Committee (4th Day)
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
Clause 1: Authorisation of criminal conduct
50: Clause 1, page 3, line 2, at end insert—
“(8A) A person may grant a criminal conduct authorisation to authorise criminal conduct that has already been committed if the following requirements are met—(a) the conduct by or in relation to the person who is specified or described as the covert human intelligence source to whom the authorisation relates was necessary on grounds falling within subsection (5), in the view of the person granting the authorisation, to avert or mitigate a threat to the physical safety of the person specified or described as the covert human intelligence source, or to avert or mitigate a threat to the physical safety of some other person engaged in the conduct;(b) the conduct was brought to the attention of the authorising officer immediately or at the first available opportunity, by the person who is specified or described as the covert human intelligence source to whom the authorisation relates;(c) the person granting the authorisation is satisfied that the threat to the physical safety of the person specified or described as the covert human intelligence source, or a threat to some other person engaged in the conduct, could not have reasonably been averted or sufficiently mitigated by other conduct which would not have constituted crime.(8B) Subsection (8A)(c) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”
My Lords, this amendment in my name seeks to address the current inadequacies in respect of protection afforded to undercover operatives. I apologise at the outset to the noble Lord, Lord Cormack, but I intend using the word “CHIS”, which I also find unsuitable—I prefer the phrase “undercover operative”, but I will refer to CHIS throughout my speech.
I seek to address the current inadequacies in respect of the protection afforded to an undercover operative when faced with a potentially life-threatening situation while engaged in an operation by inserting new subsections (8A) and (8B) into the new Section 29B of the Regulation of Investigatory Powers Act 2000. The effect of this new insertion would be to allow authorisation in certain circumstances after the event, and I will explain the circumstances as I progress.
It seems clear to me from noble Lords’ contributions to the Committee—I say this acknowledging the many and varied concerns expressed by noble Lords in their contributions—that there is a tendency, indeed more than a tendency, to overlook the threats and dangers that these undercover operatives are faced with at crucial times during their deployment. It is that, and that alone, which I seek to call attention to and address with this amendment.
We have heard a great deal from noble and learned Lords who have considerable experience at unravelling the machinations of the criminal law, and we have, quite understandably, also heard a great deal from noble Lords who have concerns for human rights. However, little has been said that provides for the security and protection of the undercover operative, and I suggest that the operational safeguards for a CHIS are not being addressed in this Bill. We now have an opportunity to do so.
I should add at this point that I am of course very mindful of the criminal conduct authorisation requirements, which are set out in subsection (5) of new Section 29B, and the amendment recognises that. The amendment does not for one moment propose or recommend that a CHIS should be given carte blanche to commit serious crime—given a free ticket, as it were. It is intended to ensure that those who are prepared to risk themselves for the benefit of the state should be afforded the comfort of knowing that, when they embark on a particularly serious operation, they have the full support of the law behind them at the outset, given that they may be operationally forced into a situation where they are required to take a course of action to avert or mitigate a threat to their physical safety or that of some other person which results in them committing a criminal offence not previously authorised or foreseen.
It will doubtless be maintained that the law caters for and provides protection at present—we have heard during the course of the Bill that prosecutors and the courts offer a degree of protection in such situations—but I maintain that that is not good enough.
We have also heard, with good reason, during Second Reading and in Committee, of the need to respect the requirements of the Human Rights Act. I say that it should apply collectively and that we should be very clear that the legislation applies to all, and so we must demonstrate that in the Bill. To rely on a prosecutor’s decision or a judges’ disposition on a particular day, in the hope that, after the event, they will support any previously unauthorised but necessary and vital action by an undercover operative taken to protect him or herself, or another, is just unacceptable to my mind.
Having managed quite a number of successful CHIS operations in my 32 years as a front-line detective, I have seen at first hand informants, agents and undercover operatives place themselves at incredible risk. While I do not doubt for one moment that the view of those currently at the head of organisations responsible for conducting such operations has been sought and will have perhaps influenced the course of the Bill, that does not alter the reality of the situation for the operative on the ground when challenged with the protection of life.
