufficient for the state agencies listed in the Bill, in authorising such activity, to be judge and jury in their own case; nor is it sufficient for authorisations to be subject only to an annual review by the Investigatory Powers Commissioner or, after the event, by the Intelligence and Security Committee of Parliament. In a moving situation, oversight in something closer to real time is needed.

A question then arises—and this is one of the differences between the movers of the amendments in this group: who should exercise that authority? I share the view of my noble friend Lord Anderson that this is a matter for a specialist overseer, which is the role for which we have the Investigatory Powers Commissioner. It is not like the authorisation of a specific act, like a search warrant or an act of interception. These are moving situations; they require specialism and people who can continue to exercise scrutiny over them. There is merit in my noble friend’s suggestion. I understand that the Minister has indicated that the Government are amenable to further consideration of this issue, and I hope that that will lead to progress in the direction of closer authorisation and real-time oversight. One of those forms is advocated by my noble friend.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 6:30 pm, 24th November 2020

My Lords, it is a privilege to follow my noble friend Lord Butler of Brockwell. His clarity and measured critical faculty provide an example to us all at all times.

I speak in support of Amendments 46 and 73, which were moved with such clarity by my noble friend Lord Anderson. I have added my name to each. Because his argument was so cogent and full, I do not need to repeat any of it, and I shall try to make a short speech. I did want to say, near the outset, that I am surprised that so few noble Lords have spoken clearly in support of MI5 and the police of today. I agree with much of the criticism of the authorities of yesteryear, but we are talking about the authorities of today. They protect our country and our citizens, and they deserve our proportionate support, which, I would suggest to your Lordships, Amendments 46 and 73 provide.

I preceded my noble friend Lord Anderson as Independent Reviewer of Terrorism Legislation. Between us, we were independent reviewer for 16 of the last 20 years. Both of us, in our different ways and in different times, have observed, in real time, the operation of CHIS in the terrorism arena. I, as a barrister who has been involved in many criminal cases, have observed the way in which CHIS have brought many serious criminals to justice. We must put aside our prejudices, often formed from anecdote, and we must aim to provide operational practicality together with rigorous scrutiny. That balance must be achieved based on current practice of those services of today to which I referred a few moments ago.

The Government are right to introduce legislation as we have before us today that seeks to set out clearly how such authorities should behave. I do not believe anyone in this debate has referred to the code of practice of the handling of CHIS, which, as I said at Second Reading, should be required reading for everybody talking on these issues. We must look at the provisions in the Bill alongside that code of practice, which, as has been said frequently, is legally enforceable. Together, they provide the proportionate support for the process that I mentioned earlier.

It was said at one point in the debate by a noble Lord for whom I have great respect that the police are being given unbridled power. With respect, that is a gross exaggeration. The whole aim behind this Bill and the code of practice has been to dilute police and MI5 powers, such as they are, by bringing them under regulatory control that is strict but proportionate. In my view, this part of the Bill sets out and distinguishes a proper role for the investigators and judges in IPCO respectively. We do not have an investigatory system of justice, with investigating magistrates, in this country. However able judges are, not one of them, as far as I am aware, has ever been an operational investigator in the difficult area we are discussing. But they have experience, often brilliant experience, in after-the-event scrutiny. That is what judges do.

I urge the Government therefore to accept the modifications in the amendments which I support, recognising that some strengthening of the Bill’s provisions as they stand is needed, but to resist a system which would cause delay and would not improve the skills applied to the kinds of operations that we are considering.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench

My Lords, I am delighted to speak to Amendment 46 and to say a few general words. I have heard lots of excellent speeches today. Unfortunately, I could not be at Second Reading, but I listened to the debate afterwards, and I am sure that, as with most legislation that comes before your Lordships’ House, we will improve the Bill. I welcome this legislation, for many of the reasons said by other noble Lords, most recently the noble Lord, Lord Carlile. It is long overdue, and I declare a strong interest as a former member of MI5 for 33 years. It is on that experience that many of my comments today are based.

Running agents, as we call them—I draw this to the attention of the noble Lord, Lord Cormack—is a central part of the work of MI5, and always has been. I can remember—I have checked with former colleagues, who have found paperwork going back 27 years to 1993—raising with Governments the need for legislation to cover the activities of what were then called “participating agents”. I do not apologise for reminding the House of a little history; that date was before the Intelligence Services Act, which put SIS and GCHQ on a statutory footing, and before the establishment of the Intelligence and Security Committee. My service’s request always ended up in the “too difficult” tray, but MI5 seeking legislation was part of a pattern of which I am proud. It argued for a security service Act, for a parliamentary oversight body, and for what became RIPA, long before others did.

Why did we want that legislative framework? Because a robust legislative framework provides clarity and confidence for the public, who need to help us in our work, for those members of my old service, for others doing intelligence and security work, and for our agents, our covert human intelligence sources. I do not accept the argument that they are unconcerned by this. I am afraid that it is not true. Legislation also builds in oversight and accountability. The current litigation has led to uncertainty, so there is an overwhelming operational requirement for this legislation.

