Amendment 19A

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (2nd Day) – in the House of Lords at 4:45 pm on 1 December 2020.

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Baroness Jones of Moulsecoomb:

Moved by Baroness Jones of Moulsecoomb

19A: Clause 1, page 2, leave out lines 22 and 23

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I have written a very long speech, so I hope I will not hold people up for too long.

There are a lot of things in this Bill that I absolutely loathe. In fact, I probably loathe it in its entirety and I wish the Government had never brought it forward. However, my Amendment 19A is about changing the rules for criminal conduct authorisation by statutory instruments. What we have seen again and again with this Government is little power grabs—little bits of erosion of our democracy—through various statutory instruments that they have consistently brought over the past few months. Their majority of 80-plus in the Commons has simply gone to their heads and they feel that they can run the country without your Lordships’ House, which is absolutely ridiculous.

It is a pleasure to introduce the amendments in this group, and I look forward to all the important points that other noble Lords are going to put. The amendment is quite simple—just that the Government should not be able to change the rules without proper parliamentary scrutiny; and let us face it, statutory instruments are not proper scrutiny. We are talking here about the state being able to authorise people, quite possibly criminals, to commit crimes. Even I will accept that that sometimes has legitimate applications, such as taking down terrorist cells or breaking up organised crime. But let us face it, that will not be all that this is about. It creates a set of extreme ethical, moral and legal dilemmas, so much so that it must be Parliament—not the Government, whom I do not trust anyway—that makes the decisions on when and why this is allowed.

I think that proposed new clause 29B(4)(c) in Clause 1(5) is a tacit admission by the Government that there are insufficient safeguards built into the Bill and that they want to backfill that with secondary legislation and a code of practice. That just is not good enough for something of this magnitude. I want a clear confirmation from the Minister that that is not what is intended and that the Government will in some way accept that and make it clear.

When speaking to an earlier group of amendments, the Minister talked about not dwelling on the failures of the past. That is all well and good, but if you do not dwell a little on the failures of the past you are doomed to repeat them. That is exactly what I have been saying all through our consideration. We have seen repetitions of failures and somehow the police, the Government and the security services do not learn fast enough. I am hoping for a very positive response from the Minister, please. I beg to move.

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

I understand that the noble Baroness, Lady McIntosh, has withdrawn, so I now call the noble Lord, Lord Naseby.

Photo of Lord Naseby Lord Naseby Conservative

I have two short comments. First, Amendment 21 sounds wonderful on the surface, but who will determine who is appropriate, or is it just the Secretary of State? Would it not have happened in any case? Secondly, on Amendment 81, I share the view of the noble Lord, Lord Paddick. There is nothing worse than having a situation where the rules of the game—or the provisions or the instructions—are changed in one area without understanding that it has a knock-on effect in another area. As I understand this amendment, it is basically saying that they must all take place at the same time and not at different times. If that is so then I am totally in support of it.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

To be short, my Lords, I agree with the noble Baroness, Lady Jones. Matters as grave as criminal conduct authorisations for state agents should be regulated in primary legislation and not be subject to delegated powers thereafter.

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

My Lords, I am afraid that we have a number of amendments in this group. I have quite a lot of sympathy with Amendment 19A, tabled by the noble Baroness, Lady Jones, but it seems to me that proposed new subsection (4)(c) is not anything like of the same order as proposed new subsection (4)(a) and (b). I read it as being procedural and think that it would not make it more difficult to satisfy the necessity and proportionality requirements. I hope the Minister can confirm that.

Amendment 21 deals with proposed new Clause 29B(4)(c), which provides that the Secretary of State can make an order imposing requirements for the CCA to be authorised, and the person authorising it must believe that there are arrangements which satisfy those requirements. If the Secretary of State believes—if that is an appropriate use of the word, given our last discussion—that further requirements are necessary and would be of wide interest, in the fullest sense of that word, consultation ought to play a part.

I say to the noble Lord, Lord Naseby, that the wording that I have used is pretty standard. Civil society, civil liberties organisations and the organisations involved in giving authorisation ought to be consulted. The noble Lord said, “Well, wouldn’t it happen anyway?”, but I think he can guess my answer to that, since it is why we have included the amendment.

Amendment 58 would apply something similar to a proposal for an order prohibiting particular conduct.

Amendment 62 would mean that orders under Section 29B would be subject to the affirmative procedure, for much the same reasons as we have proposed for consultation. The Member’s explanatory statement as drafted refers to “section 29B(4)(c)”, but the amendment would apply to Section 29B(10) as well, so I apologise for that.

