Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 - Motion to Regret

– in the House of Lords at 9:00 pm on 12th October 2021.

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Baroness D’Souza:

Moved by Baroness D’Souza

That this House regrets that the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (SI 2021/601) does not provide adequate safeguards on the actions of covert agents, as the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 failed to include express limits on the crimes covert agents can commit; and calls on Her Majesty’s Government to amend the Act to provide proper limits on, and oversight of, crimes committed by covert agents.

Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I am very grateful that some noble Lords are still here. That is very nice. I make no apologies for returning to the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which was so thoroughly debated and amended in this House earlier this year. As I said while the Bill was passing through this House, I am truly happy that a previously secret process has been put on a statutory footing. That said, I also wish to have it on record that there remain serious gaps which would allow authorised agents to commit serious crimes with impunity. These gaps have not been adequately addressed in this regulation of investigatory powers statutory instrument and for this reason I have tabled this Motion.

The statutory instrument concerns requirements on the level of seniority for MI5 officers and those of other bodies who are authorised to sanction CHIS participation in crime and to record the criminal conduct authorised. The SI includes the crucial phrase

“including any parameters of the conduct authorised.”

I understand that these parameters will reflect only the conduct being authorised and will not include substantive limits on the crimes which may be committed. This, theoretically at least, enables involvement in serious abuses such as murder and/or torture.

The Government claim that, by introducing the requirement of recording any criminal authorisations, limits are effectively set on the crimes in which the CHIS Act may be involved. However, without hard limits there is nothing to ensure that the criminal conduct authorised does not itself involve abuses. As such, the SI is to my mind incomplete.

The point was argued at several stages during the passage of the CHIS Bill. Despite earnest pleas to tighten up the named crimes, as happens in countries such as Canada and the USA, the Government declined to do so. The argument put forward by the Government that defining more closely forbidden criminal actions, including murder and torture, would represent a risk of exposure to those working under deep cover is one that many other countries have rejected.

The Government are therefore asked once again to reconsider this SI and to include within it express statutory limits on the kind of criminal action that can be authorised. It is of course accepted that the mandatory application of finer points of the law in the potential context of immediate and present danger is a step too far. However, murder and torture are extremely serious crimes and as such need to be expressly forbidden. Furthermore, the fact that the phrase in question in this statutory instrument is left open, without express limits in the main Act, surely conveys the message that both murder and torture are, under certain circumstances, acceptable.

I welcomed the CHIS Act in so far as it placed the process of authorising criminal conduct on a statutory footing, as I said. However, a clearly stated prohibition under any circumstances of murder and/or torture would further assist in clarifying the operational environment and ensure that the UK upholds human rights laws. I beg to move.

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

My Lords, we support the Motion to Regret moved by the noble Baroness, Lady D’Souza, to the extent that we too believe that this statutory instrument does not provide adequate safeguards on the actions of covert agents. However, we believe that the reason given by the noble Baroness in her Motion is not within the scope of the order. However, we feel that this House should regret the order because the authority level for authorising criminal conduct by covert human intelligence sources is not sufficiently high. Indeed, as was made clear in the Explanatory Memorandum, it is only at the same level as it would be if the CHIS were not participating in crime.

As we made clear during the passage of the Bill—now the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which made the main part of this order necessary—we agree completely that there should be stronger safeguards surrounding the deployment of agents or informants in circumstances where they are permitted to commit crime. Agreeing with the noble Baroness, Lady D’Souza, we argued that there should be limitations on the crimes that covert agents can commit beyond the implicit Human Rights Act limitations. However, that issue was debated and decided on when this House considered the primary legislation. We did not win the argument. This statutory instrument does not impact on the types of criminal activity that an agent or informant can commit. We therefore consider that the noble Baroness’s justified concerns are not within the scope of the instrument.

We also maintain that there needs to be clear judicial oversight of such deployments to the extent that judicial commissioners should have the authority to prevent the deployment of—or, in urgent cases, to withdraw safely from deployment—agents or informants authorised by the police, the security services and other authorities to commit crime. Currently, there is a duty only to inform judicial commissioners within seven days of deployment, with no statutory mechanism for judicial commissioners to revoke the authority. Again, we debated this at length during the passage of the then Bill. We did not prevail in our insistence on these safeguards and the issue is not within the scope of this statutory instrument, but we feel that it is important to restate our position in this regard.

What is within the scope of this order, and what we do regret, is the authority level of the officer—particularly in the police—who can authorise an agent or informant to commit crime. In urgent cases this can be a police inspector. I was a police inspector at the age of 24. The Government may say that only specially trained inspectors can authorise the deployment of CHISs and that this will be written into the CHIS code of practice, but my understanding is that that is not contained in either primary or secondary legislation. Can the Minister confirm that it would not be unlawful for any police inspector to grant such an authority, even if it were against the code of practice? On that, the Explanatory Memorandum says that

“the formal process to update the Code is under way.”

