House of Lords
Wednesday 11 November 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Durham.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, respecting social distancing, while others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
The following Acts were given Royal Assent:
Immigration and Social Security Co-ordination (EU Withdrawal) Act,
Arrangement of Business
My Lords, Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.
Rural Bus Services
My Lords, the Government are developing a national bus strategy to set out how national and local government and the private sector will come together to meet the needs of local communities, including those in rural areas. The Government have established a £20 million rural mobility fund to support demand-responsive services.
My Lords, over the last 10 years, around half of council-supported bus services have been lost. This has hit rural areas particularly badly. I am glad to hear from the Minister that the Government are taking some action on this, but do they accept that it is time to ensure that rural bus services do not disappear altogether and to look again at the deregulation arrangements introduced in 1986?
My Lords, we believe that local authorities have a significant role to play in ensuring that we protect rural bus services. To that extent, local authorities receive £43 million from BSOG, and in September 2019 we announced a further £30 million of local authority funding. Now we need to ensure that local authorities step up and support the more vulnerable services.
My Lords, in April last year the Lords Select Committee on the Rural Economy was told about the spiral of decline in both the funding and provision of rural public transport. It recommended that the Government should review the different funding schemes, aiming to put them together in a single investment pot in each area, and then let local people develop integrated, demand-led, case-based systems. Has anything been done?
As I mentioned, the Government are working extremely hard on the national bus strategy. The sort of proposals that the noble Baroness outlined are the sort of things that we are looking at. It is very much time for local accountability for local bus services, taking into account the needs of the local community.
My Lords, it is good to hear that the Government are doing some planning on the issue of rural bus services, but it is not enough to keep pushing responsibility back to local councils when they simply do not have enough money to take forward anything like the amount of services necessary. In view of the fact that we need a national strategy to reduce all our carbon emissions, encourage people out of their cars and generally become better functioning members globally on the issue of climate change, surely the Government can see that funding councils so that they can do their job properly is the right way forward.
It was a little hard to hear the noble Baroness’s question but I believe it was about funding local councils. These considerations are of course being had as we think about the national bus strategy. However, I say to the noble Baroness that it is not just about money; it is also about skills and capacity. We need local authorities to boost their local transport teams so that they have the skills and capacity to plan the sort of improvements that we need in bus services.
My Lords, I declare my interest as a member of the NFU. Does the Minister agree that rural bus services play a vital role in the well-being of communities, especially in less favoured areas such as the Staffordshire moorlands and the Peak District? Does she further agree that these services must be encouraged, assisted, promoted and funded in all such areas in every way possible?
My noble friend is quite right. I assure him that the national bus strategy will include measures suitable for all parts of the country, whether dense urban settings, market towns, sprawling suburbs or the most rural areas. We will need to work with local authorities; this is not something that can be dictated by national government. We will work with local authorities, particularly those in rural places, to ensure that they have appropriate plans in place.
My Lords, the most successful rural bus operations are those direct, regular inter-urban services that form a network over much of the country. If the Government intend the national bus strategy to be interested in developing truly rural services, are not further improvements to the existing network that I have described more likely to create a framework that could be built on by local authorities in developing their own truly rural services?
I partially agree with the noble Lord in that it is key for all local services, wherever they are, to be integrated with other modes, be they long-distance coach-type journeys or rail services provided between cities or over shorter distances. Integration is important, so to a certain extent it needs a guiding mind. We will be looking to local authorities to pick up the pen on that and take it forward.
My Lords, we all agree that public transport is essential for those who live in rural areas and do not have access to a car. However, does it all have to be provided by buses, which often do not run at the times when people want them, do not go from home to destination and back, and frequently lead to narrow country lanes being blocked by large vehicles? Can the Minister do more to promote demand-responsive, community-based services to complement those provided by the bus?
My noble friend is right: an empty double-decker bus careening through narrow country lanes simply will not do. One of the solutions that may be appropriate for rural areas is demand-responsive transport. That is why in September 2019 we launched the £20 million Rural Mobility Fund. We asked for expressions of interest and have had 53. I take great heart from that and at the moment we are reviewing those. We probably do not want to launch them now, in the middle of the pandemic, but we hope that will go on to prove what kind of demand-responsive transport works and what does not, and then we will be able to roll it out more broadly.
Half of households on low incomes and two-thirds of jobseekers do not have access to a car. Bus services are also crucial to rural economies and small local businesses. However, a study by Warwick University in 2019 found that over a decade the price of travelling by bus has risen by 39%, way above the level of inflation. Does the Minister accept that this has contributed to the decline in bus passengers and that it has been and is damaging, both socially and economically?
What the Minister accepts is that we must always strive to improve our bus services. In February 2020 the Prime Minister talked about his view for the bus network, with more high-frequency services and better bus prioritisation. With those two things, one automatically gets lower fares. If we can put all those services on cleaner, greener buses, that will be all to the good.
My Lords, an overreliance on short-term competition funding for the long-term task of transforming transport networks is inefficient and costly. What assessment has the Minister made of the Local Government Association’s call for capital expenditure to be funded through long-term secure grants to councils to plan a comprehensive pipeline of infrastructure and capacity improvements focused on the needs of local networks as a whole?
I have some sympathy with my noble friend in that longer-term funding can sometimes indeed be more efficient. However, it should be said that short-term funding and competitions for larger amounts of funding play an important role in how we fund transport infrastructure. In the case of bus infrastructure specifically, we will be looking to local authorities to plan bus priority measures and then we will outline how we can help and encourage them to put those in place.
My Lords, what keeps many buses, especially on rural routes, going is elderly people’s travelcards. Often, if I am on a bus, I know that most of the people going to the remote villages are travelcard holders. It is better now that it has been extended in Wales to other age groups. So I ask that, in the coming demand on council budgets, we safeguard these travelcards because without them we will not have the passengers or the routes.
My Lords, the Government support local authority spending by around £1 billion a year so that older and disabled people can travel on buses; £877 million of that is on statutory schemes, while £230 million is used on discretionary schemes, whereby local authorities decide to extend the scheme to other people. We are well aware of the importance of these concessionary payments to the bus operators, such that they continue services, and we support them.
Covid-19: Foreign Aid
My Lords, like nations around the world, the UK is experiencing a severe economic downturn due to the pandemic, which will affect the amount we spend on overseas development assistance this year and in future years. In light of this, we have prioritised our aid spending to respond to Covid-19, focus on poverty reduction, tackle climate change and champion girls’ education.
I thank the Minister for her reply. Integrating development and diplomacy is a major challenge, so how long will it take to achieve that and enable us to build back better post Covid-19? Since poverty is rising, as the Minister acknowledged, the impact of climate change is increasing and we have had cuts to date of £2.9 billion, will the Government publish a strategy for the new department to provide clarity for development partners, some of which are fighting for survival and all of which face an uncertain future? Will that strategy and the Government’s official development assistance be subject to scrutiny by the Independent Commission for Aid Impact, working with a dedicated parliamentary committee to ensure that we maintain the UK’s global leadership in international development?
My Lords, we plan to set out a strategy in the near future as part of the integrated review. The aim of the new department is to bring the weight of our diplomatic network to support our development expertise and our development programming dealing with the rise in poverty and the climate change that the noble Lord points to. We are committed to working with our partners as we move through the merger, and I assure him that we are indeed committed to independent scrutiny and confirm that we will be keeping to ICAI.
My Lords, protecting freedom of religion or belief remains a pertinent issue in the developing world when more than 80% of the world’s population identify with a religion or belief system. My diocese has historic links with the Church of the Province of Myanmar, and during the pandemic many of its clergy have been providing volunteer support in understaffed hospitals. Can the Minister assure the House that, despite the almost £3 billion cut in the UK’s foreign aid budget, Her Majesty’s Government will continue to prioritise international freedom of religion and belief and recognise the contribution of religious groups in the development and support of their communities, particularly in times of crisis?
My Lords, I assure the right reverend Prelate that we are indeed committed to continuing to support the freedom of religion and belief around the world. We will also continue to work with and alongside faith groups. I agree with him that they have been incredible in their response to Covid-19. They are among the first to respond and can play an effective role in bringing about the behaviour change essential to slowing the spread of Covid and reducing infection and illness.
My Lords, the pandemic has had a devastating health and economic impact around the world. Women and girls have been disproportionately affected. Rates of gender-based violence have soared, in many places girls’ education has been disrupted, and they suffer from acute food insecurity. They have also had to take on additional caring duties for the sick. As my noble friend the Minister acknowledged, there will be less spent on ODA this year. Can she give assurances that the FCDO will continue to be a global leader in advancing gender equality, as well as promoting girls’ education?
I am grateful to my noble friend for highlighting the disproportionate impact of Covid-19 that we are seeing on women and girls. Advancing gender equality and women’s rights will remain a core part of our mission across government and within the new department. Since 2015 we have supported more than 8 million girls to get an education. Last year alone we provided 25 million women with life-saving contraception, and we will continue this work within the new department.
My Lords, the Government have many times reiterated their support for deploying development assistance to further education, especially of girls. This is to be applauded, because we all know that educating girls is a powerful development tool. However, with the limits on school attendance for reasons of poverty, violence or indeed the spread of Covid-19, and with a reduced budget, will the Government now give priority to investing significantly in online programmes and distance learning in the most severely educationally deprived countries, such as Afghanistan?
My Lords, we are continuing to prioritise girls’ education, particularly during this pandemic; as the noble Baroness says, many children are out of school at the moment. We are investing in remote learning but we need to make sure that we do so appropriately, given the difference in digital access around the world. We have adapted our programmes within Afghanistan through our Girls’ Education Challenge to make sure that we are reaching girls who are out of school, so that they can continue to learn and return to school when schools reopen.
My Lords, since the Foreign Secretary announced in July that there would be cuts of £2.9 billion in-year, there have been very few further details. Can the Minister rectify that? First, why are the cuts 19% when the anticipated fall in our gross national income is only between 10% and 14%? Secondly, where will the cuts fall by department, what is the value of these cuts, and when will details be forthcoming?
My Lords, as the noble Lord said, we are still waiting to see the impact of Covid-19 on the economy here in the UK, and therefore the related impact on 0.7%. We have maintained our flexibility to manage our overspend against an uncertain gross national income figure, and we will continue to do so as we approach the end of the year. We are committed to full transparency, and the statistics on international development will provide a detailed breakdown of our overspend across departments. We will also continue to update the development tracker online to show the latest on programmes and projects.
My Lords, African countries have been very hard-hit economically by the pandemic, and health spending clearly must be a priority. But will the Government work with others to make sure that cash transfers, which are so vital for those in the informal economies, especially women and girls, continue to be provided?
My Lords, the noble Baroness is right that Africa has been incredibly hard-hit. We absolutely continue to support cash transfers and indeed the wider social protection net. That is one of the best ways to get support directly to the people who so need it.
My Lords, sexual and gender-based violence is an epidemic affecting one in three women worldwide, but it receives only a miniscule proportion of global humanitarian spending—0.12% between 2016 and 2018. Will Her Majesty’s Government commit to working with the incoming US Administration and other donor countries to increase funding for prevention, and will they lead the way by pledging at least 1% of the UK’s aid spending to programmes combating sexual and gender-based violence?
My noble friend highlights the disturbing increase in gender-based violence that we have seen throughout Covid-19. The UK spends more than average on preventing gender-based violence, but I agree that there is more that we can do. I can commit to working with the US to increase our funding. We have a great opportunity in co-hosting the Action Coalition on Gender-based Violence this year, and I would very much welcome a meeting with her to discuss this further.
My Lords, last week I met representatives of the British Overseas Territories, who acknowledged that the funding that they had received since March to deal with the pandemic. But, regarding the second wave, they have had only the statement from September saying that
“in addition to the urgent assistance already delivered, we will support the territories as they deal with the medium and longer-term economic, public health and other impacts of the pandemic.”
Can the Minister assure the territories that these words will be backed up with financial support?
My Lords, I am very proud of the extensive support that we have given the overseas territories on Covid-19, from testing to the provision of kit and expert advice from PHE, as well as financial help. I speak with leaders of the overseas territories very regularly. Just last week I spoke to all the premiers to discuss what further support we will be offering them, and I look forward to our joint ministerial council with all the leaders of the overseas territories in two weeks’ time.
My Lords, the NGO Translators without Borders is working to provide information on Covid-19 in Rohingya refugee camps in Bangladesh, where women in particular say they would be reluctant to accept a vaccine without more information in a language they speak and understand. The UK’s funding for TWB through the H2H Network ended recently, so I ask the Minister to look urgently at reinstating the necessary funds to encourage acceptance by the refugees of a vaccine when it is available.
My Lords, I will build on the point made by the noble Lord, Lord Collins. The 2012 overseas territories White Paper commits the Government
“to meeting the reasonable assistance needs of Territories where financial self-sufficiency is not possible, as a first call on the aid budget.”
In light of the financial impact of Covid-19, can my noble friend confirm that this very specific commitment to our overseas territories remains government policy?
My Lords, I can commit to our financial support for the overseas territories. They have seen a variation in the cases of Covid—only nine territories have had cases—but most are heavily reliant on tourism and have seen their local economies collapse overnight. We have committed to sharing the vaccine with the overseas territories and we will continue with our health support and our financial support.
My Lords, since 2010, this Government have provided more than £100 million to tackle violence against women and girls. This year, £35 million has been provided to combat domestic abuse. An additional £76 million was announced by the Government to support victims of hidden harms in response to Covid-19, including victims of domestic abuse. Funding beyond this financial year is a matter for the spending review but, in May this year, the Government committed to developing a victim funding strategy to place this sector on a more sustainable footing.
I thank my noble friend the Minister for her Answer. While the first round of emergency funding was welcome—the Government certainly deserve credit for acting so quickly—many specialist domestic abuse services now face a cliff edge because they have no set budgets for the forthcoming financial year due to delays in both the spending review and the Domestic Abuse Bill reaching this House. For this reason, there are many problems with commissioning on the ground. Therefore, can the Government confirm that an urgent assessment will be made to establish what further resources are needed between now and the end of March to meet the increased demand? Secondly, can the Government confirm that, through the forthcoming spending review, they will address the instability that these services face by guaranteeing longer-term funding of at least a year from March 2021-22? It feels unreasonable to expect these life-saving organisations to do so much more heavy lifting without budget certainty.
In answer to my noble friend’s first question, we continue to work closely with domestic abuse organisations to assess these ongoing trends and needs, and help to support them through the period of new measures, building on the work that we have done to date. We are proud that, since 2010, the Government have provided more than £100 million to tackle violence against women and girls. We recognise the absolutely vital role that tailored support services play in supporting victims of domestic abuse, both within safe accommodation and, of course, in the community. On the second question, the Government recognise the need for sustainable funding, which is why the core grants, such as the £1.1 million Home Office fund for seven specialist support helplines for victims of domestic and sexual abuse, run over a four-year period from April 2018 to March 2022.
Following on from the previous question, does the Minister agree that an increase in core funding, which she mentioned, for women’s refuges is needed because of the sharp increase in domestic abuse since the pandemic? There are insufficient women’s refuges: one in six have closed in the last eight years owing to a lack of funding. Will the Minister do all she can to ensure that long-term core funding is guaranteed, rather than funding special projects, to prevent further closures in this time of crisis for victims of domestic abuse?
My Lords, since 2014, MHCLG has invested £80 million in accommodation-based services, including refuges, to support victims of domestic abuse. There were 3,898 bed spaces in refuges in England in 2018. That is a 12%increase from 2010, but additional Covid funding has reopened, creating up to 1,546 additional refuge bed spaces and enabling a further 344 bed spaces that were closed due to Covid-19 to reopen. As announced in the other place during the passage of the Domestic Abuse Bill, which I hope will be in your Lordships’ House soon, we will provide £1.5 million to fund the Support for Migrant Victims scheme, which is due to be launched this autumn.
In its report, Safe and Well: Mental Health and Domestic Abuse, Safelives states:
“Despite the strong association, domestic abuse often goes undetected within mental health services and domestic abuse services are not always equipped to support mental health problems.”
According to this organisation, there has been limited progress by government agencies and
“NHS leaders to drive integration of domestic abuse into the health sector”.
This is particularly true of mental health services; it is often
“prolonging the period in which victims have no support”.
Will the Government undertake to provide more targeted resources than those already mentioned by the Minister so that more is done to ensure greater awareness of the relationship between domestic abuse and mental health within all organisations? This will help people to get the support they need faster.
You cannot decouple domestic abuse from mental health trauma. Surely the two go hand in hand, not only for the woman—it is usually a women—who is suffering abuse at the hands of an abusive partner but also, usually, for her children, who feel those effects and the trauma for a very long time, if not the rest of their lives.
I ask my noble friend the Minister when she thinks the Domestic Abuse Bill will come to this House? She said “soon”; does that mean “soon, soon” or “soon, soon, soon, soon”? When it does come, can she make sure that children, from birth to the age of 18, are seen as victims and not witnesses so that they can get the support that they need for the trauma that they have experienced?
My noble friend will know that I would introduce the Domestic Abuse Bill into this House tomorrow if I could, but a number of pieces of legislation need to get through this House. It will probably be early in the new year but I will press—the Leader of the House is sitting there—for that Bill to come to this House as soon as is practicably possible. On the question of children, my noble friend will know that children will benefit from a number of measures in the Domestic Abuse Bill, including—I note what I said in the last answer—the fact that it ensures that they are now recognised as victims in their own right. The Designate Domestic Abuse Commissioner has been appointed to encourage good practice in, among other things, the provision of protection and support for children affected by domestic abuse.
My Lords, I chair the National Commission on Forced Marriage. When the Government look at funding, will they take into account the special needs of victims of forced marriage, some of whom suffer domestic abuse from their families rather than their partners?
My Lords, the Minister will know that, when women leave women’s refuges, they are often at greater risk of harm. What additional protection have the Government put in place to prevent those who have left abusive partners from continued coercive control and financial abuse?
The noble Baroness asks a very pertinent question in this field. The Government have put in place several forms of protection for victims to prevent continued coercive control, which so often goes on after the event, and economic abuse, including accommodation, community-based services and counselling. The Domestic Abuse Bill and wider action plan will help to ensure that victims have the confidence to come forward and report their experiences, safe in the knowledge that the justice system and other agencies will do everything they can to protect and support them and their children and pursue their abuser.
My Lords, recent shocking evidence showed a 20% rise in babies being killed or harmed at home during the first lockdown. In normal times, 50% of children in need of support from local authorities come from homes with domestic abuse. The Domestic Abuse Bill promises additional support for victims and children in safe accommodation, but this will not help those who do not or cannot flee their own homes. Will the Minister tell us how the Bill will improve support for victims and their children while they live in an abusive family home?
My Lords, I hope that I have outlined some of the measures that we intend to put in place. The noble Baroness will recall, some time ago when we discussed this, I explained how we will support people through local authorities in their own homes who need to be kept safe for a short period of time through safe rooms, et cetera. However, the whole point of the provisions of the Domestic Abuse Bill is to deal with all the things that she outlines, including supporting women who have suffered abuse and their children, and establishing perpetrator programmes, which are so often overlooked but are at the heart of us tackling this awful crime.
My Lords, the time allowed for this Question has elapsed. We now come to the fourth Oral Question.
I call the Minister, the noble Baroness, Lady Williams of Old Trafford.
Well, I am young Trafford, actually, compared to the noble Lord, Lord Lee of Trafford, but we often get the two mixed up. One is old and one is young.
The Government remain committed to promoting the safe and considerate use of fireworks through an effective legislative framework and through non-legislative measures. We launched a public awareness campaign this October with the aim of educating people on how to buy, use, store and dispose of fireworks safely and considerately, and ensuring that retailers know and understand their responsibilities when selling fireworks.
My Lords, I put this Question down because there seemed to be a spate of fireworks causing damage to buildings that they had hit, including one just down the valley from us at Brierfield, but is it not the case that the indiscriminate and uncontrolled use of fireworks is one of the major causes of anti-social behaviour now in this country? Is it not time that there was a ban on the purchase and use of fireworks except by appropriate bodies on special commemorative occasions and in a controlled and organised way?
My Lords, it is true to say that fireworks injuries have actually gone down since 2016. I cannot comment on the assertions made by the noble Lord in his questions, because I do not know whether that is the case or not. The Government are most certainly not thinking of a ban. It might help him to know that the Petitions Committee conducted an extensive inquiry into fireworks in 2019, and concluded that it could not support a ban on the sale or use of them. Funnily enough, the National Fire Chiefs Council agrees, as do the Government.
My Lords, I agree with the Minister that we should not ban fireworks, but do the police have powers should they find people letting fireworks off in public places where they could pose danger? For example, there were two fires in the Bournemouth area over the weekend for fireworks night. Has there been an increase in the number of children who were admitted to A&E this year as a result of the lack of public fireworks displays and more private fireworks?
My Lords, I thank my noble friend for that question. I cannot yet say what the numbers are for this year because they have not been collated, but, as I said in a previous answer, fire injuries have gone down quite dramatically since 2016. On police powers, Section 80 of the Explosives Act 1875 prohibits setting off fireworks in a public place, or throwing them into a public place or on to a public road, and the police have powers to enforce it. Breaches can be subject to a fine scale. They can also issue on-the-spot fixed penalty notices, including fines of £90, to persons age 18 or over who are found to be committing this offence.
