Amendment 1

Covert Human Intelligence Sources (Criminal Conduct) Bill - Report (1st Day) – in the House of Lords at 2:19 pm on 11th January 2021.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

1: Clause 1, page 1, leave out line 17Member’s explanatory statementThis amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I shall be speaking to Amendments 1 and 2, which are linked. For the avoidance of doubt, I shall be pressing Amendment 1 and, if necessary, Amendment 2, but they are linked. They are for the purposes of removing the total criminal and civil immunity for undercover agents authorised under this measure and would replace that with public interest defences and public interest consideration.

This seems to me, first, to better reflect in the new statute the status quo in our law and practice, which was originally advanced publicly as the motivation for this legislation. Secondly, therefore, it seems to me to create a better, safer balance between, on the one hand, empowering undercover agents to protect their cover when engaging in very important life-saving undercover operations of a kind that we have heard about at length during the passage of the Bill—and, on the other, protecting all of us, especially wholly innocent citizens, from potentially grave crimes and abuses of power by undercover agents for many years into the future. I remind noble Lords that we are not just talking about intelligence and police officers; we are talking about a much larger number of agents of the state who are members of the community, including the criminal community, whose co-operation is, of course, sometimes rightly sought by state agencies.

At this point in the proceedings, I thank the Minister, the new Advocate-General for Scotland, who is not due to speak in this debate, for his wholly courteous engagement with these amendments, both publicly and privately. By doing so, I emphasise the importance of our ability to disagree well and in good faith with each other, in this Chamber at least.

I have been a student of constitutional law all my adult life, and, in particular, I am an admirer of attempts at embedding the rule of law in great old democracies such as the United Kingdom and the United States. I am sure that I am not alone in still feeling quite shaken by the scenes from the American Capitol last week. They demonstrate, to me, at least, that this is no time for complacency when it comes to democracy and the rule of law; it is no time for any complacency on either side of the Atlantic, even on the part of those public commentators who have said that no such scenes and grave abuses of executive power could ever transpire here. That is not a sensible position.

While I have greatly benefited from the wisdom of all sides of your Lordships’ House during the passage of the Bill, I have just occasionally found some speeches a little complacent when noble Lords have discussed abuses of undercover agents in our own country in the past—for example, in the context of the “spy cops” inquiry, which is still pending and yet to be concluded or to fully investigate the true extent of abuses by undercover police and police agents over many decades.

Some noble Lords have been very crisp, clear and, sometimes, short in expressing their view that that was the past—such abuses by undercover agents are all in the past and should not be raised as a concern for the future. I know that that is well meant and comes from a place of understandable commitment to aspirations such as public and national security, but these are not times for such complacency—certainly not in the context of legislative scrutiny. As such, I disagree with some of those arguments, but I will be clear that I do not for a moment impugn the good faith or the intentions of those who have advocated the Bill in this precise form, however mistaken I may think them to be.

I regret the “shadowy sources” who chose to impugn my own motives and good faith in pressing these amendments in the Guardian this morning. Frankly, I say to those sources, who were sadly reported as being on my own side: they should grow up. Reasonable dissent reasonably put is not disloyalty in a great old democracy such as ours—far from it. With respect, I address opponents of my argument and these amendments, which I do not believe to be wrecking amendments or catastrophic to the principal purpose of the Bill, which is to put criminal authorisations for the purposes of keeping cover on a statutory footing. I say to those who disagree with me: please play the ball—or the argument—and not the woman, or at least put your name, publicly and honestly, to your briefing to journalists and so on because, as we saw last week, rather shockingly, democracy and the rule of law are all-too-fragile treasures.

I followed this kind of legislation in the realm of home affairs for about a quarter of a century, which makes me very junior in my experience and expertise in your Lordships’ House. For my part, at least, as a former government lawyer, a human rights lawyer and campaigner and, much more recently, a legislator, I believe that the Bill, unamended, is one of the most dangerous that I have ever seen presented to your Lordships’ House.

The problem is that this is about a very long list of agents—not just officers—of the state, including some from the community and criminal community and some very vulnerable and volatile people. They will now be capable of being authorised by other agents of the state to commit unlimited crimes—with no limit to the types of crime included—and they will be authorised in advance with total impunity from any second-guessing or civil or criminal consequence after the fact. Forgive me, but I find that proposition quite breathtaking in the United Kingdom.

This is why the cross-party, all-party group Justice—I declare an interest as a member of it, and I know that there are other members from across your Lordships’ Benches—have advised that the Bill, unamended, contains a number of violations of fundamental human rights, including under the European Convention on Human Rights. The Bill has also drawn heavy criticism from Amnesty International and other advocacy groups for human rights, the rule of law and victims—as well as from a number of former police officers, not least the noble Lord, Lord Paddick, who will speak in a moment, after many decades of police service. It has also drawn heavy criticism from former undercover police officers and agents who have spoken of their own practical experience and why the Bill, unamended, is so dangerous.

That is not to say that the Bill does not have some very good intentions behind it, but we know about the road paved with good intentions. The good intentions are, no doubt, to put a practice that has been implicit on a firmer statutory footing, not least because it has been challenged.

If people are to be put under cover and sometimes even advised to perpetrate crimes to keep their cover—for example, as a member of a proscribed organisation, handling stolen goods or drugs, or committing speeding offences; things that they must necessarily do to keep their cover—and if they are to be authorised to do that by their superiors and handlers, perhaps that should be put on to a firmer statutory footing. That is ultimately the good intention behind this legislation. However, as we have discussed before, the legislation goes much further and creates this total advanced immunity.

Why is that of particular concern? It is certainly not the status quo whereby people are administratively authorised to keep their cover and the fact that they were authorised would be taken into account by any police officer, prosecutor or court looking at this conduct after the fact. Why does the advance and total immunity go so much further and create such a danger? Well, it is because it will make such a difference to the ethical behaviour of the agent of the state in the heat of the moment. The difference between knowing that you are doing your best, doing right, doing it in the community interest and in an authorised fashion but none the less knowing that you will be held to account, or at least that your actions will be examined after the fact, is a very important ethical constraint on all of us, whether ordinary citizens or uniformed police officers, who, by the way, enjoy no such blanket immunity from the criminal law as is proposed here. It is a very important ethical constraint, and ultimately it is incredibly important, because most undercover agents and their criminal conduct will never see the light of day.

This is not just about criminal immunity, as others have described very eloquently. Civil immunity could deprive victims of criminal activity by these undercover agents. Under the legislation as I read it, something as simple as high-speed driving above and beyond the speed limit, causing death or serious injury to a completely innocent third party, would now lead to no civil liability whatever, which means no recompense for someone who was the victim of authorised conduct under this law. That is unnecessary collateral damage; it is collateral damage too far. Under current arrangements, that would be the case.

The Government, Ministers and noble Lords have yet to point to a single example under the current public interest-type approach of an authorised agent being prosecuted for just doing their job in the public interest. Not a single example has been presented in many hours of debate on this Bill, which begs the question as to why such a breath-taking advance immunity from civil liability or criminal sanction should be in place.

As I have said, Amendment 1 would remove the lawful-for-all-purposes total criminal and civil immunity from the measures in this Bill, and Amendment 2 would replace that blanket immunity with, in effect, a public interest defence, so that any police officer or prosecutor looking at the conduct of an authorised agent would see a de facto public interest presumption against prosecution if the person had clearly acted as authorised, necessarily and proportionately.

Under my amendments, if a rogue prosecutor ploughed on in any event, those public interest considerations would then be open to any court that found itself dealing with such dilemmas. As I have said, these cases just have not been brought. The Government are going too far in addressing a problem that simply does not exist. The only answers that I have ever heard as to why they need to go so far is for the purposes of certainty for these undercover agents committing crimes. But a little bit of uncertainty is a very important incentive to ethical conduct when dealing with what are potentially very serious crimes.

This Bill is very dangerous in its current form. It could be improved today, on Report, without doing harm to its overall scheme or to the underlying intention that Ministers have explained time and again. Amendments 1 and 2 are a very easy and simple way in which to improve the Bill. If we allow it to pass unamended today, with this total advance impunity for agents of the state, a great many of them from all sorts of agencies listed in the Bill, we will open the door to countless abuses of power and scandals in relation to criminality, and abuses of human rights, potentially for many years into the future. That is not something that your Lordships’ House ever wants to do lightly.

Photo of Lord Dubs Lord Dubs Labour 2:30 pm, 11th January 2021

My Lords, before I speak to the details of Amendment 3 in my name, I will comment briefly on the speech made by my noble friend Lady Chakrabarti. I am totally with her in saying that there are dangers in this Bill, and some of the amendments are very crucial indeed. I also agree with her that we must always be vigilant to protect the rule of law, human rights and civil liberties. Indeed, she has done that all her life, since the time she ran the organisation Liberty in such an effective manner. I have listened hard to what she has said, and I believe that the most effective safeguards would be some kind of prior oversight to check an organisation before it went ahead. I believe that is probably the most important safeguard. I look forward to debating the amendment to that effect in the next group.

In the meantime, I turn to Amendment 3. Its purpose is to amend the Bill so that victims of criminal conduct carried out under a CCA can access compensation. I speak as a member of the Joint Committee on Human Rights, and I am very much influenced in my contributions to this debate by the conclusions of the committee’s report, which has been widely praised across the House. The report noted that the Bill as introduced was potentially incompatible with human rights legislation, specifying:

“Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.’”

People may ask at that point about the criminal injuries compensation scheme. I put it this way: since the Bill would authorise criminal conduct lawful for all purposes, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. Seemingly, this would also prevent a claim for compensation under the criminal injuries compensation scheme. This is not a novel proposal. The amendment is very close to the regime in Australia, which provides

“indemnification for any participant who incurs civil liability in the course of an undercover operation”.

The most usual and commonly quoted example, which my noble friend Lady Chakrabarti mentioned, is when a CHIS is driving a getaway car for a gang at high speed and has an accident. Under the Australian regime, the system would provide indemnification in the course of an undercover operation. In other words, in Australia, a civil claim can be brought against the perpetrator by the victim and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The amendment would ensure that the person authorised to carry out criminal conduct would not suffer the consequences of civil liability. It would also ensure that the victim of that conduct would obtain civil redress, while allowing secrecy to be maintained.

