Amendment 39

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (3rd Day) – in the House of Lords at 5:45 pm on 3rd December 2020.

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Lord Dubs:

Moved by Lord Dubs

39: Clause 1, page 2, leave out lines 45 to 47 and insert—“(b) consists in conduct—(i) by the person who is so specified or described as the covert human intelligence source to whom the authorisation relates, or(ii) by another person holding an office, rank or position within the public authority making the criminal conduct authorisation, which assists or encourages criminal conduct by the covert human intelligence source to whom the authorisation relates; and”Member’s explanatory statementThis amendment clarifies who can be authorised to commit criminal offences.

Photo of Lord Dubs Lord Dubs Labour

My Lords, so far we have been debating the nature of the criminal offences that may or may not be authorised. Amendment 39 would clarify who can be authorised to commit criminal offences. As I made clear on earlier amendments, I am a member of the Joint Committee on Human Rights, and my contribution to the debate on this amendment stems from the report by that committee. That report has been referred to by many noble Lords and indeed has almost served as the text for some of the debates. That is a credit to the work of the committee, which I think is very positive and influential.

The committee found the Bill’s definition of what amounts to criminal conduct for the purpose of a CCA “unhelpfully obscure”. It noted, in particular, that it includes conduct in relation to a CHIS. The expression “in relation to” is one of those phrases that can mean almost anything and is capable of all sorts of interpretation, narrow and wide. My noble friend Lord Rosser used a similar phrase which was a bit vague in an earlier debate. I repeat that the expression “in relation to” can mean almost anything.

Why are the Government doing this? I will use an American expression that we all know and which I learned many years ago: mission creep. One sets out to do something but inevitably, in trying to get the powers to do that, one expands what one wants to be able to do, sometimes beyond what is reasonable or could have been envisaged at the outset. This amendment relates to what I would call mission creep on the part of those who drafted the Bill.

It seems plausible that the purpose of authorising conduct in relation to a CHIS is to ensure that those authorising and handling a CHIS are not exposed to prosecution on the basis of secondary liability. However, that is not a justification that has been put forward by the Home Office. I should be clear that my understanding of secondary liability is criminal liability for encouraging or soliciting another person to commit a crime. The Home Office has not said, though perhaps the Minister will tell us, what the purpose of this provision is. If the justification that I have put forward is the one that will be put forward by the Home Office, I hope the Minister will say so.

The report by the human rights committee concluded —and I should conclude with this as well—

“The Bill requires amendment to clarify who can be authorised to commit criminal offences. In the absence of a clear explanation of the need for a CCA to authorise more than the conduct of the CHIS, only the conduct of the CHIS and any resulting secondary liability, should be capable of authorisation.”

The amendment seeks to limit the definition of criminal conduct in that way. I think it is a matter of tightening it up and getting rid of material in the Bill that should not be there. I beg to move.

Photo of Lord Sikka Lord Sikka Labour 6:00 pm, 3rd December 2020

My Lords, it is a great pleasure to speak in this debate. My concern is about authorising corporations to commit criminal acts and the consequences for the individuals who have been somehow enrolled to commit criminal acts and subsequently discarded. Through this amendment, I seek to address those issues.

The Bill permits the relevant authorities to enrol and authorise state and non-state actors to commit criminal acts. None of the relevant authorities listed in the Bill is hermetically sealed; they are not self-contained. They use corporations—private organisations—to further their aims. They interact with others, and there is evidence to suggest that over the years corporations have been authorised to commit what some would say were criminal acts, while others might perhaps say those acts were dangerous. Corporations have become an arm of the state, and all Governments in recent years have had an appetite for outsourcing things. I can see nothing in the Bill that would prevent a Government from outsourcing the commission of criminal acts.