My Lords, I understand the desire not to restrict civil liberties if at all possible, but the fact is that fireworks lead to some terrible injuries. My information, despite what the Minister said, is that 2,000 people were brought into A&E in 2018. I, in fact, was injured when I was a child and still bear the scars from a wayward firework. I really feel that we should try to move firework sales to people who are experts and know how to put on a public display. Will the Minister think in terms of trying to move the law in that direction?
The number of 2,000 that the noble Lord quotes is actually not far off the figure that I have, which is 1,936. On the point about the numbers declining, if I go through them he will see just how much they have declined—notwithstanding the fact that he was injured by a firework, for which I am terribly sorry. There were 1,936 injuries in 2018-19; 4,436 in 2017-18 and 5,340 in 2016-17. That is a very marked decrease in injuries from fireworks.
My Lords, over the past weekend, to see firemen and police being attacked by yobs with fireworks as they attended emergency call-outs saddened me. Then, to hear the police describe fireworks as the hooligans’ weapons of choice persuaded me that only fireworks in organised displays should be permitted. I am disappointed with the Minister’s reply.
My Lords, police being attacked by fireworks might be police being attacked by something else on a different night. There are restrictions on anti-social and nuisance behaviour through the Anti-social Behaviour, Crime and Policing Act 2014 and the police and local authorities of course have powers under that Act to tackle anti-social and nuisance behaviour. Of course, the noble Lord points out something that is extremely dangerous if people decide that they will behave in this way.
My Lords, I live at the end of the Yorkshire Dales, and while the irresponsible use of fireworks is reprehensible, sky lanterns there are causing incredible damage to animals ingesting wires and are starting fires in the countryside. Richmondshire District Council is considering banning the use of these flares, which have as much destructive ability as fireworks. Will the Government consider doing the same for these sky lanterns?
I have to confess to the noble Baroness that my knowledge of sky lanterns is very limited. However, under the Animal Welfare Act 2006, it is an offence to cause unnecessary suffering to any captive or domestic animal. That does not quite answer her point, but where there is evidence that an animal is suffering because of such things as sky lanterns, then local authorities will have the powers to enforce on this.
My Lords, last year the London fire brigade attended over 2,000 incidents over the Halloween and bonfire night period. Over the last five years, 45% of the fires ignited by fireworks in London during the bonfire night period occurred at residential properties. I support the call from the noble Lord, Lord Greaves, for fireworks only to be in the hands of professionals, who can deliver an exciting, memorable display safely, for the enjoyment of everyone and minimising the risk to people and property. The Minister’s response to previous questions is disappointing; can she at least say that the Government will keep this under review?
I can, of course, say to the noble Lord that all legislation is kept under review. If there was evidence of increasing injuries or misuse of fireworks, we would look at it. The Petitions Committee had a good look at this last year and concluded that it could not support a ban on the sale or use of fireworks. However, the noble Lord makes an appropriate point about the responsible use of fireworks. It is very sad that firework displays have not been able to take place this year. It is true that we need to be responsible in using things which are potentially very dangerous.
The lockdown restrictions will certainly be reviewed on 2 December. I would love to see a New Year’s Eve firework display, but my noble friend the Leader of the House is not sure whether it will go ahead. Because the Government have to review some of the Covid measures on a regular basis, it is probably too early to say.
Private Notice Question
To ask Her Majesty's Government, following the recent analysis of the effectiveness of the Pfizer and BioNTech Covid-19 vaccine, what arrangements they have put in place to distribute approved Covid-19 vaccines (1) in the United Kingdom, and (2) internationally; and who determines the protocol for priority of access to any such vaccines.
My Lords, the NHS is preparing to be ready to deploy a Covid-19 vaccine as soon as one is safe and effective. Distribution arrangements remain flexible and include the make-up of the workforce needed to rapidly deliver a vaccination programme, training requirements, consumables and supporting infrastructure. The UK continues to work through multilaterals, such as the G7 and the G20, and with the WHO to agree collaborative approaches to supporting global vaccine development and distribution.
The Government anticipate that the vaccination programme will start with the most vulnerable and those living and working in care homes. Vaccination into muscle does not need to be administered by a clinician; any of us could be trained to do it. Which organisations are the Government working with to make this happen? Can the Minister confirm that there will be no need to take out contracts with the private sector, but that the Government will use the military, local resources—such as public health, fire and ambulance services—and trained volunteers?
My Lords, the noble Baroness is entirely right that the range of people who can administer this vaccine is extremely wide. The challenge of administering so many vaccines in such a short amount of time will indeed require the involvement of a large range of people. We are putting in the recruitment and training necessary for that to happen. I am particularly grateful to all healthcare workers, particularly those from professions such as the pharmacy industry, who are stepping forward to meet this challenge. We are not allergic, though, to using the private sector in this matter, and we will be explaining the detailed terms of our arrangements at a later date.
I plead with the Minister to ensure that whatever arrangements are being made for rapid result testing and vaccination, absolute priority is given to the vulnerable, itinerant, homeless and occupants of night shelters, for the earliest possible access to testing, when the new rapid testing regime is introduced, and for vaccination. They are very vulnerable people, and that is the least we can do for those in need.
The noble Lord makes a persuasive case for those who are most vulnerable, including the itinerant and the homeless. We have seen for ourselves the impact of the disease on those who live in close quarters with each other, have health vulnerabilities or are exposed to the disease due to the nature of their circumstances. Those who are most vulnerable should surely be at the top of the list. I do not know the precise arrangements for the homeless and itinerant, but he makes an extremely good point, and I would be glad to get back to him with details.
My Lords, as is the case with the ordering of home testing kits, in order to prove one’s identity and access the vaccine, will UK citizens be required to share their credit rating history with US data-mining companies with which the Government have signed contracts?
My Lords, we are taking a four nations approach to the deployment of the vaccine. The Scottish NHS has been involved in all the arrangements we have been putting together and in both the Vaccine Taskforce, to procure the vaccines, and the Joint Committee on Vaccination and Immunisation, which has been discussing prioritisation. Furthermore, it has a voice at the DHSC, which is responsible for deployment.
My Lords, the announcement of the effectiveness of the Pfizer BioNTech vaccine being not only the first vaccine against Covid-19 but the world’s first vaccine against infection developed using messenger RNA is a huge scientific advance. There are challenges in delivering an effective national vaccination programme. As Professor Melinda Mills, in a report from the Royal Society and British Academy, pointed out, not the least is honest, transparent public communication free from hyperbole. Does the Minister agree? If so, who does he think would be best placed to lead the public communication of the programme?
The noble Lord is entirely right that we have to approach the prospect of a vaccine in a measured way. There remain considerable imponderables about the effectiveness, longevity, impact and side-effects of a vaccine. These are things that we do not know yet, and we have to keep our eyes open to the limits of what the vaccine may or may not be able to do. That said, the initial data from Pfizer is incredibly encouraging. We have taken a measured approach in our communications to date. Jonathan Van-Tam, the Deputy Chief Medical Officer, is the face of the vaccine, as it were; he is the member of the Vaccine Taskforce who has brought the clinical perspective to its work, and he will remain an important voice in all this.
It is good news indeed. I would like the Minister to share how the Government are preparing to build public confidence in the vaccine and counter the anti-vax campaigns. Following my noble friend’s question earlier, I would be grateful if the Minister could share with the House the plans for reaching harder-to-reach communities, so they can get the information they need and access to the vaccine when the rollout starts.
The noble Baroness is right that we face a challenge. While there will be millions of people who will come forward emphatically to have the vaccine, there will be some who are either disengaged with the British Government or actively hostile to the thought of a vaccine, and we take seriously the disruption caused by those who seek to profit either financially or politically from the confusion and distress caused by anti-vax campaigns. It is not appropriate for me to discuss at the Dispatch Box the detailed measures we are putting in place to deal with the anti-vax message, but I can reassure the noble Baroness that they are focused, energetic and proving to be effective.
We also take seriously our efforts to reach hard-to-reach communities—those who might not have confidence in the Government or we might not have the right connection with. Those communities are exactly the ones we need to vaccinate, and we are making them an enormous priority in our efforts.
Will my noble friend the Minister ensure that among the priority groups for vaccination will be the sportsmen, sportswomen and their entourages who are seeking to represent GB in international events during 2021, in particular the Olympic and Paralympic athletes who aim to qualify for and participate in the Olympic Games in Tokyo? Will the Government urgently consult with the World Anti-Doping Agency to ensure that all approved vaccines are exempt from any possible breach of the current regulations on doping?
I am grateful to my noble friend for that question, which is incredibly important because we all take our preparation for the Olympics extremely seriously. I am also grateful to him for giving me advance notice of it. There is a desire for all the UK population to be vaccinated, including those who represent the UK. Prioritisation decisions will be based on vaccine availability and scientific clinical evidence on the safety and efficacy within different population groups. The JVCI is the independent expert on this and will make the decision he refers to. The World Anti-Doping Agency is actively responding to the coronavirus outbreak as it relates to the global anti-doping programme and the regulations are evolving rapidly.
Acknowledging the possibility of a vaccine being made available before Christmas, can the Minister assure me that a Northern Ireland supply is part of the UK’s order, and will the Northern Ireland Executive be involved in discussions over its distribution? Can the Minister also tell us when he expects news concerning the vaccine being developed by Oxford University?
We are working extremely closely with the Northern Ireland Administration to ensure deployment of the vaccine; as I said earlier, this will be done on a four-nations approach. The Oxford vaccine is going through the final stages of phase 3. We are very much looking forward to hearing how it is going but I am afraid to say that I do not have a precise date for when that will be.
My Lords, I draw attention to the bit of the Question that says:
“distribute approved coronavirus vaccines in the UK and internationally”.
There is a great danger in the international distribution that corruption will creep into the system. Can the Minister assure me that the Government will co-ordinate with the EU and like-minded international aid agencies to ensure that corruption is avoided and the vaccine that we donate is delivered for free to vulnerable groups in countries overseas?
My noble friend makes a very reasonable point. The marketplace for vaccines is extremely competitive. The British Government have been emphatic in our commitment to CEPI, Gavi and the other vaccine organisations. The COVAX advance market commitment aims to produce 1 billion doses for high-risk populations in 92 developing countries in 2021. We support that initiative enormously and work with other partners to ensure the fair and equitable distribution of vaccines around the world.
[Inaudible]—about the Pfizer BioNTech vaccine and full credit to the vaccine taskforce. Given that other vaccines, such as the Oxford AstraZeneca one, will, I hope, be available soon, what will the Government do to ensure the rapid rollout of the inoculations of these vaccines? Can business help in any way? As president of the CBI, we stand by to help in any way we can. Secondly, I offer my congratulations on the rapid mass-testing pilot starting in Liverpool. Can the Minister confirm that these pilots will now be rolled out to another 67 regions, and how soon will that happen?
I am grateful for the noble Lord’s remarks. Business can play an important role. Distribution of the vaccine will employ a large workforce and the supply chain is incredibly important. There will be a dimension for business to provide thought leadership and behavioural leadership to encourage and make space for employees and to be advocates for the principle of vaccination in every way. In terms of mass testing, we have sent lateral flow devices to 67 directors of public health and we will be learning from the Liverpool experiment to see whether we can apply citywide mass testing of the kind he describes to other cities in the future.
My Lords, I commend the Government on the leadership they have shown in committing £548 million to the COVAX advance market commitment to which my noble friend referred a few moments ago. That is essential if we are to ensure that poorer countries are to get access to these vaccines. However, with some $2 billion of seed corn funding required by the end of this year, what are the Government doing to ensure that other first-world countries follow our lead in this area?
I am grateful to my noble friend for the question on international vaccines. He is right that no single country holds the keys to victory against this invisible enemy and we must work together. I point out in particular the work of the ACT Accelerator, which estimates that $38 billion is needed by the end of next year for equitable access to vaccines. This will be an important part of our chairmanship of the G7, which starts at the beginning of next year, and which will be a helpful platform for Britain’s advocacy of fair and equitable distribution of vaccines.
My Lords, my understanding at the moment is that it is not necessary to take a coronavirus test before having the vaccine. This has been one of the subjects of the trials that have taken place so far. I do not believe that there is any effect at all but I am happy to check that, seeing as it is a detailed clinical point that is beyond my personal experience, and revert to my noble friend with confirmation of it.
House of Lords Commission
Motion to Agree
My Lords, the House may recall that this is the second report from the commission on the subject of passes for Members’ staff. The first report was published in May 2019 and was prompted by the former Sub-Committee on Lords’ Conduct, which advised us to take steps to ensure that all Members’ staff passes, of which there are more than 500, are being used for the purpose for which they are intended: namely, to assist Members directly with their parliamentary work.
A number of Members had concerns about our initial proposals, and we have listened. The feedback from two well-attended consultation meetings and various written submissions was invaluable. Unfortunately, the disrupted sitting patterns last autumn and the pandemic mean that it has taken until now to bring revised proposals before the House. We now recognise that rather than restricting passes to staff who “regularly and frequently” provide the Member with parliamentary support, we should employ a more qualitative approach.
Accordingly, we propose the following new rules:
“Members may only sponsor a pass for an individual if the absence of such a pass would make it impossible for the individual to support the member effectively.”
We have also underscored the existing rule that Member’s staff may not use their pass,
“to further the interests of an outside person or body from whom they have received or expect to receive payment or other incentive or reward.”
If the House agrees the report today, the administration will write to all Members who sponsor staff passes to set out the amended rules and ask them to confirm their compliance. In recognition of the fact that some Members may need time to adjust their existing arrangements, there will be a one-off grace period lasting until 31 March 2021. While the revised rules will have immediate effect, the commissioner will have regard to that grace period in considering any relevant complaints against Members of the House.
Much of the feedback we received during the consultation related to something that was not the focus of our first report: the issue of passes for staff of all-party parliamentary groups. We understand how much Members value the work of APPGs, and we strongly encourage noble Lords and others to make submissions to the House of Commons Standards Committee, which is conducting an inquiry into APPGs, including the issue of passes. As my recent global email pointed out to Members, the deadline for written submissions is 20 November, so noble Lords have nine days to put in such submissions.
The evidence received by the committee will help to inform the final scope and terms of reference of its inquiry, which will continue into next year. In the meantime, the rules remain as they have been in both Houses since 2013. People whose primary or only role in Parliament is to support an APPG are not entitled to have a parliamentary pass. This report simply restates the existing situation while allowing Members’ staff to help APPGs in addition to the core role of assisting their sponsoring Member. If Members have any questions about the interpretation of these rules, the Registrar of Lords’ Interests will be happy to advise, and I am happy to receive any further comments from Members.
I am not criticising the report, but I am a bit puzzled by a couple of things. The first concerns the word “primary”. Presumably, that means that someone is here just to look after an all-party group. However, a lot of people seem to be around Parliament working for MPs and also staffing all-party parliamentary groups. I frequently go to APPGs and find that the assistant, generally of an MP—the MP for somewhere or other— is also acting as secretary to this group. This appears to be okay, but I would like confirmation of that, because I am a bit unclear what “primary” means.
The second point is that there are people here who, I will not say represent outside groups, but are paid by outside groups, such as a trade union. I declare an interest in that I had an assistant for a time who was advising me but was actually paid by a TUC-affiliated trade union. I am not quite clear where these people fit in. It applies not only to them; there are a number of hybrid organisations. For instance, the Catholic Union has a person who works within Parliament, for a Member of Parliament, for two days a week, who obviously has a pass which enables them to come and see people within Parliament. So, it seems there is a sort of hybrid group in the middle of people who are not part of all-party groups but are, none the less, and I would say, quite legitimately, within Parliament, because they do an extremely good job in keeping us informed of things that matter. I am just wondering where such people fit in to this kaleidoscope of different jobs of people who work here.
I think it would be a great mistake if we tightened the rules to a point where, say, a legitimate trade union representative could not also brief other Members about issues. They might work for one Member but nonetheless send out briefings on a quite wide basis. I think, for instance, of the Justice Unions Parliamentary Group, which is serviced by someone who works within Parliament for a Member but works part-time to service that all-party group. Will the Senior Deputy Speaker clarify, if he can, where these rules begin and end, and assure us that legitimate interests from outside Parliament will still be able to make representations to us?
My Lords, I ask the Senior Deputy Speaker a very simple question: who will interpret the word “impossible”? It is certainly true that without my own assistant it would be impossible for me to continue in this House and do my duties—there is no question about that—but there will be grey areas in relation to Members. Is it going to be decided by officials of this House, by the House of Lords Commission or by the Procedure Committee?
My Lords, first, I thank the Senior Deputy Speaker. I raised concerns about the earlier draft, and he has listened to those and come back with what I think is a very workable and proper report. I wonder sometimes whether the term “staff passes” is quite as accurate for Peers as it is for Members of the House of Commons. I assume that “staff passes” is used for continuity and clarity about access because, for most Peers who have a staff pass, it will be not for a member of staff but for an assistant, and quite often a volunteer. However, I think the proposal we have here is the right way forward.
On what my noble friend Lord Blunkett said about what is “impossible”, I think it will be for the Peer to make a judgment on that but, if there were any question about it and if it were refused, there would be a right of appeal. I think most Peers will know what is meant by “impossible” and why they need someone to support them.
I wonder whether the noble Lord, Lord Balfe, is making rather heavy weather of this. My understanding, based on our ongoing discussions, is that if somebody has a pass as a member of an outside organisation, whether a trade union, a campaigning organisation or whatever, and advises a range of Members as part of their work, that would not entitle them to a pass. If, of course, they are primarily supporting a Member of the House of Lords, that work would entitle them to a pass. But the primary reason they have a pass must not be because they want access for the other organisation they work for. I think that should be clear, and I suspect it is what the Senior Deputy Speaker will address. He gave examples of both. If somebody has a pass because they are working for a Peer, whether in a voluntary or a paid capacity, that does not preclude them from doing other work, but the primary purpose cannot be for their role in a campaigning organisation. I hope that is helpful to the House.
I am grateful to the Senior Deputy Speaker. There has been some concern and we have to be mindful of security. There have been a lot of passes. I think all Members are very grateful for the support and advice we get from outside organisations that assist us in doing our work. In most cases, they do not have a pass to do that, but we are quite happy to meet them and have a cup of tea—or, occasionally, something stronger—when circumstances allow. There is a bit of an irony in discussing passes now, when those who hold staff passes are not permitted on to the estate, other than in exceptional circumstances, because of the pandemic. We look forward to when that changes and we are able to have those advisers, with or without passes, back on the estate so that we can discuss issues with them.
I thank noble Lords for their very legitimate points. If I may reinforce the issue, the primary, core work is for the Member. If, for example, a Member is part of an APPG, their assistant can help with that, but they should be mindful that he or she is there to ensure that the Member of the House of Lords can do their work effectively. Hopefully that makes that plain.
The issue of passes and 500 has been a matter of concern to the House of Lords Commission, particularly in terms of media stories and whatever else. However, it has also been of concern to the House of Commons. On behalf of the House of Lords Commission, I was asked to engage with the Speaker of the House of Commons on this; we produced a way forward but were then informed that the Commons Standards Committee have undertaken this issue. The Speaker of the House of Commons and the chair of the Standards Committee are encouraging Members from the House of Lords to input their views. They will also ensure that, when this report is out, there is a place for the House of Lords to engage on this. The bicameral element here must be underlined.
The noble Lord, Lord Blunkett, asked who makes the decision. I am delighted to say that the noble Lord engages with me quite regularly via email on particular issues; I encourage him to continue with that. To get an issue such as this sorted out, my first port of call would be the Register of Members’ Interests; this element is important. However, as the noble Baroness, Lady Smith, mentioned, it is for the Member to judge themselves on the work they do and whether that work has been carried out according to the rules.
In terms of us listening, the definition of “regular and frequent” came up. I had quite a number of discussions here, not least with a Labour Front-Bencher, on what that definition meant. As a result of interpreting that, we moved to a more qualitative approach, which satisfied Members. Most of the Members I have engaged with have been satisfied with that. If there are still outstanding issues, I would be delighted to receive any comments. I emphasise that as many Members as possible should write to the standards body in the House of Commons so that our views are well articulated there when it comes to take the final decision.
Covert Human Intelligence Sources (Criminal Conduct) Bill
My Lords, it is a pleasure to open this debate. I am struck by the importance of the legislation on which I will make my first contribution to the House.
Before commencing, I wish to express my thanks to the House for the warm welcome I have received since taking up my appointment. I owe particular debts to my supporters, my noble friends Lady Goldie and Lord McInnes, for their good humour and encouragement; to Black Rod, Garter and the clerks of Parliament for their patience and tolerance; and to my noble friend Lord Courtown for his wise guidance in the customs and practices of this place. Your Lordships will, I hope, realise that, should I offend against these, the cause lies in my obtuseness rather than in my noble friend’s instruction.
I recognise that I am filling the place of my noble and learned friend Lord Keen of Elie. I am too new in this place to speak of his reputation here, but I can say that his high standing in our profession is a consequence not only of his matchless forensic skills but of the kindness and courtesy that he shows to all and the care with which he led the Scottish Bar as Dean of the Faculty of Advocates.