This amendment is fully in keeping with the overall intentions of the Bill, but it would provide an important safeguard. Otherwise, individuals will lose out badly through personal injury or by having their car damaged. At present, they are unable to obtain civil redress, and my amendment would put that right. It is an important but straightforward amendment. The principle is easy and I hope that the Government will find their way to accepting it. I beg to move.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.

Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances

“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”

There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct

“authorised by a criminal conduct authorisation”, not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.

Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, I am sorry to interrupt the noble Lord, but there is a little bit of interference.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

[Inaudible]—in relation to matters for which a judicial commissioner is responsible. Could the Minister confirm, fourthly, that this is the Government’s understanding also?

I move on now, more briefly, as noble Lords may be relieved to hear, to civil recourse for the innocent victim of an authorised crime—[Inaudible.]

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, I do not know if the noble Lord, Lord Anderson, can hear me in the Chamber. I am afraid that we have some interference on the line, so we might need a short adjournment for five minutes while we sort it out.

Sitting suspended.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 2:50 pm, 11th January 2021

My Lords, I ask the noble Lord, Lord Anderson of Ipswich, not just to resume his speech—we look forward greatly to the rest of it—but, if he would be so kind, to repeat the last few statements he made, because sadly they were inaudible.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

I am grateful, and apologise for what seems to have been something of a crossed line.

I dealt with proposed new paragraph (a) in Amendment 21, so will move on to proposed new paragraph (b). I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy than for misconduct in public office, but that is because, if the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy.

However, I believe that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences, if the CCA has first been declared a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or a criminal court. The Minister and the Bill team have been extremely helpful in explaining their thinking on this; I believe that there is nothing between us on this point. I would be most grateful if she could confirm—this is the third confirmation I am asking for—that this is the Government’s understanding of the law.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS in Northern Ireland are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect are the powers vested in judicial commissioners under the Investigatory Powers Act. Section 231 provides for serious error reports, and Section 232(2) provides for the Investigatory Powers Commissioner to

“provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”, presumably including the CPS. Could the Minister confirm, fourthly, that this is also the Government’s understanding?

I move on, more briefly, to civil recourse for the innocent victim of an authorised crime. I start from the position that some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation, not from the person who was authorised to commit the crime but from the authority which authorised it or from the state more generally. Proposed new paragraph (c) in Amendment 21 seeks confirmation of what I do not believe to be in dispute: that compensation may be obtained from the Investigatory Powers Tribunal in a case brought by an innocent victim. That is the fifth thing I ask the Minister to confirm.

That may, however, not be the most practical of remedies. Judicial commissioners have the power to tip someone off that they may have a remedy in the IPT when they consider that to be in the public interest but, as the noble and learned Lord, Lord Falconer, and I suggested in Committee, there may be very limited circumstances in which that will be possible; there might well be risks to the operation and to the CHIS if unconnected persons were informed that their injuries were attributable to an undercover operative. The judicial commissioners are likely to have that well in mind, hence the importance of Amendment 22, which in the case of injury to an innocent victim would ensure that an application could be made in the normal way to the criminal injuries compensation scheme. That would have the great advantage of affording compensation to the innocent victim without it being necessary to disclose to the victim the status of the person—the CHIS—who inflicted the injury.

In their response last week to the Joint Committee on Human Rights, which was published by the Joint Committee at 11 this morning, the Government state that, having considered the question in detail, they have concluded that

“nothing in this Bill would frustrate a victim’s ability to recover compensation for injury or loss through that scheme.”

That is certainly encouraging, but I am afraid that the mouth of this particular gift horse needs a little more inspection. If actions committed pursuant to a valid criminal conduct authorisation are, in the words of Section 27(1), “lawful for all purposes”, can the Minister explain how injuries caused by such acts can be criminal injuries for the purposes of the compensation scheme? That is the sixth and final assurance I request from the Minister.

There is often an argument for making things clear in statute, even if satisfactory assurances can be given. Accordingly, if the Government accept the thrust of these amendments but have difficulties with the drafting, I shall certainly look constructively on any commitment to come back at Third Reading with revised drafts. I shall listen carefully to what the Minister says in response. Depending on the content of that response, and if no commitment is given to accept these amendments or come back to them at Third Reading, on Wednesday I may test the opinion of the House on either or both of Amendments 21 and 22.

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

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, who is next on the list, has been replaced by the noble Lord, Lord Rosser.

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

My Lords, speaking for the Opposition, we support the essence of this Bill. As noble Lords from all sides of the House have said in earlier debates, this Bill addresses a necessary—if at times uncomfortable—reality, which prevents crime and keeps us safe. We pay tribute to those in our security services and elsewhere for the work they do on our behalf.

There has been much discussion in this House on the detail of what is before us. I very much respect the strongly felt concerns raised by my noble friend Lady Chakrabarti. I take what she said, as I do all her contributions, in the constructive spirit in which I know it was intended. However, we have reservations about the effect of the amendments she has tabled. The current status quo is that criminal conduct authorisations are given without formal accountability, and prosecutorial discretion becomes a factor only if a CHIS is caught and arrested for the offence. For the overwhelming majority of cases, prosecutorial discretion never becomes relevant. In the circumstances that a CHIS, having been authorised, is caught carrying out that criminal act, the CPS will be made aware of the authorisation and will not prosecute, on the basis of overriding public interest. The CHIS does not now, and will not under this Bill, have immunity for committing an unauthorised offence.

We therefore believe that the Bill reflects the status quo in practice. We feel that putting this on a statutory footing, with authorisation conferring immunity—with appropriate safeguards—is the best way. We seek to add provisions into the Bill on immunity plus safeguards, including on the function of the Investigatory Powers Commissioner, looking at every authorisation and possible prior judicial authorisation—to which my noble friend Lord Dubs referred—which will preserve the use of CHIS criminal conduct authorisations in the national interest while ensuring that there are safeguards for every authorisation.

I am grateful to the noble Lord, Lord Anderson, for tabling Amendment 21, to which my noble and learned friend Lord Falconer of Thoroton added his name. This amendment allows us to seek assurances on what is surely a critical matter: that an authorising officer cannot grant a malicious, corrupt or improper authorisation, and that should they do so, the authorisation is challengeable and they are liable for their actions.

Amendment 22, also in the name of the noble Lord, Lord Anderson of Ipswich, which has our support, would provide that the criminal injuries compensation scheme would still be an available route for a victim who suffers an injury under authorised conduct. It seems a very sensible and straightforward way to proceed. Like the noble Lord, Lord Anderson of Ipswich, I hope to hear a detailed contribution from the Minister in reply on the right to redress that will be open to an innocent person—[Inaudible.] I appreciate the meetings that we have had with Ministers and officials to discuss this vital issue.

Finally, Amendment 32 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would make it explicit in RIPA that a person harmed by conduct under an authorisation—I believe the word used in RIPA is “aggrieved”—would have the right to seek redress from the Investigatory Powers Tribunal. We first raised the issue of victims having redress through the tribunal in the House of Commons and we will support the amendment if it is taken to a vote. I await with interest the Minister’s response, not least to the assurances that the noble Lord, Lord Anderson of Ipswich, seeks.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 3:00 pm, 11th January 2021

My Lords, it is a pleasure to follow the noble Lord, Lord Rosser, and to hear him speak in positive terms about his noble friend, the noble Baroness, Lady Chakrabarti. Before I address the main issues raised by Amendments 1 and 2, let me will clear the decks. My noble friend Lady Hamwee and I have Amendment 32 in this group, as the noble Lord, Lord Rosser, mentioned, and my noble friend will deal that amendment later in the group. I have put my name to Amendments 1, 2, 21, and 22.

The noble Lord, Lord Anderson of Ipswich, proposes Amendments 21 and 22, which seek to clarify the legal extent of immunity that the Bill confers, because, despite debates in Second Reading and Committee, and numerous meetings and email exchanges between Members of your Lordships’ House, the Minister and the Bill team, it is still not clear to me and to the noble Lord, Lord Anderson, exactly what the Bill seeks to achieve in terms of immunity. At the very least it shows how complex the Government’s proposals are. We support the noble Lord’s amendments.

Amendments 3 and 4 seek to limit the legal immunity provided by the Bill. The noble Lord, Lord Dubs, seeks to limit it to criminal liability. The noble Baroness, Lady Jones of Moulsecoomb, wants to ensure that criminals do not profit from the crimes they are asked to commit. We will support these amendments if the House divides on them, but they are both about damage limitation and will, I hope, be pre-empted by Amendments 1 and 2.

All these amendments, and those in the following groups, simply highlight the can of worms that the Government are opening by going way beyond the status quo by giving public authorities the power to grant legal immunity. As the noble Baroness, Lady Chakrabarti, said, Amendments 1 and 2 would remove the ability of public authorities to grant legal immunity to covert human intelligence sources prior to the criminal activity they are being asked to participate in. This would maintain the status quo, where the actions of agents or informants who are properly tasked by public authorities to commit crime are referred to the relevant prosecuting authority, which invariably rules that it is not in the public interest to prosecute them.

We on these Benches accept that that it is undesirable but necessary to use covert human intelligence sources and that, on occasion, these agents or informants need to be tasked to commit crime. We accept that, because of a legal challenge, it is necessary to put the tasking of covert human intelligence sources to commit crime on a statutory footing.

The noble Baroness, Lady Chakrabarti, set out the dangers of the changes the Government propose. I will take a slightly different angle. A reason often used by Governments for not accepting attempts to change existing law is that they are not necessary. We suggest that the Government have been unable to provide any evidence that a change in the law to provide covert human intelligence sources with legal immunity prior to their being tasked to commit crime is necessary.

In Committee, the noble and learned Lord the Advocate-General for Scotland said that

“noble Lords have accepted—and they have not needed to be persuaded—our position is that it is grossly unfair and unreasonable for the state to ask an individual to engage in difficult and dangerous work to frustrate serious crimes while leaving open the possibility of the state prosecuting them for that very same conduct”.

