Amendment 75A

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (4th Day) – in the House of Lords at 4:00 pm on 10th December 2020.

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Baroness Jones of Moulsecoomb:

Moved by Baroness Jones of Moulsecoomb

75A: Clause 4, page 5, line 10, at end insert—“(4B) Where the Investigatory Powers Commissioner becomes aware of any potentially unlawful or improper conduct undertaken in connection with a criminal conduct authorisation, which is not authorised by the criminal conduct authorisation, the Commissioner must refer the matter to the police for investigation.”Member’s explanatory statementThis amendment would introduce a requirement for the Investigatory Powers Commissioner to refer potentially unlawful or improper conduct undertaken through a criminal conduct authorisation to the police for investigation.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I am afraid I am going to disappoint a lot of noble Lords for whom I have huge respect, but I am afraid I do not think this Bill is necessary. That is not to say that the old system was good, because it clearly was not, but this Bill is worse. It could have been better, but it is not, so I would like to see it scrapped. However, in the meantime, our job in your Lordships’ House is to try to improve it and to get the Government to listen and understand why they are improvements.

In the previous group, the noble Baroness, Lady Chakrabarti, talked about overreach. That is part of the problem I have with this Bill, but it is not the only part. As some noble Lords have said, it is a dangerous world and we have to do what we can to keep people safe, which is all very true—and all the examples the Minister gave of how to use these powers are very reasonable. However, at some point, we have to ask ourselves, “What are we prepared to lose to keep ourselves completely safe?” In the previous group, the noble Baroness, Lady Whitaker, talked about liberty and democracy, and those are some of the things we are losing with this Bill. It is an erosion. Your Lordships’ House is very concerned about the erosion of democracy —about more and more powers going into statutory instruments.

The two amendments I have tabled require that unlawful conduct that goes beyond the criminal conduct authorisation, or that should not have been authorised in the first place, be reported to the police or a relevant oversight body—for example, the Independent Office for Police Conduct. My Amendments 75A and 75B reveal a deafening silence in the Bill about what happens when something goes wrong. I hope the Minister can explain that to us. What happens when an authorisation is granted that clearly should not have been? What happens if somebody goes beyond their authorisation and commits additional criminal offences? Amendment 75A would require that the authorising authority refer to the police any criminal conduct that was not authorised. Amendment 75B would require “unlawful or improperly granted” criminal conduct authorisations to be referred to the relevant oversight body—for example, the IOPC.

This is a gaping hole in the Bill: we are talking about state-authorised crime, and the police and other government authorities must not be complicit in criminality that goes beyond the legal authorisation in this Bill. Otherwise, it creates an additional quasi-authorisation where handlers can just sweep things under the carpet when it is dangerous to admit they have done them. They can pretend they did not happen. I hope the Minister will recognise these gaps in the Bill and work to address them on Report.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.

It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.

The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.

The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.

However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for drawing attention to the points I made, and I am sorry if I sounded too aggressive on some of them. The point I did not make, which I shall make now, is on how much crime is committed. One would expect that, in most cases, it would not be the commission of crime so much as association with people while they committed crimes, with the person in question not necessarily being directly involved but having some complicity, which is one of the problems.

The requirements, as I understand them, if they are in that situation and a criminal conduct authorisation is issued, are that it has to be proportionate, it may not be issued if what is sought to be achieved can be done in another way, and it has to be part of an effort to prevent more serious criminality. Those three conditions are perhaps not mentioned very much but are important.

I have left out some issues that I might have discussed. We have just talked about possibly leaving the Department of Health and Social Care out of the Bill. Think of this moment when organised crime, throughout the world, is seeing how it can get into the vaccines business in one way or another. The challenge that that will pose will feature in our news broadcasts and papers in the days ahead. It will obviously be a big issue. One recalls that the NHS was practically brought to a grinding halt from its systems being hacked and disrupted.

There is this, as well, if it is not too dramatic. At the time of Brexit, when we may be moving towards no deal, there is an idea to take from HMRC its ability to keep every possible assistance. In trying to deal with some of the problems it will have, it will need all the help it can get.

