Amendment 16

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (2nd Day) – in the House of Lords at 3:30 pm on 1st December 2020.

Alert me about debates like this

Baroness Hamwee:

Moved by Baroness Hamwee

16: Clause 1, page 2, line 16, leave out “the person believes—(a) that”Member’s explanatory statementThis amendment ensures that there is an objective test rather than a subjective test for granting a criminal conduct authorisation.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.

The JCHR made the very good point in the conclusion of its report that

“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.

It also made the important point:

“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”

The Minister has just reminded us of the duty of care to a CHIS.

New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.

A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a

“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”

That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.

The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.

New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—

“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”

We would take out “reasonably”.

The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.

Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.

On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s

“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”

In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:

“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”

Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that

“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].

Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation

“may be granted by the authorising officer where they believe that the authorisation is necessary”.

Section 6.3 states:

“The authorising officer must also believe that the authorised criminal conduct is proportionate”.

The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.

My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 3:45 pm, 1st December 2020

My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson. I do not have their legal expertise but even I, a civilian, can understand that the legal tests in this Bill are absolutely inadequate.

I had the pleasure of being on the Metropolitan Police Authority for 12 years when I was a member of the London Assembly. In that time, I met a large number of police officers—some of whom spied on me—so I can understand the sort of people who become police officers. They are incredibly hard-working and very brave, but they are human and make mistakes. They certainly made a mistake when they decided to report on my activities, which were all on Twitter—my own Twitter. In any case, I have no experience of the security services—that I know of—yet but I imagine that they, too, are human. We are all prone to error.

The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes—there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations. The crimes will have been committed, the damage will have been done and harm will have been caused—possibly to entirely innocent people, as has happened in the past. The reasonableness test should be included in the Bill; the Government will struggle to argue against that.

We should, however, go beyond reasonableness. That is why I have signed Amendment 19 in the name of the noble Lord, Lord Rosser. The decision-maker should consider, and show evidence, that they have thought about the alternatives to authorising criminal conduct. Where criminality can be avoided, it should be. I took the point that the noble Lord, Lord Paddick, made about the fact that, as an inspector aged 24, he was not what I would consider a necessarily appropriate person to authorise immunity from criminal conduct. I am sure that the noble Lord was an incredibly competent police officer but, even so, that is an incredibly young age to understand the impact of what you are doing.

The decision-maker should also demonstrate that they are not using this legislation to bypass other, more appropriate, legal routes to achieving their objectives. They should not be able to authorise criminal conduct where a legal route exists. For example, the legislation must not create loopholes and back doors for the authorities to conduct black ops. They must not be able to recruit a burglar where they should have used a search warrant, or a hacker where they should have obtained a RIPA authorisation. It is not sufficient for such critical issues to be left to the code of practice. It must go in the Bill. I really hope that the Government listen to the noble Lords who understand these processes and accept that we are all human and make mistakes.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am pleased to follow the noble Baroness, Lady Jones of Moulsecoomb. I support and will speak to Amendments 17 and 72 in the name of the noble Lord, Lord Anderson of Ipswich.

I am sure that my noble and learned friend will be taken back to his law school days, as I have been, by the discussion of what is reasonable and what is the test of reasonableness in any given circumstances. I prefer Amendments 17 and 72 to Amendment 16 and others; I hope that, if they are pre-empted, this can be resolved on Report.

I entirely support what the noble Lord, Lord Anderson of Ipswich, said. He has gone through the draft code of practice, as he was invited to do by the Minister. I especially support his argument that the code is missing from the Bill. It is not sufficient as an understanding: I want to see it in the Bill in the circumstances that the noble Lord set out, in both the English and Scottish versions.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Lord, Lord Judd, has withdrawn so I call the noble Lord, Lord Thomas of Gresford.

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

My Lords, the first issue to consider is the identity of the person who grants the prior authorisation. The starting point is Section 30 of RIPA, now to be amended by Clause 2 of the Bill. It is for the Secretary of State, by regulation, to specify the persons holding such offices, ranks or position within the relevant public authority as to who will exercise the power to authorise. In addition to the police forces, the National Crime Agency and the intelligence services, the public authorities designated already include the Home Office, the Ministry of Justice and a variety of other authorities, as we have discussed.