Will the Minister today admit from the Dispatch Box that her noble and learned friend was wrong to say what he did? I, along with many other noble Lords, have said explicitly and openly before the Minister made those remarks that we do not accept the Government’s position that this it is “grossly unfair and unreasonable” to leave open the possibility of prosecuting covert human intelligence sources in such circumstances.

The noble and learned Lord went on to say that covert human intelligence sources operate “in the public interest”. Many police informants act out of self-interest and for financial gain. I have, as a senior police officer, reluctantly handed brown envelopes stuffed full of £20 notes to criminals to pay them for acting as covert human intelligence sources. They were paid an amount agreed in advance for acting on police instructions. What these informants did undoubtedly was in the public interest, but that was not their primary motivation, as the Minister has suggested.

The noble and learned Lord went on to say that

“we must accept that we have lost intelligence and failed to recruit undercover operatives because we have not been able hitherto to give them confidence that the state will not prosecute them for the things that the state has asked them to do.”—[Official Report, 24/11/20; col. 171.]

Why must we accept this? Because the Minister said so? Because he has been told by operational partners who have a vested interested that this is the case? Parliament set a very useful precedent on 9 November 2005 when operational partners, backed by the then Labour Government, said that they needed to detain terrorist suspects for up to 90 days without charge. Large numbers of Labour MPs rebelled and joined a united opposition to reject what operational partners, backed by the Labour Government, were asking for. We should do the same today.

We have asked the Government for evidence of how much intelligence has been lost, as the Minister claims; we are told that they cannot produce any evidence. We have asked how many times operational partners have failed to recruit undercover operatives as a result of the status quo; we are told that the Government cannot produce any evidence. We have asked how many times a properly authorised agent or informant has been prosecuted for doing exactly what they were asked to do; we are told they cannot produce such evidence. We have said, “Okay then, just give us one example of where a properly authorised CHIS has been prosecuted for doing exactly what they were asked to do. If it is sensitive, redact the sensitive detail and show us in private if necessary.” They cannot even do that.

I suggest that, if we are to make such a monumental legal change, we should have evidence to support that decision. So, what evidence is there to support the Government’s case for so dramatically changing the law, so that a police officer can tell an informant to commit a crime, and for that criminal activity to no longer even be a crime—for that informant not to have legally done anything wrong at all, even if innocent people are hurt in the process? The Government’s case is simply their assertion, “It’s not fair.” Seriously? Do the Government think we should so radically change the law because it’s “not fair”?

I will quote the Minister again, who said that

“my respectful conclusion is to say that the continuation of the status quo is not desirable.”—[

Not desirable? Police officers have to secure the prior authority of both an Investigatory Powers Commissioner and a Secretary of State before they can listen to someone’s telephone conversation—and then only if the target is suspected of the most serious criminality. This Bill allows police officers to give an informant total legal immunity to commit any type of crime, with no prior independent authority or oversight, to combat even minor offences. That is the definition of “undesirable”.

Parliament rejected the unsubstantiated claims of operational partners in November 2005 and we should reject them now. We support Amendments 1 and 2.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

What a pleasure it is to follow the noble Lord, Lord Paddick, who has demolished the Government’s case for handing out immunity like sweeties to criminals. I hope that noble Lords will forgive me if I do not call these people covert human intelligence sources; they are police spies, and we have to be clear about that when we use this language, so that people outside your Lordships’ Chamber can understand what we are talking about.

I shall speak in support of Amendments 1 and 2, which I have signed, but quite honestly, as the noble Lord, Lord Paddick, has said, all the amendments here are simply damage limitation. I am staggered that the government lawyers have actually allowed this legislation to be presented to your Lordships’ House. It is appalling. I liked the comments from the noble Lord, Lord Rosser, about the noble Baroness, Lady Chakrabarti. Her stance on this is not factionalism; it is a principled stance by a lawyer who understands civil liberties and human rights, and we could all learn from that.

I will focus specifically on my Amendment 4. It might seem a little less powerful or important than the other amendments that we are coming to today and on Wednesday, but I think it is quite important. We will be authorising criminals—or officers, or police spies, or whoever they are—to make money by criminal activities and then keep that money. I would like those profits to be recoverable through the Proceeds of Crime Act 2002. I would like a proper, clear answer from the Minister on this. I have asked multiple times since Second Reading but have not yet had an answer on how the Government will recover the profits made by a police spy under a criminal conduct authorisation, or CCA.

For example, a drugs informant could be authorised to sell drugs as part of an investigation of those higher up the chain. Can the informant keep the money that they make from selling those drugs? What if somebody involved in a criminal enterprise of slavery and trafficking is authorised to continue their role in order to catch the organisers? Can the informant keep the money that they make from people trafficking—the money that they are paid as a result of what would be criminal activity but for the fact that they have a criminal conduct authorisation? In effect, this Bill would create a back-door, off-the-books way for police, intelligence services and other agencies to fund their spies.

The only answer that I have had from the Government—which is a bit shabby, considering that I asked this question directly several times—was in an all-Peers letter dated 3 December, where the Minister said that criminal conduct which takes place outside of the scope of a criminal conduct authorisation, where as a result a police spy may accrue benefits by continuing to make illicit profits alongside their work as a spy, would still be criminal conduct for the purposes of the confiscation regime in the Proceeds of Crime Act, and unlawful conduct for the purposes of the civil recovery regime, and such benefits could be liable to be recovered under either of those regimes.

That actually does not answer my question: it is quite long but it does not answer my question. I need to know how conduct within a criminal conduct authorisation—or CCA—and any resulting profits will interact with the Proceeds of Crime Act. I need to know whether and how the Government will recover those profits. So far, my question has been totally ignored and the response—because it was not an answer—discussed only conduct that is outside a criminal conduct authorisation. This suggests to me that the Government are happy to allow criminals to benefit; therefore, this issue has to be probed further. Criminals will be allowed to keep any proceeds of a crime if the handler has authorised the crime—surely that is a complete anomaly. I would like to know exactly what the Government are thinking. I would be grateful if the Minister could answer my question about how profits made within a criminal conduct authorisation, which would otherwise be illegal, will be recovered. Otherwise, something quite corrupt is happening here; a handler can authorise a spy who could be an officer or a criminal already to keep money, and profits, from a crime. This has to be exposed and I really want an answer to my question.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 3:15 pm, 11th January 2021

My Lords, it is a pleasure yet again to follow the noble Baroness, Lady Jones of Moulsecoomb. I support Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti and Lady Moulsecoomb, the noble Lord, Lord Paddick; and I too am a signatory to Amendment 1. Amendment 2 seeks to preserve the current legal status quo, whereby those authorised to engage in criminal activity are not rendered immune from either civil or criminal liability. Instead, compliance with an authorisation will be relevant to any public interest consideration to prosecute, any existing legal defences and any court considerations as to civil liability and/or damages.

I feel that the existing legislation that we are debating seeks on the one hand to regulate in statute the use of covert human intelligence sources and, on the other hand, gives CHIS and their handlers a licence to kill. The recruitment of agents is undeniably necessary as part of intelligence-led policing; any such recruit should be a fit person, properly recruited, with free and informed consent and operating to human rights standards in police-led operations.

I listened very carefully to the words of the noble Baroness, Lady Chakrabarti. I recall saying in Committee that Northern Ireland has a particular experience to note in this whole area of using handlers and agents—not police officers but agents—and some of them were linked to criminal and paramilitary activities. We are a living example of what happens when the state, or the state through its agents, commits serious crimes, including murder. For that reason, I make a special plea to the Minister to consider these amendments and the Bill as currently drafted and to ensure that all protections are put in place to prevent any nefarious activity and any misuse of activity by handlers.

One example is the continuing investigation into the agent known as Stakeknife. Probably dozens were murdered on the instructions of those in command and control of the IRA with the knowledge and approval of those in command and control of a British security agent. Another example is Ken Barrett, a British agent involved in the murder of the lawyer Pat Finucane, which a former British Prime Minister, David Cameron, conceded had involved shocking levels of collusion—a fact reiterated at the end of November by Brandon Lewis, the current Secretary of State for Northern Ireland. There is also the example of Mark Haddock, an RUC Special Branch agent believed to have been involved in more than 20 murders.

I say to the Minister that Northern Ireland is a lesson from history, which the Government should take heed of in respect of the Bill. Serious crimes and murder committed by state agencies, or the agents of the state, lead first to a generation of victims and survivors, secondly to alienation, and thirdly to conflict. Yet this legislation, as drafted, would allow agents to commit serious crimes with extravagant powers given to handlers and a severe deficit in relation to authorisation and post-operational accountability. Hence the need for Amendments 1 and 2 to curb such illegal activity and to ensure that those who commit crimes are not immune from prosecution.

It is worth remembering that one of the 175 recommendations on new policing arrangements in Northern Ireland back in 1999—accepted but not addressed—was:

“There should be a commissioner for covert law enforcement in Northern Ireland.”

Maybe it is time to give this consideration now if the Government insist on pressing ahead with the Bill unamended. The noble Lords, Lord Dubs and Lord Rosser, referred to the need for prior oversight; this is one avenue that would facilitate prior oversight, albeit in the Northern Ireland context. As a result, there is no dedicated Northern Ireland covert oversight agency, and the UK arrangements to interrogate phone tapping or search authorisations should be more extensive.

I believe—I say this rather advisedly—that this legislation compounds the problem, with even less oversight of the authorisations that would arise under its provisions than is the case currently. The Bill is deeply problematic, and it could work against the need to tackle criminality and paramilitarism. Hence the need to ensure that those authorised to engage in activities are not rendered immune from prosecution, and hence the need for both amendments, calmly presented by the noble Baroness, Lady Chakrabarti, which I urge the Minister to accept. I hope that the Minister can respond in favourable and positive terms. I support both amendments and, if pressed to a vote, I will support them.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, I shall speak to Amendment 3, which seeks to ensure that victims of criminal conduct carried out under CCAs can access compensation. My noble friend Lord Dubs has covered this amendment comprehensively, so I will simply add a few words of support. Like my noble friend Lord Dubs, I speak as a member of the Joint Committee on Human Rights, whose legislative scrutiny report on the Bill was published last November. I am pleased that the Government have published their response to that report today. We shall no doubt refer to it during our deliberations on the Bill.