Unlike many policing procedures and operations that can be fine-tuned, undercover operations can be very unpredictable, to say the least. These operations present themselves in a variety of ways. It may be the activity of a drug-related gang—perhaps so-called county lines gang activity, where, sadly, juveniles are invariably involved as couriers; it may be an imminent threat of harm during a kidnap scenario requiring an instantaneous response; it could be an armed gang involved in robberies on high-profile celebrities while at home with their families; or it could just be a straightforward test purchase scenario that takes an ugly turn in order to test the veracity of the CHIS. These are not hypothetical cases: they are real-life scenarios that I can vouch for. Frankly, the list is endless. However, one thing is for sure: these organised criminals are, in the main, extremely violent people, often under the influence of extremely dangerous drugs which render them devoid of any sense of responsibility or fear.
My concern is that we should not tie the hands of undercover operatives. We should not allow them to undertake these extremely dangerous, often life-threatening roles with one hand tied behind their backs, in the sense that they fear prosecution if they follow a particular course of unanticipated action in order to protect life or prevent serious harm. They should not have the sword of Damocles hanging over them.
Of course, undercover operatives will be briefed and tasked; they will know what is before them, as well as can be expected on the available intelligence. However, once in theatre, as it were, they are on their own. Yes, there will be back-up not too far away, but this will not be instantaneous and will not allow for the situation where a CHIS, whether part of the criminal gang or a deployed undercover operative, may be put to an immediate test of their genuineness by organised criminals through circumstances that were not foreseen or allowed for in the planning, briefing and authorising stages.
Organised criminals are not, in the main, rational-thinking people. I can think of many scenarios, such as a test purchase, whereby an undercover operative is forced to partake in a class-A substance as proof of being genuine and, in the ugliest of scenarios, perhaps has a knife pressed to his or her body, with unthinkable consequences, for failing to surrender to the test. Surely, in situations such as that, where the CHIS must retain his or her credibility, they must be afforded support in the Bill. The operative should not have to rely on the good will of a prosecutor or the court. On the one hand, we are seeking in the Bill to legitimise criminal activity, yet, on the other, failing after the event to acknowledge and support the actions of a CHIS in life-threatening situations. There could be, say, an ambush attack from a rival gang, during which the undercover operative must take some immediate and previously unauthorised action to avert or mitigate a threat to life. The scenarios are endless and allowance should be made in the Bill for such eventualities in order to provide protection through law for CHIS. The question as to who authorises such previously unauthorised action is perhaps a matter for further consideration. I accept fully that that decision may rest with a person other than the initial authorising officer.
It is therefore my belief that human rights and our obligation to provide a duty of care would be properly served by the amendment. I beg to move.
My Lords, I will be brief. In earlier consideration of the Bill, the House has been concerned with prior authorisation—I repeat, prior. I do not resile for a moment from the importance of prior authorisation and I hope that we will have the opportunity to consider it in due course.
The noble Lord, Lord Davies, who has considerable experience in these matters, raises a narrow point relating to post-authorisation for the protection of officers. I should be interested in the Minister’s reply. My understanding is that the noble Lord seeks to deal with threats to the physical safety of the persons named in the amendment in narrow and possibly important circumstances. Its thrust, while dealing with another aspect, is in the spirit of your Lordships’ consideration of authorisation—in this case post, as opposed to prior, authorisation. Hence, my understanding is that he seeks to plug a possible gap by urging upon noble Lords the need for a statutory requirement for speedy, post-hoc authorisation in certain circumstances.
I have two questions for the Minister. First, how likely is such a situation to arise? Secondly, can we properly be told whether such situations have arisen in the past? In the circumstances, while I pay tribute to the noble Lord for raising this matter, I should like to hear the Minister’s reply on the need for the amendment and its practicalities.
My Lords, the noble Lord, Lord Davies of Gower, who has great experience of these issues, spoke about our having thus far overlooked the dangers faced by undercover operatives. Little has been said about operational safeguards. Indeed, perhaps I may take this opportunity to mention that I was contacted by a noble friend this morning who emphasised the bravery of undercover operatives, who place themselves at considerable risk in many such situations.