The list of designated authorities, however, is not final since Clause 2(8) gives power to the Secretary of State to add more public authorities—subject, of course, to the approval of Parliament by the affirmative procedure. It is clear, therefore, that authorisations may be given by people with varying backgrounds and experience, with varying or no training in matters of this kind. If the subjective belief of one of a large number of unidentified people is sufficient to authorise an individual to commit crime, that places in the hands of the authorities an unusual and dangerous power.

What is it that the authoriser has to believe? They have to believe that the authorisation is necessary and proportionate in the interest of three things: national security, preventing or detecting crime or preventing disorder, or the economic well-being of the United Kingdom. There are varying views as to what is in the interests of the economic well-being of the United Kingdom. I have no doubt that the individuals who authorised events during the miners’ strike—the unions, as advised by the noble and learned Lord, Lord Morris of Aberavon, as he told us, on the one hand, and the Home Secretary on the other—had diametrically opposed opinions on where the economic well-being of the country lay and on what was necessary and proportionate. The noble and learned Lord, Lord Morris, was on one side; I myself was engaged in the prosecution of the two miners who killed a taxi driver with a concrete block.

One of the dangers we must bear in mind is that the Bill might solely conjure up a picture that it applies only where well-trained operatives are under the control of senior security officers to go out and fight the baddies. That is the picture painted by the noble Baroness, Lady Manningham-Buller. However, as my noble friend Lord Paddick made clear from his considerable experience, these authorisations are much more frequently to be given by a middle-ranked police officer—an authoriser, if you like—or perhaps an authoriser from the Inland Revenue or one of the other designated authorities. These authorisations are given to criminals with a chaotic life who are seeking for their own purposes to ingratiate themselves with authority either for personal gain or to avoid the consequences of their own criminal activity. That is why it is essential that the test of necessity and proportionality should be objective. If it is subjective, it allows an irresponsible official to follow their own course, perhaps—as my noble friend Lord Paddick suggested—corruptly or, through an excess of zeal, to chase their own hobbyhorse or their own dislike, for example, of striking miners or protestors against road or rail development, squatting up in trees. Indeed, they might dislike members of the Green Party, as the noble Baroness, Lady Jones, has reminded us. An objective test is a check that encourages systems of scrutiny, of consultation and of records—the recording of the reasons for the authorisation being given.

Amendments 17 and 71 in the name of the noble Lord, Lord Anderson, introduce the concept of reasonableness, which is certainly consonant with an objective test. Amendment 19, in the name of the noble Lord, Lord Rosser, deems the test set out in the code of practice, lauded by both my noble friend Lord Carlile and the noble Baroness, Lady Williams, to be necessary reading. Why should the public not read it in the Bill? Why should it not be in the Bill from the point of view of the courts and the juries that might try cases arising under it?

Amendments 32 and 33, in the names of my noble friends Lady Hamwee and Lord Paddick, insist that these tests should not be in any way weakened. This group of amendments conveys the same message that necessity and proportionality are not to be judged by the inclination and values of a shadowy and undefined figure. I hope that on Report, we can consolidate in order to improve this Bill.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Lord, Lord Cormack, and the noble and learned Lord, Lord Morris of Aberavon, have withdrawn, so I now call the noble Lord, Lord Rooker.

As the noble Lord is not responding, I call the noble Lord, Lord Mann.

Photo of Lord Mann Lord Mann Non-affiliated

My Lords, I will speak to a number of these amendments simultaneously, using a different word to the thematics that have come through, but with the same purpose. The word that I refer to is “competence”: the competence of decision-making, and whether the legislation, in the view of the Minister as well as the Committee, is sufficiently precise in ensuring it. We have heard words such as corruption—that is very important—and concepts of reasonableness, which are also important.

I can recall when I and other trade union colleagues had suspicions about an individual who we thought was acting rather strangely over a period of time. He was observed selling Nazi memorabilia in London Bridge Station on a Saturday morning—not a normal activity for trade unionists, even in those days. We were suspicious, and he suddenly moved on. I had a sharp thought that I would handle his pension because it was an accrued pension entitlement that was to be transferred. Rather than leave it to the finance people, who would have handled it in a very financial way, I made the calls myself. I was fairly certain that he was not who he said he was, and that for some reason he decided to look into the heart of moderate trade unionism. The question that it begged to me, rather than being a question of principle, was what a waste of resources it was—what incompetence.