This amendment relates to paragraphs 104, 107, 108 and 110 of the Joint Committee on Human Rights report. Its purpose relates to rights under the European Convention on Human Rights, and it mirrors the system in Australia which

“provides indemnification for any participant who incurs civil liability in the course of an undercover operation”, as described in paragraph 110 of the Joint Committee on Human Rights report. It states:

“The effect of this provision would be to ensure that the participant (i.e. the CHIS) would not suffer the consequences of civil liability, but it would also ensure that the victim of the conduct would obtain civil redress while secrecy is maintained.”

I think the amendment is clear and I look forward to the Minister’s response.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I also think the amendment is clear, which is why I was glad to add my name to it. I would like to begin, however, by referring to the noble Baroness, Lady Chakrabarti. Anyone who knows anything of her work would not begin to challenge or dispute her integrity or motives. I am very glad that the noble Lord, Lord Rosser, made that plain even though he found items within her amendments with which he could not agree. That is a very honourable position to take.

The noble Baroness, Lady Chakrabarti, was very right to remind us at the beginning that we cannot take democracy or the rule of law for granted. She pointed to some of the events on the other side of the Atlantic, in the greatest of all democracies, that have disturbed us all. When you can have a position where the President of a country disputes the right of his successor to succeed him, and seeks to rabble rouse, we all have to take stock and realise that that could happen here. I do not think that it will, but we have to be very careful indeed. But, of course, it could not quite happen here—three cheers for a constitutional monarchy, where the head of state is totally removed from party-political considerations.

It is wrong that someone who suffers as a result of the actions of a CHIS—a horrible phrase—should not be properly compensated. It need not be a deliberately inflicted injury or wound; it could be the result of a car chase. We have all read in the last two or three years several accounts of people out innocently about their Sunday afternoon’s business of a walk in or to the park who have been killed or mutilated by someone driving a vehicle recklessly. Of course, it could happen even if the vehicle is not driven recklessly. I very much hope that my noble friend the Minister, when she replies, will be able to give us a good answer on this one.

Perhaps the answer lies in the acceptance, if not of this amendment, of Amendment 22, so clearly spoken to by the noble Lord, Lord Anderson of Ipswich. It would be quite wrong if the Bill goes on to the statute book without something in it to make it absolutely clear that people who suffer innocently are to be adequately compensated. Whether it is by means of the criminal injuries compensation board, as the noble Lord, Lord Anderson, suggested, or some other way does not matter so much. I favour his way, but it must be clear beyond any peradventure.

I referred in Committee to our swimming in murky waters on this Bill. Nothing brought that home more clearly this afternoon than the impassioned speech of the noble Lord, Lord Paddick, who talked about his personal experience of handing out brown envelopes stuffed with cash to members of the criminal fraternity for what they had done to help solve a greater crime. However, while we accept that, we must also accept—I say this very gently to the noble Baroness, Lady Jones of Moulsecoomb, for whom I have high regard—that we are not just dealing with police spies. We are also dealing, in the very deep waters of international relations, with those whom in an earlier debate the noble Baroness, Lady Manningham-Buller, reminded us are among the bravest of the brave. I do not particularly like the Bill but I utterly accept the necessity for it. I hope we can improve it on Report and that, in the context of these amendments, we can make it abundantly plain that anyone who suffers as the result of an action of a CHIS, deliberate or otherwise, will be adequately and properly compensated.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 3:30 pm, 11th January 2021

It is a privilege to follow the noble Lord, Lord Cormack, and I associate myself with his remarks about the noble Baroness, Lady Chakrabarti, and her desire to clarify and improve the Bill. In no way should her motives or actions be impugned.

Because this will be a long debate, I will speak only briefly about Amendments 21 and 22, to which I have added my name. If we are to legislate and to put this regime on to the statute book, we must have absolute clarity. The amendments establish that degree of clarity in relation to criminal and civil responsibility. I attach particular importance to the issue of criminal responsibility because in such a matter, it is very important that we keep alive elements of deterrence to show that the law can act swiftly and clearly if people corruptly misconduct themselves in public office or go much more seriously into criminality in authorising crimes. The noble Lord, Lord Anderson, set out with admirable clarity the changes that are required. I would not think that assurances given by a Minister would be adequate in this case. A statutory regime must start and end with a statute.

Photo of Lord West of Spithead Lord West of Spithead Labour

My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.

For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.

Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, it is a privilege to follow the noble Lord, Lord West. I am not a lawyer but I have had the privilege to serve in both Houses for nearly 50 years now, and prior to that I was in Her Majesty’s forces. I specialise globally in south and south-east Asia, where I worked for a number of years. I am essentially a practical man. I have suffered a death threat from the IRA, so I have seen the rough side of political life as well.

We need to understand what it is that we ask the men and women to do who safeguard our communities, our society, our country. That cannot possibly be an easy job. It is a very taxing job and we need it to be done within a framework of surveillance and some control, but not such that they are restricted or confined, as the noble Lord just pointed out. There is a practical side. It would never work if you went too far that way, and frankly, Amendments 1 and 2 do that. I am not reassured by the views of Justice. I am particularly not reassured by the stated views of some of the NGOs and others in what I would call the human rights vehicle. Therefore, I will not support Amendments 1 and 2.

I understand why Amendment 3 has been tabled. As I read it, it seems to weaken the current situation, but I will listen to what my noble friend the Minister has to say. I also understand why Amendment 4 was tabled, but perhaps it would undermine the Bill in a way that is not obvious to me, as a non-lawyer.

Turning to Amendment 21, the noble Lord, Lord Anderson, is a very persuasive and clearly very thorough lawyer, and I am pleased to hear that he has had discussions with my Front Bench. I shall listen with care to what the Minister says on Amendment 21 in particular. However, I urge all of us to reflect on the reality of life today. We live in a very difficult world, and we need to make sure that the honest, genuine people who want to help maintain the security of our country and to keep our people safe can do their job properly, so that our society can flourish.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I am very pleased to follow the noble Lord, Lord Naseby.

I see that the clear intention behind Amendments 1 and 2 is to abandon the concept on which the Bill is based and maintain the current legal status. I have read the briefing from Justice. I am not a lawyer, but it is not clear to me. To describe CHISs as often

“ordinary untrained members of the public” or even seasoned criminals is undermined by virtually all the case studies in the business case provided to all Peers in the past few days. I have missed one speech this afternoon, but to the best of my knowledge, nobody has referred to any of the case studies. I will not go into detail on this group, but I will probably refer to them in the next group. But referring to CHISs in this way is almost emotive and misleading rather than being clear.

As I understand it, the current procedure to safeguard the covert human intelligence source includes the fact that the CHIS must give informed consent. The criminal conduct authority is specific and must be understood by the CHIS. The authorising officer must assess that the CHIS is capable of carrying out the activity safely. The handler, of whom I understand that there are almost always two per CHIS, is responsible for the CHIS’s security and welfare. The handlers in turn are supervised by the controller, and the authorising officer—not the handlers nor the controller—is responsible for granting the CHIS authorisation under RIPA.

I have heard one or two speeches today in which the process has seemed to be that the handlers are doing everything: authorising and in control of everything. This is not the case. Of course, the authorising officers cannot authorise themselves. In addition, a whole range of other people is involved: operational security advisers, looking at the activities planned; legal advisers; and possibly behavioural psychologists. The idea that the CHIS is on their own—which “ordinary untrained” implies—is put to rest in the case studies to which I referred, the fact sheets provided to all Peers and the CHIS code of practice, including the new draft one published this month.

I do not propose to go into any further detail on this, but I can tell your Lordships one thing: I have not the slightest intention of abstaining on Amendments 1 and 2. They should not be in the Bill, and if they are pushed to a vote, I will vote against them. It is as simple as that, as far as I am concerned.

The only other point I want to make on this group is in support of Amendments 21 and 22. I listened to the noble Lord, Lord Anderson, in some detail. It was most unfortunate that we needed that short adjournment, but it gave me a chance to reread proposed new paragraphs (a), (b) and (c) while no speeches were being made, so it was useful to that extent.

Given the chain of authorising and managing a CHIS and the management systems involved in the various organisations concerned, it might be thought that the actions envisaged in Amendment 21 would be impossible. It is therefore absolutely right to challenge the idea that conspiracy or malfeasance could not take place: we know they could. It will be incredibly difficult, given the structure involved in managing the CHIS, but it is important that structures are put in place to deal with such an outcome of the actions listed in Amendment 21.

It is self-evident to me that anyone who is damaged should be able to claim compensation. I think the very last point the noble Lord, Lord Anderson, made to the Minister was very telling: how can you claim under the Criminal Injuries Compensation Act if the original authorisation says it is not criminal? I am sure the Minister has come armed with information to answer that, but I look forward with interest to hearing it.

I repeat that I will not vote for Amendments 1 and 2: they should not be anywhere near the Bill, in my view, and the Official Opposition advice to abstain is not correct in the circumstances. I will not: I will vote against.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 3:45 pm, 11th January 2021

My Lords, it is always stimulating to follow the noble Lord, Lord Rooker—although I disagree with him, which is unusual. I add my support to the amendments in this group which seek to ensure that immunity from criminal and civil liability for criminal acts cannot be given by the authoriser or controller of covert agents—including “police spies”, as the noble Baroness, Lady Jones, would have them—simply on his own initiative. I adopt all that has been said by previous speakers in favour of these amendments.

I know something of the current status to which the noble Lord, Lord Rooker, referred. I took part in the trial of a covert agent held in camera over many weeks. He was convicted of going beyond his authorisation, and he was not given immunity—nor, in my view, should he have been. I shall focus, however, on Amendment 22, which seeks to ensure that victims of violent crime are not rendered ineligible for criminal injuries compensation by reason of the fact that the crime was the subject of a criminal conduct authorisation.

I had seven years’ experience on the Criminal Injuries Compensation Board when it was non-statutory. I supported the scheme because it recognised the duty on the state to compensate victims of crime and did so fairly, having regard to a number of factors, including the degree to which the victim might himself have been culpable in bringing the injuries upon himself.

In 1983, Mrs Thatcher’s Government promoted and ratified the European Convention on the Compensation of Victims of Violent Crimes. Article 2 provides that the state shall compensate

“those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence”.