The amendment highlights the limitations of the whole idea of granting pre-event immunity from prosecution within what the Government variously describe as criminal conduct authorisations that are tightly bound, specific, tightly drawn and within strict parameters. What the noble Lord, Lord Davies of Gower, has described is all too possible: that a CHIS—whether a highly trained agent, an undercover police officer or a 16 year-old child informant—encounters a situation that, even if foreseen as a possibility, the handler and authorising officer felt unable to authorise and grant immunity for in advance.
I have previously described covert human intelligence sources being sent into uncertain, rapidly changing scenarios, almost always in uncontrolled environments where rescue is impossible, and often involving chaotic individuals. That describes in a sentence the sort of scenario that the noble Lord outlined. Imagine a 16 year-old involved in county lines. He has been sent to do drug deals hundreds of miles from where he lives and is caught selling a small quantity of drugs to a user. He is recruited as a police informant but the police want to arrest those higher up the network. He tells them that his supplier is due to deliver a large quantity of drugs the next day and is persuaded to go back to the squat from where he is operating to await delivery. He is given a criminal conduct authorisation to hand over the cash that he was found with in exchange for the new supply of drugs. When his supplier arrives, he is not alone. He has another young member of the drug gang with him. The supplier says the teenager he is with has broken the rules of the gang and must be punished, and hands the CHIS a knife, ordering him to stab the teenage gang member in the leg. It is common practice for gang members to be “disciplined” in this way. The supplier says that he has his suspicions about the CHIS because he could not get hold of him yesterday. That was because the CHIS was in police custody. He has to prove that he is not a police informant by stabbing the teenager. The CHIS panics because he has not been authorised to stab anyone. When he refuses, his behaviour gives him away and he is fatally stabbed.
That is a realistic scenario. I am not sure that the wording of the amendment would cover such a situation. It does not avert or mitigate a threat to the physical safety of another person if the stabbing is carried out by the CHIS. In any event, how do you explain to a 16 year-old child what that means? However, if you explain that, whatever he needs to do to protect himself, provided it is reasonable, he is unlikely to be prosecuted, that is a much easier, simpler and more understandable instruction. The Government might say that actions beyond the precise definition of the CCA will still be looked at sympathetically by the prosecuting authorities, but try telling a 16 year-old, or a not very bright adult for that matter, “You have legal immunity provided you only do what the CCA authorises you to do but if you go beyond the CCA if you have to, you may not be prosecuted.” It makes the whole thing far more confusing and difficult to understand. If the Government are minded not to accept the amendment, can the Minister explain the difference between the police or the security services, without any judicial approval, granting immunity from prosecution by granting a CCA, and the police or the security services, without any judicial approval, granting immunity for something unforeseen but arguably necessary, after the event?
I turn to the extraordinary letter from the Minister, dated 3 December. It states that the Government’s approach is “not without precedent”. To say that the security services intercepting the communications of someone suspected of terrorism, having sought and secured prior authority from an investigatory powers commissioner and a Secretary of State, is equivalent to the police granting legal immunity to a criminal who is asked to commit a potentially serious crime that may seriously harm innocent people, with no prior approval of any kind outside of the police, is, frankly, preposterous.
I have a great deal of sympathy for the noble Lord’s amendment because it highlights the unworkability of granting immunity in advance through a criminal conduct authorisation. However, our position is that the police should not be allowed to grant legal immunity to commit crime or, indeed, to say that something that clearly is a crime is no longer a crime—whether in advance or, as the amendment suggests, after the event. For that reason, we cannot support the amendment.
My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.
So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future
My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.
We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.
The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.
As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.
The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.
The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.
I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.
My Lords, I am very grateful to those who have contributed to this short debate and am very grateful to the noble and learned Lord, Lord Morris, for the points he made. As he says, it is a narrow but very important issue. I am grateful to the Minister for responding to that. I accept that it is a matter of balance, but I am also very grateful to the noble Lord, Lord Paddick, who speaks with authority on this matter and has great experience of such issues. For the time being, I am content with the Minister’s response. Therefore, I beg leave to withdraw my amendment.