I hope I will not trespass further on the patience of the House if I take the opportunity given by my maiden speech to make some reference to myself and to the place from which I have taken my title: the village of Dirleton, in East Lothian. It is a place of great beauty. Moreover, there are aspects of its history and geography which may provide your Lordships with matter for reflection.
I know that many of your Lordships are familiar with the area. Some of your Lordships may have tested your skills against the famous golf courses which lie round about. There are other diversions too: yachting and skiff rowing from North Berwick around the islands just off the coast, which fired the imagination of the young Robert Louis Stevenson. The islands may be viewed from the fine beaches, looking across to the Kingdom of Fife at magnificent and ever-changing vistas of sea and sky.
All sorts of sporting clubs and associations of other sorts flourish. At the recreation ground and elsewhere in North Berwick, I played bowls, hockey, football, rugby, highland games, tennis and, not least, cricket—a sport which suffers in East Lothian not so much from want of enthusiasm among its players but from the shortness of the season and the unpredictability of the weather.
Dirleton lies in an area of rich, fertile soil, and we can anticipate that our farmers may soon be able to take advantage of new opportunities arising out of the implementation by this Government of their popular mandate. We can anticipate, too, that more boats may set out along the waters of the Firth of Forth to work fisheries which will be richer, better managed and replenished by the more directed and more sustainable management policies which the policy of this Government will allow to be established.
The village of Dirleton features the castle—set in beautifully landscaped grounds—a village green, a primary school and two hotels, where visitors may regain their strength ahead of more sightseeing. The parish church in Dirleton dates from the 17th century. Inside is a list of the names of those of the parish who fell in two world wars. The church is set in surroundings of especial beauty, north of the village green and north of another smaller green, on which stands the war memorial where, again, the names of those who fell are inscribed.
This 11th day of the 11th month brings to mind those names on the war memorial, so familiar to me from their being called over at Remembrance Sundays. Some are the names of families who flourish in East Lothian to this day. But today calls to mind also those others who lie in the churchyard and the cemetery on the way out of the village—names from the rest of the United Kingdom, the Commonwealth and allied countries. Those graves remind us of service and sacrifice in a common cause to preserve our institutions and to keep alive our common hope for a brighter future. We will remember that the sacrifice in that common cause continued after those great wars were brought to an end, and continues today—sacrifice of life, of mental health and of emotional well-being.
Watching the business of the House and the range of expertise and experience your Lordships bring to the scrutiny of that business, I am conscious of the honour done to me by admission to your number. I am conscious, too, that I have no family history of service in this place, as do some of your Lordships, and that I have been appointed to my place, whereas many of your Lordships come here after having sought and won popular mandates from electors, whether in local or devolved government or in the other place. But I seek to assure your Lordships that in my role as law officer, I will seek not only to uphold the law but to try to maintain the spirit and traditions of your Lordships’ House.
The legislation we bring forward is a necessary piece of legislation; it will ensure that our intelligence agencies, law enforcement bodies and those public authorities that also have vital investigative functions are able to continue to deploy tools they need to keep us safe from harm and to prevent serious crime. The recent incidents in Nice and Vienna, and the increase in the threat level here in the UK, show that the need for robust tools with which to tackle terrorism remains as important as ever.
Covert human intelligence sources—I will use the convenient, if inelegant, acronym, CHIS—are agents: undercover officers who help to secure prosecutions by infiltrating criminal and terrorist groups. This technique has been used to disrupt terrorist plots, including one by Zakariyah Rahman against the then Prime Minister in 2017; drugs offences, including enabling the largest ever seizure of heroin destined for the United Kingdom in 2019; and child sexual exploitation and abuse, including attempts by individuals to take indecent images of children.
It is appropriate to reflect today on the role that our intelligence agencies play in war and conflict. A notable success of the intelligence agencies was the discovery and arrest of German spies in the United Kingdom at the outbreak of hostilities in 1914—a success built on the effective use of what we now call CHIS, alongside other techniques. The courage and ingenuity of the double-cross network, a CHIS network which did much to protect allied lives in the Second World War, often at grave cost, comes to mind also as we pause to remember today.
In order to build credibility and the trust of those under investigation, there are occasions where CHIS may need to participate in criminality themselves. This is an inescapable feature of CHIS use. Without this, it would not be possible to utilise CHIS as an intelligence tactic. The Covert Human Intelligence Sources (Criminal Conduct) Bill seeks to ensure that there is a clear and consistent statutory basis to authorise participation in conduct which could otherwise be criminal, where this is necessary and proportionate to what is sought to be achieved. Let me say at the outset that the purpose of this Bill is not to extend the range of activity which public authorities are able to authorise—the Bill does not do this.
The Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes. I recognise that this is a departure from the existing approach, whereby authorised criminality can still be considered for prosecution by the prosecution services. This approach is a deliberate policy decision. It aligns with other investigatory powers and the approach taken elsewhere in RIPA, including other CHIS authorisations. It also provides greater certainty for CHIS that they will not be prosecuted for activity the state has asked them to commit. We think it is right and fair to provide this certainty, and it may also help to recruit and retain CHIS in the future and maximise the intelligence we can gather through this technique.
Of course, this is not a blanket immunity from any criminal prosecution. Criminal conduct authorisations are tightly bound with strict parameters which are clearly communicated to the CHIS. A CHIS will never be given authority to participate in all or any criminality and were they to engage in criminality beyond their authorisation they could be prosecuted in the usual way.
While it is right to provide this certainty to CHIS and to their handlers, it is of course important—vital—that this is subject to robust and independent safeguards. Let me briefly set out how the Bill ensures this.
All authorisations are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. Authorising officers have clear and detailed guidance that they must follow in deciding whether to grant an authorisation. We have published draft updates to the code of practice alongside this Bill that sets out some of that detail. I encourage all noble Lords to read that. The updates to the code will be subject to a full consultation and debate in both Houses in due course.
Authorisations are then subject to robust, independent oversight by the Investigatory Powers Commissioner—the IPC—who conducts regular and thorough inspections of all public authorities and published an annual report of his findings. The IPC sets the frequency of these inspections himself, and public authorities must provide unfettered access to documents and information. The IPC will report on the use of criminal conduct authorisations in his annual report, and this will identify any errors, provide statistics on the use of the tactic and may identify whether there are any training needs. Public authorities must take steps to implement recommendations given by the Investigatory Powers Commissioner’s Office—IPCO—with progress assessed at the next inspection. The IPC also has powers to provide independent remedy; for instance, to inform a person if they have been the subject of a serious error, or to refer a matter to the independent Investigatory Powers Tribunal.
I know that some will think that we need to enhance the role of the IPC in this process. The Government are committed to ensuring that there is robust oversight of criminal conduct authorisations, but that this is not at the expense of ensuring that the tactic remains operationally workable and reflects the live and complex human elements of CHIS, which we do not see in our other investigatory powers. For this reason, we do not think that prior judicial approval is appropriate for this tactic and believe that the authorising role best sits with the highly trained authorising officer within the public authority, as it does at present. The authorising officer will be able to consider the necessity and proportionality of the conduct, but will also consider the safety of the CHIS and the human element of the specific situation. The IPC then provides an important retrospective oversight function, which I have set out.
I want also to draw attention to the additional safeguards in place for vulnerable individuals and juveniles. These safeguards are clearly set out in the CHIS code of practice. It makes clear, for example, that juveniles or those who are vulnerable are authorised as CHIS only in exceptional circumstances. However, there may be occasions when these individuals are able to provide intelligence to disrupt criminal groups. I know that might sound uncomfortable, but it might be necessary to stop criminal groups continuing to exploit those individuals and prevent anyone else being drawn into them. In these instances, significant additional safeguards are in place to ensure that the best interests of the juvenile are a primary consideration in all operations. Those are set out in detail in the code of practice, which has legal force and includes a requirement for an appropriate adult to be present at all meetings where a CHIS is under the age of 16 and to be considered for 16 and 17 year-olds, and the rationale documented if an appropriate adult is not present.
I turn briefly to the upper limits of conduct that can be authorised. These are contained in the Human Rights Act 1998. It is unlawful for any public authority to act in a way incompatible with the European Convention on Human Rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. We have not drawn up a list of specific crimes that may be authorised or prohibited as to do so would place into the hands of criminals, terrorists and hostile states a means of identifying a CHIS, creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public. We have taken this approach in response to a detailed assessment of the specific threats we face in this country. No two countries face the same threat picture or, indeed, have identical legal systems. In particular, we must consider the specific counterterrorist effort in Northern Ireland. However, through the safeguards and the independent oversight that sits alongside an authorisation, there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations or, indeed, activity that is not necessary or proportionate.
Let me, finally, just pause on the list public authorities that can authorise this activity. The number of public authorities able to authorise this conduct has been restricted from those that can authorise the use and conduct of CHIS generally. We expect wider public authorities to be low-volume users of this power because an authorisation can be granted only where it is necessary and proportionate to what is sought to be achieved. However, there will be occasions where CHIS play a critical role in providing the intelligence needed for these wider public authorities to identify and prevent criminal activity. These authorisations will be subject to the same safeguards and independent oversight I have already outlined, including by the Investigatory Powers Commissioner. We have published case studies that give examples of the use of this tactic by wider public authorities. I give the example of where the Food Standards Agency may authorise a CHIS to participate in criminal conduct. This may relate to the relabelling of produce to misrepresent its quality and fitness for consumption. Those are criminal offences, but by authorising a CHIS to participate in this activity the Food Standards Agency might be able to gather intelligence to seize unfit produce and identify those responsible for the fraudulent activity.
It has been a pleasure to make my maiden remarks on this issue. I am of the strong view that this Bill is both necessary to ensure that our operational agencies are able to keep us safe, and welcome in that it provides legal clarity through an express power and sets out the robust safeguards to ensure that an authorisation is tightly bound, necessary and proportionate. CHIS do a difficult and important job in providing intelligence that other investigatory tools cannot access. This Bill provides certainty that operational agencies can continue to utilise this tactic and that they are able to best ensure that they keep us all safe. I beg to move.
I thank the noble and learned Lord, Lord Stewart of Dirleton, for his clear explanation of the content and purpose of the Bill. I congratulate him on this, in his fine maiden speech, which I know the House will have appreciated and enjoyed. The noble and learned Lord specialises in criminal law and has already had a distinguished legal career, being called to the Bar in 1993, appointed Queen’s Counsel in 2011 and, last month, being appointed Advocate-General for Scotland, succeeding the noble and learned Lord, Lord Keen of Elie.
The noble and learned Lord’s title is, as I said, Lord Stewart of Dirleton. Dirleton, near North Berwick, is, as he said, in one of the many beautiful and scenic parts of Scotland, by the coast and adjacent to one of the best-known golf courses in the world: Muirfield. I found his references to the village of Dirleton both interesting and moving.
The noble and learned Lord has joined the relatively small group who have made their maiden speech as a Minister at the Dispatch Box. We welcome him most warmly to this House and look forward to what I am sure will be many further thoughtful and compelling contributions from the Dispatch Box.
Security is a top priority for us. Our first responsibility is to keep this country and our citizens safe. We recognise the importance of our police and security services, including the National Crime Agency, and thank them for the vital work they undertake on our behalf. We also recognise the importance of covert human intelligence sources and the results they achieve. The director-general of MI5 has said:
“Since March 2017, MI5 and Counter-Terrorism Police have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.
In other words, this kind of activity and operation is saving lives by stopping terrorist attacks on our citizens.
The data available also indicates that in 2018, for example, covert human intelligence operations disrupted threats to life, led to the seizure of thousands of kilograms of class A drugs, safeguarded more than 200 vulnerable people, and took firearms and rounds of ammunition off the streets. Covert human intelligence operations also play a significant role in stemming and preventing vile crimes such as child sexual exploitation, and organised black markets in, for example, vital medicine.
The activity the Bill deals with is not new: it has been taking place under existing practices for years. The Bill provides the statutory footing and increased oversight that have so far been missing.
It is well understood that in order to achieve their objective of protecting our citizens from acts of terrorism and vulnerable people from other awful crimes, covert human intelligence sources may need to commit criminal conduct. Being embedded in a proscribed organisation is, of course, an offence in itself. Such activity must be tightly controlled, but it is necessary to achieve the successful infiltration of the activities of criminal and terrorist organisations and networks to gather intelligence and to thwart or bring an end to their activities.
This vital and necessary activity cannot continue in the shadows without boundaries and safeguards. We acknowledge the importance and necessity of putting covert human intelligence sources activity on a proper statutory footing, and we strongly support that aim. This is not the first piece of legislation that brings activities that have been going on in the shadows into a statutory and regulated framework. The Investigatory Powers Act 2016 had a similar purpose in relation to surveillance and phone tapping, and the Bribery Act 2010 also provided for the authorisation of criminal acts in pursuit of those involved in crimes covered by the terms of that Act.
The crucial issues for this Bill are those of safeguards and oversight. We will be pushing to introduce proper oversight, increased scrutiny and further legal protections into the Bill. The question of safeguards and checks on activity of this kind is a serious issue for any democratic society. It is vital, too, that there is public confidence in how our security services and other agencies that use covert human intelligence sources are exercising the power of authorised criminal conduct.
We also have to be clear about what we expect of those engaged in covert human intelligence activity, the standards we should set and how we expect them to be implemented. We recognise that the Human Rights Act is mentioned on the face of the Bill, and that no authorisation should be made in contravention of the European Convention on Human Rights. The accompanying memorandum to the Bill states:
“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”
We will, however, be pressing the Government to go further and will be tabling an amendment, based on the Canada model, to put explicit limits on what can be authorised by placing protections against the most serious crimes, including murder, torture, and sexual violence, in the Bill.
The Government need to make it clear beyond any doubt that the activities of covert human intelligence sources under this Bill are not, and will not ever be, free from Human Rights Act considerations and that there will not be any deliberate attempts to prevent the Human Rights Act from coming into play.
We will be seeking to strengthen both prior and post-authorisation oversight. As it stands, the Bill provides for self-authorisation by an agency of criminal conduct. There is no need to obtain a warrant, for example, beforehand. I am conscious of what the noble and learned Lord said, but we have areas of law at present where judges are available 24 hours a day, and we will pursue the issue of prior judicial oversight in respect of this Bill.
As drafted, the Bill requires the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in the annual report, including statistics on the use of the power, the operation of safeguards and errors.
It is not sufficient for this somewhat vague requirement to be on an annual basis. Every authorisation should be notified to the commissioner within a few days, and the Intelligence and Security Committee should have more detail about the use of the powers under the Bill, and in what context, if there is to be meaningful reassurance to the public on the operation of safeguards and the use of the powers. We will be tabling amendments on these issues.
The Bill provides that authorisations for participation in criminal conduct may be granted only if it is necessary 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. We need to have clarity about what is within the scope of that framework of the necessity criteria, which cannot and should not encompass any lawful activity, including legitimate trade union activity. We will be pursuing this issue in Committee.
There is also a proportionality test in respect of authorisations for participation in criminal conduct. What must be considered before deciding if an authorisation would be proportionate is covered in the code of practice. There is a question, however, of whether those required considerations should not be strengthened by being written into the Bill—a point that might be relevant to other parts of the code of practice.
On the impact of the Bill on those affected by it, we will be pursuing the issue of the safety of juveniles and vulnerable people acting as covert human intelligence sources. We will also want to be satisfied that there are measures in place to prevent a disproportionate gendered impact, or impact on black, Asian and ethnic-minority communities, of the use of the powers under the Bill.
The issue of a route for redress and civil claims for wholly innocent victims is one we will also be raising in Committee. While those most likely to be affected by the criminal conduct of a covert human intelligence source are those with whom an agent is engaging in order to thwart criminality, there will inevitably be occasions when a wholly innocent person ends up with a material loss as a consequence of the actions of a covert human intelligence source. In addition, we will also want to be satisfied of the necessity for the non-security agencies covered by the Bill to have the power to authorise criminal conduct by covert human intelligence sources.
This is not a retrospective Bill but it has to be made clear that those seeking justice for what has happened in the past can still do so. There is an ongoing inquiry into undercover policing chaired by Sir John Mitting. Its recommendations should be implemented and victims should not be denied access to justice. Likewise, we are committed to a full independent public inquiry into the events at the Orgreave coking plant in June 1984. There are also outstanding issues in relation to the unlawful blacklisting scandal and the finding of the Metropolitan Police’s internal investigation that,
“on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven’.”
The kind of powers that the Bill covers and their use need to be on the statute book and not, as now, be powers in the shadows.
We are committed to keeping our people and our country safe. To deliver that, law enforcement bodies and our security services have to be able to carry out their vital and necessary work, which includes the activities of covert human intelligence sources and the authorisation of criminal conduct to which the Bill relates. We are mindful that public confidence in our law enforcement and security agencies is dependent on their proven ability to protect us from acts of terrorism and other vile crimes
We will be seeking to improve the Bill, particularly on the vital issue of strengthening safeguards and oversight so that the public can also have full confidence in the covert human intelligence process and how it is being implemented, including the manner and purpose for which the powers are being used on behalf of all of us.
My Lords, I too welcome the noble and learned Lord to this House and congratulate him on his maiden speech and appointment as Advocate-General for Scotland. If noble Lords think that he has been put into bat a little early, I can reassure him that I made my maiden speech the day after my introduction; needs must when the devil drives.
First, I should perhaps explain my experience on these issues. When I was in the police, we used to call most covert human intelligence sources “informants”, who were mainly criminals recruited and run by “handlers”. The way in which handlers used, rewarded and authorised informants to participate in crime was controlled by “controllers”. I used to be a controller. I also had the enormous privilege of visiting MI6 and GCHQ to be briefed on the work of all the security services as part of this House’s consideration of the then Investigatory Powers Bill, including examples of who their CHIS were and how they were recruited and used.
Secondly, I came to my own conclusions about this Bill, having read the Investigatory Powers Tribunal judgment dated 20 December 2019 that prompted it. I am grateful for the briefings from Justice, Reprieve and the NUJ, among others, some of which I agree with and other aspects I do not.
There are two fundamental issues in the Bill on which the Government have, to date, not been as clear as they could be. The first is that it is not just about one issue, and it certainly does not simply maintain the status quo, as the Government have suggested. The reason for the Bill is to give absolute legal clarity that handlers can authorise their covert human intelligence sources to participate in crime. They have been doing that with little difficulty for decades but the Investigatory Powers Tribunal’s split decision called into question whether there was any legal authority for the police and the security services to authorise CHIS to commit crime. If providing that legal authority was all that the Bill did, it would maintain the status quo and I would have no argument with it.
Of course there are peripheral issues that the Bill provides an opportunity for us to address, but on providing legal authority for participating informants, as we used to call them, or criminal conduct authorities as they are now called, there is no argument and I will support the Bill in that respect.
The Bill, however, goes much further—unacceptably far—and makes everything that the covert human intelligence source is authorised to do by the criminal conduct authority “lawful for all purposes”, including immunity from civil liability, and including any conduct that is incidental to what CHIS are authorised to do. For example, had the Bill been in force at the time, the undercover police officer who was authorised to form a relationship with an environmental activist could have argued that sleeping with her was “incidental to” what he had been authorised to do, and that he therefore could not be sued.
The status quo is the following: the Crown Prosecution Service examines what happens in such cases after the event, and independently decides whether a crime has been committed, whether there is a 51% or more chance of conviction, and whether prosecution is in the public interest. Rarely—the Government’s position is never—does the Director of Public Prosecutions grant immunity to a CHIS prior to the event. To date, the status quo has rarely, if ever, caused any problems. It has been put to me that the status quo does cause problems, in that sometimes, when a handler asks an informant to participate in crime, the criminal concerned backs away because they want a promise of immunity in writing, and the handler cannot give it. We need to examine carefully and in detail whether such a cast-iron guarantee is necessary or desirable.
This Bill as drafted would allow a police officer or member of the security services, with no independent judicial oversight, to grant total immunity to a criminal to participate in an armed robbery, for example. Rarely, if ever, would immunity not be given prior to the CHIS being asked to participate in crime—a complete reversal of the status quo. At the moment, the CPS almost always decides that it is not in the public interest to prosecute in such cases, but the Bill makes anything done in accordance with a criminal conduct authority not a crime. What is in law a criminal act becomes a lawful act for the person authorised that would no longer rest on the public interest test. This is not preserving the status quo by any stretch of the imagination.
The Government will tell us that that is akin to granting immunity to those involved in the interception of communications and, indeed, immunity is to be provided by the same section of the same Act that makes properly authorised communications interception “legal for all purposes”. However, interception of communications has to be authorised by a Minister of State in advance, having already been approved by an Investigatory Powers Commissioner against someone suspected of the most serious criminality.
However, under this Act, authorising a criminal to take part in an armed robbery, in which innocent people could be seriously injured, will not be done in advance by anyone outside the police. Even officials in the Home Office, potentially on instruction from government Ministers, could otherwise grant immunity to someone to commit crime, with no prior judicial oversight and little post-event scrutiny. Is that what we want?
The second major issue about which the Government have not been clear is who these covert human intelligence sources are. In their briefings, the Government have placed the emphasis on CHIS being undercover police officers or officers of the security services working undercover. The majority of covert human intelligence sources are criminals, members of terrorist organisations and drug gangs, or those inside other organisations that the police or security services have a legitimate interest in. This legislation, as drafted, will predominantly protect criminals, not undercover cops.
