Moved by Baroness Chakrabarti
22: Clause 1, page 2, leave out lines 27 to 30 and insert—“(b) for the purposes of preventing or detecting serious crime.(5A) In subsection (5), “serious crime” means a crime triable only on indictment.”Member’s explanatory statementThe amendment is intended to constrain the use of criminal conduct authorisations by precluding their use for the purpose of preventing or deterring minor criminal activities, non-serious disorder, or non-criminal damage to economic interests.
My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.
Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.
Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.
My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.
These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.
Amendment 22 is designed also to remove from the Bill use of a CCA purportedly
“in the interests of the economic well-being of the United Kingdom”.
This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.
Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted
“in the interests of the economic well-being of the United Kingdom” should be removed.
At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.
The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:
“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”
The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.
If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.
My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.
To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.
“crime triable only on indictment,” which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.
The relevant section in RIPA is Section 81, which is reproduced, although I apologise to the House, because in Amendment 31, which sets out the tests, I should have had an “or” in between paragraphs (a) and (b) in proposed new subsection (5B). However, they are alternatives. I do not suggest that both have to be satisfied, although I suspect that in practice it is likely they would be. RIPA recognises that intrusive surveillance is a particularly serious form of surveillance, and I do not think it could be denied that criminal conduct is serious. We think this is an appropriate definition which, in the past, has clearly satisfied not only Parliament but the Home Office—I believe an amendment on that was accepted by it—and the Constitution Committee has been concerned about this as well. I hope we will find a way to define the level of crime, whether it is this amendment or not—although we think it is a good way to go about it. I will leave it to my noble friend Lord Paddick to talk about disorder.
My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.
Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.
If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?
Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.
The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,
“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”
These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:
“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”
The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to
“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”
The report concludes:
“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime” and that
“the power to authorise criminal conduct as contained in the Bill is far too extensive”.
My Lords, it is a real pleasure to take part in this debate. I am sorry that my noble friend Lord Dubs will not be joining us, but I am speaking before my noble friend Lord Judd—they have both spent many decades of their lives fighting for civil liberties. They will remember, I am sure, Maria Fyfe, who entered Parliament in 1987 and did so much over the years to champion women’s representation, but who sadly died this morning. I am sure that they and others will join me in sending condolences to her family and comrades in Scotland.
I shall speak specifically to Amendment 22 in the names of my noble friends Lord Hendy and Lord Hain, and moved very able by my noble friend Lady Chakrabarti, but I also support the other amendments in this group which argue that, should this Bill become law, CCAs could be used only to prevent or deter serious crime. The terms “preventing disorder” and being
“in the interests of the economic well-being of the United Kingdom” are so imprecise that almost any campaigning group or trade union could be included. These criteria are potentially political and could be used simply to defend the status quo against anyone who challenges it.
It seems quite odd that this legislation could not wait until the findings of the Undercover Police Inquiry. As the inquiry progresses, it is hearing that police have been used to spy on any number of groups that were deemed to be “anti-establishment”, even when they were humanitarian organisations such as Operation Omega, which tried to provide humanitarian aid to then East Pakistan. One police officer sent into the group has said:
“They weren’t hurting anyone, they weren’t disturbing anyone. Okay, you could argue that we don’t like to see these things posted on our lampposts, you know, stuff like that.”
He was then asked:
“Did you hear them promote or encourage public disorder?”
“That’s a difficult one to answer, because a lot of organisations recommend demonstrations and activity that would bring their cause to the attention of the press and thereby to the rest of the population.”
A demonstration is of course a legitimate form of campaigning, but it is unfortunately seen as illegitimate in some quarters.
The undercover work extended into the trade union movement. Trade unions are a legitimate and essential part of our democracy, as guaranteed by the ILO since 1949. Member countries, including the UK, are required to guarantee the existence, autonomy and activities of trade unions, and to refrain from any interference that would restrict this right or impede their lawful exercise. Despite this, the Metropolitan Police Special Branch established the industrial intelligence unit in 1970 to monitor what it saw as growing industrial unrest. There is, we understand, a present day equivalent in the industrial liaison unit of the national domestic extremism and disorder intelligence unit.