It further provides that

“the dependants of persons who have died as a result of such crime” shall be similarly compensated. The second paragraph of Article 2 states:

“Compensation shall be awarded … even if the offender cannot be prosecuted or punished.”

To my mind, that fully covers the position we are discussing in Amendment 22 and helps deal with the doubts expressed by the noble Lord, Lord Dubs. The European convention is made not by an institution of the European Union but by the Council of Europe, which we helped found in 1949 and of which 47 states are members, including Russia.

Of course, the institution of the European Convention on Human Rights is also governed by the Council of Europe, and it has been under attack by the Conservative Government. As I mentioned in my small contribution to the debate on the deal last Friday, the Government face a difficulty if their independent commission recommends that we resile from that convention. Article 136 of Title XII of Part 3 of the UK/EU deal provides that in the event the UK Government “denounced” the European covenant on human rights, all the security provisions—co-operation on the exchange of data, extradition arrangements, and so forth—which are set out in Part 3 would automatically cease to have force. It is not merely giving grounds for the EU to terminate these arrangements: they automatically expire. But there is nothing in the deal about the European Convention on the Compensation of Victims of Violent Crimes, and I assume that it will still be in full force.

Despite the Government’s attitude towards treaties and institutions in Europe, I sincerely hope that they will accept Amendment 22 on the basis that it is essential if the UK is to abide by the terms of the convention and for the compensation of victims of crime that it requires to be paid.

Of course, the criminal injuries scheme is for physical injuries, as it says on the box. It is perfectly possible that the crimes authorised under these provisions would cause financial harm. That is the purpose of Amendment 32: to ensure that the Investigatory Powers Commissioner would be able to award compensation to victims of financial fraud. This is the other side of the coin, and I support it. Perhaps I may join the noble Lord, Lord Anderson, in examining the teeth of the gift horse which the Government offered this morning in their response to the Joint Committee on Human Rights.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am delighted to follow the noble Lord, who speaks with great authority and experience in these matters. Although I do not always agree with the noble Baroness, Lady Chakrabarti, I will defend her right to say what she thinks and table her amendments to the hilt.

I support the sentiments behind Amendment 22, as expressed so eloquently by the noble Lord, Lord Anderson. I hope that, in summing up, my noble friend the Minister will clarify the Government’s position and perhaps come up with some thoughts and words from them. I take this opportunity to thank my noble friend for her letter last week and for the personal briefing that she kindly arranged for me on aspects of the Bill about which I had concerns. I am very grateful for that.

However, my noble friend’s letter makes no reference to the question of criminal injuries and compensation for victims of violent crime where the crime has been committed through activity that is the subject of a criminal conduct authorisation. My starting point on this issue was referred to by the noble Lords, Lord Dubs and Lord Anderson: paragraphs 15 and 16 of the original report, the scrutiny undertaken by the Joint Committee on Human Rights in November last year and the Government’s response, which I confess I have not had time to digest in full.

The real issue here is that we are granting immunity from prosecution to those who carry out actions and behaviour under the Bill. That leaves the question of the ramifications for victims who suffer in the circumstances outlined by noble Lords, which I do not need to repeat. I will take this opportunity, if I may, to gently nudge my noble friend the Minister to go further—as requested by the noble Lord, Lord Anderson, and others—and explain specifically the position of victims of what is currently considered a crime but would be granted immunity under this Bill. For example, a person may have been severely injured and requires compensation, as would normally be the case through recourse to the Criminal Injuries Compensation Authority.

I believe that this is a grey area that should be tidied up before the Bill leaves Parliament. I hope that my noble friend will meet the requirement to seek satisfaction and clarification in this regard.

Photo of Lord Judd Lord Judd Labour

My Lords, I speak in support of Amendments 3 and 4. If I may so, my noble friend Lord Dubs covered very well the arguments in support of his Amendment 3. Amendment 4 seems self-evidently right and should not cause controversy.

It is not possible to speak to these amendments without referring to the important speech made by my noble friend Lady Chakrabarti. Unfortunately, given the nature of human affairs, it is necessary to have as part of our defence of society provisions of the kind that we are discussing. We ought to put on record our appreciation of the courage of the many people who undertake such work on behalf of us all. Many of us, including our family and friends, probably enjoy the life that we take for granted because of the work that is unfortunately necessary in this sphere. The people who do that work should not feel that they do it under sufferance; they should feel that they are doing it with the full support of society as a whole because of its essential nature.

Having said that, it is crucial that, in the organisations operating in this area and responsible for this work, there is a culture—I cannot emphasise that word strongly enough—that never forgets that the essence of a society that is being protected is one in which accountability, transparency, the rule of law and human rights are essential: that is, they are not nice tea party things to be in favour of but essential elements, the muscle, in building the kind of society that we want in the interests of everybody. That culture is essential.

I want to take a moment to refer to events across the Atlantic to show just how important that culture is and how easy it is to start stepping away from the disciplines that are necessary to uphold it. Of course, in the kind of society that we want to protect, when the going is most difficult and the challenges are at their greatest, it is more important than ever to have at the kernel—the essence—of all that takes place a kind of conviction and philosophy for the culture to which I am referring. That is not weak. It is not a lovely liberal idea. It is an absolute necessity. In the same way, those who forged the Universal Declaration of Human Rights just after the Second World War were not sentimentalists in any sense; they were people who had seen and experienced the horrors of the Second World War, and were determined to build into our society disciplines and elements that were essential for its protection.

I say that, because such a culture is crucial. We must never slip into a situation in which we begin to justify the provisions in the Bill as a convenience for activities that cannot be fully reconciled with the points that I have underlined. That is essential, which is why what my noble friend Lady Chakrabarti said in introducing her amendment, for which I am grateful, is so essential for us all. We must evaluate for ourselves whether her formula is the best one, but all I can say is that it is essential—and long may it continue—that we have her strictures with us.

I strongly support Amendments 2 and 3, and hope that what I have said underlines the value of what my noble friend Lady Chakrabarti said.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 4:00 pm, 11th January 2021

My Lords, I echo the grave concerns of many Peers. I also endorse what has been said about the good faith of my noble friend Lady Chakrabarti and her commitment to civil liberties. That has been the imprimatur—the standard she has been the bearer of in her professional life.

We should recognise the importance of discussing the rule of law and how we have to be the guardians of it even when we recognise the need for the state to make use of agents. I hope the House will note the serious risks of introducing law that grants immunity to informants, agents and spies. My great regret is that the Bill lumps together the needs of different kinds of agency. The requirements of, for example, the security services are distinctly different from some of the other agencies they have been lumped together with in the Bill. Perhaps our attitudes to those different needs should be distinctly different too.

Let me assure noble Lords that from my work in the courts over the years involving national security, I accept the vital need for the police and security services to use covert operatives in their investigations, particularly into serious crime. I accept that there are times when, to maintain their cover, agents or informants have to be involved in criminal activity. The status quo, which I would like to see preserved, has security service guidelines that provide an appropriate balance between the necessity of certain law enforcement operations and the public’s legitimate expectation that informants and agents be deterred from acting with abandon and—if they go beyond what has been agreed and commit criminal offences—to be held accountable for their actions.

My noble friend Lady Chakrabarti mentioned that a level of uncertainty is quite curative; it is important for someone to be made to think, and not to feel they have the impunity of immunity. These issues are of serious importance to us, because they are about maintaining the moral equilibrium of ensuring that the law applies equally to all. That is what the rule of law is about. Let me make it clear to noble Lords: this is not some mild thing. The Bill will change the legal landscape that says we are all accountable to the law and nobody is above it. Having immunity for certain people means there is a greater sense of the weight of what people are involved in.

I have seen, in all my years of practising in the courts, that there are times when these matters go before the prosecuting authorities and no prosecution of informants or agents is forthcoming because it is not in the public interest to proceed. That is the better way of dealing with this. It is the better way of maintaining that commitment to the social contract we made that we are all answerable to law, save in exceptional circumstances, when their controllers—those who run agents in the field or deal with informants—step forward to give reasons why a person should not be prosecuted, explaining the circumstances in which crimes were committed. It is the granting of immunity that changes, in a fundamental way, relationships and the rule of law. That is why I am concerned and will support the amendment of my noble friend Lady Chakrabarti.

I am president of the JUSTICE Council—its advisory council—and it is not an organisation that goes into these things lightly. Huge care and consideration are given to the positions JUSTICE takes on matters of law and legislation going through these Houses. JUSTICE recommends that this House should be very cautious before throwing away the perfectly reasonable guidelines and provisions that currently exist and giving operatives certainty of never being prosecuted for what they do, when they may say, “I demand to be told that I will never be prosecuted for what I am doing”.

I am very concerned about this Bill. I will be supporting my noble friend Lady Chakrabarti. I regret that I cannot take the position of my party in abstaining—this is too important to me. I am a lawyer and have spent my life in the law. I head an institute of human rights; I created, at Oxford, an institute of human rights; I believe in the rule of law. We are a nation that stands for the rule of law in the world and, by God, having watched what happened in the United States recently, the need for a nation to stand for the rule of law is vital.

I regret that we are going down this road. I do not believe that this legislation is necessary in the way others seem to think it is; we could have refined this in a better way. I will be voting with my noble friend Lady Chakrabarti, and I will be adding additional amendments later if these do not succeed, as I suspect is likely.

Photo of Baroness Bryan of Partick Baroness Bryan of Partick Labour

My Lords, it is a privilege, if not somewhat intimidating, to follow my noble friend Lady Kennedy of The Shaws. But it does give me the confidence to believe that some of the points I am making are probably accurate and worthy of consideration.

We have been told that the purpose of the Bill is to bring the operation of CHIS out of the shadows and put existing practice on a clear and consistent statutory footing. This Bill, however, goes much further than existing practice by allowing prior immunity. The current regulation on “Immunity from Prosecution” in Section 71 of the Serious Organised Crime and Police Act 2005 states that

“immunity notices can only be granted in respect of offences which have already been committed.”