I found later that I was on the Economic League blacklist. I found out why by a fair amount of research. I looked into the case of the—I think it is fair to say—loud-mouthed communist, the very good actor Ricky Tomlinson, whom I got to know over the years. He was stitched up for being an industrial activist for no good democratic reason. He was a communist without any question and he was loud-mouthed, but he was participating in a perfectly normal way in our civil society, and yet he was stitched up.

Mine was much less serious, but I was stitched up by being put on that Economic League blacklist. I know that I was put on it because I was one of the organisers of the national anti-apartheid demonstrations. My role was not very political in that context. It was not glamorous; it was organising stewards and stewarding. I had to have an intricate knowledge of extreme-left groups, because my tasking by the Anti-Apartheid Movement—and through them from the African National Congress—was to ensure that Trotskyist groups did not take over the march to divert from the general messaging of the Anti-Apartheid Movement.

It was very mundane and matter of fact but it was actually quite a complex operation—knowing exactly who the extreme Trotskyists were, what their agenda was, how they would operate and what they would try to do within the march. As part of that, I had to liaise with the Metropolitan Police—one of a small number—on how the march would operate, how it would be stewarded and where it would go. For my pleasure, I ended up a few years later on the Economic League blacklist. I know that only because Ciba-Geigy chemicals in Manchester told me that when it had given me a job, and then had to embarrassingly withdraw it.

The truth of the matter, which was self-evident to anyone around at the time, was that I was not an extremist. But not only was I not an extremist, I was one of the people most active within the Labour Party and the unions in combatting extremism, to such an extent that I was personally responsible for the exposure of the far-left infiltration of the ANC in 1985. The Labour Party, under my report, took action and helped crack that particular problem.

I am looking and thinking about what was going on at the time not in terms of my rights, or anything like that, although those can be important, because it can have—as it did for Ricky Tomlinson—very detrimental effects on your economic well-being, your family and so on. I am not even thinking particularly of principle but of competence. If that resource is being employed in that way, it is not being employed in another way to deal with people who want to cause problems within the state and usurp our democracy.

To jump forward to the more recent scandals we have seen, not least in Nottinghamshire, where so-called green groups were infiltrated by police officers and horrendous sexual abuse took place, there ought to be the right of remedy for those women. That right should be there now, and that scandal is certainly not in any sense a closed chapter. Let me look at it from an angle which has not been discussed: the competence of infiltrating some obscure green group with hardly any members.

When I was an MP at the time, they targeted the two power stations in my area, and they were just an irritation. Do your Lordships know the biggest problem that created? It was me arguing with the power station owners, the police and the local authorities about toilet facilities and the problems of the workers on site if such a group of people are there. Those people—I think I called them “woollybacks” at the time—were not a danger to the state or society but a bit of a danger to themselves, climbing up cooling towers without toilet facilities available. They were a little bit of a public health risk and were hypocrites, turning up not on their bikes or walking but in motorised vehicles, polluting the local area that I live in. I gave them the full whack in terms of the political welcome that they wanted. However, that is not how you disrupt a power station. It is an aggravation, an irritation and a cost, and we should not allow such criminality. But, frankly, that is easy and simple to deal with. In fact, if it had been left to the local people, I could have got a few people to deal with it very easily: trade unionists working inside the power stations, who did not want their economic lives threatened by some eco-protest.

In fact, if you were an eco-warrior of some kind and you wanted to create an economic problem, you would attempt to get employed inside the power station, get in charge, run the trade union and bring it out on some kind of prolonged strike. That is how you do economic damage. Of course, that is not possible, because trade unions have always been the bulwark against such kinds of extremism. That is the whole point of trade unions. They exist to complement capitalism, not to overthrow it, and to battle and share the products of capitalism. Therefore, the whole mindset that would infiltrate trade unions was an absurdity. However, the whole mindset that would put resource for an extraordinary length of time into a tiny group of people who are so obscure and irrelevant that when they come to power stations—as they came to West Burton, near my house—they are only a threat to themselves and not to anybody else, begs the question of competence.