My concern about these amendments, and referral to the police or judges to overview the operations of CCAs, is that a clear structure is set up. The Investigatory Powers Commissioner is a very senior judge and the judicial commissioners are very senior. My concern all the way along is that nobody has challenged how vital covert intelligence sources can be, in a range of different fields. The question is whether we can still keep those covert sources coming. The more we expand the range of people who have access to that information, the bigger the danger of leaks, and then there will be fewer sources available in the future. That is why I think the structure set up of the Investigatory Powers Commissioner and his judicial commissioners, with a tribunal and an annual report to Parliament on its operations, has important safeguards. Going much further than that starts to undermine the security of the information and imperil the safety of some brave people, who are giving evidence to help keep our country safe, in a range of different fields.

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

My Lords, it is a pleasure to follow the noble Lord, Lord King of Bridgwater, with whom I completely agree on maintaining the status quo on the involvement of covert human intelligence sources and the ability of the police and security services to authorise these people to engage in crime. I have no argument with him on those issues. But, as the noble Baroness, Lady Chakrabarti, said, the issue for us is the police granting immunity from prosecution or from any legal action at all.

My noble friend Lady Hamwee and I have Amendment 79, but I will take the amendments in this group in order. Amendment 75A from the noble Baroness, Lady Jones of Moulsecoomb, is intended to require the Investigatory Powers Commissioner to identify unlawful or improper conduct through a CCA to the police for investigation. I have a great deal of sympathy for what the noble Baroness is trying to achieve, but I am not sure that her amendment achieves what she sets out to.

The amendment talks about conduct that is not authorised by the criminal conduct authorisation, but we are also concerned with conduct that is unlawful or improper that is authorised by a CCA, by accident, inexperience or corrupt practice. This does not appear to be covered by the amendment. Of course, if it is the result of police malpractice, referring the matter to the police may not be enough to ensure that it is properly dealt with.

Rather than relying on my own experience, I have spoken to experienced handlers and controllers, as the noble Minister has—although, as will become apparent, not the same ones. There is genuine concern about the potential for corrupt practice when criminals and police officers are working together, as they do for the majority of police covert human intelligence sources. I was a police officer for over 30 years and I cannot tell you the distress it causes me to say what I am about to say, but it needs to be said.

Examples are cited of criminals who have gone beyond what they have been authorised to do and, in some cases, have engaged in criminal enterprises of their own but, because of their value to the police as a covert human intelligence source, a “text”—apparently the technical term for the brown envelope secretly handed to the presiding judge, informing the judge that the defendant is a valuable police informant—has been handed to the judge and, as a result, the defendant has been acquitted or given a nominal sentence, even when they have conducted a criminal enterprise. Some cases are likely to be covered by the noble Baroness’s amendment, but not all of them.

Amendment 75B is probing and I look forward to the Minister’s reply.

Amendment 79 in this group calls for a review of the use of covert human intelligence sources in crime. We are getting many different and contradictory narratives here. The noble Baroness, Lady Manningham-Buller, talks about agents run by MI5 being “brave men and women”. She cannot

“accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity.”—[Official Report, 24/11/20; col. 211.]

I know from having been briefed by the security services at GCHQ and Vauxhall Cross exactly the sorts of people that the noble Baroness is talking about. I have no doubt at all that the agents that she has experience of are exactly as she describes.

From my personal hands-on experience as a controller of police covert human intelligence sources, and from having handed over considerable sums of money to criminals who have been police informants, I tell the Committee that many police covert human intelligence sources lack civil responsibility, do it for money, and are engaged in questionable activity. I quote from an email sent to me by a former police colleague:

“From my wealth of experience of handling, actively tasking and using participating informants I can say that these people are among some of the most devious and manipulative people on the planet. Often desperate or open to manipulation by over-zealous or even corrupt officers.”

The agents run by MI5 are very different from many police informants.

The Minister, in her letter dated 3 December, says that she has

“talked to officers who train MI5 and police handlers—experienced agent handlers and controllers”, who describe the current situation as “unsatisfactory” and that

“they have lost intelligence gathering opportunities and, on occasion, been unable to recruit CHIS, or had CHIS walk away from their role, because clear protection from prosecution had not been provided”.

I quote my former police colleague again:

“I’m always sceptical of anyone from within the discipline and who has a vested interest in promoting and enhancing their topic … The present system, with all its inherent difficulties is the only feasible way of maintaining control of a sometimes-volatile situation. As frustrating as it may be for those running covert operations of this nature … it is those of us that have experienced this world who know exactly why the current restraints are there and how they maintain control of investigations.”