Can the Minister confirm that, as this statutory instrument is already in force, these changes have already come into effect but the code of practice that underpins it is not yet in place?

The Explanatory Memorandum goes on to say:

“The updated Code will be subject to Parliamentary scrutiny upon the laying of an additional SI in due course”.

Can the Minister confirm whether this has happened, or when it is likely to take place? Will it be subject to the negative or affirmative procedure?

There is a world of difference between deploying an agent or informant benignly into a scenario and authorising that agent or informant to commit a crime; it is a degree of magnitude more serious, no matter what the crime is, yet the authority levels set out in this statutory instrument are the same as for a simple deployment with no authority to commit crime.

I refer back to the debates that we had during the passage of the original Bill. The noble Baroness, Lady Manningham-Buller, referred to the impeccable and courageous agents deployed by the security services, perhaps conjuring up the image of James Bond in the public imagination. I contrasted this characterisation with the fact that most informants employed by the police are criminals. I would go further, and refer to the activities of undercover police officers that have recently been the subject of both a public inquiry and successful action in the courts.

The Government will say—indeed, the Minister said during debates on the Bill—that undercover officers would never be authorised to have sexual relations with activists. In an action brought against the Metropolitan Police Service and the National Police Chiefs’ Council, where the claimant successfully argued that her human rights—her right to freedom from inhuman and degrading treatment, her right to privacy and her right to freedom of expression—had been infringed, the Investigatory Powers Tribunal at the Royal Courts of Justice found:

“We are driven to the conclusion that either senior officers were quite extraordinarily naive, totally unquestioning or chose to turn a blind eye to conduct”— sexual relationships—

“which was ... useful to the operation”.

According to the BBC report of the case dated 30 September, the tribunal also found that the failure of the Met and the NPCC to guard against the risk of undercover officers entering into sexual relationships with women amounted to unlawful discrimination against women. The tribunal concluded:

“Our findings that the authorisations”— under the Regulation of Investigatory Powers Act 2000

“were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’ revealed disturbing and lamentable failings at the most fundamental levels.”

This was not in the era of “Life on Mars”, when I joined the Metropolitan Police in the mid-1970s; this was this century. The officer concerned was not deployed undercover in connection with this case until 2003. This is not ancient history but at a time when the current commissioner and I were both senior Metropolitan Police officers, although neither of us had anything whatever to do with the case that I am describing. I am simply making the point that the senior officer in charge of the Metropolitan Police today was a senior officer in the Metropolitan Police when this happened, in terms of temporal proximity. The Government cannot say with confidence that that was a long time ago and the officers around at that time, who oversaw undercover officers and allowed that sort of thing to happen, are no longer serving.

Trust and confidence in the police have been severely undermined by recent events, as the Government have themselves admitted, yet here we are, allowing relatively junior police officers to authorise criminals and undercover police officers to commit crime with ineffective judicial oversight. The authority levels, as set out in this statutory instrument, are too low, the range of offences that agents and informants can commit is too wide, and the judicial oversight is not stringent enough. The Government are asking us to trust the police to authorise criminals to commit crime by passing this statutory instrument into law, while at the same time telling the public not to trust police officers, particularly lone male officers in plain clothes. We regret this statutory instrument for the reasons that I have set out.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 9:15 pm, 12th October 2021

My Lords, I thank the noble Baroness for tabling this regret Motion for debate today. It brings the House back to the detailed, thoughtful and vital discussions which were held on what is now the Act during its passage earlier this year.

The first priority of any Government, and of this Opposition, is to ensure the safety and security of our communities. We pay tribute to those who serve honourably and put themselves in harm’s way to protect us, and to prevent and disrupt serious criminal activity. The Act addresses the necessary, though difficult, use of covert human intelligence sources to combat serious crime. The key purpose was to place the authorisation of CHIS activity on a statutory footing, where previously there was not that underpinning. The version of the Act which was passed was not the draft that a Labour Government would have passed but we did support it, as urgently needed legislation which created that statutory footing and contained some improvements on the status quo.

I recognise the significant contribution that this House made to improving the Act as it passed through Parliament, including securing extra protections for children and vulnerable people, ensuring access to compensation for innocent victims, and increasing oversight mechanisms. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, for his work on securing notification of all authorisations to the Investigatory Powers Commissioner, providing real-time oversight by the IPC.

The order about which today’s Motion is tabled makes a series of changes in secondary legislation which are consequential to the Act. They include: updating requirements to keep records of authorisations granted under the Act, extending some existing safeguards on matters subject to legal privilege to the new authorisations, and updating the designations of the rank of a person able to grant an authorisation with a public authority. Here I should say that I listened with great interest to what the noble Lord, Lord Paddick, said about the relative seniority of police officers needed for particular authorisations. I look forward to the Minister’s response to the questions which he raised.