There is a fair bit of research into some of these companies. I want to draw attention to an article, dated 20 December 2018, that is easily accessible on the openDemocracy website. I shall quote part of it:

G4S, one of the UK’s biggest private military companies, provides pivotal ‘operational support’ to Britain’s military in Afghanistan and such incidents bring back into focus the extent that private military and security companies are present – and sometimes directly involved – in combat … Britain has led this privatisation of modern warfare. It leads the world in providing armed contractors to ‘hot spots’, be it combating terrorism in the Middle East or fighting pirates off the Horn of Africa. Some of their biggest clients are governments; since 2004, the British state has spent approximately £50 million annually on mercenary companies.”

I would add that lots of details are very rarely provided by government officials to Parliament or the public. Over the years, I have tried to look at some of these companies, but it is almost impossible to track them. They are formed and then very quickly dissolved. It is very difficult to track their operations. The article that I have referred to goes on to say:

“Despite the size of this mercenary industry, the entire sector is marked by secrecy. Men trained in the arts of subterfuge and counter-intelligence dominate this sphere, and the result is an industry that operates from the shadows.”

How will the CHIS Bill make this industry accountable? There is clear evidence that these companies have been used for the commission of criminal acts.

One example of this is that in 2007, employees of Aegis Defence Services, based in London, posted footage on the web showing its guards firing their weapons at what was reported at the time as “civilians”. The company said the shootings were legal within the rules of protocol. That company has also been criticised for allegedly employing former child soldiers from Sierra Leone as mercenaries in Iraq. This is a company that is headquartered in London.

As far as I am aware, there is no central database of private military and security companies operating from the UK, and I do not think that there is even any legal requirement for them to register with a governing body. Yet these companies, both in the past and possibly even now, are authorised to commit criminal acts. There is nothing in the Bill to prevent a relevant authority from authorising such companies to conduct these acts.

My concern is that we must not authorise private profit-maximising corporations to commit criminal acts. You could argue that, the more terror they unleash and the more criminal acts they commit, somehow the higher their profits will be; their executives and shareholders will be that much richer. This is simply unacceptable. Their victims receive virtually no compensation or justice, and Governments have simply pretended that they know nothing about the criminal acts being committed in their name. The murk surrounding them was touched upon in the 1996 report of Lord Justice Scott’s inquiry into the arms to Iraq affair, but there was very little clarity.

Corporations provide not only mercenaries and related services; they also operate much of the local infrastructure, including the operation of prisons. Their employees may be persuaded to go undercover into a prison to learn about drug dealing and much more. Presumably, they would need to be authorised to do so by the Home Office to commit such acts. These undercover agents can, intentionally or unintentionally, injure others. In those circumstances, who exactly is to be held accountable? Is it the corporation which has been authorised to commit the criminal act, or is it the relevant authority? As far as I am aware, the Investigatory Powers Commissioner does not have access to the documents and the personnel of these corporations.

There is also the unedifying scenario of a relevant authority authorising a corporation to commit criminal acts, which in turn holds training sessions for its employees, training them to commit murder, torture and other heinous acts. What would happen to those individuals who refuse to obey the instructions of their employers? Would they be able to say that they cannot go along with that? Would they be able to access an employment tribunal to secure redress? I cannot see anything about that in the Bill.

At the moment, people can refuse to commit criminal acts but if the Bill becomes law certain criminal acts would be normalised, though they would need to be authorised. That presents an enormous danger, and we have not sufficiently discussed the implications of corporations being licensed or authorised to commit these acts. Over the years, government departments have not come clean at all about how they have interacted with such corporations.

Today, and in previous debates, many noble Lords have drawn attention to the fact that children and vulnerable people may be enrolled to commit criminal acts. They can be used by the relevant authority and then discarded, perhaps being paid a small sum. However, many of these individuals will have flashbacks for years. They will have nightmares and suffer mental health problems; where exactly will they be able to turn for help? On the other hand, if these individuals are employees of the relevant authority, the employer will owe them a duty of care. They will then have recourse against the employer—namely, the relevant authority—so that they can be supported and compensated. Again, that is an issue.