When we talk about reasonableness, I hope the Minister can address that, because that resource ought to have been used at that time in trying to root out the future terrorists and encouragers of terrorism—the ones who are a threat to our society and people’s lives in our society. Therefore, on this question of this competence, the problem or dilemma that we and the Government have is that we are leaving it to people whose mindset may not understand, and certainly did not in the past, what is a threat and what is an irrelevant irritation that a simple bit of policing can handle.

If you look at the groups that were infiltrated, frankly it is a comedian’s hotchpotch of the irrelevancies of the far left—extremist groups where they are all flooding now, back out of the Labour Party, spending most of their time battling with each other about some dead theorist whose view on Libya or something over the last 30 or 50 years is the right one, or whose analysis of the Russian Revolution was the right one. They are back into that. They are easily identified, because they like to publish everything. It used to be newspapers, but now it is online. Frankly, that irrelevance could go on forever—about who they were, where they were and how many have ended up in here. I will not embarrass anyone like that, because they are on all sides of the House; I am not going to do that.

My point on competence is absolutely fundamental to the powers that are there. I hope that the Minister will address that, because it is fundamental and it is the problem of the past, alongside the abuses that took place. It must not be a problem in the future, because that will put us all at risk.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 4:00 pm, 1st December 2020

I can be very brief in support of Amendment 17 and its Scottish equivalent. The intention appears to be clear: that the belief of the person has to be reasonably held on an objective basis. It would, in fact, be quite exceptional to have any other provision. It seems to me that the Bill ought to be clear and, on such an important point as this, there should be no room for ambiguity or argument if this matter ever comes before a court.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I listened to my noble friend opposite and his detailed, and quite persuasive, contribution. I mentioned competence in the previous group. It is absolutely vital, but I do not need to say anything further on it, because the noble Lord has covered that in great depth.

The other two amendments—Amendments 16 and 17 —both claim to be more objective, and there is a powerful case for clarity. My only other comment is on Amendment 19. I do not want to be too hurtful but frankly, all it does is complicate the whole issue by a huge margin. For anybody to balance

“the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm”, they really need to be very experienced in the whole of this market. That is not at all possible.

It is difficult for my noble friend on the Front Bench. I can see that there is a need to get more bite into it, if possible, but it is not an easy issue. The contribution on competence from the noble Lord needs to be taken very seriously.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, during this sitting of the Committee, I have just discovered about the passing of Lord Kerr of Tonaghmore, one of the first members of our Supreme Court and a former Lord Chief Justice of Northern Ireland. I am sure that all noble Lords will join me in mourning him and sending our condolences to his family. He was a great judge and human being. Being a senior judge in Northern Ireland when he was created a great deal of risk for him and his family, but I will remember him for his humanity and sense of humour just as much as for his courage and intellect.

On a small preliminary manner, the Minister made a comment on the previous group. Our hybrid proceedings are amazing in so many ways, but they may create confusion on occasion. I apologise to her if I contributed to that because, when we are on Zoom from home, there is no Dispatch Box. There is a metaphorical one but not an actual one. To be clear, in the last group my noble friend Lord Rosser spoke for the Opposition and I spoke for myself. Last time, you heard from my noble and learned friend Lord Falconer of Thoroton and my noble friend Lord Rosser for the Opposition. Shortly, you will hear from my noble friend Lord Kennedy of Southwark, who will speak for the Opposition. That may be easier, because I can see him in the distance via my Zoom; he is physically in the Chamber. I apologise for that—or if the Minister was making a joke at my expense and I have just wasted your Lordships’ time for a couple of minutes.

The amendments in this group are important, not least because of the Minister’s response to the previous group, and particularly to what I will call the Paddick question. Noble Lords will remember a hypothetical put by the noble Lord, Lord Paddick, essentially about what happens when things go wrong. The noble Baroness, Lady Hamwee, has spoken of everyone’s human frailty, and legislators need to consider, despite all the expertise, brilliance and public service principles of those operating legislation, what happens when things go wrong. The noble Lord put the hypothetical of a criminal conduct authorisation that had been corruptly given, but executed by an undercover agent in good faith. What would happen then? The Bill has a three-way relationship at its heart—a triangle, if you like—between the person who authorises criminal conduct, the person who executes it and any victim of that criminality. Your Lordships are considering a crucial legal relationship.