I have no idea what justification could possibly have been used to send spies into humanitarian organisations, political parties or trade unions, but I suspect that preventing disorder and it being in the interest of economic well-being of the United Kingdom will have been used. There can be no justification for this and it should be removed from the Bill.
On Monday we heard the Statement in the other place that there would be no inquiry at this time into the murder of Pat Finucane—even though there is no doubt that there was state collusion in his assassination. After 30 years, the Government will still not shine a light on this atrocious event. His death should serve as a reminder that Governments and their agents can lose the capacity for moral judgment when they convince themselves that only they serve the greater good.
We were told on Tuesday that these examples happened a long time ago and that things have changed. But while the Bill continues to cover more than serious crimes and includes subjective actions such as disorder and economic well-being, it is a danger to anyone involved in politics and trade unionism. We should never grant the legal right for covert actions against citizens whose only crime is to disagree with the Government of the day. This amendment would go some way to achieving that.
My Lords, the dividing line between a police state and a democratic society with a liberal, humanitarian base is sometimes hard to define. It is not absolute and the dividing line wanders around a certain amount, but one principle should be clear above all, and that is that in the kind of society in which we want to live, the tradition is that the police do their job by public consent. The objective is to maximise good will between the public and the police, to forestall the danger of alienation from the police and the building up of a hostile relationship between police and large sections of the public. That is why, on matters of this kind, it is so important to ensure that it does not become just a convenient device that can be used pretty much at random for interests that cannot be well substantiated in the context of liberal democracy.
For that reason, I believe that this group of amendments has raised some very important points indeed, which we must all take seriously. I do not want to live in a society in which the police have this as a useful technique, with certain, modest restraints. I want to live in a society where this is not normal and where, if it is needed, exceptionally, those grounds can be properly justified in terms of national priorities, in the interests of our people as a whole. Good will between the public and the police is crucial to our stability as a society, and the holding of public confidence in the police is crucial too. We must be careful that we do not place that in jeopardy.
The noble Baroness, Lady Blower, who appears next on the list, has withdrawn, so I call the noble Lord, Lord King of Bridgwater.
My Lords, unlike, I think, every other speaker to these amendments so far, I do not support them. I see in them, once again, attempts to impose yet more conditions that may affect the effectiveness of the operation of undercover support and sources doing what I thought was generally agreed to be vital work in the interests of enforcement and the life of people in our country. I say at the start that a number of these things, and the worry about how these powers may be exercised, do not pay respect to the fact of the code of practice, which many have said should be required reading for everybody taking part in these debates. The importance of that code of practice is that it is going to have to be approved by both Houses of Parliament. That will be a very important protection, because it is under that code of practice that authorising officers issuing CCAs, and the Investigatory Powers Commissioner, will obviously be required to act.
I make no apology for repeating what I said on an earlier amendment in quoting James Brokenshire, the Minister for Security, when he gave the astonishing figures for a single year in London alone. The use of undercover sources resulted in 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. It also enabled, which I did not mention, the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. Those figures alone, just from London in one year, surely leave nobody in any doubt of the importance of this vital source of support for preserving an orderly and law-abiding society. I make this point because, under the code of practice, which includes this question, others are seeking to add the word “serious” to “crime”. How does an authorising officer react when an informant comes and says, “There is a group of people who are starting to get together, I am not quite sure what they are up to, but I think there is a real risk that it could turn, later on, into something much nastier”?
When one looks at those figures I quoted from James Brokenshire, how many lives have been saved; how many people’s lives have not been disrupted; how much misery and poverty that might otherwise have entailed has been prevented? For these reasons, I am not persuaded of the need to add “serious” to crime; I think it might inhibit the operation of a properly authorised issuer of a CCA, who obviously has to use his judgment, and has to persuade the IPC as well that his judgment is correct and is in line with the code of practice.