Corporations should not be authorised under any circumstances to commit criminal acts. In the UK, we do not even have a regulator to enforce company law, never mind anything else the corporations might do—there is no central enforcer of company law in this country. Another benefit of restricting the commission of criminal acts to persons employed by the relevant authority is that that would protect very young children: children under a certain age cannot be employed at all. This will provide extra protection for those individuals. If the vulnerable people are used, the relevant authority has to be accountable for their action.

It is with this kind of issues in mind that I have proposed Amendment 53, which suggests that only individuals directly employed by a relevant authority can be authorised to commit criminal acts. We do not have the power to fully look into what corporations do, and, as I said earlier, there is not even a central regulator.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS

“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]

Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.

Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.

I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:

“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]

If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 6:15 pm, 3rd December 2020

My Lords, I share the concerns of the noble Lord, Lord Anderson of Ipswich, about seeking clarity as to who is covered not just because a criminal conduct authorisation authorises somebody to commit a crime, but because they have, as a consequence, both civil and criminal legal immunity. As we and other noble Lords have argued, immunity from prosecution should be decided after the event by the independent prosecuting authority—disagreeing with the noble Lord, Lord Anderson, and the noble Baroness, Lady Manningham-Buller. However, these amendments raise important questions, not least about legal immunity.

The first person covered, without doubt, is the agent or informant—the covert human intelligence source. If the CHIS is asked or ordered to participate in crime then if anyone is to be given legal immunity, it should be him. The question then becomes: is a handler who asks or orders a CHIS to commit crime, whether or not the request or order is legitimate, also covered by legal immunity? This arises from the fact that he can request or order a CHIS to commit crime only if he, in turn, has been given authority to issue such a request or order by the authorising officer. If the authorising officer has told the handler that he is permitted to request or order a CHIS to commit crime, should the handler also have legal immunity, in that it is then the authorising officer’s decision, not that of the handler? Then, if the authorising officer has agreed that the handler can request or order a CHIS to commit crime, should the authorising officer too not be covered by legal immunity?

What the noble Lord, Lord Sikka, was aiming at with his amendment came as something of a surprise. I do not understand how, under the terms of the Bill, a corporation can be authorised to carry out crime. Surely, it has to be an individual—the covert human intelligence source himself or herself—who is authorised, not a corporation. While I accept that some work of the police service, for example, or the security services may be outsourced, surely that corporation would have to be listed as an authorising authority in the Bill if that were the case.

There would be unintended consequences of the amendment of the noble Lord, Lord Sikka, if the only person who can be authorised to commit a crime is an undercover police officer or a James Bond-type character in the security services, and not a criminal who is helping the police or, indeed, somebody in a foreign country who is simply an employee of an organisation that interests the security services and who passes information back, not an employee of the security services. That would surely leave a big hole in what the Bill attempts to achieve. We cannot support Amendment 53. However, I am very interested to hear the Minister’s response to my question, and that of other noble Lords: who is covered by the CCA? Is it the CHIS who commits the crime, the handler who tells him to commit the crime, the officer who authorises the handler to tell the CHIS to commit the crime, or all three?

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, Amendment 39 in the names of my noble friends Lady Massey of Darwen and Lord Dubs removes from the definition in the Bill of authorised criminal conduct the words

“by or in relation to” the specified covert human intelligence source. It replaces those words with a more detailed definition; namely, that it is conduct by

“the covert human intelligence source” or by a person who holds a rank, office, or position in the public authority that is granting the authorisation and is assisting in the behaviour of the covert human intelligence source. As my noble friend Lord Dubs said, this amendment was recommended by the Joint Committee on Human Rights.

Under the terms of the Bill, authorised conduct is not limited to the conduct of the covert human intelligence source. The code of practice says that a criminal conduct authorisation may also authorise conduct by someone else in relation to a covert human intelligence source, with that someone else being those within a public authority involved in or affected by the authorisation.