Amendment 50 withdrawn.
Amendments 51 to 56A not moved.
We now come to the group beginning with Amendment 57. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the House that, if Amendment 57 is agreed to, I cannot call Amendment 58.
57: Clause 1, page 3, leave out lines 10 to 16
Member’s explanatory statement
This amendment is tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.
My Lords, in moving Amendment 57, I will also speak to Amendment 74.
These two probing amendments are designed to explore how the Government plan to use their regulatory powers in the Bill. I am informed on this because I am the chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House. Along with the Delegated Powers and Regulatory Reform Committee—chaired by my noble friend Lord Blencathra—my committee has been concerned by the increasing use of skeleton Bills, where only the broadest frameworks are set out in primary legislation and all the practical details are left to regulation.
As a result, Parliament too often has only a general idea of what it may be approving when it passes the primary legislation. The Government may—they probably will—argue that all regulations have to be approved by Parliament, but Members of your Lordships’ House are well aware of the weakness of the scrutiny of regulations, which is that they are unamendable. The House is left with only what I call the nuclear option of complete rejection. Unsurprisingly, in these circumstances, neither House has felt able to press the button, except in the most exceptional circumstances.
Our two committees—my noble friend Lord Blencathra’s and mine—have written to Jacob Rees-Mogg, as Lord President of the Council and Leader of the House of Commons, to express our concern and make suggestions for improvement. Let me take an example from earlier debates in Committee. My noble friend the Minister and other noble Lords—notably my noble friend Lord King and the noble Lord, Lord Carlile of Berriew—referred Members to the revised code of practice as providing a reassurance against bad behaviour in the operation of CCAs. Indeed, the noble Lord, Lord Carlile, urged every Member of the Committee to read through the code. I followed the noble Lord’s advice and read it, all 73 pages of it. I agree that, at least to my untutored and inexperienced eye, it appears extensive and comprehensive, but its weakness is that it is made by regulation—in this case, Section 71 of the Regulation of Investigatory Powers Act 2000. So its contents depend on ministerial policy decisions and can be changed, at any time, by the tabling of an unamendable regulation.
I do not doubt for a moment the good intentions of my noble friends on the Front Bench, nor the good intentions of the Front Benches of the other parties in this House or the other place, but none of them will be in their seat for ever. Amendment 57 is designed to explore the risk of what I described in my remarks at Second Reading as “mission creep”, or, more specifically, how wide the room for manoeuvre is for a future Secretary of State using the powers available under Clause 1(5)(10) on page 3 of the Bill.
I pose three simple questions for my noble friend the Minister to answer when he replies. First, can the Secretary of State, under this clause, add to or remove bodies from the list of relevant authorities given on page 4 of the Bill? Secondly, is there any limit to the changes that the Secretary of State may make, under this clause, to the authorisation levels for CCAs, given in annexes A and B of the draft revised code of practice? This issue has been raised on a number of occasions, notably by the noble Lord, Lord Anderson of Ipswich. Thirdly, is there any limit to the changes that the Secretary of State may make to the purposes for which a CCA is sought? That was a discussion on Amendment 22. In particular, what is meant by “impose requirements” in line 13? That issue was raised by the noble Baroness, Lady Hamwee.
Before I finish, I turn briefly to Amendment 74. This poses the same questions for Scotland as Amendment 57 does for the rest of the United Kingdom, but there is one additional point of concern: whether, as a result of two systems existing, what is known as forum shopping can take place. Historically, in cases involving extradition, prosecuting authorities were in the habit of surveying the legal options open to them and picking the route, courts and jurisdiction that, on past experience and record, were most likely to give them a favourable result. As I see it, the two CHIS systems begin in identical form but, over time, can and probably must be expected to diverge. How far that will be is impossible to predict now, but the possibility of forum shopping emerges. Can my noble friend comment on the interchangeability of CCAs granted under Scottish law being used in the rest of the United Kingdom, and vice versa? I beg to move Amendment 57.