If I am right, the Minister responded to the noble Lord, Lord Paddick, with an answer akin to saying that the person who issued the authorisation—in this example corruptly—would be liable. I think she suggested that there would still be no liability for the undercover agent, because they had acted in good faith, be it on a corrupt authorisation. They had been used, if you like, as the tool of the corrupt authoriser. They would continue to have criminal and civil immunity, but there would be an unspecified liability for the person who issued the authorisation.

In the case of corruption that may be clear enough, because there are independent criminal offences in relation to it. One would certainly hope that the corrupt bad-faith authoriser would be liable for offences—misconduct in public office, corruption, et cetera—but what of the authoriser who is not corrupt but is just plain wrong? They may be negligent or they may just be wrong—in good faith, but wrong. They have a belief, but it would not satisfy the European Court of Human Rights. It is not a completely inaccurate or unreasonable belief. Perhaps it would be reasonable in certain circumstances. Perhaps it was formed based on the best information before them, because there is a chain of information in fast-moving criminal operations. None the less, it will not meet the convention tests of necessity and proportionality, because the information was wrong and the criminal conduct authorisation should never have been issued.

The language of “necessity and proportionality” comes from Article 8 of the European Convention on Human Rights on privacy. But this is not just surveillance. We are now in the territory of potentially quite serious criminal offences against property and the person, and the language of privacy may not be enough. Criminal conduct may have been authorised mistakenly or incorrectly, which will never satisfy a test of necessity and proportionality, because it was just plain wrong. The conduct was serious and possibly had serious consequences for innocent members of the public. The agent of the state, who committed the crime, will now be immune from civil liability and criminal prosecution. Where is the redress for victims of crime? The Minister spoke powerfully in the debate on the importance of tackling criminals—in that case, foreign criminals—but what will be the redress for members of the public when things go wrong with criminal conduct authorisations? Where will the buck stop and the redress come from?

This is incredibly important, because Article 6 of the European Convention on Human Rights allows people access to justice and is a particularly jealous protection of rights in the context of criminal activity. Noble Lords will remember the awful case of Osman v United Kingdom, where an immunity from serious crime was found to be in violation of the convention. I look forward to the noble and learned Lord’s response, if he has time, and some detail on what the consequences will be for criminal and civil immunity when and if—let us hope it never happens, but we have to consider it—things go wrong.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing) 4:15 pm, 1st December 2020

My Lords, I have looked carefully at the amendments in this group. Amendment 16 moved by the noble Baroness, Lady Hamwee, and consequential Amendments 18 and 20, all seek to remove the reference to “belief” in relation to a criminal conduct authorisation to make clear that it must be necessary and proportionate. I understand the point that she is making, including on consistency in the Bill and accompanying guidance; I know what she is seeking to do and have sympathy with it. However, I looked carefully also at Amendment 17 from the noble Lord, Lord Anderson of Ipswich, which seeks to insert “reasonably”. I concluded that that is probably a better way to achieve what the noble Baroness seeks.

These are matters of judgment at the end of the day, and we have all been careful in our consideration. However, in this case, I found the amendments of the noble Lord, Lord Anderson, more persuasive and likely to find more favour with the Government, if, as they say they are—and I have no reason to doubt them—they are seeking to reach agreement with the Committee on these very difficult issues and ways in which we can all improve the Bill. For me, reasonable belief would be a belief that an ordinary and prudent person would hold in the circumstances, judging the situation in the light of the law and the information before them. That is the right way forward.

Amendment 19 in the names of my noble friend Lord Rosser, myself and the noble Baroness, Lady Jones of Moulsecoomb, simply seeks to place in the Bill the proposals advised in the code of practice, including determination of proportionality. It is important to provide that certainty in order to allay concerns raised across the Committee. I take on board the concerns of the noble Baroness, Lady Hamwee, on this matter but they are covered in the guidance, and placing those matters in the Bill is the right way to go. I hope that that provides the reassurance noble Lords are looking for. We would be interested to hear from the noble and learned Lord, Lord Stewart, where he thinks he can go on these issues if he cannot accept the amendments in their present form.

