Amendment 41

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (3rd Day) – in the House of Lords at 6:15 pm on 3rd December 2020.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

41: Clause 1, page 3, line 2, at end insert “; and(d) is not carried out for the primary purpose of—(i) encouraging or assisting, pursuant to sections 44 to 49 of the Serious Crime Act 2007, the commission of an offence by, or(ii) otherwise seeking to discredit,the person, people or group subject to the authorised surveillance operation.”Member’s explanatory statementThis amendment would prohibit the authorisation of criminal conduct where the covert human intelligence source acts as an agent provocateur.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 6:30 pm, 3rd December 2020

My Lords, this amendment is very simple but, none the less, incredibly important to reassure some noble Lords and organisations, which you heard from earlier, about peaceful, legitimate protest and political activity, such as trade unions, environmental movements and so on. This is an important amendment to reassure them against abuses by Governments present and future. No disrespect is intended to a Government of any particular stripe. It has been drafted with some care, because I understand that it is difficult to limit the precise positive purposes of a covert human intelligence source, not least because the Government have chosen in this legislation to cover a wide range of public authorities and their investigatory, regulatory and enforcement work. I have tried to rule out the use of a criminal conduct authorisation for the purposes of agents provocateurs.

I complained on other groups that one of the problems with the legislation, as drafted, is that it grafts criminal conduct—which is much more serious than normal intrusion—on to a legislative scheme designed for intrusion, but not for the greater harms of criminality. It also has a limited Long Title and a limited scope. It is difficult to use amendments to the Bill to improve the RIPA scheme on to which so much weight is now being placed. However, I believe it is possible to do a great deal of good, even within the limited Long Title, in preventing agents provocateurs.

For the avoidance of doubt, and for members of the public watching at home or reading tomorrow, an agent provocateur is a state agent who is placed undercover, quite often in a protest movement, trade union or other innocent, legal, peaceful organisation, for the deliberate purpose either to incite crime on the part of others who would not normally go that far in their protest or for the agent to commit crime, while undercover, to delegitimise the wider peaceful movement in the public’s eyes or to justify a more repressive policing or banning response by the state. This method has been used throughout history and throughout the world, even in the United Kingdom. It was used during the hunger marches and in various trade union activity. We will see what comes from the Undercover Policing Inquiry.

I have no doubt that the Minister does not intend the Bill to allow criminal conduct authorisations—which now come with immunity, as they never did before—to be used to license agents provocateurs. Therefore, it seems to me that she would want to support this amendment, or something like it, which puts it beyond doubt that no CCA is able to authorise agents provocateurs.

The amendment is carefully drafted not to rule out the agent who finds himself or herself joining in with criminal activity to keep their cover or encouraging, assisting or inciting, while in discussions with others, to keep their cover. It prohibits the authorisation for the primary purpose—this is the crucial part of the amendment—of inciting crime, to use the modern definition under the Serious Crime Act 2007, or otherwise seeking to discredit the person or organisation being spied on. That is, they are not inciting it, but they are doing it undercover to discredit that organisation. To me, it seems simple and carefully crafted, if I may say so, but desperately important to reassure those involved in peaceful protest in particular. I beg to move Amendment 41.

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

My Lords, the noble Baroness, Lady Warsi, is not participating in this debate, so I call the next speaker, who is the noble Lord, Lord Paddick.

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

My Lords, I too signed the amendment, which the noble Baroness, Lady Chakrabarti, has very adequately introduced. When I think back to my experience in the Metropolitan Police Service and the instructions that we had, acting as an agent provocateur was clearly and explicitly prohibited as that relates to covert human intelligence sources committing crime. However, unless I have missed it, I cannot find in the Bill or in the draft code of practice any explicit reference to “agent provocateur”.

To repeat what the noble Baroness said in different terms, an agent provocateur is someone who commits a crime or encourages others to commit a crime that would not have been committed had it not been for the actions of the CHIS, or it relates to a situation in which the CHIS commits a crime and then blames the organisation for that crime, which members of the organisation had no intention of committing. In other words, the crime would never have taken place had it not been for the presence of the CHIS.

I look forward to hearing from the Minister where I have missed that explicit instruction, either in the Bill or in the codes of practice. I stress to her that, although I understand that this scenario could not happen under existing guidelines in the police service, we in this House want reassurance either in the Bill or in the codes of practice that it is prohibited.