I should also say a word about preventing disorder. We are living in extremely difficult and dangerous times at the moment. We know that the power of social media now makes it possible, in an instant, practically, to organise major demonstrations which may, in fact, be based on that new and horrid ingredient “fake news”. These may disrupt many people’s lives and may cost people’s lives. Although there are many very worthy causes—whether it is Black Lives Matter or Extinction Rebellion—pursuing very understandable and admirable objectives, none the less we also know that around the fringes of those organisations, or in the confusion that some of their demonstrations cause, other sources of crime can easily emerge and it often makes opportunities for gangs to commit many more crimes as well. So I would not delete “preventing disorder”, provided it is properly covered within the code of practice.
The other thing I would just add is about economic well-being. I totally support trade unions—I always have done and, as Secretary of State for Employment, I was obviously closely involved—and legitimate trade union activity. However, we all know that, within our lifetime, we have had one or two instances where that has not been the case. One instance was the miners’ strike, when Mr Arthur Scargill said that one of his objectives was to bring down the Government, and he was not averse, in the process, to accepting money from the Soviet Union in pursuit of that objective. It is to the credit of Neil Kinnock, now the noble Lord, Lord Kinnock, if I may say so, that he would not support him at that time, because Mr Scargill had not put the issue to a vote of the whole trade union movement.
I think we have seen here, and I understood at the beginning of this, that virtually all noble Lords recognise the vital importance of undercover source information and for there to be a proper system, a statutory system, under which they would operate. That is what I wish to see. I wish to see a thoroughly effective code of practice, thoroughly trained issuing officers and rapid and close contact with the Investigatory Powers Commissioner as they carry out their work.
My Lords, I accept that it is difficult to separate these issues, but I will leave discussion of economic well-being and the activities of trade unions and trade unionists until the relevant groups.
As drafted, the Bill defines very broadly when a criminal conduct authorisation is necessary, and this group of amendments focuses on the new Section 29B(5)(b) inserted into the Regulation of Investigatory Powers Act 2000 by Clause 1(5) of this Bill. It states:
“A criminal conduct authorisation is necessary … if it is necessary … for the purpose of preventing or detecting crime or of preventing disorder”.
Crime and disorder have very wide definitions, as noble Lords have set out in this debate.
As we have already debated, tasking a CHIS to participate in crime is a very serious step for any authority to take, with all the implications for the rule of law and the potential for abuse that we have already debated, and because of the potential danger it places the CHIS in, about which we will discuss more in a later group. In many situations it could have far more negative consequences for innocent people than the interception of communications, and we should not forget that we are amending legislation that was originally intended to cover, when drafted, only the interception of communications.
The legislation covering such interception limits the use of its powers to cases of serious crime. Even in my limited seven years in this House, I have lost count of the definitions of serious crime in different pieces of legislation. It could be argued that, if we wanted to limit the power to grant a CCA to cases of serious criminality, we could choose whatever definition of serious crime we liked.
The noble Lords, Lord Hendy and Lord Hain, have decided in their Amendment 22 to define serious crime as indictable offences only, but I am glad to hear from the noble Baroness, Lady Chakrabarti, that the noble Lord, Lord Hendy, is attracted to our definition rather than the one in his own amendment.
As my noble friend Lady Hamwee has clearly articulated, we have gone with the definition already used in RIPA—for the sake of consistency, at least within the Act itself. The principle, however, is the same: that this power to grant a criminal conduct authorisation should be limited to serious crime.
The Government may say that, in addition to being necessary, the granting of a CCA must also be proportionate, and it would not be proportionate to deploy CHIS if the criminal activity was minor. The same argument applies, however, to the interception of communications in RIPA, where “necessity” is already limited to serious crime, as defined in our Amendment 31.
The noble Lord, Lord King of Bridgwater, talked about the code of practice. There is, however, a definition of serious crime in RIPA despite the existence of the code of practice for the interception of communications. The noble Lord also talked about the impressive array of offences that had been detected as a result of the deployment of CHIS, including those relating to firearms, drug-dealing and child sexual exploitation. All those examples would fall within our definition of serious crime.