My Lords, I am very glad that the noble Lord decided to probe these two provisions. I have seen the correspondence published by the three committees. I was struck when the noble and learned Lord, Lord Stewart, in responding to the previous group, referred to the code of practice having the force of law. I do not dispute that, but it is of course law that can be changed by government Ministers without coming to Parliament.
The point just made by the noble Lord, Lord Hodgson, about forum shopping is interesting. As he said, I have asked for assistance on the meaning of some terms during the passage of the Bill. I questioned what is envisaged by the terms “conduct” and “requirements”. I read both to restrict, rather than expand, the scope of what may be done. I would be grateful to have that confirmed or, if not, to understand why not. In short, we should not be expanding opportunities for criminal conduct authorisations without, at the very least, understanding exactly what we are doing.
First, I wish the noble Lord, Lord Hodgson of Astley Abbotts, well in his campaign against skeleton Bills, as that issue is getting worse, not better.
The Bill provides that the Secretary of State may, by order, prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given. As the noble Lord, Lord Hodgson, said, Amendments 57 and 74, in his name, would remove those provisions and, as he confirmed, their purpose is to probe the extent to which the operation of criminal conduct authorisations can be amended by regulation.
Earlier in Committee, the noble and learned Lord, Lord Stewart of Dirleton, stated that the order-making provisions in the Bill
“allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited.”
“I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards ... The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they are contained in secondary legislation.”—[Official Report, 1/12/20; col. 676.]
When the noble and learned Lord said that the order-making powers could not be used to remove any of the existing safeguards, did the Government mean that the wording in the Bill would make it contrary to law to do that, or did they mean only that the intention was not to use the order-making powers to remove any of the existing safeguards? That, of course, is a very different thing, as intentions can change.
No doubt in their response the Government will address that point and give specific examples of the purposes or intentions for which these order-making powers to prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given would—and, equally, would not—be used by the Secretary of State.
My Lords, these amendments have been tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.
As I set out in response to the amendments to the order-making powers tabled by the noble Lord, Lord Paddick, there are good reasons why these powers have been included. I do not wish to repeat the detail of what was said on group 7 of the amendments, other than to highlight again that the provisions have been drafted to resemble closely the terms of Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for CHIS use and conduct.
To answer the point raised by the noble Baroness, Lady Hamwee, I repeat what I said earlier and provide the Committee with reassurance that these powers could be used only to impose further safeguards and not to remove them. That point was raised also by the noble Lord, Lord Rosser.
My noble friend Lord Hodgson of Astley Abbotts posed the question of whether the Secretary of State can add bodies to, or remove them from, the list of authorising bodies. The addition of bodies can be accomplished only through the affirmative procedure. The changes to the bodies listed will reflect changes over time in investigative functions and the threats that the country faces. The rank of authorising officers is set by secondary legislation and will be dealt with in line with Section 29 authorisations.
The noble Lord, Lord Rosser, posed the question of whether the terms of the provision are such as to make it impossible for the powers to be extended rather than removed, or whether that is merely the intention of the Government. He correctly remarked on the fact that the persons occupying posts will change from time to time. As I see it, the legislation will not simply rely on the intention of the Government but will have force beyond that. I think that I also addressed the matter when answering the point raised by the noble Baroness, Lady Hamwee. She focused on the meaning of the words “conduct” and “requirements”. I am able to confirm that her understanding was correct. Indeed, as a consequence of what I have said, the interpretation of those words restricts, and does not permit addition to, the provisions in the Bill.
I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.
I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.
I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?
I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.
The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.
I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.
I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.
Amendment 57 withdrawn.
Amendments 58 to 62 not moved.
Clause 1 agreed.
We now come to the group beginning with Amendment 63. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that if Amendment 63 is agreed to, I cannot call Amendments 64 to 69.
Clause 2: Authorities to be capable of authorising criminal conduct
63: Clause 2, page 4, leave out lines 10 to 23
Member’s explanatory statement
This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.
My Lords, I shall speak to Amendments 63, 65 and 80, in my name and that of my noble friend Lady Hamwee, in this group. They attempt to get to grips with the plethora of organisations that the Bill seeks to authorise to grant criminal conduct authorisations. I remind noble Lords that this is to grant legal immunity to covert human intelligence sources, informants or agents, and authorise them to commit acts that, under any other circumstances, would be a crime, but because these public authorities have said so, they are no longer crimes.