Other safeguards are needed, such as to prevent CHIS from acting as agent provocateurs and to protect child CHIS. We must carefully scrutinise which authorities can grant immunity. Other matters, considered in the other place and recommended by NGOs, such as prior authorisation and limitations on what crimes can be authorised, would be necessary only if the immunity provision remains part of the Bill. It should not remain part of the Bill. This is not a party-political issue; this is a rule of law issue. We have a lot of work to do.
My Lords, I thank the noble Lord, Lord Paddick, for his thought-provoking speech. I welcome the noble and learned Lord, Lord Stewart of Dirleton, and look forward to many contributions from him in the future. I particularly welcome a fellow criminal lawyer to a senior role here. His maiden speech was both elegant and bucolic.
The proportionate use of CHIS is a necessary component of the fight against terrorism and other serious crimes, including people trafficking and modern slavery. A group of operational case studies has been tabled by the Home Office to accompany this Bill. I thank the noble Baroness, Lady Williams, for the part that she has played in ensuring that those case studies appeared and for providing as much openness as possible for our debates on the Bill, consistent with legitimate national security considerations.
As we heard, a major inquiry is currently investigating undercover policing. It enjoys the wise leadership of Sir John Mitting. Under examination of the activities of individual police officers and professional managers, this Bill provides a framework—a rulebook—that makes it clear that participating informants of and in crime, including those committing some crime, must be subject to full and rigorous control in the future, and that the use of CHIS is controlled in all circumstances.
No more can there be room for sometimes extraordinarily casual and inexcusably pragmatic decisions which allow vulnerable people to continue to be involved in, and at the same time be victims of, serious crime. The CHIS draft revised code of practice, published in September, is a model of its kind, and I hope your Lordships have read it. It is essential reading for this debate.
Subject to two reservations, the Bill, the code and the Investigatory Powers Commissioner’s Office should provide a clear foundation for the proper use of CHIS in the future. I urge your Lordships not to be confused about IPCO’s role. It should be a prompt and rigorous regulator. It should not be transposed to a real-time, operational approval agency. That is not its intended role and, frankly, not its expertise. The Bar Council says that, in respect of criminal contact with the security and intelligence services,
“this Bill is a welcome regularisation of activity which was previously lawful but for which the power and mode of authorisation was opaque and outside the system of quasi-judicial scrutiny which otherwise oversees all intelligence and surveillance activities of agents of the state. It serves to reinforce the rule of law.”
I have two reservations, which Her Majesty’s Government must address. First, amendments to the Bill can ensure that IPCO’s scrutiny role will be accelerated, so that any breaches of the Act and code are negated within the minimum practical full-time period, and it certainly does not have to wait for an annual report. Secondly, in relation to CHIS aged under 18, of which there have been very few, the youngest being 15 years old, I agree with the organisation Justice that authority to commit criminal conduct should be limited to truly exceptional and necessary circumstances, with clear and proactive measures to protect the child’s welfare. All that must be achieved within the provisions and correct interpretation of the European Convention on Human Rights.
I look forward to Committee, which promises improvement of an already very welcome Bill.
My Lords, I warmly welcome the noble and learned Lord, Lord Stewart of Dirleton, to his office and to his place in this House. We are both members of the Faculty of Advocates, and I am delighted by his present appointment. I am unable to comment on the full state of his speech because I gather that some parts of it were constrained, but I congratulate him warmly on that passage which was his own, and which, as has been said, contained some very moving matters relating to the village of Dirleton, which I know well. I look forward to many contributions from him in this House, and hope and pray that he enjoys his tenure here.
It is with a certain amount of nostalgia that I take part in this Second Reading. In 1992, I was responsible for the first reference in Parliament to a Bill concerning the security and intelligence services, on the invitation of my good friend Lord Hurd of Westwell. I am very sorry that for a long time he has been unable to participate in the business of this House.
I have tried to look at this matter in a somewhat theoretical way, and I entirely accept that much must be discussed in Committee, but it is clear that criminal organisations depend for their success on elaborate machinations, which they strongly endeavour to keep secret. To overcome this secrecy, the forces of law and order have found it necessary to enable covert human representatives to infiltrate these machinations, or to participate in them, thus appearing to breach criminal law.
Apart from a few statutory offences, our criminal law requires, as an essential to conviction, that the accused is motivated by a criminal intention. It is clear that a covert representative of law and order has no such motivation and, therefore, is not guilty of a criminal offence when he or she infiltrates or participates in a criminal operation for the pure purpose of investigating or bringing it to conclusion. Again, it is clear that such an activity may involve danger, and it is obviously right that he or she should not face, as an additional danger, a risk of prosecution. This Bill is a clear and systematic way of obviating that risk—even in a case where the statute which is relevant to the operation does not require a criminal intention for its breach. I support this Bill wholeheartedly, subject to the many detailed considerations already mentioned by your Lordships, which I certainly agree should be thoroughly considered. My point is that, if the real intention of the convert human intelligence is for the purpose of investigating and stopping the criminal activity concerned, they do not have a criminal intention.
My Lords, I too would like to welcome the noble and learned Minister to the House and to his new role. Not many find their maiden speech to be that of introducing a Bill to the House, and I congratulate him on the necessarily blended speech.
I welcome the Government’s move to provide a statutory basis for covert human intelligence sources to participate in criminal conduct, where it is necessary and proportionate to do so for a limited set of specified purposes. We recognise the heavy duty placed on government to protect its citizens, and this Bill is a necessary step so that those undertaking these activities with a view to protecting the public can be clear in their status and duties.
However, while welcoming the intent behind this Bill, I am concerned that safeguards should be properly scrutinised, in particular when they concern the treatment of children. Sadly, we know that children are used and abused in evils such as county lines, child sexual abuse and other serious crimes. In facing these, there is an understandable temptation, however small, to make use of children as assets for the forces of law and order. We should never lose sight of the fact this places and keeps children in situations of harm and of increased risk. The primary concern must always be that, when children find themselves in vulnerable situations, we look after them as children first and foremost rather than assets for fighting organised crime. We must guard against the temptation to undermine that essential principle in the pursuit of security. Regardless of the children’s age—I note that they are usually 15, 16 and 17 and few in number—we must still treat them as legally children. They are not to be used and must be protected.
Therefore, how can using a child as a CHIS and in doing so placing them at greater risk of harm ever be in their best interest? Allowing these children to act illegally only worsens this. It is preferable for children never to be used. I am confident that the majority of noble Lords would agree, including the Minister. However, I recognise that there may be rare instances in which children are being used. If this is to be the case, then fixed protections need to be put in place. Although there are guidelines in the code of practice for children used as CHIS, this requirement should be made statutory so that there is sufficient legal weight. Vague phrases like “exceptional circumstances” must be met with explanation and guidance rather than leaving it open for interpretation and even manipulation.
We trust our law enforcement agencies to act within the law, but we must protect them from themselves when the temptation arises to use children for what appears a greater good. It is unfair on those agencies not to provide clear legal parameters by which they must operate. Let us not settle for compromising the safety of children for the pursuit of a safer nation, for is it not for those very vulnerable children for whom we seek to create this safer nation? If on rare occasions children are to be used as covert human intelligence sources, there must be clear and meaningful safeguards set out in statute. I will be looking in Committee to support amendments in this space.
My Lords, I too welcome the Minister to this House. To declare an interest, I am what is described as a “non-police, non-state core participant” in the Undercover Policing Inquiry, and I am due to give evidence early next year. I was targeted by undercover officers for some 30 years, including when I was an MP. But what troubles me most are the clear abuses practised by undercover officers involving people I know well.
Ecological activist Kate Wilson is not a criminal. She is a principled radical activist. She was at primary school in London with my two sons. Our families shared holidays and often visited each other’s homes. She was targeted by undercover officer Mark Kennedy, who formed an intimate and what she described afterwards as abusive relationship with her over seven years. He even reported back to his superiors on contacts with my family when I was a Cabinet Minister. Why were police targeting Kate instead of drug barons, human traffickers, criminals and terrorists?
Doreen Lawrence, now my noble friend Lady Lawrence, was a law-abiding citizen when her family’s campaign to discover the truth about her son Stephen’s brutal racist murder was infiltrated by undercover officers. Why were they not targeting the racist criminals responsible for Stephen’s murder?
Undercover officers attended anti-apartheid meetings in my parents’ living room from 1969 through the early 1970s and reported back that I was a speaker at anti-racist meetings when I was an MP in the early 1990s. Why were they not targeting those responsible for, among other things, crimes in London of fire bombing and murder by the oppressive actions of the apartheid state? Why did they show no interest whatsoever in discovering who in South Africa’s Bureau of State Security was responsible for sending me a letter bomb in June 1972 capable of blowing my family and our south-west London home to smithereens were it not for a technical fault in the trigger mechanism?
In each of these cases, the police were on the wrong side of justice, on the wrong side of the law and on the wrong side of history: infiltrating the family of a climate change activist instead of helping combat climate change; covering up for a racist murder instead of catching the murderers; harassing anti-apartheid activists campaigning for Nelson Mandela’s freedom instead of pursuing crimes by the apartheid state.
Fortunately, Kate Wilson’s early eco-activism helped make climate change an international treaty. We stopped the 1970 all-white South African cricket tour; we helped bring down apartheid; and Nelson Mandela went on to be elected President. The Anti-Nazi League, of which I was a founding national officer, succeeded in destroying the fascist, racist National Front. But why were undercover police officers trying to disrupt us, diverting precious police resources away from catching real criminals?
However, perhaps I differ from other core participants in the inquiry because I do believe there can be a need for undercover officers. When I was Secretary of State for Northern Ireland from 2005 to 2007, I met undercover officers doing brave work trying to prevent dissident IRA splinter groups from killing and bombing. I also signed surveillance warrants to prevent Islamist terrorists bombing London and was aware of vital undercover work around their cells.
But where to draw the line—if indeed, it is possible to do so? How do you stop that sort of legitimate undercover police or intelligence work sliding over into the illegitimate? Counterterrorism police recently putting non-violent Extinction Rebellion on their list of terrorist groups hardly inspires confidence. Why does this Bill not even begin to answer any of these key questions?
My Lords, speaking from Berwick-upon-Tweed, it is a pleasure to welcome the noble and learned Lord, Lord Stewart, from just up the road in Dirleton. I wish him well in the House.
My interest in this Bill is as a former member of the Intelligence and Security Committee. I am in no doubt at all that human intelligence continues to be essential in preventing terrorist attacks, disrupting violent criminal gangs and tracking down prolific sex offenders. I also accept that law-breaking is inevitably a feature of some of those from whom we get human intelligence. In my mind, there is a distinction to be drawn—the noble Lord, Lord Hain, touched on this—between two different kinds of sources. One is described by intelligence services as an “agent” but, as my noble friend pointed out, by police as an “informant”. This is usually a person already involved in a terrorist, criminal or hostile state activity who has turned, induced to give information that may save lives, but they cannot retain their cover among people involved in that activity if they refuse to participate in anything that is against the law.
The other scenario is the undercover police officer who is sent to infiltrate an organisation but is still accountable to the police force for his or her actions. The noble Lord, Lord Hain, pointed to some of the dangers that arise from the misuse of that sometimes necessary process. However, all these activities require some legislative basis. A nod and a wink that, if the intelligence is good, they might not be prosecuted is not adequate, but a general immunity also presents problems, as my noble friend Lord Paddick made clear. Therefore, the Bill is necessary, but it requires further scrutiny and amendment to deal with some of the issues in it, and I want to pick out some of the main concerns.
First, there is a strong case for prior authorisation by a judge of all but the most urgent cases. If it is needed for interception or for a simple search warrant, how much more is it needed for a criminal act—perhaps a serious criminal act?
Secondly, I am unhappy with the range of organisations in the list. If we have to include bodies such as the Food Standards Agency, which sometimes has a need for human intelligence, then ought they not to have to refer to the police and get authorisation from them or from some other external body? The authorising process is so far from the central nature of their activities that it does not seem to me a satisfactory basis for their inclusion.
Thirdly, I have long had concerns about the term “economic well-being”, which features in the Bill. It is very familiar in intelligence legislation but I do not know of a case in which a court has had to define it. It could include so many things: it can include a systemic threat to our banking and financial system but it can also include a major industrial contract that could account for a lot of jobs in Britain, even perhaps a bid for a major international event to be held here. Where do we draw the line? There is too much uncertainty around that.
My fourth point is that, as well as the Investigatory Powers Commissioner, I would want the Intelligence and Security Committee of Parliament to review on a continuing basis the ways in which these powers are used. It should not be prevented from doing so by an insistence that the issues raised by this work are strictly operational. They are not; they include moral and ethical issues that require parliamentary scrutiny in a secure form, which is what the ISC is for.
I have one final plea. This Bill is a rewrite of RIPA 2000 and the Scottish equivalent legislation. You cannot understand it without a copy of RIPA beside you, so it makes an obvious claim for consolidation as soon as possible. The law really has to be readable and intelligible to those who have to enforce and live by it.
My Lords, I join others in welcoming the noble and learned Lord, Lord Stewart of Dirleton, and congratulating him on an excellent maiden speech. In a crystal clear exposition of the Bill, he reminded us that the use in exceptional circumstances of children as covert sources, including those as young as 15, is already covered by law. This Bill would allow for them to be authorised, in exceptional circumstances that continue to be undefined, to commit criminal offences in order to integrate themselves into groups under investigation and provide intelligence that would not otherwise be available.
I am not the first today, nor will I be the last, to express concerns about the use of children as mechanisms for intelligence gathering, however valuable that intelligence might be. It stands in direct contradiction to what should always be our intention, which is to remove children from situations and relationships that promote criminality, and it almost certainly involves children from already disadvantaged backgrounds, further widening the inequalities between the lives and long-term outcomes of those who have and those who have not. We know that criminals prey upon vulnerable individuals, including children, using their vulnerability as a shield against law enforcement. It seems extraordinary that, rather than ending this exploitation, the law itself would become the next perpetrator of continued abuse through the recruitment of children and vulnerable individuals as CHIS. I argue that they should never be used in this way but, if they are, as the law already allows, every possible safeguard needs to be in place.
The revised code of practice includes several welcome improvements, but there are areas that still need to be strengthened. Clarity is needed on what constitutes an “exceptional circumstance”, and the code should be clear that the protection of an appropriate adult must be available to all children under 18, rather than on a case-by-case basis, as is proposed. This appropriate adult provision is standard practice for police interviews, even for the most minor transgressions. It cannot be right to fail to provide this support when children are taking the serious decision on whether to place themselves in harm’s way.
The revisions to the code add considerably to the section on juvenile sources but not to that relating to vulnerable individuals. The definition of a vulnerable adult fails to include victims of slavery or trafficking. Although paragraph 4.6 of the code stipulates that there must be an assessment of the juvenile’s ability to give informed consent, there is no such stipulation when it comes to vulnerable adults. Anti-Slavery International has questioned the extent to which someone who has been trafficked or exploited is able to give this informed consent, given their traumatic experiences of manipulation and control, and the long-term impact that this can have on their ability to make independent decisions.
There is also no reference in the code of practice to mental capacity and the ability of someone with impaired mental capacity to consent to acting as a CHIS. As mental capacity is not universal but specific to a given decision, and as it can change over time, it presents particular challenges and needs to be specifically covered. This omission is yet another example of legislation and statutory guidance failing to make provision in relation to mental capacity. I would be grateful if, in responding, the Minister could confirm that this omission will be reviewed.
I know that there will be some who argue that these safeguards are best placed in the code of practice rather than on the face of the Bill, but putting them on a statutory footing would send out a clear and unequivocal message about the importance that we place on our responsibility to protect children and the most vulnerable in our society. They are already a target for exploitation by criminals and they should be able to rely on the state, not only for protection but to help break a cycle of abuse that will otherwise echo on through the course of their lives.
My Lords, first, I too congratulate my noble and learned friend the Minister on his maiden speech and welcome him to the House and, indeed, to the Dispatch Box.
It is just over a year since I made my valedictory speech in the House of Commons, on 5 November. I was first elected to the House of Commons in 1986 with a majority of 100. I particularly want to bring that out today because, of course, it is 100 years ago today that the Cenotaph was unveiled and King George V was present in the laying to rest at the Tomb of the Unknown Soldier in Westminster Abbey. We must always think of the sacrifices that those people made to enable us to be here today—to debate in this Chamber and in the other place.
I say a very special thanks to all those who have welcomed me to the House of Lords and made my transition here so very easy. I particularly thank Black Rod, the doorkeepers and all the staff of the House in what are very difficult times.
I thank my two sponsors as well; it is easy for me to do so. I first came across my noble friend Lord Cormack some 50 years ago. He had the biggest swing in the country and won a seat called Cannock, where I was at Cardinal Griffin school. He visited all the schools and invited them to the Houses of Parliament. It was on that trip that I thought to myself, “One day, I’d really like to come back as a Member of Parliament”, never expecting really to be able to do so. I am grateful to him for that. It was not something I thought I would achieve. My father died the day after my seventh birthday, on 1 December 1964, and my mother worked in a factory in Wolverhampton and brought the family up as a single mother from then on. I went to work at Littleton colliery, where my father and grandfather had worked before me. Becoming an MP was a dream that I did not expect I would be able to fulfil.
I very much regret the current situation we find ourselves in. One thing I really miss is seeing people visiting both Houses of Parliament and I look forward to the time when that can be restored.
My other sponsor was my noble friend Lord Randall. We do not go back quite so far as those 50 years, but we have been working in Parliament for more than 20 years from when he first joined the Whips’ Office. He eventually became Deputy Chief Whip when I was Chief Whip in the coalition. He would always speak very truthfully to me about what he thought we should be doing. It was a great pleasure for me to ask him to be one of my sponsors when I came into the House. We worked consistently together during that period, although he was for a short time not in the Whips’ Office having voted against the Iraq war.
I loved my time in the Whips’ Office; it was a great pleasure to be there. I did it for some 17 years. David Cameron then asked me to go back to the Department for Transport, in which I started as a junior Minister in 1989. To go back there as the Secretary of State in 2012 was a great honour. I had four years there and it was a tremendous privilege. When I first got there, I was in favour of HS2; I became more strongly in favour of it the more I went into the detail about the need to increase capacity in this country.
In January this year, I applied to become chairman of the British Tourist Authority; it was an appointment I took up. The scene was very different then. Tourism is a very important industry in our country. I look forward to us being able to restore it to its rightful place with the very difficult challenges that it has to face.
I will deal with the Bill. One body I met when I was Secretary of State for Transport was the armed unit of the British Transport Police. The pressure that we put on our police services and our officers in the front line is immense. It is our duty to do everything we can to help them. I too have some slight concerns about the number of bodies covered by the Bill, which seem to go a bit wider, but I am sure that will be addressed in Committee.
For somebody from my background to join your Lordships’ House is an immense privilege. I look at the House, listen to the wide variety of views and see the diversity of where its Members come from. I realise that the experience and knowledge in the House add greatly to our national debate. I hope that in the years to come I can continue adding to that debate as well, always appreciating that we are an appointed House and that the House of Commons is an elected one.
My Lords, it is a real pleasure to be the first to commend my noble friend on his maiden speech. For much of his parliamentary career in the other place, he was in the Whips’ Office, notching up a record 17 Trappist years. That meant that we were deprived of his views in the Chamber on public affairs, although he could be more forthcoming in private. Happily, he faces no similar vow of silence in your Lordships’ House, and we look forward to him catching up on those lost 17 years. How appropriate that, as a former Government Chief Whip and master of the dark arts, he should make his maiden speech on a Bill dealing with covert intelligence and the infiltration by agents of the Executive of political activists seeking to do harm to the Government—though I doubt whether in furtherance of that cause he entered into any long-term relationships with Christopher Chope or Philip Davies.
My noble friend was Chief Whip during the coalition, which was probably at its strongest in the Whips’ Office, due not least to his capacity to develop good relationships with those from other parties, a talent particularly welcome in the less partisan atmosphere of your Lordships’ House. He brings to the House a deep affection for Parliament, as we have just heard. He is also chairman of the British Tourist Authority and a former Transport Secretary and will bring an informed view to our debates on those matters, among many others. We look forward to his future contributions.
I do not have any fundamental objections to the Bill but, along with the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Bull, I have reservations about its impact on children. Along with other noble Lords, I am grateful to Jennifer Twite and Just for Kids Law for their briefing on the Bill last Friday. I was struck particularly by the evidence of Neil Woods, a former undercover police officer with experience of being a CHIS and handling them. He made two points: first, that 95% of the use of CHIS in his experience was targeted on the drugs trade and, secondly, because county lines were using children as a means of distribution, there was growing pressure to use children to infiltrate the gangs and bring those responsible to justice. I note that none of the case studies which the Minister gave us yesterday involved children. However, as gangs use younger and younger children in county lines so there is a risk of a race to the bottom if younger and younger CHIS are then used to inform on them.