What is sauce for the goose is sauce for the gander, even though geese and ganders are different in some important respects. RIPA limits the interception of communications to serious crime, so this Bill should limit the issuing of criminal conduct authorisations to serious crime using the same definition.
The second issue is more difficult and more controversial, starting with the fact that the prevention of disorder is not one of the necessary grounds for the interception of communications. The Government are already on the back foot here, in that large-scale disruptive disorder can have very serious consequences for society yet there is no power to intercept the communications of organisers of disorder in order to prevent it. None the less, there is an argument for both the interception of such communications and the deployment of CHIS into groups that are planning to cause widespread disruption that could seriously affect public order, cause damage to property and the economy, prevent people going about their day-to-day business, and create fear among innocent bystanders.
That is the nature and scale of the disorder that we should be concerned about—not legitimate peaceful protests. By the same argument that limits the interception of communications to serious crime in RIPA, this Bill should limit the granting of CCAs to serious disorder, of which there is, to my knowledge, no legal definition. Our Amendments 26 and 30 limit the granting of CCAs to serious disorder and define that in terms of the offence of riot in the Public Order Act 1986, namely:
“Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”.
Using such a definition would rule out both peaceful demonstrations and Friday night pub brawls, but it would include situations where it was anticipated that a violent faction was intent on hijacking a peaceful demonstration. Going back to what the noble Lord, Lord King, said, it would only be necessary for the police to have a reasonable belief that a peaceful demonstration might be hijacked by violent demonstrators for them to be given the necessary authority to deploy CHIS in potentially law-breaking circumstances.
However, I take the point made by the noble Baroness, Lady Massey of Darwen, that such disorder—riot—is in itself a serious crime as defined in our Amendment 31. It is important, however, to set out clearly that the type of disorder should be limited to serious disorder on the face of the Bill. We believe that such amendments would also address the concerns of the noble Baroness, Lady Jones of Moulsecoomb.
My Lords, Amendment 22, moved by my noble friend Lady Chakrabarti with the support of my noble friends Lord Hain and Lord Hendy, seeks to limit the use of criminal conduct authorisations to serious crime—and by that they mean indictable offences that must be tried in Crown Court before a judge and jury.
The amendment seeks to remove subsection (5)(c) in respect of economic well-being in the United Kingdom. It would be helpful if, in her response, the noble Baroness, Lady Williams of Trafford, were to set out examples of what this provision is seeking to do and what it is not seeking to do. There are concerns about this, as I am sure the noble Baroness has heard, from around the House, during discussion of this group.
Can the Minister also explain why the list of necessary grounds given in this Bill—as listed in subsection (5)(5)—is slightly different from those listed in the Counter-Terrorism and Border Security Act? In that Act, the reasons listed are that the activity threatens national security, threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or is an act of serious crime. Why not use the same words? Not to do so is surely a recipe for confusion when you are dealing with such serious matters. We want to see clarity from the Government; clarity about what they intend to bring into law is very important. Why is a form of words that was acceptable to the Government two years ago, when they put the Counter-Terrorism and Border Security Act on the statute book, changed in this Bill? Surely there is a risk of some overlap between these two pieces of legislation. Will the noble Baroness clarify this when she responds to the debate?
Amendments 23 and 26, in the name of the noble Lord, Lord Paddick, add the word “serious” in order to limit a criminal conduct authorisation to issues of serious crime. I have listened carefully to the arguments from the noble Lord and have some sympathy with them, so I will be interested to hear from the Minister the case for why these amendments are not necessary. The noble Lord referred to the number of times we have talked about serious crime over the years, and the various definitions of “serious”. That is a fair point and it needs to be answered.
The noble Baroness, Lady Jones of Moulsecoomb, raised the question as to why preventing and detecting crime would not be enough, on their own, as reasons for the powers in the Bill to be deployed. We also need reassurance about what will not happen when powers are given by Parliament, so it is important for the Minister to set out what will not be impacted.