There are many reasons why immunity should only be applicable to offences already committed, and we have not been given convincing reasons why this should change. There are occasions when it is in the public interest not to prosecute someone for a crime they have committed, but that does not change that there was a crime and, almost certainly, a victim. The Bill changes that: by giving prior immunity, it makes what in other circumstances would be a crime no longer a crime. The effect of issuing a CCA will commit the action of an undercover operative to

“be lawful for all purposes.”

There are some principles in law that even a lay person like me can understand. One of them is the rule of law, which the Oxford English Dictionary defines as

“the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

If this Bill becomes law in its current state, it will undermine that basic principle.

As the noble Lord, Lord Paddick, pointed out, some of the amendments in this group attempt damage limitation by mitigating the effect of granting prior immunity. They should be supported, but the key amendments are Amendments 1 and 2 in the names of the noble Baronesses, Lady Chakrabarti, Lady Ritchie of Downpatrick and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick, who have all spoken persuasively on them.

I think we can predict that, if the Bill goes ahead in its current state, there will be public inquiries in the years to come into the behaviour that it will have permitted, and they will reveal even more horrific stories than those being exposed in the current Undercover Policing Inquiry.

No one is denying that undercover activities are necessary, and that they will sometimes involve using criminals, but that makes it even more important that their actions are constrained rather than given carte blanche. Those of us who are concerned about this are not being awkward or indulging in conspiracy theories; our concerns are based on the actual experience of undercover activities that have resulted, at the most extreme, in murder and rape and, quite commonly, in the destruction of innocent people’s lives. I asked the Minister at Second Reading and again in Committee—and I ask it again today—whether she can give an example of when an undercover operative has been prosecuted after receiving legitimate authorisation.

If we were to read in the daily papers that the director of Amnesty International was hugely worried about a Government introducing deeply dangerous legislation that gave disturbing powers to their secret service, I am sure we would all be concerned and wonder which totalitarian regime she was talking about. However, that is what she said about this legislation going through our own Parliament. These two simple amendments would stop that happening and I will support them in a Division.

Photo of Lord Hendy Lord Hendy Labour

My Lords, it is a great pleasure to follow the noble Baroness, Lady Bryan, in supporting Amendments 1 and 2, moved by the noble Baroness, Lady Chakrabarti, a woman of unimpeachable integrity, as the noble Lord, Lord Cormack, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Kennedy of The Shaws, have pointed out. I do not overlook the other signatories to the amendments: the noble Lord, Lord Paddick, who put a case which appears irrefutable, and the noble Baronesses, Lady Ritchie and Lady Jones, who made powerful speeches, as did the noble Baroness, Lady Chakrabarti. My position is that, unless the amendments are passed or accepted by the Government, I shall have no alternative but to vote against the Bill. This is not a matter of petty factionalism, as was disgracefully suggested in a newspaper today; it is a matter of conscience.

Like the noble Baroness, Lady Kennedy of The Shaws, I cannot support a Bill which gives the state the power to grant immunity for crimes to be committed in the future by agents on its behalf. Such immunity is contrary to the rule of law. The rule of law prescribes that all are bound equally to observe it, not least the criminal law. Giving the state the power to exempt its agents prospectively from criminal law is the antithesis of this fundamental principle.

I accept, of course, that every state necessarily deploys undercover agents to protect itself and, indeed, the rule of law. I accept that, in the course of their work, it may be necessary to break the law, including criminal law, but I cannot accept that state agents should be given prospective immunity to do so, no matter how senior or judicial is the person who authorises that criminal conduct.

The evil here is the prospective immunity to be granted, based only on an assessment of possible future situations. A decision to prosecute or not should be made only retrospectively, when the facts and circumstances of the criminal conduct are known. This is the status quo and, as far as is known, it has worked perfectly satisfactorily, as the noble Lord, Lord Paddick, demonstrated.

On the other hand, I see no problem with the state, through the DPP and the CPS, considering after the event whether a prosecution for such criminal conduct is warranted. In doing so, they will apply their experience, discretion and good sense and consider all the circumstances leading to the crime and the objective sought to be attained by it, the proportionality of it to that objective, and the overall justification for it; they will consider the anticipated and actual consequences of the conduct; they will consider any possible defences to such prosecution, including whether the conduct is criminal if its object was to prevent a greater crime; they will consider the requirements of the European convention; and, above all, they will consider whether it is in the public interest to prosecute.

Noble Members have made the point that this Bill does not confine CCAs to professional undercover officers of the state, responsible, trained and alive to the requirements of the rule of law. The Bill will grant CCAs to lay persons, often or usually criminals, deficient in civic responsibility and careless of the demands of the rule of law, as some of the recipients of the brown envelopes described by the noble Lord, Lord Paddick, must have been. Many will have only the weakest grasp of the limits of the criminal conduct authorised by their CCA. They should not be given carte blanche; it is right that they should fear that their conduct will be scrutinised by the CPS.

However, let us not forget that the Undercover Police Inquiry, in which I represent a number of trade unions, has revealed that professional law enforcement officers have participated, and were directed by superiors to participate, in conduct which was either criminal or morally reprehensible. One thousand groups, campaigns and unions were spied on. So far, it is not evident that infiltration by police officers acting as covert human intelligence sources gleaned any useful information to prevent crime. As one undercover officer put it, the only useful information revealed by her infiltration of a women’s liberation group was that it was not a group which would be violent or cause disorder.

So far, I am unaware of any justification for the infiltration of campaigns such as that in response to the murder of Stephen Lawrence or that formed to reopen the convictions of the Shrewsbury building workers. What justification can there have been for the systematic abuse of women, more than 30 of whom were groomed into having sexual and intimate relationships with men with fake identities, fake beliefs and fake personalities? This was not a tactic devised by a couple of coppers who were rotten apples; it was conduct authorised by, and reported to, senior officers in the Metropolitan Police and in MI5. This widespread, reprehensible and unjustifiable conduct over decades inspires little confidence in the issuing of CCAs by such senior officers.

The noble Baroness, Lady Ritchie, has drawn attention to very serious crimes committed by state agents. Against that, it may be superfluous to mention that the Undercover Policing Inquiry has revealed that undercover police committed other crimes; one, for example, is said to have acted as an agent provocateur in planning to firebomb a shop.

I find myself unable to accept the Bill while it contains the provision granting criminal immunity prospectively. Only a retrospective review by a professional prosecutor when all the circumstances are known is tolerable.

As at Second Reading, I wish to add the following, final, point. My understanding is that an undercover police officer may not be instructed by superiors to commit a crime. If the Bill becomes law without the amendments of my noble friend Lady Chakrabarti and her co-signatories, an officer will be refusing to obey a lawful instruction if she or he refuses to commit a crime when instructed to do so by a superior who has obtained a CCA. That will be a disciplinary offence potentially justifying dismissal. In my view, that is a powerful argument against prior authorisation; I think that many rank-and-file officers would not wish ever to be put in that position.

Photo of Baroness Blower Baroness Blower Labour 4:15 pm, 11th January 2021

My Lords, it is indeed a great pleasure to follow my noble friends Lady Bryan of Partick and Lord Hendy, and to speak on Amendment 1 in the name of my noble friend Lady Chakrabarti, whose painstaking work, particularly on Amendment 1, both within and outwith the Labour Party, has been an education to me. It comes from a place of absolute lifelong commitment to the rule of law, the necessity of equality before the law, and of course very necessary civil liberties.

I am pleased also to join the noble Lord, Lord Paddick—I congratulate him on an excellent speech—and the noble Baronesses, Lady Jones of Moulsecoomb and Lady Ritchie of Downpatrick, whose names have been added to the amendment.

I am grateful too to Justice, the UK section of the International Commission of Jurists, for its expert and clear briefing, from which I quote. It says that the Bill unamended must fail, given the risk of

“serious violations of the European Convention on Human Rights”, which could set the UK apart from accepted “international human rights norms”—surely not something that we would wish to do.

As I have said in previous speeches on the Bill, I want to live in a well-regulated society, so I recognise that covert operations and information from covert human intelligence sources are necessary. Accepting that, I also want to live in a society and in a state that fully observes the rule of law—a matter much discussed in your Lordships’ House. I want to live in a state in which we are all equal before the law and in which there is one law for all.

Attempts made before the start of the passage of this Bill to claim that its intention and purpose were simply to legislate for the status quo have been shown to be false, as laid out by previous speakers, including my noble friend Lady Chakrabarti. The guidelines in force since 2011 clearly state that an authorisation

“has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.”

Surely that is the very antithesis of what is proposed in the Bill. They go on to state that

“the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity … come under scrutiny by an external body.”

So the creation of immunity introduced by this Government through the Bill is a deliberate policy decision.

Will the Minister say, in precise terms, how many prosecutions there have been to date of CHIS under the existing guidelines? That question was also asked by my noble friend Lady Bryan of Partick. I associate myself with the attempts of the noble Lord, Lord Paddick, to elicit hard information from the Minister.

Covert human intelligence sources are, in the main, far from being highly trained operatives. Of course some—possibly many—will be, but not all. The individuals to whom I refer are often members of the public, many of whom are seasoned and serious criminals, yet the Bill would have it that such individuals may engage in criminal conduct considered lawful for all purposes. If a covert human intelligence source is granted immunity for any conduct without let, hindrance or potential consequence, the risk to society is indeed grave. Crimes and criminal acts deemed not to be crimes or criminal in advance is a bridge too far—“legal for all purposes” is unacceptable. Where in this is the rule of law, and where is equality before the law?

Further, there is the matter of innocent victims. If, legally, no crime has been committed, given the existence of the CCA, access to redress—whether criminal, civil or through the criminal injuries compensation scheme, which was covered in detail by the noble Lord, Lord Anderson—is removed. It is unacceptable that there is no redress. Victims must have their rights protected, as indeed they are by Article 13 of the European Convention on Human Rights. Amendment 1 would remove immunity and thereby restore access to redress. It would provide that if covert human intelligence sources, under authorisation, carried out criminal activity, they would have a defence and justification, as at present. Such a caveat is necessary. Many noble Lords far better versed in the law than me take this view. I am pleased to stand with them on this issue. Let us hold to the rule of law and equality before it.