That brings me to the only point I want to make in this debate. We need to get the balance right between, on the one hand, the imperatives of enforcing the law and, on the other, protecting children from danger. I am not sure that the Bill and the undefined “exceptional circumstances” in the code take the trick. We heard for example from Neil Woods about the strain on an adult of maintaining deception. What must it be like for a child? Chapter 4 of the draft code is certainly an improvement, but there is no lower limit on the use of children for entrapment. I wonder whether either the Bill or the code will make it clear that there is a lower age limit beyond which children should never be used for CHIS. For example, I find it indefensible that the social worker of a child in care is not told when that child is recruited. How can a local authority discharge its responsibility to a child already failed by its parents if it does not know that the child has been recruited for dangerous activities? I therefore join other noble Lords in hoping that during Committee we can rebalance the Bill and build in better protection for the country’s children.
I join others in welcoming the noble Lord, Lord McLoughlin, and the noble and learned Lord, Lord Stewart, to this House and commend them on their maiden speeches. I want to say particularly to the noble and learned Lord, who like me is a Scot but also a criminal lawyer, that I hope he will bring his experience of human rights and civil liberties to bear on his work in this House, because we confront that regularly as criminal lawyers and know the importance of those aspects of our work.
I accept that the practice of our intelligence services and police in covert intelligence gathering has to be placed on a clear and consistent statutory footing. Covert agents may need to commit crimes in the course of what they do—I know that from my own work—but I want to reinforce what was said by my noble friend Lord Hain: the agencies involved should stop this business of spying on legitimate protest and lawful political activity, the stuff of which is so vital to a vibrant democracy. It is not the right use of our policing or of our security services.
As I said, agents may need to commit crime, but it cannot be acceptable or right to authorise the gravest of crimes—murder, torture, sexual transgression. Our security partners in the United States and Canada already place limits on the nature of the crimes that agents can commit. Canada recently passed legislation in this area which is worth looking at because it prohibits those serious offences quite clearly. It looked at what had been happening recently here in Britain with the “spy cops” case, which has been referred to a number of times. Women were lured into relationships in order to provide cover for agents joining political movements. Those women were involved in serious relationships over years and then felt abandoned, abused and ill-used because they loved the men who lived with them; one had fathered a woman’s child. This conduct has long-term, damaging effects on people and should be absolutely impermissible. The FBI in the United States learned from bitter experience that being involved in serious criminality had a cost, and it too has introduced clear guidelines.
The Government argue that there is no need for the Bill to include explicit limits on crimes, set out in any sort of list, because the Human Rights Act is a sufficient safeguard. This argument is a bit rich when Her Majesty’s Government have separately stated, in legal court arguments, and to Parliament, that they do not accept that the Human Rights Act applies to abuses committed by their agents.
The Government should not authorise grave crime. Without limits, the Bill may damage the integrity of the criminal law and suggest to the public that the state may tolerate or encourage such abuse. I am afraid that I see this as another display of the Government’s rather casual and light-touch commitment to the rule of law. We should be setting the gold standard for oversight and accountability and I hope that we do. There have to be clear limits on the permissible crimes, a right to redress for those who are abused or harmed in the course of crimes, and real-time oversight by a judicial commissioner or judge. This is serious, it matters, and I hope that the Government will listen.
My Lords, there are times when breaches of the law by agents of the state should be allowed, in order to avoid some horrific harm to society as a whole, but there are some lines which should never be crossed. One such line is the assumption that children, who are often extremely vulnerable, can be used as agents of the state. Children are not pawns on a chessboard to be sacrificed for the greater good of some checkmate against organised criminals.
This country has a shameful record on vulnerable children. I witnessed this at first hand when I spent eight years as a member of the Metropolitan Police Authority. It is shameful that, in 2020, children in care are six times more likely to be sexually exploited, and 12 times more likely to be victims of trafficking, than other children. During the passage of the Modern Slavery Act, I sought a separate section specifically to protect children. The committee on the draft Bill had recommended a specific offence that it be illegal to exploit a child, or to obtain benefit from the use of a child for the purpose of exploitation. For reasons which I still fail to comprehend, the Government disagreed. I will, therefore, be seeking to secure specific protections for children on the face of the Bill. As Just for Kids Law, an excellent charity, puts it,
“it is deeply worrying that children are being asked to participate in covert activity associated with serious criminals without fully considering their welfare and best interests. Not only are the authorities using children—some of them under the age of 16—in covert investigations, but oversight in this area is so inadequate that the government isn’t even aware how many children are affected.”
That is, frankly, shocking.
There are girls left in gangs to act as informants who could be subject to all sorts of abuse, and boys left in drug rings who may be compelled to commit crimes which will haunt them for years to come, if not for the rest of their lives. There is also the temptation for police to avoid doing a trafficking referral if they think that the child is of more use as an informant in a gang or extremist environment. The Government say that children are used only if they are already involved in criminal activity. However, this is a classic two-wrongs-make-a-right argument and completely misses the point that many of these children have not chosen a lifestyle of criminality but have been trafficked into the gangs or will have found security in a gang that their home situation does not provide.
The fact that children are already involved in criminal activity is not, and never can be, an excuse for putting them in a position where they may be the victims of violence or asked to engage in it. This House should make that clear. In addition, where children have any involvement in undercover operations, they must benefit from representation by an appropriate adult, right up to the age of 18. It is quite incomprehensible that a 16 or 17 year-old is entitled to have an appropriate adult with them if they are arrested for some relatively minor crime, but not entitled to the same support if they are helping the state in an investigation. This should be guaranteed.
The way we treat children defines us as a society. This Bill can and must be amended to give them better protection.
I join other noble Lords in welcoming the Minister and the noble Lord, Lord McLoughlin, to their place. I do so with open arms, if the Minister will forgive a reference to that delightful Dirleton hostelry.
The Bill, like the litigation which forced it into being, is welcome. I have a wish list, but time requires me to come straight to the nub: the linked questions of immunity, authorisation and oversight. The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious. There are three central ways in which that potential might be mitigated. The first way is to remove the immunity and retain the existing discretion of the CPS to prosecute for a criminal offence within the scope of the authorisation. I have two questions for those who promote this option. Is it fair for a CHIS who does no more than he is asked by the police to be at risk of prosecution? With that in mind, how often has the CPS considered it to be in the public interest to prosecute a CHIS who has not exceeded his authority? The noble Lord, Lord Paddick, with all his experience, suggested seldom or never. I keep an open mind but wonder whether removing immunity would be a safeguard more apparent than real.
The second way is to provide for prior approval of authorisations by the judicial commissioners of IPCO. I recommended this approach for some other covert powers in my report A Question of Trust, and was glad to see it followed in the Investigatory Powers Act 2016. However, context is everything and I will make three comments. Deciding how to task a CHIS, against a nuanced and rapidly changing background of personal relationships and group dynamics, is less obviously within the competence of a judge, or indeed any external person, than a decision to intercept a line or hack a device. Internal, not external, authorisation is provided for by Section 20.1(12) of Canada’s CSIS Act, of which the House has heard mention today, although it is fair to say that some form of external approval for CHIS criminality, whether by judges or lawyers, is required in some circumstances in Australia and the US. Finally, and without being defeatist, it is right to acknowledge that an amendment to require prior judicial approval was heavily defeated in the other place.
That leaves the third way: beefing up oversight by requiring a judicial commissioner to be informed every time a CCA is issued. That solution was adopted in SI 2013/2788, when the spycops revelations first surfaced, to deal with undercover police deployments of less than 12 months.
Having worked intensively with IPCO’s chief inspector for CHIS in the Channel Islands, where I was Investigatory Powers Commissioner until this summer, I have the highest praise for IPCO’s inspection work. Much of it is below the waterline in the form of inspections, oral feedback, classified detailed reports, observations and recommendations requiring speedy action. A sense of it is given publicly at paragraph 5.19 and onwards of IPCO’s March 2020 annual report.
The real-time notification of CCAs to a judicial commissioner would have three further advantages. First, the knowledge that their decision would go straight to the desk of a High Court judge or equivalent would concentrate the minds of authorising officers. Secondly, it would eliminate the gap of up to a year between authorisation and annual inspection, potentially assisting in the termination of any ill-advised authorisations, difficult though that will always be. Thirdly, it would help to promote a culture in which informal advice is sought before an authorisation was issued—something that happens a good deal in practice and is particularly valuable for authorities that do not make much use of CHIS. This third approach is no panacea and will not be strong enough for some, but it deserves at least to be debated and I will table an amendment for that purpose.
My Lords, there are few moments of unalloyed joy in politics but being able to endorse the splendid remarks of my noble friend Lord Young of Cookham in congratulating my noble friend Lord McLoughlin is one of them. I, too, remember that visit to Cardinal Griffin school in May 1970, over 50 years ago. I, too, remember the schoolboy coming to the Palace of Westminster. I remember him becoming a splendid local Conservative, having a poster with a miner’s hat when he fought his first constituency. I am always amazed that, when I left the House of Commons 10 years ago, he was my Chief Whip. I bid him welcome with all the warmth at my disposal.
It was very splendid also to have a maiden speech from the Front Bench. My noble and learned friend Lord Stewart of Dirleton spoke with an elegiac love of his constituency. As my noble and learned friend Lord Mackay indicated, the rest of the speech was not entirely at his disposal; nevertheless, he delivered it with a calm rationality that made me feel that we have a true learned friend in our midst.
Having said all that, while putting on record that I believe that the Bill is necessary and support it, I am troubled. We have to look at this in the context of the times. We are, through no desire of anyone, living at the moment in a benign police state. I cannot go out this evening with my son for dinner; I cannot ask him round to my flat nor go to his home with his wife and children. We are in a very difficult situation. We have the Law Commission proposing that remarks made at the dinner table should perhaps be admissible in a court of law in the prosecution of a hate crime. We therefore have to be careful how far we go. That is why I am troubled, as others have said, about the number of agencies that are allowed to have, as it were, crimes committed in their name. I shall want to look at that very carefully in Committee.
I share the concerns of many colleagues about the position of children. Although it may be tempting to use children in dealing with ghastly county lines, we have to be careful about our overall responsibility for our children.
As we go through the Bill, which lends itself to the forensic examination that it needs and deserves in your Lordships’ House, we must be extremely careful. First, how many agencies can take advantage of it? I think that it is too many. Secondly, how is the regulation on the use of children controlled? Thirdly, we have to look carefully at whether there should be specific limits—as there are in Canada, as we have heard from the noble Baroness, Lady Kennedy of The Shaws—on the type of crimes that we can see committed in the interests of the greater good. That we need to protect our people from terrorism and terrible crimes is self-evident, but we have to be careful how we go.
My Lords, the noble Lord, Lord Young, makes it easy for me to refer to his protégé, the noble Lord, Lord McLoughlin. I welcome him to this House and welcome his maiden speech.
I also welcome the Minister. I listened carefully to his speech, and indeed to the speech from my own Front Bench, on why the Bill is needed. I am afraid that I am not as yet convinced. On Monday, this House overwhelmingly expressed its outrage at the Government trying to give themselves statutory immunity from breaching international and national law in, as they call it, a limited and specific sense. Today, the Government now propose giving equivalent protection in criminal law to our own security services and a dozen other state agencies to commit unspecified criminal acts.
Obviously, I appreciate that this is not a new issue; I was a member of the Government when the Regulation of Investigatory Powers Act 2000 was passed. I remember feeling uneasy about it at the time—I generally did with Home Office initiatives in that era—but I recognised the need for an authorisation framework. Still, this Bill goes much further than that. My noble friend Lord Rosser proposes significant amendments that might make it more palatable to me, but even then I am not yet convinced.
I am not an automatic knee-jerk opponent of the security services and state agencies. I recall many occasions in my life when I have told keen young political activists who complain that the deep state is monitoring them, “Of course they are! That is their job.” I have always felt that society is safer as a result of those agencies; I am glad that they are there. However, the Bill goes beyond the monitoring, surveillance and simple embedding in, and infiltration of, dangerous organisations.
There are issues with the authorisation process itself but I have two main objections. First, the Bill renders such criminal acts legal for all purposes. That appears to mean that victims could not claim compensation in any respect. If, in order to gain trust in an organised crime syndicate by proving himself, a CHIS undertakes a robbery, does that mean that the victim of that robbery is denied not only a criminal process but any compensation or recourse to the criminal compensation scheme because, under this Bill, the action was deemed not criminal? At a minimum, we need to retain or at least describe the right to compensation for victims.
My second main objection relates to the infiltration into political campaigns, particularly trade union ones. As my noble friend Lord Hain said, we know from very recent history that phrases such as “danger to the economic well-being of the UK” or “preventing disorder” can be used to target otherwise legitimate trade union industrial action or political or environmental campaign demonstrations. Such infiltration by police agents has been identified in the past. On occasion, it has been aggravated by agents of the state authorities acting in effect as agents provocateurs—that is, a supposed member persuading his colleagues in the organisation to go further than they would have done previously. Here, we are treating political campaigns on anti-racism, the environment and trade unions in an equivalent way to terrorist organisations. There must be some distinction and some limit to the degree to which we can grant immunity under the Bill.
Unless there are drastic, explicit changes on access to the civil courts, compensation and agents provocateurs, I will not support the Bill.
I congratulate the noble and learned Lord, Lord Stewart of Dirleton, on his excellent maiden speech. He referred to many sports in Dirleton, and I was hoping that he might mention the excellent North Berwick Rowing Club. I think he should have a word with his noble friend— I refer to the noble Earl, Lord Courtown—or with my noble friend Lord Paddick, who spoke third in the debate. I promise that, if he joins us in the House of Lords eight, we will overlook his youth. I also welcome the noble Lord, Lord McLoughlin, to the House, but he should be aware that the West Derbyshire by-election of 1986, where he narrowly but fairly defeated that outstanding Liberal Chris Walmsley, has not faded from memory in some quarters.
This Bill has some extraordinary features. Suppose an official from the Gambling Commission believes, quite unreasonably and without any basis, that, in his view, it is necessary, in the interests of the economic well-being of the United Kingdom, to infiltrate a perfectly lawful organisation—say, a trade association or, as the noble Lord, Lord Whitty, mentioned a moment ago, a trade union. Under this Bill, he may authorise a 16 year-old to commit a criminal act and give him full immunity against criminal prosecution or civil liability, removing any consideration as to whether, even in part, he himself had a criminal intent or was incited to the sort of abuses to which the noble Lord, Lord Hain, referred.
It is obviously right that there should be a framework that is open and transparent to control the exercise of state power to authorise the commission of criminal offences, but it must be a tight framework. The noble and learned Lord, Lord Stewart, referred to authorisations that will have strict parameters and be tightly bound—but only by the word of the authoriser of the CHIS, his immediate controller.
I will analyse the scenario I set out. What is the rationale for putting into the hands of an official of the Food Standards Agency, or similar organisations, the extraordinary power to authorise criminal acts? Is it for labelling or pursuing dodgy hamburger vendors? This power should be used in the public interest and only in the pursuit of serious crime by professional criminal investigation agencies.
As for immunities, should not the decision as to what is in the public interest remain with the CPS or the Director of Public Prosecutions and not with the initial authoriser? Why should that official, unchecked, exercise this power on his own subjective belief as to its necessity and proportionality? Surely his belief should be, and be seen to be, reasonable? I agree with my noble friend Lord Beith that, as with ordinary warrants, he should be required to obtain the prior consent of a judge or, as in other covert operations, judicial commissioners. A judge would have the power to interrogate the authoriser to establish that he has a rational base in law for issuing an authorisation. As the noble Lord, Lord Rosser, pointed out, there is a duty High Court judge on hand 24 hours a day.
The Bill permits the commission of crime by an agent or CHIS infiltrating a perfectly lawful organisation —for example, a protest group. If such lawful groups need to be infiltrated to ensure public order, it is curious that this Bill should permit the infiltrator to commit crime. I would like to know from the Minister whether an authorisation issued under the Bill could permit a CHIS to act as an agent provocateur, stirring up crime where none exists. This Bill should be limited to national security and the detection and prevention of crime.
However, the most glaring anomaly is that the Bill would permit authorising the CHIS to commit murder, rape or robbery anywhere in the world without any of the limitations set out in other similar jurisdictions—Canada, the US or Australia—and with immunity from prosecution or civil liability, rather than prosecutorial discretion. Is the European Convention on Human Rights a sufficient safeguard? The Minister will find that his colleagues want to scrap it.
This is a very specific question and I would like the Minister to answer it: do the Government concede at last that convention rights bind an agent of the Crown acting outside the jurisdiction in, for example, Europe, the USA or the Republic of Ireland? The Bill should be clear as to what is or is not within its scope, territorially and in substance. In Committee, I hope to pursue safeguards for children, which other noble Lords have addressed, and redress for victims. I am sure there will be many other issues.
My noble and learned friend Lord Garnier will speak next, but this pause gives me the opportunity to remind noble Lords about the advisory four-minute time limit for Back-Bench contributions. This is only advisory, but it would be a courtesy to the large number of Peers who want to contribute. I hope that my noble and learned friend Lord Garnier will set a fine example.
My Lords, my noble and learned friend Lord Stewart has made both his first appearance at the Dispatch Box and his maiden speech. He spoke kindly and accurately of our noble and learned friend Lord Keen and modestly of himself, but we have already benefited from his being here with us. He is most welcome, and I look forward to meeting him in person before too long. I also congratulate my noble friend Lord McLoughlin on his maiden speech. His work in the other place in government and in opposition over many years, the way he performed it and the content and manner of his speech today suggest to me that we will have much to gain from his arrival here.
This Bill is being debated after the decision of the Investigatory Powers Tribunal last December in the third direction case but before its consideration by the Court of Appeal. Although it has no retrospective effect, it will clear up some of the questions left hanging by that case, which concerned the lawfulness of a secret national security policy apparently authorising Security Service agents to engage in criminal activity, including, according to the claimants, torture and murder.
The facts of any particular operation involving the use of covert human intelligence sources are necessarily kept from the public and even from Parliament. That mystery creates mystique for some and suspicion in others. While the security services can cope with the mystique, some suspicions are better allayed than fomented. I used to think that there was an advantage in keeping things vague so that the Foreign Secretary or Home Secretary and their security advisers could pragmatically, but legitimately, apply their discretion and common sense to the difficult legal and operational problems that come with deploying agents at home or abroad.
In my experience of the senior officers of the security and armed services when I was Solicitor-General, they never wanted to bend or break the law, be it the criminal law, the law governing military action or the laws concerning surveillance and counterterrorism. Indeed, they were meticulous about staying within it, and I really do not think they were just telling me things they thought I wanted or ought to hear. Putting the law into statute would, I once believed, inhibit their ability to take quick decisions and create sclerosis within the chain of command. No one needed reminding not to murder or torture people because it would be in breach of the European Convention on Human Rights. Intercepting suspected terrorists’ electronic communications was clearly a proportionate interference with their convention rights.
Part of me still thinks that keeping things pragmatically vague is sensible, but I am now persuaded that, even if the operations themselves and the identities of those providing vital information to the security or other services may often have to remain confidential for ever, the law governing their work should not be hidden, largely within the common law, to be revealed only when a judge’s interpretation of the law, often arrived at by necessary implication, is made public, as in the third direction case. It is also right that the government agencies to be covered by this Bill, and some other important questions, are thoroughly scrutinised in Committee.
The security services were put on a statutory footing in the 1990s, and other statutes have followed, but we now need to know what the rules are and to be able to say whether, in a democratic society, we approve of them. Some things must be kept secret, so we need to have confidence in the people who do this work in order that we can trust them, even if we do not know exactly what they are doing. Knowing what is permitted by statute, even if distasteful to some, helps to enhance that confidence. There are some things that, when known to the public, remove suspicion, even if they do not always lead to universal approval, but, in saying that, I do not expect the state to be absolved of all responsibility for its actions. The innocent bystander and his dependants, whose life, limb or livelihood are taken or damaged by someone whom this Bill absolves of particular criminal conduct, should not be left helpless and without remedy.
The preservation of our national well-being sometimes requires us to permit good people to do bad things. Today, especially, we remember that, in war, we justify the doing of terrible things by and to our Armed Forces to protect our freedoms and recognise that, in other fields of national conflict, we must permit that which, on other occasions, we would abhor.
My Lords, I welcome the noble and learned Lord the Minister and congratulate him on his new role, and indeed I welcome the noble Lord, Lord McLoughlin.
Many things are said about your Lordships’ House and about what it is to be a patriot today of all days. I cannot imagine the purpose of either if not to defend the rule of law. It is not a question of left-wing or right-wing, or leave or remain. There can be no freedom, security or even democracy without it, and one of its most fundamental principles is that the law of the land must apply to everyone equally.
If we were to introduce one law for agents of the state and another for everyone else, surely lawlessness and tyranny would not be far behind, and I know that no one in your Lordships’ House would wish for that outcome. Yet the gravest dangers to the rule of law do not politely announce themselves. More often than not, they come under cover and with the best of intentions, not least preserving security and even the law itself.
It is said that this Bill seeks to put criminal conduct by covert human intelligence sources on a statutory footing, but in truth—and as the Minister has today acknowledged—it goes a great deal further than that. It replaces our legal status quo, whereby criminal acts in the course of undercover intelligence work are nearly always and rightly forgiven in the public interest, with a complete and advance immunity or licence or golden ticket for a raft of agents against prosecution and civil suit, regardless of the harm caused to our people—including completely innocent people—in the process.