Noble Lords may not like it, but the right to withhold one’s labour and to strike is a hard-won right that we should all defend. We need guarantees that the powers in the Bill would never be used to undermine lawful, legal trade union activity in respect of strike action or campaigning activity. My noble friend Lady Chakrabarti raised the important point regarding trade unions, as did my noble friend Lady Bryan of Partick and many others. We have to get the balance right; lawful activity must not be undermined by the state with the use of undercover activities.
We have heard about the policing inquiry. Some terrible things have happened that I am sure we all regret, which have undermined legitimate activity. It must never happen again. Those are the questions the noble Baroness needs to reassure the House on: how will this Bill ensure that never ever happens again?
I am a proud trade unionist. I was a member of USDAW for 12 years when I first left school and I have been a member of the GMB for the last 30 years. I never rose very high in the GMB ranks; I got as fair as the chair of the Labour Party senior staff sub-branch for a couple of years. I spent probably more time arguing with the rest of the staff in the Labour Party about where we wanted to get to. But I certainly think that the unions are very important. For example, USDAW—a union I am very close to—is a great trade union with great campaigns that I always support. It is important that we support the work that unions such as USDAW do.
At this point, I pay tribute to my old friend John Spellar. John was first elected to public office 50 years ago today, in a St Mary Cray by-election on
I was also sorry to learn that the noble Baroness, Lady Jones of Moulsecoomb, has been arrested on demonstrations. I have been on a few demonstrations in my time as well. I have avoided being arrested, but I must admit that I have also been demonstrated against. When I was a councillor, many times things that we did on the council provoked some annoyance. I remember once that I put up the fees of the traders in East Street Market and drew their wrath for a number of weeks. There were lots of unpleasant signs about me.
What is important here is that, if you are a trade unionist or a campaigner, nothing in the Bill must ever undermine legitimate work. It is really important for the Government, and for the noble Baroness, to reassure the House and Parliament that nothing legitimate will ever be undermined when this goes on the statute book, and that actually it will be supported. I think she can see from the comments of people around the House today that we are not convinced that is the case. She needs to reassure us now in responding to the debate.
My Lords, I thank all noble Lords who have taken part in this debate and pay tribute to anyone who has been in politics—and indeed the trade union movement—for 50 years. I have heard of John Spellar in dispatches, but unfortunately not the person that the noble Baroness, Lady Bryan of Partick, referenced.
Turning to public authorities, they have different functions, the ultimate outcome of which is to keep the public safe from harm in a variety of ways. It is very important that they can lawfully deploy CHIS to fulfil those responsibilities. These amendments seek to restrict the statutory purposes available to public authorities under the Bill.
The structure of new Section 29B closely resembles that of Section 29, which authorises the use and conduct of CHIS, as there is a high degree of interrelationship between the two provisions. That is why a Section 29 authorisation is required to be in place before a Section 29B authorisation can be granted. The statutory purposes that will be available for a criminal conduct authorisation are linked to those available for a use and conduct authorisation. It is not operationally workable to have different grounds for authorisation between the provisions. For example, we would want to avoid a situation where a CHIS’s use and conduct has been deemed necessary for the prevention of crime, but the linked criminal conduct authorisation for the same CHIS and the same activity may be only on the basis of preventing a serious crime, as my noble friend Lord King of Bridgwater pointed out.
My noble friend also pointed out the words of my right honourable friend James Brokenshire about the sheer amount of activity that has been done under covert means—it led to 3,500 arrests and the recovery of more than 400 firearms, 100 other types of weapons, 400 kilograms of class A drugs and £2.5 million-worth of cash. But first and foremost, and most importantly, is the fact that it safeguarded hundreds of victims from child sexual abuse and other heinous crimes.
