Amendment 75C

Covert Human Intelligence Sources (Criminal Conduct) Bill - Committee (4th Day) – in the House of Lords at 4:30 pm on 10th December 2020.

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Lord Hodgson of Astley Abbotts:

Moved by Lord Hodgson of Astley Abbotts

75C: Clause 4, page 5, line 16, after “authorisations)”, insert “including—(i) information on the number and types of criminal conduct authorisations requested and the number granted;(ii) whether these authorisations produced any operational benefits;(iii) any material damage or civilian harm incurred as a result of acts authorised”Member’s explanatory statementThis amendment is intended to probe the adequacy of information provided to Parliament on criminal conduct authorisations, and to probe how the efficacy of these authorisations will be evaluated.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee

My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.

The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.

During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.

First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.

My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.

Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.

My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.

To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.

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

The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, not for the first time in consideration of this Bill in Committee, the noble Lord, Lord Hodgson of Ashley Abbots, comes to your Lordships’ House with an excellent amendment, a very good idea and an even better speech, which I cannot improve on. Transparency does influence conduct, and the information that he suggests ought to be included in reports speaks to common sense. We ought to know on a regular basis the number and nature of criminal conduct authorisations issued under the new legislation, the operational benefits that have been obtained from those authorisations and, crucially, the kind of damage to property and people—the incidental harm—that has come about as a result of those criminal conduct authorisations.

I do not want to labour the point—it has been a long Committee—but I want to have one final attempt at putting a question to the Minister to which I do not think I have yet heard the answer. This is my last opportunity to put this in Committee before we go forward to Report.

Why is it necessary to go further than the status quo in the scheme for this legislation? Why cannot undercover operatives, whether they are highly trained police or MI5 officers, or whether they are—and perhaps they are in greater number—members of the civilian community, including the criminal community, just be subject to the current law, which is that when they are authorised to do this work, including with criminal conduct, they will know that their conduct will be second-guessed after the fact? They currently have the ultimate incentive —and we have the ultimate safeguard—to behave proportionately and as well as possible, which is that they might, just possibly, if they over-step the mark, be subject to legal sanction after the event. That is the law that applies to uniformed police officers and people driving police cars and ambulances at high speed, with a very strong public interest defence. It is probably a presumption against prosecution, but it is that tiny risk of being judged after the fact that makes most people behave well according to the criminal law. Why should that be replaced with a total, advance and blanket immunity from prosecution and civil liability? Why quite go so far and therefore cause some of the greatest concerns that have been excited by this legislation?

I hope that the Minister will not mind me putting that fundamental, simple question one more time. I look forward to her answer, and indeed to our further work at the next stage of the Bill’s passage.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 4:45 pm, 10th December 2020

My Lords, the horse will be out of the stable again in January: refreshed, I hope. I am sure that the Minister will welcome the pause after the marathon she has had to undergo. I am not for a moment suggesting she is anything like a horse—I am sorry, perhaps I should not have followed that simile.

My noble friend Lord Paddick recently spoke to Amendment 79, and it is clear that several noble Lords have concerns in this area, so we will come back to it. Noble Lords clearly agree on the importance of evaluating what goes on and of transparency, as has already been mentioned. However, I cannot help thinking in the context of the precise formulation of this amendment of what the noble Baroness, Lady Manningham-Buller, talked about a week or two ago, to which my noble friend referred: the problem of the extent to which one can report in detail without endangering those who are protecting us and whom we, in turn, do not wish to endanger. I cannot help thinking that if a lot of the material listed in Amendment 75C were to be published, an awful lot of it might be redacted. However, I am with the noble Lord, Lord Hodgson, in spirit, and I think that his last point about material damage or civilian harm is an important one that we must not lose sight of. We still need to explore how best and to what extent we can achieve what is obviously troubling a number of us.

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

The purpose of the amendment moved by the noble Lord, Lord Hodgson of Astley Abbotts, is described as being to probe the adequacy of information provided to Parliament on criminal conduct authorisations and to probe the efficacy of the authorisations.

I think that this comes back to the issue of transparency. To be a little more particular, will we be told in advance, during the passage of the Bill, precisely what kind of information about criminal conduct authorisations will be provided to us and to the public by the Investigatory Powers Commissioner in the annual report or other reports? At the moment, I am not clear about what information will be provided and what it will cover, and whether it will give us a feel for what is happening over criminal conduct authorisations or whether we will be told that the information provided will be limited and that, on grounds of security, it cannot be disclosed.

I hope that, at least in their response either to this amendment or on Report, the Government will be prepared to spell out what information will and will not be provided so that we all know where we stand on this issue.

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

My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.

My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).

I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.

Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee

My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.

Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.

I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.

Amendment 75C withdrawn.

Amendment 76 not moved.

Clause 4 agreed.

Amendments 77 to 79 not moved.

Clause 5 agreed.

Schedule 2: Consequential amendments

Amendment 80 not moved.

Schedule 2 agreed.

Clause 6: Commencement and transitional provision

Amendments 81 to 83 not moved.

Clause 6 agreed.

Clause 7 agreed.

House resumed.

Bill reported without amendment.

Sitting suspended.