If the Government do not accept Amendment 39, they need to set out in their response the reasons why they consider it necessary to provide for the authorisation of criminal conduct by someone other than the covert human intelligence source; the parameters of that criminal conduct by someone other than the CHIS that can be so authorised; and the safeguards in the Bill to ensure that the person authorised to commit criminal conduct—who is someone other than the covert human intelligence source—is not also involved in any way in the authorisation process to which that criminal conduct relates.

I shall listen with interest to the Government’s response to Amendment 39 and to the pertinent questions raised by my noble friend Lord Sikka in speaking to his amendment.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank noble Lords who have spoken in this debate.

Amendment 39 seeks clarification on who can be authorised under the Bill. The intention behind the Bill is to provide protection both to the CHIS themselves and to those involved in the authorisation process within the relevant public authority. There are a range of limitations on what can be authorised under the Bill, including the conduct being necessary and proportionate. This means that it would not be possible to grant an authorisation for criminal conduct unless that conduct was by a CHIS for a specific, identified purpose, or involved members of the public authority making, or giving effect to, the CHIS authorisation.

Amendment 53, from the noble Lord, Lord Sikka, seeks to restrict those who can be granted a criminal conduct authorisation to employees of the public authority. The Government cannot support this amendment as it would significantly hamper our public authorities’ efforts to tackle crimes and terrorism. While CHIS are often employees of the public authority, they also can be members of the public. The real value of CHIS who are members of the public is in their connections to the criminal and terrorist groups that we are targeting. This is often the only means by which valuable intelligence can be gathered on the harmful activities which we are seeking to stop. Employees of a public authority will not have the same level of access. I reassure the noble Lord that the authorising officers within the public authority set out clearly the strict parameters of a criminal conduct authorisation. Were a CHIS to engage in criminality beyond their authorisation, that conduct could be considered for prosecution in the usual way.

The noble Lord, Lord Paddick, asked whether the CHIS and their handler could be prosecuted. Obviously, every situation will be different, but if the CHIS acted beyond their authorisation, they would have to answer for that. Equally, if the CHIS handler acted inappropriately or in a way that might endanger the CHIS, they could also be liable for that conduct.

The noble Lord, Lord Sikka, talked about security guards being undercover operatives. The noble Lord will know that we have published the list of bodies that can run undercover operatives. In addition to this, the criminal injuries compensation scheme is not undermined by this Bill, and I understand that anyone can approach the IPT if they feel they are due civil compensation. I think that is right, but I will write to noble Lords if that is wrong.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

I have received a request to speak after the Minister, and hand signals suggest it may be the noble Lord, Lord Paddick.

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

I thank the Minister for her explanation. I am not sure I explained myself well enough to her in terms of who is covered by legal immunity. It is not if the CHIS goes beyond the CCA, but if the CHIS remains within the CCA. So, if the CHIS operates exactly in the way the handler has told them to, and the handler tells them only what the authorising officer has authorised them to, but it is not necessary or proportionate, it is corrupt or a mistake, who is covered by the CCA? Who is covered by the immunity, even though the CHIS has not gone beyond what they were asked to do?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I say again that each situation will be different, but I understand the noble Lord’s point that if the CHIS is acting as instructed, but the handler has gone beyond where they should have gone, it would be the handler’s authorising officer who would be liable for that activity. There would be an investigation, but at that point, we are talking about a theoretical case. If it was the handler who had acted beyond their purview, the handler would be liable for that handling activity, or the authorising officer. It is late, I am tired, and I have suddenly forgotten my thread.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I am grateful to all noble Lords who contributed to the debate. I have to lead with what the Minister said. I feel that her interpretation of the part of the Bill we are talking about was nearer to the spirit of the amendment than the wording of the clause itself. That is why I want to have a look at it. As for what my noble friend Lord Sikka said, I was not aware that a person in the Bill could be a corporate body. I fear he has an important point, but maybe it is not quite in the scope of the Bill. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Amendment 40 not moved.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, we come now to the group consisting of Amendment 41. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.