To restrict the prevention of “crime” to “serious crime”, as Amendments 22, 23 and 31 propose, would mean that public authorities would be less able to investigate crime that, while not amounting at the time to serious crime, actually has a damaging impact on the lives of its victims—so the outcome is serious, to answer the question of the noble Lord, Lord Kennedy. An example of this would be food crime: the extension of meat durability dates, leading to out-of-date food being consumed, is damaging and can be very dangerous to public health.
Of course, the necessity and proportionality requirements mean that an authorisation must be proportionate to the activity it seeks to prevent. This provides an important safeguard against authorisations of serious criminality being granted to prevent less serious, but equally important, crime. However, it is surely right that public authorities have access to the most effective tools to ensure justice for victims of these crimes and to prevent their occurrence.
The noble Baroness, Lady Chakrabarti, referred to some of the examples that we have heard in this Chamber of sexual relationships between undercover police and women, and some of the actually quite devastating consequences of that. I think I have said before in this Chamber that that was not lawful, is not lawful and would never be lawful.
In response to the1 amendments seeking to remove economic well-being, this is one of the established statutory purposes for which covert investigatory powers may be deployed by public authorities. It recognises that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. It might, for example, include the possibility of a hostile cyberattack against our critical national infrastructure, our financial institutions or, indeed, the Government. It is important that law enforcement bodies and intelligence agencies can deploy the full CHIS functionality against such threats where it is necessary and proportionate.
Similarly, preventing disorder is an important and legitimate law enforcement function. Where illegal activity takes place, public authorities listed in the Bill have a responsibility to take action as is necessary and proportionate. An example of this could be managing hostile football crowds, which does not involve lawful protest but causes harm to the public.
To be clear to noble Lords concerned that either economic well-being or preventing disorder could be used to target legitimate protest or the work of the trade unions, an authorisation can be granted only if it is proportionate to the harm or criminality that it seeks to prevent. Therefore, this would not include—to use the words of the noble Baroness, Lady Chakrabarti—“legitimate and lawful activity”. The noble Baronesses, Lady Jones and Lady Bryan of Partick, also gave examples of activity by political groups or trade unions. The noble Lord, Lord Kennedy, asked me about the difference between the wording in this Bill and the CT Act. It goes wider, basically, and it is consistent with RIPA.
With those words, I ask noble Lords not to press their amendments.
My Lords, I am grateful for what the Minister has said and appreciate that she has to stick to her script, but it gives the impression on occasion that there is no point in making contributions to debate because what I have said appears, from what she has said, to have been completely ignored. I will repeat exactly what I said. I said that of course the Government may say that in addition to being necessary the granting of a CCA must be proportionate—the issue that she mentioned—and it would not be proportionate to deploy a CHIS if the criminal activity was minor. That is almost word for word what she said. However, I went on to say that the same argument applies to the interception of communications in RIPA, where necessity is limited to serious crime, as defined in our Amendment 31. That second point seems to have been completely ignored by the Minister. I accept that that is probably because she has, understandably, just stuck to her script. It comes back to the point that I made, which is: what is the point of making speeches in debates if what noble Lords say is ignored by the Minister?
The Minister said that these amendments would limit how CHIS could lawfully be deployed and seek to restrict their deployment, and authorities would be less able to investigate crime. This Bill is about criminal conduct by CHIS, not their deployment. It is about giving authority to agents and informants to commit crime, and grant complete legal immunity to CHIS in those circumstances. There is a world of difference between deploying a CHIS and authorising them to commit crime, and then granting them immunity from prosecution. Yet the whole basis of her argument, from what I understood her to say, is that there is no difference between the two. In which case, what is the purpose of the Bill?
I say again: why is the interception of communications limited to serious crime if there is no need to limit the deployment of CHIS, who are going to be authorised to commit crime? Why should they not be limited to serious crime? That is a question that the Minister has failed to answer.
The noble Lord, with whom I am actually good friends, makes a valid point: what is the point in making speeches if points are ignored? I often find that I make the same points over and again, and they are completely ignored because such is the will of people to make their opposite points. However, on this occasion, he is absolutely right. I did not address his point about RIPA and it being confined to serious crime. In the interception of communications, we are dealing with machines. In the deployment of humans, we are dealing with something else. I apologise to him for not answering his point.