In his response, will the noble and learned Lord address the point made by the noble Lord, Lord Thomas of Gresford, on the motivation and experience of those authorising such activity? There has been some suggestion that although it may be very senior officers, in some cases, in the heat of the moment, those involved perhaps would not be so experienced. That is a fair point and we need to address who is authorising this conduct.

Amendments 32 and 33 from the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have been tabled to ensure that the necessity and proportionality tests are not weakened. I understand the points being made, and we deserve a full explanation from the noble and learned Lord, Lord Stewart.

It was good to hear from my old and dear friend, the noble Lord, Lord Mann, who made some very effective points about trade unions, following his work in the trade union movement, to which I can attest. He referred to the nonsense of infiltrating groups that are no threat to the national security of our country but are a bit of a nuisance. There are plenty of those about, but they are not a threat to national security and, frankly, are probably more a threat to themselves than anyone else. They can be a bit of a nuisance around the factory gate or power station gate, but investing time and money on these people is a complete and utter waste of time. Who would authorise activity in relation to those groups? That is worrying. Some senior people have authorised others to waste their time going into those organisations.

On the other side of the coin are the appalling and disgraceful abuses that have taken place. Equally, we need to ensure that that will never happen again. We need reassurance on those matters. The inquiry will have to consider how we deal with them in the future.

My noble friend Lady Chakrabarti asked the important question of where people go to when their rights have been abused. We of course hope that that never happens again, but where would people go if it did? We need to know that people will be protected when they find themselves in a situation that has gone wrong. If there has been proper authorisation but an offence has been carried out, how do people seek redress?

I look forward to the Minister answering those points and others raised in the debate.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one.

New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.

Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to “belief” risks introducing inconsistency and casting doubt as to how other provisions should be interpreted.

It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective “robust” has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment.

Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function.

I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.

Amendment 33 seeks to amend the necessity and proportionality test so that an authorising officer must consider all alternative non-criminal options that are available to achieve the same outcome, even if those options are not reasonable. Suggesting that the authorising officer cannot grant a criminal conduct authorisation because an unreasonable non-criminal option is available does not seem practical or feasible. We must ensure that these judgments are based on fact and actualities, not unrealistic possibilities. Of course, an authorising officer will need to consider alternatives, and the Bill is clear on that, but I submit that those alternatives need to be feasible and should not cause unintended consequences elsewhere.

In response to Amendment 19 from the noble Lord, Lord Rosser, the Bill is clear on the need for any criminal conduct authorisation to be both necessary and proportionate. The code of practice sits under this legislation and, as we were reminded previously, has legal force. It provides greater detail and guidance on the considerations that authorising officers need to take into account when granting a criminal conduct authorisation.

I listened with care to submissions from your Lordships about the value of placing matters on the face of the Bill. However, I am reminded that that can sometimes be difficult in that, as I think the noble Baroness, Lady Hamwee, acknowledged, the mere act of making a list means that something is often left out. The tighter the legislator tries to grasp the matters to be taken into account, the greater the possibility that something will slip through the fingers, like trying to grasp sea-water as tightly as one can.

As I said, the presence of the code of practice sitting underneath the legislation provides the greater detail and guidance that I hope will be a security and offer reassurance to your Lordships. We have included in the updated code additional wording on the proportionality test, but we think it appropriate that that remains within the code of practice rather than being embodied in the Bill,

I re-emphasise the need to ensure that the Bill is consistent with the existing statutory framework within which it will sit. To include here detail that is not present for powers in legislation elsewhere risks casting doubt on the application of, in this case, the test that needs to be applied when considering proportionality.

The noble Baroness, Lady Jones of Moulsecoomb, referred to the undeniable fact that human beings make mistakes and that persons acting as handlers or granting criminal conduct authorisations will inevitably make mistakes. It is not so much a matter of arguing with the noble Baroness as accepting the point that she makes and seeking to defend the protections that the Bill seeks to offer, building on those that already exist and advancing them to your Lordships’ House as sufficient and proper.

There was discussion from my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Thomas of Gresford, about the authorities that will obtain CCAs and their varying backgrounds. They will indeed have varying backgrounds in relation to the matters that they seek to police, reflecting the very different circumstances in which they might be called upon to act. There will also inevitably be varying degrees and types of training for CHIS handlers and those giving authorisations, which, again, will be specific to the work of the authority in question. The noble Lord, Lord Thomas of Gresford, also spoke about the practice of applying CHIS operations in different contexts.