It is important to remember that the overwhelming majority of these agents are not trained officers of our security agencies or police. They necessarily come from the community, including the criminal community. They include extremely troubled, volatile and vulnerable people, including, as we have heard so many times, even children. A public inquiry that has only just begun is hearing how the agents are capable of abuse and even of inciting crime, rather than preventing and detecting it, even under the present arrangements.
We are told not to worry because those issuing these criminal conduct licences, from inside the relevant agencies themselves, must take into account the requirements of the Human Rights Act. I must point out that such an obligation is weaker than the normal obligation on public authorities to comply with them. Further, while human rights bind states and public bodies, they are no substitute for effective criminal law in both protecting and binding individual people by deterring violence—and sexual violence in particular. There is a wealth of case law to that effect.
Some argue that the great dangers in this legislation might be remedied by external or judicial authorisation of criminal conduct, or by limiting the list of agencies or types of crimes. I am far from convinced that anything other than removing the immunity from these authorisations and restoring them to the appropriate position of public interest guidance to agents, prosecutors and courts will suffice. Once more, in the words of former officer Neil Woods:
“As a former ruthless undercover cop, I see many possibilities of this going wrong. This immunity truly changes everything. It invites criminality into a realm uniquely susceptible to it. Once we go down this route, it will be very difficult ever to return.”
I urge your Lordships to heed that stark warning.
My Lords, I, too, welcome--albeit remotely—the noble and learned Lord, Lord Stewart of Dirleton, and wish him luck in his new role, and I also welcome the noble Lord, Lord McLoughlin.
I am sure that many people accept that the police and security services need to deploy undercover operatives to disrupt terrorist and criminal activity, and we recognise that difficult decisions have to be made regarding operational effectiveness. There is no need for me to elaborate on the observations made by the noble Lord, Lord Hain, except to say that the subject matter and nature of the Undercover Policing Inquiry is relevant not least because it reminds us of some of the critical issues raised by the scope, character and potential for harm of inappropriate and inadequately regulated undercover operations.
In the Bill, one area that causes me and many other noble Lords the most concern is the deployment of those under 18 years old—children of 15, 16 or 17—with no stated lower age limit. As the Minister will be aware from the Young review, which I chaired, from the Lammy review, led by the honourable Member for Tottenham, and from all the reports that preceded them, young black men are overrepresented in the criminal justice system and experience disproportionately poor outcomes throughout the system. I fear that racial disparities elsewhere in the CJS will be amplified in respect of the use of covert operatives. Will the noble Baroness the Minister, when she comes to respond to this debate, inform the House of the Home Office’s assessment of the equality impact reviews of the proposed legislation?
As has been pointed out by the noble Lord, Lord Young, and others, drugs shifted around the country via county lines wreak havoc and violence in our communities. Younger and younger children are recruited and of course we long for effective strategies to mitigate the impact of these activities. Gangs groom young children into becoming drug mules, terrifying and traumatising them in the process, turning often vulnerable young people into criminals. Determined youth and social workers do their best, but it is incredibly hard and getting increasingly so to help out here. It appears that the juveniles recruited as intelligence sources are most often 16 or 17, but we have been informed of at least one 15 year-old being used in this way. I find this shocking. Will the Minister accept that not to have a lower age limit for recruiting children carries substantial risks to those already in harmful situations? In any other circumstances, we would be taking steps to protect such children and remove them from such harms.
My own view is similar to that of the right reverend Prelate the Bishop of Durham and of my noble friend Lady Bull: under-18s should never be used as undercover operatives. I find the whole idea absolutely repugnant rather than uncomfortable. I cannot see how it is legitimate to recruit juveniles as informers and spies in dangerous, violent situations but not to allow 16 year-olds to vote.
Ideally, CCAs for children should be prohibited altogether to limit the risk of serious violations of the rights of the child. At the very least, the Bill should contain an explanation of the exceptional circumstances where it would be appropriate for a child to be given a CCA and of how their welfare would be protected. Appropriate adults should be mandatory, rather than discretionary, for 16 year-olds and 17 year-olds, and a lower age limit should be set.
I have many concerns similar to those of many colleagues who spoke earlier in this debate. Two further concerns are that of immunity from prosecution for those perpetrating criminal acts and the lack of explicit limits on the nature of any criminal act committed; those two are linked, I think. As others have noted, the USA, Canada and Australia place limits on the acts that agents can commit.
The case studies circulated by the Minister yesterday have been referred to. It is interesting that they fall into two categories: hypothetical and real-life. The hypothetical ones are all about the public bodies and do not reveal the extent to which CHIS work with police and are trained. The real-life cases seem straightforward, but can the Minister tell us how the results of those significant prosecutions would be undermined in some way by current legislation and how they would be improved by this piece of legislation? I look forward to debates in Committee.
My Lords, it is an incredible honour to address your Lordships’ House for the first time. I have been touched by the kindness and support of the many dedicated staff in this place: Black Rod, the amazing doorkeepers and Garter, not least for his agreement to my title. I am deeply indebted to my two supporters, the noble Lords, Lord Robertson of Port Ellen and Lord Hennessy of Nympsfield, one a former NATO Secretary-General and esteemed former Labour Defence Secretary in the other place, the other the fabled analyst and chronicler of the inner workings of the British state. They were always so generous with their wisdom on the UK’s nuclear deterrent when I was the MP for Barrow-in-Furness. Today, I am honoured and still a little starstruck to count them as my friends.
I also want to mention two friends from opposite sides of the House with overlapping territorial designations to mine. The noble Lord, Lord Hutton of Furness, was my predecessor as MP for Barrow and my former boss in Whitehall. The noble Lord, Lord Cavendish of Furness, has shown me such kindness since I became a Member of Parliament. They are both beacons to me and many others in different ways. The noble Lord, Lord Cavendish, will be greatly missed by this House as he announces his retirement.
To my neighbours on Walney Island, which I am proud to take as my territorial designation, I just say this: you kindly took in this off-comer; you elected me three times, and now I will give you a lifetime of service, raising the particular concerns of the island and the wider area. I will remain a firm advocate of the submarines constructed with your expertise, and I hope to make a contribution in due course on the issue of coastal erosion, which could literally split our wonderful island in two in future decades if left unchecked. That would be unconscionable to the near-11,000 residents of the island and would decimate its unique, cherished natural resources.
I have been determined to use my maiden speech to highlight the need for the UK to do more in defending the rules-based order that underpins the freedoms and values embodied in this Chamber and the other place. Much has already been said on that subject this week, but the threat is far deeper than a particular part of a particular Bill. Our international adversaries are intent, with a whole spectrum of means, on unravelling the system of international order that protects our liberty and our interests abroad. As we remember today the struggle and sacrifice of previous generations so that we can live free, let us recognise that this battle will be our generation’s struggle.
I therefore wondered whether it was right to make my maiden speech in this debate on a Bill whose purposes, as we have heard, are to sanction certain individuals to commit what would otherwise be criminal acts. However, the fact that this process of scrutiny is happening at all, and that a legal framework is being constructed, should be seen as demonstrating the strength of Britain’s commitment to the rule of law as a means of upholding our security.
I was pleased to be asked by the Prime Minister, on standing down from the House of Commons, to advise the Government on aspects of counterterrorism. I listened carefully today to the excellent maiden speech by the Minister, whom I congratulate, and to many others. I have seen the strong backing that this Bill has received from the security services and from the Intelligence and Security Minister. I am happy, therefore, to vote to support it tonight in the knowledge that the many pressing issues that have been raised will see further scrutiny in Committee.
I end by briefly addressing the political journey that has brought me to this place, in this House on these non-affiliated Benches. I am proud of the small contribution that I made to stopping what would otherwise have been inflicted on the British people had the general election last year gone the other way. That has strained some lifelong friendships; indeed, it has led to one or two frosty encounters in the corridors of this place. I am happy now, however, to be given the opportunity to put party politics behind me and start a new chapter. Much of the past few years has been difficult, but it has underlined a central tenet of my faith: no one party and no one group within a party holds a monopoly of wisdom. We are all flawed human beings mostly trying to do our best in a complex and conflicted world. I will always endeavour to do my best in this place and it is deeply humbling to be given that chance.
My Lords, I am honoured to follow that excellent and very moving maiden speech by the noble Lord, Lord Walney. He talked of Walney Island, and I know that area. What he did not mention was that it has an airport built at right angles to the prevailing wind and about as long as this Chamber, so if any noble Lords are thinking of visiting there, they will have a very fun arrival if they go by air.
I have known John, the noble Lord, Lord Walney, for more than 10 years. He is a highly principled man, and I was particularly impressed, first, by his confrontation of anti-Semitism within the Labour Party, which he drove through with great vigour; and secondly by his passionate support for an issue very close to my heart and those of his ex-constituents, which noble Lords heard him mention—the UK’s independent deterrent and nuclear submarines. Neither issue made him popular with the last leader of the Labour Party, but he refused to compromise his beliefs. Rather like his namesake in the 17th century, he was martyred, although I doubt that—unlike his predecessor—he will be beatified by the Pope. The noble Lord, Lord Walney, will be of great value to this House. We already got that from what he said, and I look forward very much to working with him.
The Intelligence and Security Committee of Parliament, of which I am currently a member, welcomes this Bill. Agents provide invaluable information and play a vital role in identifying and disrupting terrorist plots. Basically, they save the lives of our people. However, can the Minister assure the House that, in putting the existing powers on a statutory basis—which needs to be done because of the legal shenanigans going on at the moment—the Bill does not extend them in any way at all? It is essential that these powers are properly circumscribed and used only where necessary: they have to be proportionate. They should be compatible with the Human Rights Act—let us face it, we are all responsible for ensuring that—and subject to proper oversight.
The Minister will be aware that the Intelligence and Security Committee proposed an amendment to the Bill in the other place relating to parliamentary oversight. I have lost sight of where that has gone; perhaps the Minister will let us know where that proposal stands. The committee clearly knows the agencies very well, but it has also taken evidence—very sensitive evidence—from the police in a number of its inquiries, and from that knowledge would support their use of these powers. I would, however, need convincing that a number of the other authorities really do need these powers.
The Intelligence and Security Committee strongly supports the Government’s decision not to place limits on criminal conduct in the Bill itself. My own operational experience would reinforce that because of the risks it would place on our agents. Clearly, that means even greater emphasis on the need for robust safeguards. I can offer reassurance to the House that the Intelligence and Security Committee has had comprehensive briefings on how these authorisations are used, and we are reassured and satisfied that they are used appropriately by MI5. Will the Minister say, however, what percentage of criminal conduct authorisations—they have been mentioned already—the Investigatory Powers Commissioner will actually examine?
I reiterate that I strongly support this Bill, subject to the caveats I touched on. I have not had time to go into other areas, such as the use of children, but I hope that these things will be investigated in Committee. There is no doubt that these agents save lives and are at great risk themselves. We must be careful not to pass legislation that, with amendments, leads to agents being killed.
My Lords, I congratulate all three noble Lords who made their maiden speeches earlier. We will benefit greatly from their experience and expertise. My noble and learned friend Lord Stewart of Dirleton made a dignified and personal speech as well as an accomplished Front-Bench contribution. We are fortunate indeed to have him here; his probity will be an asset, not least in the Bill we are discussing today. His opening speech exemplified that.
I know the noble Lord, Lord Walney, from his time in the House of Commons, where he showed himself to be principled and courageous while serving his constituents well. We saw that in his speech just now. Anyone who takes a geographical designation of a place so ornithologically blessed as Walney Island is off to a good start with me; I know that he and his partner greatly appreciate the benefits of nature there.
I was honoured to be a supporter of my noble friend Lord McLoughlin on his introduction to this place. I can honestly say that it was very much a privilege and a pleasure to act as his deputy in the Chief Whip’s Office in the other place. I endorse entirely the words of my noble friend Lord Young of Cookham, who is another of the best people in this House. My noble friend Lord McLoughlin made a moving speech; one of the few advantages for speaking remotely, for me, is that no one saw me wipe away a tear at his speech. His sage advice and knowledge of parliamentary procedures are exceeded only by his all-round modesty, affability and decency. He was, and is still, held in high regard by all who know him. If some of his advice had been taken by some whom he offered it to, I am sure that recent history might have taken a slightly different course.
My only regret is that I have never succeeded in persuading him about the joys of cricket. I remember him asking me, early on the first day of a five-day test match, who was winning. His response to my reply that it was far too early to know should not be repeated before the watershed, but his love for Derby County Football Club shows that he has a love of sport. I am sure that he will become as popular in your Lordships’ House as he was down the other end of the building.
This Bill is something that we would perhaps rather not have in law, but the world we live in today sadly necessitates these measures. I pay tribute to the courageous men and women who served this country in an unspoken, unseen way in the intelligence services. We owe it to them to give them the necessary powers to undertake that dangerous work. I share concerns about some of the agencies that have been given these powers, although my noble friend’s opening remarks gave me some confidence in those measures—but that is for the other stages of the Bill.
The strength of this Chamber is that it can be relied on ensure that we will give appropriate and proportional authorisation only to those who need it. Therefore, I am happy to allow this Bill to advance in its parliamentary journey and I look forward to further debate on this important measure.
My Lords, I, too, warmly welcome the Lord Advocate and congratulate him on his first speech. It is good to have another Lord Advocate from Scotland, with its own distinct legal system. I also congratulate the other two noble Lords on their excellent speeches.
I warmly support the idea of putting the power of these matters on a statutory basis. I wish to raise three points: first, the role of the Investigatory Powers Commissioner; secondly, the process for immunity; thirdly, the position of bodies other than the security services and the police. The observations that I wish to make on those three points have been drawn from my own experience of sitting on a large number of cases involving CHIS, the setting up of what is now the Mitting inquiry—formerly conducted by Sir Christopher Pitchford—and the setting up of the Investigatory Powers Commissioner’s Office. One of the difficulties in making observations is that, in all the hearings on which I sat and when setting up the Mitting inquiry, either the information provided to me was in circumstances of the strictest confidence or the hearings were closed.
It seems to me that three issues require further detailed consideration by this House. First, I would like to understand the reasons why we cannot follow the interception regime, with the IPC having a clear role in approving in advance except when urgency prevents. Obviously, it would have been of great advantage to know what had happened in the many years being investigated by the Mitting inquiry, but I can bring some of my own experience to bear and say that there are strong reasons for a very tight regime, particularly where the authorisation would go hand in hand with immunity. A regime for reporting a few days thereafter, put forward in the excellent speech by my noble friend Lord Anderson, would obviously need detailed consideration but, before we get to that stage, it is necessary to see whether there is justification for moving from a pre-authorisation system. There are real difficulties if the IPC says that the authorisation was wrong.
The second point can be put more briefly: I would like to see the justification for the change from the position where the CPS makes its decision on immunity. There are strong constitutional reasons for the CPS, an entirely independent prosecutor, making decisions on whether someone should be prosecuted. That is the proper constitutional route and entirely consistent with the rule of law. It would be inimical to the rule of law for immunity to be granted by an agency of the Executive, and it would be a bad example to other states.
Finally, if powers are to be granted in broad terms to the police and security services, I would like to understand the justification for granting these powers to the other bodies. It is important that these issues are examined carefully to protect confidence in the security services. We too easily forget the damage that can be done when officers, even fairly senior ones, do not do things properly. The damage, from my own experience in such cases, can be considerable indeed.
My Lords, I congratulate the three noble Lords who made excellent, eloquent maiden speeches today in the House. I look forward to working with them in the period ahead. I pay tribute to the security forces, members of the Security Service and all those involved in counterterrorism for the great sacrifices that they make in defence of our country—acts of heroism that will never be told and suffering for the greater good of society that will never see the light of day. I am grateful for the briefing that I received in the other place in the run-up to the Investigatory Powers Tribunal case, which brought home to me just how important their work is.
As has been said, this Bill is about keeping the country secure and saving lives. It puts on to the statute book what already happens and has been happening for a long time. Lest anyone should doubt the need for CHIS—or agents, as they are better known—we only have to look at some of the statistics outlined by the Minister in the other place about the number of arrests, of firearms, class A drugs and illicit cash recovered, and of potential terrorist attacks thwarted by MI5 and counterterrorism in recent years—27 between March 2017 and today, which is nine each year. Those are staggering figures.
While there have been incredible advances in electronic and digital surveillance, we know that in many cases, such methods of intelligence-gathering are simply not enough in themselves. The Bill addresses participation in criminal activity of agents and legislates for robust, independent safeguards and oversight. The Government have set out clearly why this legislation is necessary to lift and remove any legal uncertainty. There must be no doubt in the mind of a handler, the agent themselves or the organisation responsible about the legal status of what an agent has been ordered to do.
Being from Northern Ireland, my experience as a Member of Parliament for Belfast North for more than 18 years has brought home to me the importance of the proper use of agents in combating terrorism. The recent report of the Intelligence and Security Committee illustrates the very serious threat of terrorism that still pertains in Northern Ireland, where the threat level is set at “severe”. Without covert agents, the safety and security of citizens in that part of the United Kingdom, as well as elsewhere, would be gravely impaired. Often agents in Northern Ireland have had to join an illegal paramilitary organisation, or people within those organisations have had to undertake, at great risk, activities which have been of enormous benefit to the state. These acts are, of course, illegal under normal circumstances, but it is a clear example of what would warrant a criminal conduct authorisation.
Of course, such authorisations must always be for precise and specific purposes, and the Bill sets out very clearly three such purposes. I welcome the fact that the Bill states that at all times there must be compliance with the Human Rights Act. The role of the Investigatory Powers Commissioner is also set out. Robust oversight is crucial, and I welcome the unfettered access that is permitted under the Bill to all documents and information. However, we need to examine carefully in Committee the organisations that are covered in the Bill, and I look forward to discussion in Committee on that. This is about saving lives. It is a sad fact of life that agents are necessary, and I fully support the Government at Second Reading.
My Lords, I welcome the three maiden speeches. In particular, as a fellow member of the club of those who made their maiden speech at the Dispatch Box, I can imagine what the Minister was feeling when he made his maiden speech. I wish him well. The noble Lord, Lord McLoughlin, a friend from the Commons, treated me really well when he was the most junior of Ministers in the 1990s and I went to him with constituency cases. As for my noble friend Lord Walney, I sat out the last election—I was on the dark side, in hospital—but I understand he performed a national service, and I welcome him to the Lords.
I am neither a lawyer nor a crime expert: I leave that to others. During my time as a Minister at MAFF and Defra, and as chair of the Food Standards Agency, I was from time to time informed of criminal issues relating to activity undermining food supply and food safety. One thing I can say for certain is that the police were never interested. Yet food is our largest manufacturing sector, we import 50% of what we eat and we have large exporting companies. The scope for criminal activity is very substantial. In a multi-billion-pound food industry, the risk of damage, serious illness and death is very clear. The simplistic view that economic well-being is not connected to serious crime or protection of national security is not one I accept. I therefore do not support the view of the Joint Committee on Human Rights in this respect; so, in general, I support the Bill.
I do not think I was aware of the term “CHIS” until I served on a RUSI panel in 2014-15, the Panel of the Independent Surveillance Review. I have now read several briefings and, in the main, think of a CHIS as someone who is not an employee of the police or security services, but an outside, undercover informer or agent. They may be motivated by a mixture of reasons, not all of which show them to be the nicest of people, but they offer a service that can be valuable and impossible to obtain elsewhere. I sat in on a briefing a few days ago, and I can see there are differences between those who seek prior judicial approval of actions authorised under the Bill and others, “the CHIS runners”, who see very practical issues, including issues of timing, as a key element in ruling this out. I shall be very keen to see the amendment from the noble Lord, Lord Anderson of Ipswich.
I do not see the benefit, by the way, of listing crimes which should not be authorised; in fact, I see it as quite negative. It would, of course, help the Government’s case if it were made crystal clear that the UK Government are not abolishing our Human Rights Act, nor leaving the European Convention on Human Rights. The Minister needs to address this, as it will influence decisions on amendments, and nobody trusts the Government at the present time. Our position on the Human Rights Act and the Convention has to be made absolutely clear.
The letter from the Minister on 27 October and the Explanatory Notes say and imply that the Bill simply puts onto a statutory basis that which happens now, and no more. The message is that this is not new activity but a continuation of existing practice, but is that correct? The note from the Bar Council questions that claim, as have some speeches this afternoon. Is there a widening of the separation of powers that exists at present with regard to prosecutions? We need answers to these points in Committee.
I started by saying that I support the wide view of potential damage to the nation. This means that I can support the list of relevant authorities set out in Clause 2. I believe that those people who, for some decades now, have operated a system on the dark side of openness, will see the Bill as a better way of operating in the 21st century. It is our role to see that Parliament likewise sees it as a better system that remains workable and keeps the public safe.
We have had three distinguished maiden speeches this afternoon. First, I welcome my noble friend Lord McLoughlin. The Cardinal Griffin School in Cannock has had a lot of airtime today, but I can tell him that when I visited the school as part of the Peers in Schools programme, there was a large photograph—one might almost say a dominating photograph—in the entrance hall of the school, a fitting tribute to his long and distinguished career in public life. I also congratulate my noble and learned friend on his distinguished opening speech. He reminded us that the underlying purpose of the Bill is to assist in maintaining and building the safety of the citizens of this country: as such, it has my in-principle support. However, it is a support that comes not without limitation: the use of the words “necessary and proportionate” remind us of those limitations.