My Lords, I am grateful to all noble Lords for the care with which they have approached this group, which once more highlights the gravity of the development of this legislation to enable statutory criminal conduct authorisations with total immunity for the first time in our law. I will not rehearse the various arguments, most of which I agree with, but I will respond to the noble Lord, Lord King of Bridgwater, a distinguished statesman for whom I have a great deal of respect, and to the Minister. It is their opposition to these amendments and the thinking behind them that I must address, because the issue is so serious.
At various times in the debates on the Bill, some noble Lords have expressed irritation that one should hark back to past abuses including those in the Undercover Policing Inquiry, or the treatment of my noble friends Lord Hain and Lady Lawrence, as if they belong in a bygone era and would never happen again. Other examples include the treatment of the Greenpeace women and so on. One can cast those abuses aside by saying they would never happen again but, of course, we know that as legislators we have the precious duty—the sacred trust of those who have appointed us to this role—to learn from the past and legislate for the future, informed by the dangers that past activities have exposed. It is right that we take some care and employ forensic precision in refining provisions in legislation as serious as this.
With the greatest respect to the noble Lord, Lord King of Bridgwater, and the Minister, there has been an element of blurring classes of activity that should not be blurred in legislation of this kind. In particular, there has been blurring, as the noble Lord, Lord Paddick, highlighted, on authorising undercover operatives, which is perhaps the most serious kind of intrusive surveillance—because humans are human, not machines, to quote the Minister. Yes, they need more protection but we also need more protection from them because they will change our behaviour and not just record it.
Undercover operatives are important but dangerous, even under the present law. There is a new category of authorisation in this legislation, which is about criminal conduct by those agents and criminal conduct with total immunity after the fact. That is completely novel. It is important to understand how we got here, not just regarding the vital need for these operatives or the abuses of the past but the jurisprudential and legislative train that got us to this station.
Article 8 of the convention on human rights guarantees the right to respect for private and family life, stating that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
But of course there are exceptions. Article 8(2) is crucial in this debate. It states:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
That is a necessarily broad exception. Why? It is because that exception exists in international and human rights law to cover any privacy interference at all. Any camera on a high street or requirement to fill out a tax form is an interference with privacy. It includes any interference on a prisoner’s privacy or the privacy of a schoolchild—any interference at all. Therefore, that category of exception is broad. However, it is too broad for intrusive surveillance, which is why, as the noble Lord, Lord Paddick, said, we start to introduce further restrictions for intrusive surveillance. It is not just about the duty to fill out a tax form any more; we are now talking about much greater intrusions—serious crime rather than just any crime.
Economic well-being is vital, for example, for the tax form; but it is too broad a category for authorising agents of the state to commit crimes against me, my friends or my associates. That is the Article 8 wording, which is too easily copied and pasted. Then we have the slightly tighter definitions in the Regulation of Investigatory Powers Act, on to which today’s scheme is going to be grafted. That, serious though it is, is intrusive surveillance, but this is intrusive surveillance plus criminal activity plus total civil and criminal immunity. That is why the justifications in this Bill need to be tighter still than those in RIPA, not broader, and certainly a great deal tighter than the exceptions to Article 8 of the convention. I hope that I have made that clear, and I hope it rings true with most of your Lordships’ House.
To return to the noble Lord, Lord King of Bridgwater, I say that nobody is under any doubt that covert human intelligence sources are absolutely vital tools of public protection. Under the current law, we have no doubt that they have protected many of us and saved many lives. However, that was on the basis of a law where these people acted on the basis of guidance, but without this absolute immunity; but now we are told that they need absolute immunity—not a public interest defence and not what they have had until now. Therefore, it is perfectly reasonable to at least probe the possibility of, if not to insist on, much tighter regulation and safeguards than are currently provided in the Bill. Having had that discussion, however, for today at least I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Amendments 23 to 26 not moved.