The noble Lord, Lord Mann, spoke as powerfully on this occasion as he did previously about the competence of directing finite resources and skills towards matters that, ultimately, are of little moment. He also spoke powerfully about the role of trade unions in combating extremism and working together as part of society as a whole—something that I wholeheartedly endorse. I am sure that my noble friend Lord McLoughlin will have followed his words and will nod along when he reads them in Hansard.

The noble Lord, Lord Mann, spoke of the abhorrent practice of blacklisting, to which he was subject. This, again, called to mind the personal accounts of others in the House, including the noble Lord, Lord Hain, who spoke not only of his experience of granting authorisations of this sort but of being the subject of authorisations himself. We on this side acknowledge, as I am sure the whole House does, that the actions of the past were occasionally imperfect and caused a great deal of suffering. However, to acknowledge the failings of the past is not of itself to call into question the tests and oversight regime that the Government seek to place over such operations in the Bill.

My noble friend Lord Naseby spoke about competence and the practicalities of such operations. I urge your Lordships to bear in mind once again what has been touched on at other times in the debate concerning the dynamic quality of the environment against which decisions such as these are taken.

The noble Baroness, Lady Chakrabarti, began by informing your Lordships of the death of Lord Kerr of Tonaghmore. Although I never had the pleasure either of meeting him in a personal capacity or of appearing before him in court, I am sure that I speak for the whole House in endorsing the warm tribute that the noble Baroness paid to his memory.

The noble Baroness also discussed what happens when things go wrong—a point that she introduced as the “Paddick question”. The noble Lord, Lord Kennedy, on the Bench opposite, picked up that point. I am not altogether sure that I am able to address the broad matter of redress, and I therefore propose to write to noble Lords about it. It seems to me that to address it from the Dispatch Box now would be to presume on your Lordships’ patience, because it would be necessary to take into account a series of matters and to present, and provide answers to, a series of hypotheticals.

In response to the noble Lord, Lord Kennedy, on his discussion of Amendment 19, as I said earlier, the position which on reflection we have adopted and urge on the Committee is that placing matters contained in the code of practice on the face of the Bill is not an efficient way of going about things. They are better left where they are.

Finally, and in conclusion, I note that the noble Lord opposite also endorsed the views of the noble Lord, Lord Mann, on the nonsense of infiltrating fringe groups that pose no harm to society. The question of how different people and bodies in society can reach quite opposite views about some matters, such as the economic well-being of the country, was raised on a previous occasion in relation to strike activity. That question is a profound and important one. In answer to that, we lay before the House the presence of this independent oversight regime, under the Investigatory Powers Commissioner.

I am grateful to all noble Lords for their contributions.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords) 4:30 pm, 1st December 2020

I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?

First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I am grateful to the noble Lord for his supplementary question. I apologise for having omitted to answer specifically the detailed point that he made in the course of his submission earlier—something I have been guilty of in the past in my appearances in your Lordships’ House.

Amendments 17 and 72 would insert a requirement for the authorising officer to hold a reasonable belief that conduct is both necessary and proportionate. As the noble Lord has identified, the position is that the amendment cannot be accepted as the Bill has been drafted in line with the requirements of the rest of RIPA, including that for the underlying Section 29 use and conduct authorisation. The noble Lord, Lord Anderson, identifies a conflict between the terms of the code of practice that I quoted, at 3.10, and the terms of the Bill, and, more to the point, I think, identifies a potential conflict in what was said in the other place in debating these subjects. In those circumstances, I would be very happy to engage with the noble Lord and write to him on the matter.

I am being reminded just now that we have already included wording in the updated code of practice to set out that it is expected that the belief should be a reasonable one, and that the Security Minister confirmed this during the debate in the Commons.

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

I am not sure we want exchanges in this manner. Minister, are you complete or are you continuing?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

With your leave, I was about to indicate that I think it better in the circumstances—and where there has been an exchange across the floor of the House—if I were to clarify my remarks in writing to the noble Lord

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing) 4:45 pm, 1st December 2020

I want to make just a couple of points. I do not accept the noble and learned Lord’s point that, if you put things in the Bill, you risk leaving things out. It is possible to craft an amendment, to go on the face of the Bill, that covers those eventualities. There is always a concern that, when things are left to guidance and codes, sometimes they do not have the certainty and force of legislation. I think that an amendment can be crafted that covers both: you get the certainty of the main things but leave the door open, accepting that things can change. Both can be done, and that is a better way forward rather than leaving it all to guidance.