What are my concerns, which I hope we can explore in Committee? The first is the list of relevant authorities. I share the remarks of several noble Lords about this. I would only add to what has already been said by saying that the greater the number of authorised bodies, some of which may use these powers only rarely, the greater the risk must be of misuse. The second is the extent to which the provisions of the Bill extend outside the United Kingdom. Geographical distance carries its own temptations and dangers, not least in the inevitable limitations on the ability to investigate and follow up fully where matters may have gone astray. My third point concerns what I can best describe as mission creep. I currently chair the Secondary Legislation Scrutiny Committee of your Lordships’ House. Our committee has been increasingly concerned about the use of skeleton Bills, where most of the legislative impact will be achieved through regulation. This is undesirable on many levels, not least because regulations have a lower level of scrutiny because, as is well known in the House, they are unamendable. Parliament is left with the nuclear option of complete rejection, a course which the House is often, understandably, reluctant to take.
As I read the Bill, there are at least three areas where mission creep could take place, but there may well be others. However, as I see it, by regulation the Secretary of State, first, may change the list of the bodies that can give CCAs; secondly, change the basis on which those authorisations can be granted; and, thirdly, change the individuals within the relevant authorities that can give CCAs. All of that is done by regulation. It seems that, taken together, these powers could quite radically shift the basis on which the Bill is constructed and on which it will operate.
My final point concerns the investigation of cases where matters have not developed as hoped and expected, and here I take up the points raised by the noble Lords, Lord Carlile of Berriew and Lord Anderson. I note the additional remit of the Investigatory Powers Commissioner, and of course those powers are welcome, but I see nothing about urgency. Speed of innovation is critical to achieving a proper outcome before waters, which may well sometimes be deliberately muddied, close over the case. I have been an officer of the All-Party Group on Extraordinary Rendition for many years, and the group has watched as successive Governments—no party has clean hands on this—have ducked and dived. We have to make sure that these sorts of cases cannot arise with this Bill, although it has my in-principle support.
My Lords, I declare my interest as a governor of Coram, part of which includes the Coram Children’s Legal Centre. When I saw that there were going to be three maiden speeches today, my thoughts wandered to whether there is a collective noun for maidens, and the answer is yes: it is a rage of maidens. I am glad to say that we saw none of that today. I think that everyone is saving it for the United Kingdom Internal Market Bill.
My remarks will concentrate on the use of children and vulnerable juveniles under the age of 18 as CHIS—a subject that many other noble Lords have referred to. Understandably, this is a highly sensitive area. I suspect the Government may say that since the number of children and young people used for this purpose is extremely small, since existing safeguards are being reinforced in this Bill and in the revised code of practice, which is going through a consultation process, and since the level of criminal activity in areas such as child sexual exploitation and county lines drug activities continues to rise, the use of juvenile CHIS must be a necessary evil and is, in fact, a public duty. However, if one follows that line of argument, one can see that the temptation for legal authorities to expand their use would be quite strong.
As I considered what I was going to say today, I was struck by an uncomfortable parallel as I thought of the faded black-and-white photographs and flickering cine film of German boys in 1945 being pressed into military service as a hopeless last attempt to resist the allied forces. The use of juvenile CHIS could be seen as evidence of the failure of our state to prevent the criminal activities into which they have been drawn. The evidence strongly suggests that those individuals who are candidates to be juvenile CHIS are often vulnerable, traumatised and acclimatised to a world in which their own freedom of choice and inability to tell right from wrong leave them open to influencing and manipulation. If we reluctantly accept that using a small number of these children in this way is a necessary evil, what can we do to put in the most comprehensive safeguards possible?
First, we are dealing, and will continue to deal, with a very small number of cases. This would make treating them in a particularly comprehensive way much more achievable than with a larger number. Secondly, please could the Government consider very seriously the eminently sensible suggestion of the noble and learned lord, Lord Judge—who, unfortunately, is not able to speak today—for a dual-lock approach such that in addition to the assistant chief constable who must currently authorise a deployment, we add a judicial commissioner with specialist knowledge and training who must also always be involved? Thirdly, could we in addition mandate a procedure such that, at the end of each deployment, the assistant chief constable and judicial commissioner undertake a comprehensive audit to assess the history of the deployment, its outcomes in all areas with a particular focus on the juvenile involved, and an assessment of any and all the lessons learned?
The Minister will be aware that she may be faced with a range of amendments in Committee dealing with child and juvenile CHIS deployments. With her usual courtesy and patience, I know she will be open to working with your Lordships to try to see how we can authorise such deployments with forensic care and an overriding focus on the best interests of the child.
My Lords, in the short time available I will concentrate on Clause 2, which details the authorities able to authorise criminal conduct. The list of bodies included will probably surprise many people, as the justification for the Bill is usually given in terms of serious organised crime and terrorism, and the reason given for why there is no prior authorisation is the imminent danger and urgency of the potential crime. As we have heard, however, the Bill will apply to many bodies. I shall refer to just two of those agencies—the Food Standards Agency and the Environment Agency—and ask whether they need the power to authorise CHIS activity without prior judicial approval and why they need the level of immunity for their actions granted in the Bill.
The Food Crime Strategic Assessment 2020 states:
“There is minimal evidence of any significant involvement of more broadly active Organised Crime Groups … being involved in food crime taking place in the UK”.
The agency’s Manual for Official Controls on enforcement states that authorised officers,
“must not try to get someone to act as an informer or obtain information in an undercover way”.
It therefore seems that the FSA does not want or need these powers.
The Environment Agency says that it would authorise the use of the powers in the Bill only,
“when it is absolutely necessary, proportionate and with great care and scrutiny”.
That surely would give time for judicial approval. However, what the waste disposal industry in general wants is for the agency’s current powers to be used effectively. A lawyer in the field said that the Environment Agency already has the legislative arsenal to hit these criminals, it just needs to use them.
Can the Minister justify why the agencies should be able to grant immunity to members of the public to act illegally without any judicial oversight, but merely on the subjective assertion that they believe it to be necessary? Can she give an example of when a CHIS has been prosecuted after being authorised by one of these agencies? My understanding is that the current test of public interest has protected such activity. So why do they need specific immunity?
Secondly, will the Minister clarify whether members of the public who are damaged during the course of activities covered by immunity will be entitled to compensation? There is genuine concern that immunity will prevent citizens from holding these agencies to account, not because they are fighting terrorism or serious organised crime, but because they have unnecessarily been included in the Bill.
When civil liberties are put in jeopardy there must be a very clear case for it. Many other speakers have expressed their doubts that the Bill can be accepted as its stands. Certainly, the inclusion of the long list of agencies is an additional cause for concern which must be addressed in Committee.
My Lords, I too congratulate the noble and learned Lord, Lord Stewart of Dirleton, for his presentation of the Bill this afternoon, while being in at the deep end, as it were, at the Dispatch Box. I also congratulate my noble friend Lord McLoughlin, who I have worked with outside of Westminster on other issues and for whom I have great respect. I congratulate the noble Lord, Lord Walney, for a very passionate speech—as passionate a speech as we will probably ever hear in this House.
I am delighted to have the opportunity to speak at the Second Reading of the Bill, which I strongly support. I am afraid that we live in a very real world of terrorism and organised crime. It is, sadly, omnipresent. Criminals deal in any commodity that will give them a financial return. It can be fraud, drugs, people trafficking—whatever. They have no qualms as to where they make their money so we need to be ahead of the game. It is therefore the duty of Parliament to give our security services and law enforcement agencies as many tools as we can to counter terrorism and organised crime.
I believe that this Bill, which provides an express power to authorise covert human intelligence sources to participate in conduct that would otherwise constitute a criminal offence, is long overdue. I say this as someone who has been a member of the Counter Terrorism Command at the Metropolitan Police. I was also a member of the National Crime Squad, the forerunner of today’s National Crime Agency, where I ran a number of such operations. Some aspects of the Bill are clearly unpalatable to Members of your Lordships’ House but it is a Bill that, at long last, recognises the need to provide a statutory power to authorise CHIS to participate in criminal conduct when it is deemed necessary and proportionate to do so.
Although I support the Bill, I want to highlight a couple of issues that are clearly of concern. Human rights issues are paramount but so is our duty of care to all the actors in any CHIS operation. Any authority in its breadth needs to take notice of the practical issues in order to protect the agent. During an operation, a suggestion by the targets to the operative to commit an offence will come in real time and, in all probability, when he or she is out of contact with their handler. The operative needs to know exactly what the limitations of his or her criminal conduct are. There is no provision for retrospective authority, and that creates real difficulty in that the type of conduct suggested may differ from or exceed what has been authorised. For the operative to maintain his or her cover, authority may therefore need couching in terms that allow some discretion as to the precise scope of the remit. This is not to say that an agent has carte blanche to do whatever he or she wishes but there must, for practical reasons, be a level of flexibility built into the system. At present, I am unable to detect that in the Bill or, indeed, the codes of practice. Any illegal conduct will, of course, require justification at a later criminal trial, and it goes without saying that any breach of the absolute rights contained in the ECHR can never be permitted.
The use of children has been much exercised today. It is unpleasant—there is no doubt about that—but at times, in this very real world, I contend that it is necessary, particularly with issues that have been mentioned, such as county lines, paedophilia and child trafficking. If it has a long-term benefit to other children, I consider that that makes it necessary. Also much exercised today is the level of authority and why members of the judiciary should not be involved in the process. Some might say that it introduces a new level of unwanted bureaucracy. I agree with that. The Investigatory Powers Commissioner’s Office provides comprehensive independent oversight of the use of investigatory powers as outlined in the Investigatory Powers Act 2016. That oversight includes the inspection and authorisation of the use of these powers.
In conclusion, I have some reservations on the public bodies issue. I agree that police could fulfil some of those actions when required. I very much look forward to Committee and further consideration of the Bill.
My Lords, I congratulate the noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord McLoughlin and Lord Walney, on their excellent maiden speeches. I had the pleasure of welcoming the noble and learned Lord, Lord Stewart, in my capacity as lord president on the very threshold of his career at the Scottish Bar when he was admitted to the Faculty of Advocates in 1993. He has come a long way since then, further than we would have dared to contemplate on that day. It is a real pleasure for me to welcome him once again and to wish him well now that he takes on his new responsibilities as Advocate-General for Scotland.
It has occurred to me, as I have been reading and thinking about the Bill and the dangerous nature of the activities that it refers to, that I have led a very sheltered life. I have not been involved in any way with supervision of the work of the intelligence services, but I have had something to do with torture. When I was working here as a Law Lord, I was a member of the Appellate Committee in two cases that raised issues about it. One was the Pinochet case, in which we had to consider the reach of the UN Convention against Torture. The other was under Article 3 of the European Convention on Human Rights. The question was whether our courts could rely in terrorism cases on information provided to us by agents from overseas that might have been obtained by torture.
As Lord Bingham said in the latter case, the fundamental nature of the prohibition against torture requires member states to do more than avoid the practice. It is not enough to say that I did not do it, I was not there, I did not see it happening or even that for some very good reason resort to it was necessary. It requires member states to do everything in their power to prevent and avoid it. The torture convention, we must remember, is breached by any act by which severe pain or suffering is inflicted to obtain information or as punishment by or at the instigation or with the consent or acquiescence of a person acting in an official capacity. Article 3 of the ECHR is at least as wide as that.
The reference in new Section 29B to the authorisation of criminal conduct by persons designated for the purposes of that section, and thus acting in an official capacity, seems to fall within the ambit of these provisions. The conditions mentioned in Section 29B(4) and the obligation merely to take account of the Human Rights Act in Section 29B(7) do not go nearly far enough with regard to this particular crime. We need to be very careful—ought it not to be made clear somewhere and somehow that participation in any way whatever in acts of torture will never be authorised? I am not suggesting this should expressly be mentioned as an exception in the statute but somehow, somewhere, a solution to this problem needs to be found.
Of course, to raise that question begs the question of whether we should go further. The right to life in Article 2 of the ECHR is also unqualified. At the very least, clear guidance needs to be read into the code as to when, if ever and for what purposes, participation in murder could be authorised. I also find the idea that children might be authorised to participate in torture or crimes of such gravity—by no means unimaginable given the way county lines operate—deeply disturbing for all the reasons mentioned a moment ago by the noble Lord, Lord Russell of Liverpool. I am sure the Minister will take his comments and his suggestions very seriously.
My Lords, I very much agree with the comments about torture that the noble and learned Lord, Lord Hope, just made. I am a member of the Joint Committee on Human Rights, which has just published its report on the Bill, and my comments are based largely on the evidence sessions and the final report.
I say at the outset that it is clearly welcome that the authorisation of criminal conduct by covert human intelligence sources should be put on a statutory footing. The justification is that through covert sources terrorist attempts have been prevented and lives have been saved, class A drugs, firearms and ammunition have been seized, and child sexual exploitation has been thwarted. All that is important, and that is the benefit of this Bill.
On the other hand, there have been some shocking instances of undercover activity in the past which should never be allowed to happen again. For example, there was the murder of Pat Finucane in Northern Ireland with the apparent complicity of undercover agents and, more recently, the surveillance of the Lawrence family after the racist murder of their son Stephen. It is quite unacceptable that a family such as that, victims of a most horrible crime, should be put under police surveillance. There are other incidents in the past, such as during the miners’ strike at the Orgreave coking plant.
As it stands, the Bill leaves open the possibility of serious crimes being committed through the granting of powers to authorise crimes more widely. That risks violating human rights, which surely means we have a responsibility to add many safeguards to the Bill. It should indicate a list of certain types of offences that should simply not be authorised. I am told that, if we had that list—as the Minister said at the outset—it would alert criminals to the way in which they can identify whether there is an undercover person working in their organisation. I think the safeguards can be built in; it has been done elsewhere, such as in the Canadian Security Intelligence Service Act. If it can be done there, we can surely adopt it as well.
I share the concerns about children. Children must surely be part of this covert process only in exceptional circumstances.
Extending authorisations to situations where there are no criminal threats risks unjustified interference in the activities of trade unions and other legitimate activists, and can affect the right to free expression and free assembly. In passing, I mention the criticism that senior members of the Government have made of “activist lawyers”; are they to be put under this sort of surveillance? I hope not.
The Bill will go way beyond the authorisation of criminal conduct by the security and intelligence services and the police. The power to authorise conduct should be restricted to public authorities whose core function is protecting national security and fighting serious crime. That should not include the Environment Agency, HMRC, the DHSC, the FSA, the Gambling Commission and others. It is also unacceptable for the Bill to provide authorisation of crime with fewer safeguards than exist at the moment for phone-tapping or the authorisation of search warrants. Those require a preliminary process, which is surely a safeguard which should be applied to the authorisation of crime. There should be prior judicial approval, except for urgent cases.
Finally, I am concerned about the victims and civil liability. I appreciate why this is a difficult area, but we should at least include provision for the indemnification of victims, who should be able to obtain compensation for losses suffered as a result of authorised crime.
My Lords, I congratulate my noble and learned friend on his clear and comprehensive maiden speech. He opened today’s debate on a crucial issue of national interest, but also gave the first of three excellent maiden speeches. The others were from my noble friend Lord McLoughlin, who, like me, had the pleasure of serving as chairman of the Conservative Party, and the noble Lord, Lord Walney, whose moving and emotional speech I fully understand and resonate with. It is not easy taking on your own party, colleagues and friends on an issue of principle.
Turning to the Bill, no one can reject the importance of CHIS or the need to protect them. No one can doubt the importance of putting existing practices, the status quo, on a statutory footing. As the noble Lord, Lord Paddick, said, based on his real experience in this area, the status quo has rarely caused issues. I therefore support this Bill in principle, to the extent that we have a statutory basis for the current position.
I agree that we need to place a shield in front of CHIS, but we must be careful not to place a sword of blanket immunity in their hands or the hands of those who authorise, especially when the scope of those who can authorise is so widely drafted in this Bill. I ask my noble and learned friend to hear and heed the very personal and powerful contribution of the noble Lord, Lord Hain. Accountability tempers excess, and in this case appropriate authorisation and oversight provide the necessary accountability.
I note what the Bill—and my noble and learned friend in opening the debate—said about our commitment to the Human Rights Act and the European Convention on Human Rights, but I am sure that he too, in the back of his mind, has concerns about much of the political debate around the Government’s commitment to both. We heard today from noble Lords on torture, murder and sexual offences. If we are clear which activities cannot and must not in any circumstances be authorised because doing so would put us in breach of convention obligations and rights, surely that must be in the Bill. I cannot accept that to do so would simply tip off criminals, terrorists or others, as my noble and learned friend said; as he and other noble Lords will know, those who operate in these gangs and terrorist organisations are far more sophisticated and already prepared for what they may see as potential CHIS activity. To this end I endorse the concerns raised by the noble Baroness, Lady Kennedy of The Shaws.
I look forward to supporting the principle of this Bill and the Government, but will make sure that I work with noble Lords across the House to ensure that this Bill protects covert human intelligence sources in a manner consistent with hard-fought human rights and the rule of law.
My Lords, I welcome the three new Peers and congratulate them on their maiden speeches. I look forward to meeting them in future, perhaps bumping into them in corridors some time and setting them straight on a few of the issues in this Bill. The Bill is about granting immunity for crimes to criminals whom the Government employ. I will raise five issues today, though I am sure there will be more in future.
I start by highlighting that many victims of undercover policing are currently, finally, giving evidence to the Undercover Policing Inquiry, which is exploring systematic abuses by undercover policing units over a period of 40 years. It is therefore regrettable that the Government are bringing this piece of legislation forward before any lessons have been learned. More can be learned from the public inquiry, so will the Minister undertake to bring forward further legislation in future to deal with any recommendations coming out of it?
Secondly, I want to dispel any notion that this legislation is simply regularising and codifying the status quo. This is simply not true. Most significantly, there is currently no blanket immunity granted to undercover state operatives. There are legal defences which can be relied on, and prosecutors can and do decide that it is not in the public interest to prosecute undercover operatives. However, this legislation seeks to replace that with a blanket system of legal immunity which would be self-administered by the agencies themselves. This undermines victims’ rights and gives them no legal redress when they are harmed by undercover operatives.
Thirdly, there are no limits in the Bill to the criminality that can be authorised. The Government’s response is that the Human Rights Act would prevent these types of crime; even if that is true, it remains this Government’s stated intention to repeal the Human Rights Act. Can the Minister make very clear what the Government’s proposals to change the Human Rights Act are and how they will interact with the Bill? The Bill allows the Secretary of State to place limits, by regulation, on what conduct can be authorised, so the Government have already explicitly conceded in the drafting of this legislation that there is a need for restrictions on what can be authorised. The Joint Committee on Human Rights said it best in paragraph 42 of its report on this Bill:
“The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm.”
Noble Lords can see that we have a problem here.
One does not have to be a human rights lawyer to realise that the Government are not allowed to authorise people to commit such grievous crimes. Parliament should place limits on the face of the Bill. In particular, we must prohibit the use of government agents as agents provocateurs who infiltrate legitimate political campaigns or trade union groups and disrupt their activities or cause them to commit criminal acts.
Fourthly, on the issue of child spies, which I have spoken on many times, I think it is dangerous, unethical and cruel, and I would prohibit it.
Fifthly, I am very concerned about the overlaps of this Bill with already existing legal processes: for example, the risk that authorisation under this Bill could bypass some of the legal safeguards, like search warrants or phone-tapping authorisation, or authorise conduct that interferes with legal processes, such as tampering with evidence, contempt of court or perjury, which could all be argued to be necessary and proportionate.
I look forward to working with other noble Lords across the House to significantly amend this legislation. I believe that if we cannot amend it significantly, then it must be voted against in its entirety.
My Lords, the Bill before your Lordships today has a great many flaws. A case could be made that the Government should simply look at it again and think again. It has been said that the Bill is merely, but importantly, to put on a statutory footing practice which has hitherto operated in the shadows. Alas, as currently framed, the Bill does not fulfil that function, as the Minister himself said. Rather, it seeks to confer immunity from prosecution for criminal conduct. Other noble Lords have argued this point with distinction, in particular the noble Lord, Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lady Chakrabarti.
I preface my remarks today by stating that I do, of course, wish to live in a well-regulated society. I therefore accept the need for elements of covert activity in some well-defined circumstances. However, I also want to live in a society in which a high priority is placed on concern for people who are vulnerable, possibly due to a range of circumstances, one of which is the simple fact of being a child.
The UK Government signed the UN Convention on the Rights of the Child in April 1990, and it came into force in January 1992. In 2010, the then Government published a report on how legislation underpins the implementation of the UN convention, given that all policy and practice must comply with it.