The Motion, however, deals with a wider issue which was debated as part of our deliberation on the then Bill. During its passage, colleagues from across the House sought a wide array of improvements to the Bill. The Labour Party particularly sought for the Government to look seriously at the possibility of prior judicial authorisation as a gold standard. We also tabled amendments in the Commons and supported amendments in this House, including those tabled by the noble Baroness, Lady D’Souza, on the key issues raised in today’s Motion. These were changes which would have put explicit limits on the type of activity that could be authorised on the face of the Bill itself. As a House, this was one of the issues we sent back to the Commons for further consideration, although we were ultimately unsuccessful.

The Human Rights Act is a proud achievement of the previous Labour Government. It provides safeguards to this Act and to all public authorities that take action under it. Adding explicit limits to the face of the Bill would, though, have provided clarity and reassurance, and positioned the protection of human rights as an integral part of this package. But as the noble Lord, Lord Paddick, said, this argument was had and lost when the Bill was before Parliament.

As has been well rehearsed, the inclusion of limits has been modelled by countries which are our allies and have similar judicial systems to ours, and with which we co-operate on security matters: Canada is the obvious example, a point made by the noble Baroness, Lady D’Souza. While those countries are able to do this, these Benches and our Commons colleagues remained unconvinced by the Government’s argument that we could not.

I will be interested to hear the Minister’s response to the questions put to her by noble Lords across the House today, particularly on what ongoing monitoring there will be of the operation of the Act and whether amendments of any kind are required. Specifically, will oversight of the Act be led by the IPC’s oversight of the practical arrangements? Presumably, any concerns which could be raised will be addressed by the IPC.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, it is worth reminding ourselves that the original Bill contained a restriction in relation to the Human Rights Act. The person operating under this Bill with authority will operate on behalf of Her Majesty’s Government and will therefore be bound by the authority of the Human Rights Act in relation to the activities which they can undertake. That is an important consideration which was raised in the debate on the Bill.

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

My Lords, the CHIS Act was the final Act on which my right honourable friend James Brokenshire and I worked. I know noble Lords will agree on several aspects of how we worked; we engaged extensively across both Houses, and we saw compliance with the Human Rights Act as central to the Bill—as my noble and learned friend Lord Mackay just mentioned—and safeguards as incredibly important to it. As an earlier speaker said, it puts beyond legal doubt the deployment of CHIS for criminal activity.

The SI on which the noble Baroness bases her Motion to Regret passed unopposed and, as the noble Lord, Lord Paddick, said, is not in scope of this Motion. That aside, noble Lords will recognise some of the points I am about to make from the extensive debates that took place when the Covert Human Intelligence Sources (Criminal Conduct) Act passed through the House earlier this year.

The passage of the Act provided significant opportunity for noble Lords to discuss and put forward amendments to the oversight regime for this power. Noble Lords will recall the collaborative approach we took in responding to the amendments. That included strengthening the oversight of the activity by accepting the amendment from the noble Lords, Lord Anderson—I join the noble Lord, Lord Ponsonby, in paying tribute to him—Lord Rosser and Lord Butler, and my noble and learned friend Lord Mackay, which provided real-time independent oversight of every authorisation by the Investigatory Powers Commissioner. We have a robust oversight regime in place with significant internal and external safeguards to make sure that every authorisation is necessary for and proportionate to the purpose for which it is sought.

The noble Lords, Lord Paddick and Lord Ponsonby, talked about the seniority of authorising agents. They must be appropriately trained, as I said during the passage of the Bill, and of the necessary rank. Public authorities all have their own training processes in place for their authorising officers to reflect the specialist remit in which they operate. IPCO will identify whether any public body is failing to train and assess its officers to the sufficiently high standard necessary for this very specialist type of activity.

The other matter, raised by the noble Baroness, Lady D’Souza, and referred to by the noble Lord, Lord Ponsonby, was limits and, following on from that, practices in other countries. We debated this point extensively during the passage of the Act and voted on it but let me again state that the limits on what could be authorised under the Bill are provided by the requirement for all authorisations to be necessary and proportionate and for authorisations to be compliant with the Human Rights Act. Nothing in the Act seeks to undermine these safeguards and every authorisation will be considered by the independent Investigatory Powers Commissioner, who will be able to ensure that this is always the case. However, on numerous occasions we went over the point that to explicitly place limits in the public domain risks creating a checklist for terrorist organisations to test for suspected CHIS and doing so would put not only the safety of the public at risk but the safety of the CHIS.

In response to the concern that the Government are seeking to repeal the Human Rights Act, let me be clear that the Government are committed to human rights and will continue to champion them at home and abroad. The Government remain a signatory to the ECHR, which provides for the right to life and the prohibition of torture or inhuman or degrading treatment or punishment. The requirement for an authorisation to be necessary and proportionate further limits the activities which can be authorised under this Act.