Given the lack of clarity on immunity evident in the Bill, as outlined by the noble Lord, Lord Paddick, and as laid out in the plethora of amendments tabled, and given the damage limitation to which the noble Lord, Lord Paddick, referred, the secure route out of the lack of clarity and out of this damage limitation is to accept Amendments 1 and 2, which I absolutely support and for which I will vote.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, the Bill is intended to provide a legal framework for the state authorising its agents to commit criminal offences where necessary. It mainly puts existing practice on a clear and consistent statutory footing. It will insert new Section 29B into Part II of the Regulation of Investigatory Powers Act, creating a criminal conduct authorisation. CCAs may be granted, where necessary, for a specified purpose:

“in the interests of national security … for the purpose of preventing or detecting crime or of preventing disorder; or … in the interests of the economic well-being of the United Kingdom.”

Authorisation must be proportionate to what is sought to be achieved. Relevant considerations when considering proportionality include where conduct is part of efforts to prevent more serious criminality and where there are no other reasonable or practical means by which the outcome can be achieved. A covert human intelligence source will never be given unlimited authority to commit any and all crimes. The Bill does not prevent prosecutors considering a prosecution for any activity outside the authorised activity.

The use of agents and informers, including the authorisation of some criminal activity, is a legitimate and necessary tool in the fight against terrorism and serious organised crime. This has been accepted by Sir Desmond de Silva and the Investigatory Powers Tribunal. It is worth noting that in December 2019 the tribunal found that the current practice did not breach human rights or grant immunity to those who participate in serious criminal activity. The courts to date have found no breach of human rights in the current practice operated by the Government, MI5 and police forces. Without such tactics throughout the Troubles in Northern Ireland, the terrorist campaign would have been extended and more innocent lives lost.

The CHIS remains just as relevant and critical in today’s security environment. Last year, MI5 led a particularly successful operation against the so-called New IRA in Northern Ireland, arresting most of its so-called army council. That was a massive success and it will undoubtedly have been down to so-called covert human intelligence sources.

Of course, I agree that there should be a robust framework under which the authorisation of covert personnel engaging in crime can operate. I do not believe that sexual crime or torture can be authorised in any circumstances. Authorising officers must give due regard to a human rights framework in these areas.

Amendments 1 and 2 would ensure that the nature of and compliance with criminal conduct authorisation would be deemed relevant to any decision about criminal prosecution or civil liability. I believe that those who have acted in compliance with a properly devised criminal conduct authorisation should be protected from prosecution. This amendment may have the effect of wrongly keeping the door ajar for prosecution.

Amendment 3 would mean that, instead of a CHIS being immune from civil liability for authorised crime, the state would indemnify or recompense them. I do not come down strongly either way in relation to this amendment. Sources who have acted in accordance with a CCO should not be financially disadvantaged without fair recourse.

Amendment 21 would ensure that the Bill did not exclude prosecution for misconduct in public office of those involved in granting a criminal conduct authorisation or in situations where it is later nullified. I recognise the need for authorising officers to act in adherence to human rights principles. However, it is also important that they are not unfairly disadvantaged compared to other public servants or officials just because they are involved in those decisions. I will listen carefully to how the Minister responds to this amendment.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 4:30 pm, 11th January 2021

My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.

The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.

There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.

The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:

“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”

Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.

To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.

It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.

So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.

Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.

I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.

Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.

Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.

The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.

In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.

We support Amendment 21; it neatly deals with concerns about the responsibilities and liabilities of controllers and handlers, both criminal and civil. It is very helpful to be reminded that our law—some might describe it as our legal ecology—includes the underlying notion of how to conduct oneself in public office, and the offence of misconduct in that office. Civil liability, when looked at from the other end of the telescope, is the right of someone aggrieved, injured, or who has suffered collateral damage, to access compensation. In Committee, my noble friend Lord Paddick referred to an injured security guard, and we have had other examples. We are happy to support any amendment that achieves that, although we have difficulty with Amendment 3 because it accepts the phrase “lawful for all purposes”.

We tabled Amendment 32, which amends RIPA, under which the tribunal has the power to make an award of compensation. RIPA is—or will be—the basis for CCAs and the tribunal is, by definition, familiar with investigatory powers. It can deal with hearings involving sensitive matters in an appropriate way. It seems the right home for this, though I acknowledge the practical considerations that have been mentioned.

Section 29B will be new to RIPA, even though authorisations are not new. We are not happy to rely, for this purpose, on the Advocate-General’s explanation in Committee that,

“An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation”,—[Official Report, 24/11/20; col. 185.]

nor—again for this purpose—that they will be, in the Advocate-General’s words, “tightly bound”. That is not the point.

Unless the issue of redress has been dealt with satisfactorily by the time we reach Amendment 32 in the Marshalled List, I intend to move it and seek the opinion of the House. We tabled it before the noble Lord, Lord Anderson of Ipswich, tabled his Amendment 22. If the criminal injuries schemes include the injuries in question—the amendment uses the words “not excluded”—we welcome that. The Advocate-General indicated in Committee that he did not have information regarding the schemes, and that he would write. My noble friend and I had not heard until publication this morning of the Government’s response to the JCHR’s report—apart from an email which the noble Lord, Lord Anderson, copied to us, in which a Home Office official wrote, “The Bill does not in practice interfere with the operation of the scheme.” I read that as a bit topsy-turvy, and certainly not enough; we want it to be clear in the Bill.

I am with the noble Lord, Lord Anderson: the gift horse needs a bit more to chomp on. We support there being clear provision in the Bill to deal with the problem of “lawful for all purposes”.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 4:45 pm, 11th January 2021

My Lords, I thank all noble Lords who have taken part in this debate, which I think has gone on now for over two and a half hours, signalling the importance of this subject and this Bill. The noble Baroness, Lady Chakrabarti, started off by really pressing the importance of parliamentary democracy and the rule of law. She was, of course, supported in that endeavour by the noble Baronesses, Lady Kennedy of The Shaws, Lady Bryan of Partick, Lady Blower, and my noble friend Lord Cormack. I agree absolutely wholeheartedly with those sentiments of democracy and the rule of law.

However, it also led me to reflect, thinking about events the other day on Capitol Hill, on some of the events that have taken place close to our Parliament in the last few years. The noble Baroness will recall her erstwhile colleague John McDonnell, saying:

“Parliamentary democracy doesn’t work for us … we used to call it insurrection. Now we are polite and say, ‘direct action’. Let’s get back to calling it what it is. It is insurrection. We want to bring this Government down by whatever mechanism we have.”

I stand by the principles of democracy and the rule of law, and that there can be no departure from them. The noble Lord, Lord Carlile, whom I do consider my noble friend, posits some of the points that noble Lords have made about whether we are dodging the rule of law. We are not. We are putting covert human intelligence sources engaging in criminal conduct beyond statutory doubt in the Bill.

I will begin with Amendments 1 and 2. The question of whether properly authorised conduct should be rendered lawful or left open to prosecution was discussed at great length in Committee. I have listened very carefully to the points made by noble Lords on this issue, and to the views of operational partners, and the Government’s view is that the approach in the Bill as drafted is the right one. It seems unfair and unreasonable for different approaches to be taken here from those for other investigatory powers, such as interception and equipment interference, where otherwise criminal conduct is rendered lawful by properly granted authorisation.

In response to the remarks of the noble Lord, Lord Paddick, regarding the assertion of my noble and learned friend the Advocate-General for Scotland—and I thank the noble Lord for giving me notice that he would be making this point—that all noble Lords agree with this position, clearly, if he does not, then it is not the case. However, I hope that most noble Lords can see the merit of the Government’s position on this issue. Covert human intelligence sources operate in the background and take great personal risks to keep the wider public safe from harm. It seems a disservice to them to expect them to carry out this activity and not provide them with the appropriate protection for doing what they were asked to do.

Noble Lords are all aware, and I think appreciate, that we are limited in what we can say publicly about this tactic, so I am afraid that I cannot go any further. What I can say is that we risk damaging the future operation of this tactic if we take the approach suggested in these amendments. At the end of the day, CHISs are humans. Each CHIS is one of us and not a machine that can be switched on and off. We must do what we can in this Bill to protect them in exchange for the work that they do on our behalf to protect us.

Amendment 3 seeks to remove the exemption from civil liability for CHIS criminal conduct. Let me start by setting out the legal position in RIPA. The effect of a valid authorisation under Part 2 of RIPA is that authorised conduct is rendered

“lawful for all purposes” by Section 27. Section 27 sets out a requirement for the conduct to be in accordance with an authorisation in order for it to be made lawful for all purposes. Where a court finds that the authorisation under the Bill does not meet the requirements of the new Section 29B, or where the conduct goes beyond what is permitted by the authorisation, it will not be rendered lawful. I will make this point again, as it is very important: an authorisation will have been granted because the authorised conduct was deemed to be both necessary and proportionate to tackle threats such as crime, terrorism or hostile state activity—and, as the noble Lord, Lord Carlile, says, it is laid out in the code of practice. Where that authorisation has been validly and lawfully granted, it is right that those criminals or terrorists cannot then sue the CHIS or the state for that same vital activity.

Let me be clear that it is not the intention of the Bill to close off routes of redress where an authorisation has not been lawfully granted, or where a person has been the victim of conduct by a CHIS that was not covered by the tightly bound authorisation. It is right that in these cases appropriate routes of redress remain open to those affected. For example, where the person is a victim of conduct not covered by the tightly drawn criminal conduct authorisation, the authorisation would not offer protection from criminal liability. This would mean that the conduct was not rendered lawful, the person could report the crime in the normal way to the police and the normal routes of redress would be available. The approach that we have taken in the Bill does not leave open the possibility of criminals and terrorists suing public authorities for legitimate and lawful activity, but it will still be possible for innocent people to seek redress where appropriate. That is why the Government cannot accept Amendment 3.

Amendment 32, from the noble Lord, Lord Paddick, seeks to ensure that conduct authorised under the Bill is within the remit of the Investigatory Powers Tribunal. I absolutely assure him that this will already be the case. Section 65 of RIPA sets out that conduct to which Part 2 of RIPA applies falls within the jurisdiction of the tribunal. The Bill creates a new Section 29B which will be inserted into Part 2 of RIPA. Any person or organisation will be able to make a complaint to the tribunal regarding CHIS criminal conduct. The tribunal also has the same remedies available to it as other courts, including the ability to grant compensation. This amendment is therefore not necessary.