So why this particular Bill? Although it is good housekeeping, it is not just that, and here I will talk about some of these covert human intelligence sources and agents. Every day, brave men and women, usually members of the public, in my experience, risk violence, and even torture and death, to obtain intelligence which may well save lives. There are extensive examples of thousands of lives that have been saved as a result of their work, although generally that cannot be made public in any detail because we have a moral obligation to look after them for the rest of their lives. I am afraid that I do not accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity. They are brave men and women, and we should all be thankful to them. They should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk. It may be proportionate and necessary for them to commit crimes in order to be trusted or to prevent more serious crime. I absolutely cannot conceive of their ever being authorised to commit the sort of crimes which it is their role to try to prevent.

I note that in its 2018 report, IPCO said that all authorisations by MI5 for its sources to commit crimes were,

“proportionate to the anticipated operational benefits” and met the high-necessity threshold. Of course I understand the disquiet of the House about authorising crime, although this has happened for decades, and I see the attraction of extending the powers of IPCO by asking that body to give prior authority. I have no objection to that in principle, and doing so might give some comfort to the handlers and the agents. But—and it is a very big “but”—I cannot see that it is practical.

This is not like intercepting a telephone, planting a microphone or authorising somebody to be followed. The microphone and telephone are, at some level, technical issues. They intrude into privacy, but they can be switched on and off. Human sources are different, not least in the risks they run, and you cannot switch them off like an intercept. It is critical that decisions are made by the handler, who knows the individual, their strengths and weaknesses, knows what they have been briefed on, has agreed plans for emergencies with them, has outlined to them what is acceptable and what is not, and who fully understands what may be a very long and complex background. It is worth adding that MI5 can run agents for many years.

The handler will know the context, the others involved and the threat on the ground, which may be shifting. I am afraid that even the wisest judge will not have the professional expertise and the extensive training to fulfil this role. However, I feel very strongly that it is important that IPCO is informed of the authorisations, with the responsibility to challenge decisions it is concerned about. That already happens, but not in real time. This amendment would ensure that that occurs and that, if IPCO were concerned, the activity would clearly not continue. I would expect that to lead to constructive improvements, as it has done in the data-handling issue that the noble Lord, Lord Thomas of Gresford, mentioned in an earlier speech.

If he will forgive me, I shall quote what Lord Justice Fulford said last October:

“I have been impressed by MI5’s reaction to our criticisms, in particular the speed, focus and dedication with which they acted to rectify the situation”— which was a data-handling error of some significance. I think that if errors were made by my former colleagues and they reported them in real time to IPCO, it would react in a similar way.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 6:45 pm, 24th November 2020

My Lords, the House has been privileged to hear from the noble Baroness, Lady Manningham-Buller, on this subject. My noble friend Lord Paddick and I have tabled Amendment 47 as an amendment to Amendment 46, which she supports. I am a little diffident about what may appear to be a challenge to the “quartet”, as the noble Lord, Lord Cormack, called them, of four noble Lords who all have considerable experience, in their different ways, of dealing with these issues directly. I think my points are relevant to some other amendments as well.

Our Amendment 47 explores what the next steps should be after the steps set out in subsections (8A) to (8C) in Amendment 46. My noble friend Lord Paddick will deal with what I think he might describe as the operational realities that make prior authorisation impractical. Allied to that, I note the phrase of the noble Lord, Lord Anderson, “human complexities”. I take his point about aiming for what might be possible in political terms in this area.

In our view, there should be further steps after notice has been given to the commissioner. Of course, he could and should deal with notices of criminal conduct authorisations in his annual report—in addition, he can deal with them in reports to the Prime Minister—but if the notice is to have teeth, as my noble friend Lord Thomas put it, something needs to be there to follow through. Even a decision to do nothing would be an active decision.

We propose that the commissioner should consider subsection (4) of proposed new Clause 29B—one of the new provisions in the Bill—including whether the criteria of necessity and proportionality are satisfied, and any other matters introduced under subsection (4)(c) by the Secretary of State. Of course, I am aware that the question of what is believed—whether that is an objective or subjective test—is rather begged by my amendment, but we will come to that in the debate on the next group.

Perhaps noble Lords are attracted to something like our proposal. I am sure that it would need expanding—for instance, to allow inquiries by the commissioner, questioning the person giving notice and so on. If the commissioner considers that subsection (4) has not been satisfied, we suggest that two things should follow. The first should be that the conduct would be not be lawful for all purposes, which would reintroduce the question of redress, including applications to the criminal injuries compensation fund. Secondly, the matter must be reported to the head of the relevant public authority—the National Crime Agency, the Gambling Commission, whoever. In turn, the authority should refer it to the DPP, and the usual steps should then follow. For good measure, our amendment makes direct mention of the annual report.

In other words, our amendment is a development of Amendment 46, which would introduce a circle that we think needs rounding off. I hope that, to pick up on the point made by the noble Lord, Lord Carlile, this is regarded as proportionate support. My noble friend Lord Paddick will have observations on the other amendments in this group when he speaks from our Benches.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that the debate on this amendment be adjourned.

Motion agreed.

House resumed.

Sitting suspended.