Amendment 81 in part anticipates that different relevant authorities will need to consider different matters, and that different things will need to apply to them. I appreciate that it is normal to provide for parts of an Act to come into force at different times, applying to different areas. I can see that it could be necessary to commence the Act at different times for different authorities, but I hope that we end up with fewer in the schedule than we have at the moment, and that, for instance, the Food Standards Agency might need procedures which already exist for the police. Is it right for any provisions to be separated out, provisions which affect the justification for criminal conduct authorisations? Surely this should all be read as a single provision. I could go on, but I will not, in view of the time. Amendment 83 makes the same point applying to transitional and saving provisions.

In short, I hope that the Minister can give us examples justifying Clause 6(2) and Section 29B(4).

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 5:00, 1 December 2020

My Lords, the amendments in this group would variously remove the power for the Secretary of State to impose requirements restricting when a criminal conduct authorisation can be granted, require the Secretary of State to consult with such persons as are appropriate before imposing requirements, and require regulations in which the Secretary of State imposes additional requirements that must be satisfied before a criminal conduct authorisation is granted to be subject to the affirmative procedure. There is also an amendment in this group which would restrict the power of the Secretary of State to bring different provisions of the Bill into force at different times and in different areas, to ensure that all the safeguards provided in the Bill always apply.

We will await with interest more detail from the Government in their response as to the nature, extent, purpose, reasons for and frequency of the requirements that the Secretary of State might wish to impose by order before a criminal conduct authorisation can be granted, and why it would not have been possible to include this greater detail on the face of the Bill to reduce the possibility of this power being exercised at any time in the future in an inappropriate manner. We also want to hear the Government’s response to the concern about safeguards always being applicable, which has led to the amendment restricting the power to bring different provisions into force at different times.

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

My Lords, turning first to the order-making powers, addressed first by the noble Baroness, Lady Jones of Moulsecoomb, the ability of Parliament to scrutinise statutory instruments is a broader topic than this debate permits me to go into. As to the order-making powers in this Bill, these powers allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited. I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards. I particularly seek to assure the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Rosser, on that point. The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they be contained in secondary legislation.

The noble Baroness, Lady Hamwee, asked whether there was a precedent for such powers to be subject to the negative procedure. The equivalent powers in Section 29 of RIPA are both subject to the negative procedure. Taking similar powers in respect of criminal conduct authorisations to those already contained in Section 29 will allow the Secretary of State to make equivalent provision for Section 29 authorisations and criminal conduct authorisations, where appropriate, so that similar arrangements are in place for both. There is a high degree of interrelationship between the two provisions. While the Government do not have any particular safeguards or limits in mind, such requirements may arise in the future that will need to be legislated for.

An example of the past use of the Section 29 powers is the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010, which imposes specific additional requirements that must be met regarding the authorisation of a CHIS in connection with material subject to legal professional privilege. Were any changes proposed in the future, the relevant persons would of course be consulted prior to those changes being made. Amendments 21 and 58 are therefore not considered necessary.

Turning to Amendment 81, the Bill contains provision to commence the Act for different areas on different days, to allow time to make any necessary secondary legislation, issue guidance, undertake appropriate training and put the necessary systems and procedures in place, as appropriate. I assure the Committee that this power will not be used to delay commencing those sections relating to safeguards. The power could not lawfully be used to frustrate the will of Parliament in this way.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I thank all noble Lords who have contributed to this debate, even those who did not agree with me. It was lovely and very heart-warming to hear the noble Lord, Lord Naseby, agree with a Lib Dem Peer, the noble Lord, Lord Paddick. I thank the noble Baroness, Lady Chakrabarti, for her support, and the noble Baroness, Lady Hamwee, for her sympathy and exposition of the whole group, which I perhaps should have done myself. I felt that the noble Lord, Lord Rosser, made an extremely good point in asking why there should not be greater detail in the Bill now.

The Minister made a very nice and emollient response, but there is always the problem, not in distrusting the Ministers we have here, in your Lordships’ House—we trust them to have good will and be ethical—but in distrusting the Government, as many of us do. I imagine that possibly a majority in the country distrust the Government at the moment. So I do not feel completely reassured, and will think about bringing this back on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 19A withdrawn.

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

My Lords, I am very grateful to noble Lords for their assistance.

Sitting suspended.