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)

My Lords, my contribution on this amendment will be fairly short. I hear the point that my noble friend Lady Chakrabarti makes and I note the point made by the noble Lord, Lord Paddick, that this issue is not mentioned in the Bill. Therefore, I am not quite clear whether the amendment is necessary. It would help us if, when the Minister responds, she could say something about the detail of the authorisations in a CCA.

Behind all the amendments today are concerns and worries about what may or may not have happened in the past. People want reassurance going forward, but they are not seeing it. I see that theme across all our discussions today. At some point, the Government will probably have to go a bit further to provide that reassurance, although I do not know how they will do that.

All these issues have been raised because of concerns that people have had in the past. As my noble friend said, we do not know whether we can stop this in the future, but I hope that the Minister can go a bit further. I cannot see any particular issue but, if I am right, the reason behind an authorisation would have to be recorded and shared with the Investigatory Powers Commissioner. That is the issue on which we need reassurance, as we move forward and give people new powers.

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

I thank noble Lords. I hope to reassure the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, about why we do not need this amendment.

I have already stressed the requirement for all CHIS authorisations to be given in line with the Human Rights Act. Article 6 of the ECHR protects the right to a fair trial. The article restates a fundamental principle of English law and, I understand, Scottish law: that a court has a duty to ensure a fair trial. The use of an agent provocateur could be seen as affecting the fairness of a trial, and rightly so. A court already has the requisite power in law—under Section 78 of the Police and Criminal Evidence Act 1984—to consider and exclude such evidence. The relevant entrapment principles are set out in the leading House of Lords case of Loosely from 2001, which also opines on the convergence of English law in this area with our Article 6 commitments. I hope that that provides reassurance.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I apologise: I perhaps have not made myself clear enough. It is late and we have all been at this for a while, but I do not think that I explained myself well enough either to my noble friend Lord Kennedy of Southwark or to the Minister.

Agent provocateurs are not limited to the trial process. In fact, the scenario that I have painted could apply where nobody is brought to trial, so Article 6 and evidential rules against entrapment are no protection. I shall try again.

The scenario is like this. Some hours ago, the noble Lord, Lord King, spoke about the possibilities—suspicions or fears perhaps—that in the future environmental or race equality movements might become involved in more militant or violent action against people or property. That is a concern that he already has, and maybe some other people do too. Given that the Bill allows economic concerns to be a justification not just for CHIS but criminal conduct, what would happen if a CHIS were authorised to enter such a protest movement and misbehave in order to discredit it when that movement had not yet, or at all, engaged in that more violent, militant or illegal activity?

In my scenario, it is possible that only the CHIS himself is committing a crime, but because he is doing so within that movement, the organisation is now discredited in the public mind or the Government might choose to prohibit the organisation in some way. It is quite possible that in that scenario nobody will have been brought to court and there will be no Article 6 fair trial issue and no entrapment/evidence issue.

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

My Lords, I am afraid that that is not within the rules at present. I apologise to the Minister but we have to let the noble Baroness, Lady Chakrabarti, finish.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I apologise. It is hard to see the Minister’s face or responses from this angle on Zoom. Briefly, in my scenario there is no trial, fair or otherwise, and therefore there is no issue of evidence against entrapment. There is just a CHIS who has been authorised for the purposes of discrediting a movement that may be feared to become violent in the future but is nowhere near doing so at the moment. My amendment seeks to ban a criminal conduct authorisation being issued for that primary purpose.

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

Would the Minister care to respond to the noble Baroness, Lady Chakrabarti?

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

I apologise for intervening at an inappropriate moment. I was trying to clarify whether the noble Baroness was suggesting that a CHIS would be authorised to entrap. I do not think that authorisation would be valid.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 6:45 pm, 3rd December 2020

Forgive me, but in the scenario that I have just painted there is no entrapment because nobody is prosecuted. There is just criminal behaviour by a CHIS for the purpose of discrediting in the public imagination an otherwise peaceful protest movement, for example; it could be an environmental movement. At the moment I see nothing in the Bill that bans a criminal conduct authorisation being made with the primary purpose of discrediting an otherwise peaceful movement that perhaps poses a challenge to some people’s idea of the economic well-being of the nation.

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

I think that we are coming to the end of this debate, but entrapment in and of itself would have been committed.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, we can disagree on that, but perhaps before Report the Minister and her colleagues might reflect on what I am trying to achieve. For the moment, I beg leave to withdraw my amendment.

Amendment 41 withdrawn.

Amendment 42 not moved.

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

We now come to the group beginning with Amendment 43. 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 the group to a Division should make that clear during the debate.