To address the point made by the noble Lord, Lord Ponsonby, regarding the comparative position in other jurisdictions, it is unhelpful to compare the UK legislation with that of other countries because each country has its own unique laws, public authorities and, crucially, threat picture. We know that CHIS testing takes place in the UK, particularly in relation to the unique challenges that we face in Northern Ireland, and it is important that we legislate for the particular circumstances in which we need our operational partners to operate in order to keep the public safe. I emphasise that our advice on this issue is based solely on the advice of operational partners, and I hope that noble Lords place the same weight that the Government have on their assessment of this issue.

The noble Lord, Lord Paddick, talked about the undercover policing inquiry and the separate recent ruling of the IPT. I have repeatedly made it clear to this House, as he referenced, that the conduct that is the subject of the inquiry was completely unacceptable and should not have taken place. It is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of a deployment. Nothing in this Act changes that. The noble Lord quoted from the IPT’s judgment that the authorisations made under RIPA were fatally flawed, but the court did not find that the entire CHIS regime under the Regulation of Investigatory Powers Act breached article 8.2 of the ECHR. It invited the UCPI to draw its own conclusions. The tribunal is still to hold a remedies hearing in light of the findings.

There are now much more stringent safeguards in place to guard against these mistakes being repeated. In 2014, the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into force. The order applies enhanced safeguards to authorisations for long-term undercover operatives from policing or other law enforcement agencies. This includes a higher rank of authorising officer than for other CHIS and greater oversight by the Investigatory Powers Commissioner.

To answer the question asked by the noble Lord, Lord Ponsonby, all the changes were brought about to address specific concerns that were raised about law enforcement undercover deployments. They have been tested in the operational and judicial environment over the last six years and we think that they are robust and fit for purpose.

The noble Lords, Lord Paddick and Lord Ponsonby, talked about the oversight arrangements—the noble Lord, Lord Ponsonby, specifically on the pre-approval of a judge. That is another point debated extensively during the passage of the Act and the Government believe that Parliament has agreed that the oversight provided by the Act strikes the right balance in ensuring that appropriate safeguards are in place and that decision-making sits with the operational officers best placed to assess the legal and operational environment. The balance also provides the agility for officers to respond to live and often dangerous operational environments. I have spoken extensively about the range of safeguards and oversight in place, both within public authorities and through the IPC and Intelligence and Security Committee. It is a robust oversight regime.

Finally, in answer to the question of the noble Lord, Lord Paddick, I take the opportunity to confirm to noble Lords, as I committed to during the passage of the Act, that the Government will shortly be consulting on that revised code of practice, which will further set out the processes underpinning the activity. I encourage all noble Lords to contribute to that process. The Government will approach the consultation in the collaborative manner in which I hope all noble Lords can agree that we approached the passage of the Act and I hope I have approached the debate today.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 9:30 pm, 12th October 2021

Can the noble Baroness address the question that I raised of whether it would be unlawful for an inspector who was not trained to authorise a CHIS to commit crime? If she is unable to do that this evening from the Dispatch Box, perhaps she could write to me.

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

As I said during my response to the debate, the officers who authorise are trained but the noble Lord is now getting into the area of rank and asking whether the authorising officer would have to be an inspector or above as well as trained. Rather than guess what the right answer might be, I shall write to him on that point of clarification.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I thank the Minister and all those who have contributed to this debate warmly for their response.

I had not expected there to be a Damascene conversion in the past 30 minutes or so. However, I maintain that the SI as it stands is incomplete and find it difficult to understand why it is possible, for example, to talk about sexual abuse but not mention murder or torture. It rather looks as though the Act and the SI exclusively allow murder or torture as crimes that can be committed by covert agents.

The noble Lord, Lord Paddick, talked about the transgressions of policemen and questioned the rank of those who could authorise people to commit crime. That underlines the issue that I have mentioned, which is that sexual transgressions take place in the mood of the moment and are extremely serious. But so are murder and torture. It seems odd that it was difficult to mention that in the Act or the SI. The noble and learned Lord, Lord Mackay, reminds us, rightly, that any authorising agent must abide by the Human Rights Act. But there again, if it is a question of abiding by that Act, what is the difficulty in mentioning serious crimes such as torture and murder? It therefore seems that there is reluctance on the Government’s part to circumscribe the kind of crimes that can be committed within the CHIS Act. I wanted to put that on the record because I fear that the matter is unclear and the lack of clarity will have adverse consequences in the long run.

I nevertheless thank the Minister for patiently going over ground that we have covered at length previously, but it is worth taking a stand on this SI. We so rarely get an opportunity to really discuss SIs on the Floor of this House and it is important to do so. Meanwhile, I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 9.35 pm.