In answer to my question, “How many intelligence-gathering opportunities have been lost as a result of the current system?”, the Minister says, “Police authorities do not gather statistics on intelligence opportunities lost”. In answer to my question, “How many CHIS have been prosecuted for authorised criminal conduct?”, the Minister says, “We do not collect these statistics. I understand the numbers are low, but it is not unprecedented.” Will the Minister please provide a detailed example of where this has happened? Was it because the criminal conduct should not have been authorised, or is she relying on someone telling her, “I’ve heard of a case but I don’t know anything about it”? Or maybe the Minister will say, “The people you’re talking to are from the past and the police can be trusted now?”

Today we learn that the second largest police force in England has not recorded one in five crimes reported to it—including 25% of violent crime—and has written off crimes without proper investigation. In seven out of 10 cases of domestic violence, it recorded that the victim did not want to pursue the case, without any evidence that this had actually happened. How many of those victims went on to sustain serious harm in another assault? Was children’s safeguarding also missed in cases that were not properly investigated?

This is the Minister’s police force. The point I am trying to make here is: who do we believe? What is the problem that the Bill is trying to solve? What is the nature and extent of the problem? We have no idea, and with the greatest respect, I am sure that the Government have no idea either. We are relying on anecdote and subjective opinions because no one, not least the Government, knows the facts. Our Amendment 79 would establish the facts.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 4:15 pm, 10th December 2020

Two amendments in this group stipulate the action that the Investigatory Powers Commissioner must take on becoming aware of unlawful or inappropriate conduct linked to a criminal conduct authorisation, or on becoming aware of an inappropriately granted or unlawful criminal conduct authorisation. I will listen with interest to the Government’s response to these two amendments.

A third amendment requires a review within six months by a High Court judge that would consider the grant of criminal conduct authorisations in relation to children or vulnerable people, the conduct of covert human intelligence sources, the oversight and monitoring of, and reporting on, such conduct, the oversight of persons allowed to authorise criminal conduct authorisations, and the sanctions available if they misuse those powers.

Under the terms of the Bill, the Investigatory Powers Commissioner has the power to conduct investigations, inspections and audits, but would not appear—I will listen to what the Government say in response—to have the capacity to investigate every time a criminal conduct authorisation is used. The Commissioner also covers the use of the power to grant criminal conduct authorisations in the annual report, which must also be laid before Parliament but which may be redacted. Of course, we do not know how much the annual report will reveal in practice. As an annual report, it will be reporting a long time after any particular issues with criminal conduct authorisations may have arisen.

It is surely important to have as much transparency as possible in how, and in what kind of circumstances, covert human intelligence sources and criminal conduct authorisations are used and granted, since the powers and activities provided for in this Bill are considerable and potentially wide ranging. They have to be applied appropriately, and the greater the transparency that is possible, the more likely that is to be the case and the greater the public confidence in how the powers are being deployed, and with what objectives in mind.

The review referred to in Amendment 79, which would be laid before Parliament, would be one way of contributing to that transparency and ensuring public confidence. If the Government are not going to accept the amendment, I hope that in response they will indicate a willingness to look further at the powers, duties and role of the Investigatory Powers Commissioner to ensure that transparency in how and in what circumstances the powers given in the Bill are exercised is maximised as far as possible. I await the Government’s response.

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

My Lords, I thank all noble Lords who have spoken in this debate. I know that the noble Lord, Lord Paddick, would not expect me to respond to the case that he brought before the House this afternoon, but I would be happy to sit down and discuss it with him, if he would like. I think what he wants from Amendment 79 is to require a review of all criminal conduct authorisations to be undertaken by a High Court judge, with the review to be commenced six months after the Act has come into force.

The IPC, supported by judicial commissioners, already has oversight of all criminal conduct authorisations. He and his judicial commissioners have all held high judicial office and are entirely independent of the Government. The commissioners are supported by expert inspectors and others, such as technical experts, who are qualified to assist them in their work. They are responsible for inspecting the full range of agencies and departments that will use this power and will ensure that they are complying with the law and following good practice. This includes investigating systems and processes, checking records and paperwork, interviewing key staff and investigating any known errors.