Children are not the only vulnerable people who may become CHIS, as outlined by the noble Baroness, Lady Bull. However, I propose to confine myself simply to remarks about children. Such children as are recruited will have engaged in risky and quite possibly illegal behaviours, and will therefore be in need of help, support and protection. On this, I agree with the right reverend Prelate the Bishop of Durham. I am aware that the High Court has determined that it may be appropriate to use children where the welfare of the child could be protected, though it is hard for me to see how putting children in harm’s way could be considered to comply with Article 3 of the UNCRC, which provides that
“In all actions concerning children, whether undertaken by public or private … welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
It is indeed extremely difficult to see how authorities as listed would be able to fulfil the obvious duty of care owed to children if authorities themselves are authorising, or perhaps thereby encouraging, children to commit criminal offences, notwithstanding the reference by the Minister to the safeguards in the uprated guidance. I concur entirely with the briefing from Justice in the view that CCAs for children should be explicitly and expressly excluded. Unless such exclusions are in place, there is the risk of violating both domestic and international law.
CHIS will continue to be necessary in well-defined circumstances. However, this Bill does not put on a statutory footing existing practice, and it does allow for the continuing use of children. The Bill is in serious need of amendment. It should also be the opportunity to put beyond doubt that children should not be used as CHIS, and in this I agree with the noble Baroness, Lady Young.
My Lords, the noble and learned Lord, Lord Judge, has withdrawn from this debate, so I call the noble Baroness, Lady McIntosh of Pickering.
My Lords, I would like to add my congratulations to our three new noble Lords who have made their maiden speeches. I warmly welcome the noble Lord, Lord Walney, to the House and congratulate him on his maiden speech today, which was very heartfelt and personal. He will be a very welcome addition, having served with such distinction in the other place. My noble friend Lord McLoughlin will remember that he was my first Whip when I was first elected to the other place in 1997. I set particular challenges, as I think I was the last MP to serve as a dual mandate MEP at the same time, so I am grateful to him for his kindnesses to me at that time.
I would like to pay a particular welcome to—
I would like to pay a particular warm welcome to my noble and learned friend Lord Stewart of Dirleton, and say what a lovely part of the world he lives in. My father partly grew up in North Berwick, and my grandfather had a pharmacy there, so it is an area with which I am extremely familiar. I would like to join him in paying tribute to his predecessor. I am sure he will serve the House with distinction in his new office, and I look forward to working with him on this Bill.
I have a number of questions that I would like to explore both today and, more particularly, in Committee. In particular, I would like to explore a point raised by my right honourable friend Dr Julian Lewis, who of course is chairman of the Intelligence and Security Committee at the moment. He said:
“What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute.”
And, he asks:
“Why the reason for that change?”—[Official Report, Commons, 5/10/20; col. 655.]
I would like to preface all my remarks with that question, because it would help me understand, in particular, the need for the Bill and why the Bill is coming forward at this time.
I would also like to particularly press my noble friend the Minister, when she sums up the debate, on the inclusion of new agencies. I have some sympathy with the background to this: I served as chairman of the Environment, Food and Rural Affairs Committee in 2012-13, at the time of the “horsegate” scandal. This was a fraud, passing off horsemeat as beef; it was a multi-million pound criminal scam. So I can understand why the Government are seeking to empower the Food Standards Agency to do more investigations than previously, as it really was better done by the FSA than perhaps the City of London Police at that time.
Equally, the Environment Agency has been given a further power, and I would like to understand, in particular, how that will be used and to ensure that it will not be used beyond the remit set out in the Bill today, particularly for the purposes for which it is necessary. Fly-tipping and other offences are obviously on the increase, and we perhaps do need these powers, but I would like to understand them.
I would also like to understand what the role of the local authorities will be, presumably in working closely with the Food Standards Agency and the Environment Agency and their CHIS agents in performance of the duties under this Bill, and to what extent they might be covered by the Bill.
I also share the concern expressed by others on the better protection for children acting as CHIS under the Bill, and I look forward to exploring these issues during the passage of the Bill.
My Lords, I add my congratulations to the three noble Lords who made their maiden Speeches today and add my welcome to them. I cannot agree to a Bill which authorises the state to grant unlimited immunity for future crimes yet to be committed by its agents. That is not consistent with the rule of law. I have no problem with the CPS discretion to excuse crimes after the event, subject to clear criteria, but today I wish to make four other points.
I begin by declaring an interest. I represent a number of trade unions in the undercover police inquiry. Evidence began yesterday. The inquiry will investigate the practice of undercover policing since 1968. My first point is to ask why the Government cannot wait even for the evidence to be given, let alone for the inquiry to report its conclusions, before introducing this Bill. By failing to wait, they choose to dismiss the obvious contribution the inquiry could make to shaping the Bill.
Secondly, under proposed new subsection (5)(c), a crime can be authorised by a CHIS if it is deemed necessary
“in the interests of the economic well-being of the United Kingdom.”
As my noble friends Lord Rosser and Lord Whitty have observed, this undefined and ominous phrase is clearly capable of being interpreted as encompassing lawful industrial action which, as most industrial action does, has adverse economic consequences. Agents can be authorised to commit crimes to “prevent, minimise or disrupt” legitimate trade union activity. That is totally unacceptable. Trade unions and industrial action ceased to be criminal in this country 150 years ago. Trade unions and their activities are also protected by international law, not least by Article 11 of the European convention.
Thirdly, one justification for the Bill is said to be that it will only regularise present practice. If so, the material so far made public by the inquiry provides no comfort as to such practices. I say no more of the practice by which 30—yes, 30—women were groomed into largely long-term, intimate relationships with undercover police for the purposes of providing them with cover than that those who have so far sued have obtained the admission from the Metropolitan Police that those relationships were
“abusive, deceitful, manipulative and wrong”.
In relation to trade unions, we have learned that Special Branch had an industrial intelligence unit which maintained, for no apparent lawful purpose, files which contained information gathered by undercover officers with the special demonstration squad who penetrated both unions and rank and file campaigners. Some of the information in the unit’s files was then supplied by police to the blacklist maintained by the Economic League, so barring trade unionists from obtaining jobs.
My final point is that, currently, an undercover officer could not be instructed by superiors to commit a crime. If the Bill becomes law, 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 authorisation. That will be a disciplinary offence, potentially justifying dismissal. That is a powerful argument against prior authorisation.
Let me start by congratulating our three maiden speakers on their excellent speeches. Like others who have spoken today, I welcome the intention behind the Bill. Putting on to a statutory basis the authorisation of otherwise criminal acts committed by covert human intelligence sources is now clearly necessary. It is in the interests of both the agents themselves and of those authorising them to engage in what would otherwise be criminal conduct. However, as the report of the Joint Committee on Human Rights says, it is essential that such authorisation is
“subjected to careful constraints, exacting scrutiny and effective oversight”,
and those are the areas on which I wish to focus today.
First, there is the scope of the criminal conduct authorisation. Authorising a CHIS to commit murder, torture or sexual violence is pretty hard to swallow. I recognise the difficulties and potential dangers in trying to draw the line between, as it were, crime and abhorrent crime, and I recognise that in difficult and dangerous circumstances, lines can be crossed, but I remain to be convinced that drawing such a line and excluding the gravest crimes from blanket authorisation cannot and should not be attempted. The arguments of my noble and learned friend Lord Hope were highly relevant here.
I raise one specific point. The Government have argued that there is no need to include explicit limits on, for example, murder and torture, because these are prohibited anyway under the Human Rights Act. As I understand it, and as the noble Baroness, Lady Kennedy of The Shaws, has argued—perhaps I am wrong here—the Government have argued separately that the Human Rights Act should not apply to abuses committed by their agents. I look forward to the Minister’s comments on that point.
I make one final point. If I were an authorising officer, however highly I had been trained and however carefully I had absorbed the code of conduct—which I have indeed read—I would want as much cover and protection as I could get. The arguments for and against prior authorisation clearly need to be examined in Committee, and I certainly see merit in the proposal of my noble friend Lord Anderson of Ipswich that an authorisation should be reported in real time to the Investigatory Powers Commissioner.
My Lords, just over two years ago, it fell to me to voice the concerns of your Lordships’ Secondary Legislation Scrutiny Committee about extending the authorised time for which juveniles—young people—could be used for covert human intelligence work. Yes, this extension had been authorised in the form of an SI. Fortunately, your Lordships’ committee picked it up and the outcome was that the Minister provided a number of additional safeguards relating to the welfare, well-being and protection of those young people. Here we go again.
I congratulate the Minister on his maiden Speech and the other main speakers. As the Minister said, the Bill will allow young people to conduct criminal activity in pursuit of their intelligence work. As many noble Lords have said, once again, there is a need for better protection. I am grateful to Just For Kids Law, a charity that campaigns strongly for the rights of juveniles caught up in covert activities. It fought for amendments to the code of practice and is active again in preparing amendments to the Bill. Those amendments would ensure that better protection, such as providing for an independent individual who will ensure that the safeguards in the Bill work in practice, and seeking to address the inevitable power imbalance that exists between a juvenile and the police, and the 13—yes, 13—other public authorities who have demonstrated an operational need for this activity.
In her letters of 27 October and 11 November, the Minister justifies this criminal conduct in carefully managed circumstances. She says that the Bill provides additional safeguards for juveniles and strengthens the code of practice. However, it is a code. Does it really have the force of law? She says that juveniles will be authorised to act in only the most exceptional circumstances, with their consent. Is it really informed consent, not just pressure? She assures us that safeguards are in place to promote the best interests of the juvenile. I put it to her that the best interests of the juvenile is not to be involved in criminal activities in the first place. Other noble Lords have reminded us that Article 3 of the UN Convention on the Rights of the Child, to which we are a signatory, states that the best interests of the child shall be a primary consideration. It seems to me that the primary consideration here is security and catching the criminal, even if the child risks being corrupted.
Therefore, before we start debating amendments in Committee, I ask the Minister, do we really want juveniles to be authorised to carry out this criminal activity, even under the strictest supervision? As the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Bull, and others have suggested, are we not making a victim of the juvenile, bearing in mind the risk of violence and sexual assault, the emotional and associated mental, physical and psychological damage, and the risk of corruption, which will damage them well into their adult lives. To some, it would appear that these young people are being exploited by our public authorities, leaving it to the rest of us to clear up the mess.
This is not a party-political matter. As many noble Lords have said, it is a human rights matter and a rights of the child issue. In view of all those concerns and in spite of the need, will the Minister consider stopping the use of children in this criminal activity? Then we will not have to argue over safeguards for them.
My Lords, I join the welcome and congratulations to the Lord Advocate for Scotland and the noble Lords, Lord McLoughlin and Lord Walney. I thank the noble Lord, Lord McLoughlin, for the way in which he gave me and others support when we were under pressure at the height of the issues of anti-Semitism in the Labour Party. I acknowledge that what he said in private was far more significant than what he said in public. The noble Lord, Lord Walney, stood on the right side when he did not have to, and took a brave stance. He supported Jewish members of the Parliamentary Labour Party and Jewish Members of the Labour Party. That will not be forgotten, and I thank him.
There have been a number of changes since the 1970s and 1980s. We are no longer fighting countries and armies under rules of engagement in war. We have human rights legislation that we did not have before. Those are significant changes. Since 1997, the strongest trade union organisation in the country is at GCHQ. Being a trade unionist and being loyal to one’s country are not contradictions. The density of membership there is a sign of that. It is part of the checks and balances in the system that makes it work.
We are now in a digital era, which changes many things. In many of the issues that we are talking about today, we are missing the mundanity of the actions that will be required outside the law. Some of the models are rather old-fashioned in terms of approach to what is going on. The mundanity is important to the effectiveness of the powers required.
I particularly want to talk about what happens if we do not do this, as the noble and learned Lord, Lord Garnier, eloquently pointed out. We go back to the grey area that existed in the 1970s, 1980s and 1990s —the shadows, as it was described. What characterised that more than anything was the incompetence of the actions taking place. Nothing could illustrate that better than putting people inside the International Marxist Group or, as we used to call them, the sons and daughters of the bourgeoisie. The only revolutionary thing that that organisation ever did was when some of its members accepted a peerage to come into this place.
The incompetence of the grey area was not in the national interest. There is a worse example. The Economic League sums up the grey area, the shadows and the incompetence. I should know: I was on the Economic League blacklist. When I went to work for the Ciba-Geigy chemical company in Manchester, I got given a job that was then withdrawn because I was on the list. I managed to get hold of the list and found my name on it. That is what happens with a grey area.
The Bill does more than codify; it allows accountability. It does not mean that things will not go wrong and there will not be big issues—there could well be—but it gives us, the people and the victims, the power to do something about it. The grey area is not an option. I want to see the Bill go through.
The noble Lord, Lord Green of Deddington, will not be speaking in the debate so we will move straight on to the noble Baroness, Lady Whitaker.
I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.
My Lords, I offer my congratulations to the three noble Lords, including the Minister, on making their maiden speeches today.
I am afraid I cannot give the Bill approval because it provides people employed by the Government with immunity for carrying out murder and heinous crimes. In fact, it would give statutory effect to legalised criminal offences committed by informants, provided that MI5, the Police Service of Northern Ireland or other UK law enforcement bodies have authorised the informant to commit the crime in advance. I understand that this is known as criminal conduct authorisation.
There are also no express limits set out in the Bill to prohibit informants’ participation in particular crimes that would constitute human rights violations such as murder, torture including punishment beatings, punishment shootings and kidnapping, or acting as agents provocateurs. I think back to the use of agents in paramilitary murders in Northern Ireland. This goes to the very heart of the legacy issues that the Government are currently considering and their very unhelpful Statement of 18 March.
There is a concern that, in addition to criminal conduct authorisations making criminal acts by informants “lawful for all purposes”, the extraterritorial provisions of Section 27(3) of the Regulation of Investigatory Powers Act 2000 could also apply, namely that:
“The conduct that may be authorised under this Part includes conduct outside the United Kingdom.”
This would mean, for example, that MI5 could authorise from its Belfast base a serious criminal offence to be conducted by a paramilitary informant in the Republic of Ireland. That offence would be unlawful under UK law but, clearly, this would not change an act being a criminal offence—[Inaudible.] The noble Lord, Lord Dubs, referred to the murder of Mr Finucane in all these regards. I must ask the Minister some questions. Were the Irish Government consulted on the content of this legislation and on the fact that this proposed activity could take place in their jurisdiction? Were they asked if this would impact on their own police service—the Garda Síochána? Did the Prime Minister discuss this with An Taoiseach when he met him in Hillsborough earlier this year?
It is important that significant amendments are made to this Bill to ensure that the UK’s prosecuting authorities can independently review crimes—[Inaudible.] —and remove the power for MI5 and other public authorities to brand crime “lawful for all purposes”. I cannot accept the extraterritorial nature of this because it places an impact on the bipartisan rule of Britain and Ireland in terms of Northern Ireland.
I understand that we are still not able to return to the noble Baroness, Lady Whitaker; once her microphone is corrected, we will attempt to do so. We will move straight on to the noble Lord, Lord Sikka.
My Lords, I welcome the noble and learned Lord, Lord Stewart, and the noble Lords, Lord McLoughlin and Lord Walney, to the House. I look forward to meeting them face to face in the not too distant future and working with them.
I have a number of questions. First, the Minister and the Government have told us that we can rely on the Human Rights Act as a way of curbing any excesses of the CHIS Bill, but the difficulty is that the Government have already committed to repealing and revising that Act. We do not know what will be taken out or left in. Surely it would be more prudent for the Government to introduce the revised human rights legislation first and bring the CHIS Bill later? But that is not what they are doing.
Subsection (5)(c) of new Clause 29B, as proposed by Clause 1(5), permits authorised criminal acts
“in the interests of the economic well-being of the United Kingdom.”
As the noble Lord, Lord Hendy, indicated, the Bill does not say what that actually means. How do we know what is in the long-term economic interest of the United Kingdom? Was deregulation of the financial sector really in the economic interest of the UK? Is anybody calling for deregulation now because it clashes with the government ideology of the day, perhaps? Are they really to be infiltrated by undercover agents and the organisation subverted? It is hard to know.
Some in authority will have argued—they certainly did in their day—that the general march against unemployment and poverty, the miners’ strike, the Dagenham women’s quest for equal pay or the Grunwick workers’ quest for better pay and working conditions were somehow a threat to the economic well-being of the UK. However, with hindsight, we know that they enabled many people to live a fulfilling life. They brought in an era of possible gender equality, at least over pay. Much of our social awareness is due to social organisations such as environmental activists, Greenpeace, Friends of the Earth, anti-apartheid movements and Extinction Rebellion, which may well operate in the margins of the law from time to time. However, these organisations can easily be classified by the Government as damaging the economic interests of society and thereby perhaps become subject to infiltration by undercover agents.
Prime Minister Margaret Thatcher referred to the African National Congress as a “typical terrorist organisation”; by definition, she labelled Nelson Mandela a terrorist. Whether the Government sent in any undercover agents to undermine the ANC, we do not know. Nevertheless, the idea that somehow you are going to safeguard national security and economic interests poses particular problems, because the issues tend to be seen through the lenses of the ideology of the Government of the day.
The Bill defines “relevant authorities” but omits an important fact: all the relevant authorities have been outsourcing some of their activities to private corporations. That means that other corporations would also be authorised to commit criminal acts. Where does that leave us in terms of corporate responsibility and the responsibility of corporations under international law to uphold human rights? Who will oversee these corporations? In this country, we do not even have a central regulator to oversee the enforcement of the Companies Act. What happens to the employees of these organisations if they say that they cannot go along with instructions from their employers? What happens to those conscientious objectors? The Bill provides absolutely no guide whatever.
For those reasons, it is impossible for me to support the Bill. I look forward to a number of amendments and a further debate.
The processes through which CHIS are authorised to engage in crime are, at the moment, unsatisfactory. There is a mischief here that requires to be remedied. However, the Bill does not provide a remedy to the mischief; rather, it exacerbates it. It enables the granting of immunity for serious crime to a CHIS by a member of a range of authorities in undefined circumstances. It requires the Investigatory Powers Commissioner, in the exercise of his regulatory powers, to
“pay … attention to public authorities’… power to grant … authorisations.”
It does not provide proper authorisation or audit.
The three grounds on which criminal conduct authorisations will be permitted are defined as national security, preventing or detecting crime or preventing disorder, and the economic well-being of the country. These are very wide-ranging circumstances. National security must include the protection of life, yet the need to prevent crime can leave CHIS in place with authorisations that might lead to deaths because a decision can be made that the need to prevent a greater number of deaths is greater than the need to protect one life. It has happened. Crime and terrorism can be very fast moving. That is why we need to ensure proper authorisation processes, just as we have for the granting of search warrants and other activities under RIPA. Yesterday, the JCHR said:
“This raises the abhorrent possibility of serious crimes such as rape, murder or torture being carried out under an authorisation … There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”
I have had experience of CHIS activity over some 24 years as a member of the Police Authority for Northern Ireland; as Police Ombudsman for Northern Ireland; more recently, as a member of the international steering group for Operation Kenova, which is looking at the agent known as Stakeknife; and in my current work for the Home Secretary. I have seen the good that CHIS can do and the havoc that they can wreak when not properly regulated. The death of Patrick Finucane’s solicitor is a very real example, as are the activities of the IRA agent Stakeknife. I have seen it in other countries too.
The activities of CHIS as a source of information and intelligence are essential in the fight against crime—I fully accept that. The Government are right: their activities require to be regulated. In order to search a property, there is a requirement to get a search warrant and provide information to support the application, swearing to the truth of that information. A person’s right to privacy requires that. Surely a person’s right to life requires more than the distant authorisation of criminal activity by agents of the state, as proposed by this Bill.
As we contemplate the fight against terrorism, which is so real today, we need to learn from our previous experiences, not just in handling CHIS but in the consequences of the actions of the state for respect for the rule of law. When solicitor Patrick Finucane was murdered by state agents in 1989, the people of Northern Ireland recognised what had happened; indeed, David Cameron apologised for the shocking levels of state collusion in his murder. People very quickly lose respect for the law; that is what happened in Northern Ireland. Such criminal activity by agents of the state, and the failure by the state to prevent and investigate crime impartially and effectively, is very damaging to the whole criminal justice system and to community acceptance of policing, which is vital in the fight against terrorism.
The Bill came to this House from the Commons unaltered, but there were serious challenges to it in the other place. As I listened to the Minister, I considered the extent to which criminals recognise the opportunity to exploit lacunae in the law. If the Bill were passed, it would create terrible lacunae. The Minister has said that there will be no authorisation of serious crimes such as murder, but particular crimes in respect of which there is immunity cannot be identified because that would enable criminals to identify the CHIS. If the offences which cannot be authorised are to be identified by reference to human rights law, then if a CHIS refused to participate in a serious criminal act, the criminals would be able to identify them anyway. If it became known that immunity could be secured by a CHIS for a serious crime, this process might well be utilised by the very criminal groups which the state seeks to infiltrate, effectively resulting once again in state-sanctioned crime. Criminals are always on the lookout for opportunities. They are usually very intelligent and use the same countersurveillance strategies and techniques as the state.
As other noble Lords have said, we need better protection for children. We know that criminals do not hesitate to kill, torture and seriously injure young people who get caught up in crime. The Bill provides no real protection for such children. The ex post facto examination of authorisations by the IPT does not prevent or control the inappropriate authorisation of serious crime; it is not enough. Humankind is frail and sometimes decisions are made in the absence of law. That is why the Bill is unsatisfactory.
Finally, the Bill appears to provide power to authorise CHIS to commit crime outside the UK.