Responding to the amendment tabled by the noble Baroness, Lady Jones, on the Proceeds of Crime Act 2002, I should first highlight that CHISs are authorised in essence for the purpose of acquiring information. A CHIS will be authorised to participate in criminal conduct only where it is truly necessary in connection with that overall aim. The proposal to carve out certain activity from the Bill is inconsistent with the approach of the Bill, which is to render properly authorised conduct lawful for all purposes. I assure the noble Baroness that a CHIS could not be authorised for the purpose of legalising an otherwise unlawful profit-making exercise, as it would not be necessary for a statutory purpose.

In Amendment 21, the noble Lord, Lord Anderson, seeks reassurance that the Bill will not provide a blanket immunity that results in improper conduct being excluded from prosecution. I can be very clear on this point. I would expect any improper conduct on behalf of an authorising officer to be picked up by the stringent safeguards that are in place, thereby preventing such an authorisation being granted in the first place. However, if an authorisation did not meet all the requirements of new Section 29B, a court could find that authorisation to be invalid. The conduct would not then be rendered lawful and prosecutions could be brought.

In practice, if the Investigatory Powers Commissioner’s Office felt that an authorisation was improperly granted, it would flag up any concerns that it had to the authorising authority. This could include recommending that it refers the conduct to the appropriate authorities. While the primary responsibility for reporting crime rests with the authorising public authority, IPCO could refer a case directly to the appropriate authorities, subject to the process set out in the Investigatory Powers Act. The courts could then decide whether the authorisation was improperly granted and therefore whether it was unlawful.

As a matter of public law, a decision made subject to a discretionary power, such as the decision to issue a criminal conduct authorisation, must be “reasonable”. The decision must be rationally open to a reasonable decision-maker in possession of the facts of the case, or it will be unlawful. In terms of the additional reassurance that the noble Lord, Lord Anderson, sought, it is clear that authorising officers must be acting lawfully when properly granting a CCA. That does not prevent a prosecution of that officer for having improperly granted a CCA, including for misconduct in a public office if the authorisation was corruptly granted—but we would expect a court to consider the validity of that CCA as a preliminary issue.

I can also confirm that judicial commissioners have the ability to report conduct directly to prosecutors, subject to the process set out in the Investigatory Powers Act, and that anyone who has been impacted by a criminal conduct authorisation can make a complaint before the IPT. Where that complaint is upheld the IPT can provide redress, including compensation.

I turn to the amendment from the noble Lord, Lord Anderson, on the availability of the criminal injuries compensation scheme for those impacted by a criminal conduct authorisation. The Bill does not, in practice, interfere with the operation of that scheme, which is narrow in scope and available only to a victim of a crime of violence. While I cannot discuss the limits to the conduct that can be authorised under the Bill, I will say again that all authorisations must be compliant with the Human Rights Act. Public authorities cannot act in a way that is contrary to its requirements; for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, it would be unlawful.

There are also protective obligations on the state. Where the state knows of the existence of a real and immediate threat to a person, the state must take responsible measures to avoid that risk. This protective obligation is at the heart of CHIS authorisation. As I said earlier, where a person is a victim of conduct not covered by the tightly drawn authorisation, the authorisation would not offer protection from criminal liability. This includes any claim made under the criminal injuries compensation scheme. I hope that this provides reassurance on both these issues and that noble Lords are content not to press their amendments.

Before I sit down, in responding to this group I also want to take the opportunity to make noble Lords aware of the Government’s ongoing discussions with the Scottish Government, which may affect the ability to authorise criminal conduct in Scotland for devolved purposes. Discussions on support for a legislative consent Motion have been running in parallel to the passage of this Bill. The Government’s preference is for a UK-wide Bill, but it appears that agreement on this may not be possible.

Were the Scottish Government to not recommend consent, then, respecting the Sewel convention, the Government would seek to table amendments at Third Reading which carve out authorisations for devolved purposes in Scotland, and would not move government amendments on Report where they relate to devolved matters. I would appreciate noble Lords adopting a similar position in this scenario, if their amendments relate specifically to RIP(S)A. I have already discussed this matter with the noble Lords, Lord Paddick, Lord Rosser and Lord Kennedy. However, I undertake to write to all noble Lords before the debate on Wednesday outlining the final position, any reasons for the decision and any operational impact that it might have.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords) 5:00 pm, 11th January 2021

I have received a request to speak after the Minister and to ask a question from the noble Baroness, Lady Hamwee.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, with regard to the criminal injuries compensation scheme, the Minister said that the Bill does not “in practice”—I stress those words—interfere with its operation. Can she confirm that it does not interfere with the scheme either in law, as distinct from practice, or as the scheme is currently drawn; in other words, should we regard the term “in practice” as limiting the scope for application to it, which noble Lords have made clear is something that concerns us?

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

I noticed that the noble Baroness mentioned that point in her speech. The practical application of this will not interfere with the operation of the scheme. She is shaking her head—I do not think she is very satisfied.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am grateful to everyone who has spoken in this debate and was quite humbled by so many of the speeches—both those I agreed with and many with which I disagreed—not just by the kind remarks about me and my intentions with these amendments, but by the sheer eloquence and experience which so many noble Lords displayed on all sides of your Lordships’ House. Please forgive me if I do not pay appropriate tribute to everyone individually, as I am sure your Lordships would not thank me for the amount of time that that exercise would take.

We have been dealing with some difficult realities on this legislation, but also some important principles. That has come across in the nature of this important debate. The noble Lords, Lord Paddick and Lord Naseby, and others, talked about difficult realities from both sides of the argument. The noble Lord, Lord Paddick, gave a speech rooted in being, as far as I noticed, the only former police officer who has spoken on the Bill. His picture of handing out banknotes to undercover agents is not a difficult reality, designed to undermine the importance of using undercover agents in the community. It is not designed to undermine the difficult reality of some of those people being current or former criminals—or, indeed, having turned terrorist, for that matter. But it is important to demonstrate that not everyone involved in this kind of activity—in the past, present or future—has been or will be of the character or ability of the finest trained officers and agents. There will necessarily be a variation; that is a difficult reality.

I do not say this to criticise the need to have undercover operatives. It just makes the checks and balances in a democracy founded on the rule of law even more important. I say that to those who are flabbergasted at the idea that I should not just take the Government’s case studies without looking at any other experience, including that of the noble Lord, Lord Paddick. I think it was the Minister who said, rightly, that undercover agents—or CHIS—are human. They cannot be turned off and on. I absolutely agree; they are human, as we all are, and therefore flawed. They are not robots; they cannot be pre-programmed to cover every situation in the moment. We therefore need to create ethical incentives, not just blanket immunity. We have been dealing with the difficult realities of having to go undercover and keep cover. That will mean engaging in criminal activity, perhaps quite serious criminal activity such as being a member of a terrorist group or dealing drugs, for example.

There are also important principles such as the rule of law, as rightly pointed out by the noble Lord, Lord Carlile, even if he did not agree with my emphasis or my argument. He is right, and so is the Minister, in saying that the clarity and accessibility of the law are important rule-of-law principles. With that in mind, there is great value in putting these matters on a clear statutory footing. This is so that the public at large understand, in a clear statute for all to see, if they look it up, that sometimes undercover agents of the state will be authorised to engage in crime for the purposes of keeping their cover. The noble Lord, Lord Carlile, and the Minister are quite right to say that that is one attempt towards the rule of law.

However, another foundational principle of the rule of law in any jurisdiction anywhere in the world is equality before the law—as expounded by my noble friends Lady Kennedy of The Shaws, Lady Bryan, Lady Blower, Lord Hendy, Lord Judd, and many others. Equality before the law means that there is one law of the land for Prime Ministers, police officers—uniformed or undercover—and undercover agents or CHIS. That creates a conundrum for us: how can we respect equality before the law but also authorise criminal activity in certain situations in order to keep us safe? That is a genuine conundrum that I accept we are having to engage with here.

How does our current law tend to grapple with such a conundrum? Generally, this is not done by advance blanket licence or immunity, but by defences. Whether reasonable excuse defences or public interest defences are used, these would be taken into account by an investigating officer, prosecutor or, if necessary—and it does not seem to be very often—by a court after the fact. That is the kind of regime which protects all of us, including officers and agents and people who put themselves in difficult situations in harm’s way. This includes the armed police officers who are marksmen and those who protect all of us in your Lordships’ House. Those brave uniformed officers, who have sometimes made the ultimate sacrifice to defend your Lordships’ House, have used whatever reasonable force they could. They have done this, not with advance immunity, but in the knowledge that they were doing what was right and in the public interest. They have reasonable force defences or reasonable excuse defences, and nobody would dream of prosecuting them in the public interest. If it is good enough—

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

I am sorry to interrupt the noble Baroness, but we are making slow progress on the Bill and we have a number of groups to try to reach today. She had time at the beginning of the debate to set out her views. If she would let your Lordships’ House know whether she intends to divide, that would be appreciated.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I think I made my intention to divide clear earlier and I will say one or two sentences more before I close. I have not heard a good enough explanation as to why we should make what the noble Lord, Lord Paddick, called a “monumental shift” in our rule-of-law arrangements. My noble friend Lady Kennedy called it a “dramatic” change to the legal landscape to license criminality with total immunity for some people in advance and to make their activity lawful for all purposes. The stringent safeguards offered by the Minister, such as Article 3, are not going to operate in sufficient detail in the mind of an undercover agent in real time, in the moment, if they are given total immunity. I shall be seeking to test the opinion of the House.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

There appears to be a technical problem with the voting. I suggest that the House adjourn for 15 minutes until it is resolved.

Sitting suspended.

Ayes 153, Noes 309.

Division number 1 Covert Human Intelligence Sources (Criminal Conduct) Bill - Report (1st Day) — Amendment 1

Aye: 153 Members of the House of Lords

No: 309 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 1

Amendment 1 disagreed.

Amendments 2 to 4 not moved.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords) 5:48 pm, 11th January 2021

We now come to the group beginning with Amendment 5. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or any other amendment in the group to a Division must make that clear in debate.