The noble and learned Lord also made the point that we should be looking forward and not back. I get the point of looking forward, and I accept it, but, equally, in looking forward, we are informed by what has happened previously. It is important that we take that on board as well. We need to ensure that the Bill is doing the job it needs to do, and that is addressing issues that happened in the past; not just the issues mentioned by the noble Lord, Lord Mann—which were, frankly, ridiculous—but, more importantly, the real issues of wrong-doing, abuse and great hurt that have taken place. We need to ensure that the Bill stops that in the future.

The other point that we will keep coming back to is the whole issue of what will happen if the CHIS has immunity and someone has something wrong done to them. Where do they get redress? That is a fundamental issue: how do they get redress if the person who has done something wrong has immunity? That is a question we need to answer in the next few days.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I am obliged to the noble Lord for that final submission. We do, I acknowledge, need to address these matters over the next period of time, as the Bill moves forward. I acknowledge to the noble Lord, and others who have contributed, that mistakes were made in the past around blacklisting and the penetration of bodies that need never have been penetrated, or of bodies that were engaging in legitimate activities. Acceptance of that will inform the manner in which we proceed further.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My noble friend Lord Paddick has been using his experience of the past—experience is, by definition, the past—to inform and improve the future. That was rather what my noble friend Lord Thomas of Gresford was talking about, with his reference to the range of organisations from which authorisations for criminal conduct may come. He mentioned people entitled to give authorisations who will not have the same experience as those in the police and intelligence services.

I hope noble Lords will forgive me if I do not refer to every contribution that has been made, though I am grateful for all of them. However, I want to pick up the point about considering the position if things go wrong. That is a very large part of our task in this House, in scrutinising legislation, and it will necessarily mean positing hypotheticals. I will certainly want to pick up the points made by the noble Lord, Lord Mann, when we come to consider the term “economic well-being”.

I remain concerned about Section 29B(6). We have the test of necessity; you cannot really strengthen necessity but you could weaken it. If subsection (6) is to have any meaning, then I am worried that it must weaken it.

To go to the heart of all this, the argument from the noble and learned Lord is that we should be consistent with Section 29 of RIPA, which is about the authorisation of covert human intelligence sources. New Section 29B is about criminal conduct authorisations. I would regard that, as other noble Lords have said during the Bill’s passage, as much more serious than what is covered by the current provisions of RIPA in terms of covert intelligence and intrusive investigation as well. Yes, it will be a fast-moving, live environment, but I do not think that that is an excuse not to act reasonably. I really feel that we have to get the Bill right, and that means importing objectivity.

I have still not understood the points made in response to the noble Lord, Lord Anderson, about why we should not have the term on the face of the Bill. I think that the noble and learned Lord said that it would not be appropriate, but I might not have noted that down correctly. He did say that it would not be efficient. I hoped that he might develop that point, but we will have to pursue that after this afternoon’s debate. We are clearly gathering round Amendment 17 in the name of the noble Lord, Lord Anderson, and I think that Amendment 72 is its Scottish equivalent. My noble friend and I are very happy to cede the ground to those amendments; we went a bit far, but I cannot conceive of an answer to the points made by the noble Lord, Lord Anderson. We have not heard one so far, so would be delighted to support him if he pursues the matter at the next stage of the Bill, which we very much hope that he will. It will soon be 5 pm, so I beg leave to withdraw Amendment 16.

Amendment 16 withdrawn.

Amendments 17 to 19 not moved.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, we need to halt our proceedings before too long so that we can move on to the coronavirus regulations, but the next group of amendments is very small with only a small number of speakers. If noble Lords are willing to keep their contributions as brief as possible, that would assist us in finishing this group before we break for the coronavirus regulations.

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

We now come to the group beginning with Amendment 19A. 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 this group to a Division should make that clear in debate. I should inform the House that if Amendment 19A is agreed to, I cannot call Amendments 20 and 21 by reason of pre-emption.