The frequency of these inspections is decided by the Commissioner, and the inspectors must have unfettered access to documents and information to support the Commissioner’s functions. This allows inspectors to undertake thorough and robust investigations of each police authority’s use of the power, covering the entire chain of events and decision-making.

A report is issued after each inspection that sets out IPCO’s conclusions and recommendations and identifies any areas of vulnerability or non-compliance. It also identifies areas of good practice which may be of interest to other similar organisations. The report will enable organisations to take action on the basis of IPCO’s recommendations. This process provides for systemic review of all public authorities’ use of the power and allows for continuous improvement in the authorisation and management of the capability.

Amendments 75A and 75B seek to put obligations on the IPC to report conduct to other bodies. Criminal conduct authorisations will be subject to the existing error-reporting processes for investigatory powers, which require public authorities to report all relevant errors to the IPC. This would include situations where undercover operatives’ conduct has taken place without lawful authorisation or there has been a failure to adhere to the necessary safeguards. Where it amounts to a serious error, the IPC must inform the person of an error relating to them where it is in the public interest.

As I have said, the IPC is entirely independent of government. He has wide-ranging powers to carry out his oversight functions, as set out in the Investigatory Powers Act. This includes the ability for judicial commissioners

“to provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”.

This is subject to various considerations such as consulting the Secretary of State where providing that advice or information might be contrary to, for example, national security. I should add that the primary responsibility for reporting agent crime falls on the public authority, which has its own specific policies to deal with this. However, IPCO could advise the public authority that it ought to refer criminal conduct to the appropriate authorities or ultimately report it itself, subject to the statutory process set out in the Investigatory Powers Act. These amendments are therefore not considered necessary.

The noble Lord, Lord Paddick, talked about the problems with the iOPS system at the Greater Manchester Police, which resulted in crimes not being followed up or certainly not being reported. I know that the GMP has said that it will robustly look into this matter. It is absolutely not acceptable but the force is taking measures to deal with it.

The noble lord, Lord Rosser, asked me to look further at the real-time oversight that the IPC could provide. I have undertaken to work with the noble Lord, Lord Anderson, and others on that. I therefore hope that noble Lords will withdraw or not move their amendments.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 4:30 pm, 10th December 2020

The noble Baroness, Lady Chakrabarti, used an interesting phrase, “necessary evil”. I wonder how many necessary evils it takes to get an overload of evil, which is not a phrase that I use often. However, particularly in relation to the current “spy cops” inquiry, we know that evil things have taken place under the old system. I therefore have no doubt that it would be better to have a different system, but it is not this Bill.

The noble Lord, Lord King, said that if this matter could be dealt with in a different way—that is, by not giving consent for criminal behaviour—then it would be. However, in my experience, that does not necessarily happen because people become tired; they are human and feel fractious. They want to do something in the quickest way, which is not always the best option. For example, the use of tasers in the UK used to be rare but now that they have been rolled out further, their use has increased exponentially. That has nothing to with the greater number of tasers: it is because police officers no longer have to negotiate with people who are wielding knives or going through mental health problems. They can just taser them. It is not always true that if something can be done in a better way, it therefore is.

The noble Lord, Lord Paddick, said that authorised action was also a problem and I very much agree. I have only met undercover police spies who were whistleblowers—knowingly, that is. They were incredibly brave and well-motivated in their job. However, they found it overwhelmingly difficult and saw or did things that they felt that they should not have been doing or been involved with. I do not make a blanket criticism of people who act as undercover police spies. However, while we need to protect them, we also need to protect ourselves, the general public and the rule of law.

The noble Lord, Lord Paddick, also asked: who do we believe? That is a problem. It is possible to believe every word that the Minister said in defence of the greater controls already in the Bill. However, I am influenced by the fact that I have seen such controls flouted. I come, therefore, from a different, untrusting point of view. People do not always act honourably and play by the book. My two amendments, or Amendment 79, which I also support, would, therefore, be a good idea.

The noble Lord, Lord Rosser, in his usual calm and collected way, asked for further information. I look forward to him putting pressure on the Government to explain themselves more fully.

I will check Hansard but I am sure that I will still have concerns. In the meantime, I beg leave to withdraw my amendment.

Amendment 75A withdrawn.

Amendment 75B not moved.

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

We now come to the group consisting of Amendment 75C. I remind noble Lords that anybody 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 the debate.