Unlike existing legislation that limits legal immunity to agents of the state engaged in property interference, intrusive surveillance, equipment interference and interception—all exclusively targeted on the most serious criminals and only with prior approval given by an investigative powers commissioner and often a Secretary of State—this Bill seeks to give public authorities the power to grant immunity to anyone, often criminals, for almost any crime that can be imagined with no prior authorisation outside their own organisation. One would hope that the number of public authorities would therefore be extremely limited, and that evidence would be produced to justify their inclusion.
I am taken back to a recent statutory instrument—the Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020—which added to the list of public authorities that can access communications data; that is, who contacted whom, from where, and when, but not the content of the communication. In the overall scheme of things, it is fairly low-level data. The Home Office had agreed to include more public authorities on the basis of detailed business cases submitted by each authority.
When I asked to see the business cases, I was told that I could, although the Home Office arranged for me to see them only 45 minutes before the statutory instrument was due to be approved on the Floor of the House. Will the Minister allow Members of this House to see the business cases that form the basis of the Home Office deciding which public authorities should be allowed to grant criminal conduct authorities, preferably not 45 minutes before we consider this issue on Report?
Our Amendment 63 would limit those public authorities that can grant CCAs to the police, the National Crime Agency, the Serious Fraud Office and the intelligence services, as it appears to us to be self-evident why these organisations may need to grant authority to agents or informants to commit crime. The other public authorities require justification, hence my request that noble Lords be able to see the business case justifying each of the other public authorities, albeit redacted and viewed in private.
Our Amendment 65 specifically singles out the Home Office, although it might be seen as a typical example—an example of a type of public authority—for further scrutiny. On the face of it, it sounds that, in theory, if not in practice, the Home Secretary could authorise a criminal to commit a crime and give that criminal legal immunity, whether directly or by ordering one of her officials to do so on her behalf. Giving power to politicians to authorise criminals to commit crime and to be able to grant those criminals immunity from prosecution, with no prior independent oversight, raises some worrying spectres.
Our Amendment 80 is consequential. At this stage, I will listen carefully to the concerns of other noble Lords and to the response from the Minister. I beg to move.
My Lords, the noble Lord, Lord Paddick, has spoken with great clarity and authority on the amendments in this group. I will speak to the human rights perspective of Amendment 63 as set out in the Joint Committee on Human Rights’ report on the legislative scrutiny of the Bill. Chapter 6 is concerned with public authorities granted power to authorise crime, as stated by the noble Lord, Lord Paddick.
Paragraph 75 of the report states:
“We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary … However, the Bill proposes granting the power to make CCAs … to a substantially wider range of public authorities”.
That concerns us. It goes on:
“This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being … extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.”
There are two key questions here from a human rights perspective. As the report states,
“the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.”
The Government have provided little justification for the authorisation of criminal conduct by such bodies as the Gambling Commission, the Food Standards Agency and others. The Home Office published brief guidance and a series of operational case studies, which provide examples of authorisation by CHIS in the cases of the Medicines and Healthcare products Regulatory Agency, Her Majesty’s Revenue & Customs and other hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency.
The question must be asked as to why the police or other bodies focused on the prevention of crime should not take full responsibility for authorising criminal conduct that may fall within the purview of these organisations. We are all aware that the police, in carrying out their responsibilities, have vast networks of agencies whom they consult in the course of their duties. They know whom to consult for specific issue as and when such consultation is needed. It is inappropriate and irrelevant to name other specific agencies, whose role is not protecting national security and fighting serious crime.
One of the witnesses to the inquiry carried out by the Joint Committee on Human Rights said:
“If the government believes it is necessary for each of these bodies to have the power to grant authorisations, it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”
No such detail is supplied by the Government. It is therefore impossible to assess how agencies whose primary function is not serious crime or national security can, or indeed would want to, be involved formally in granting CCAs. I look forward to the Minister’s explanation.
My Lords, I support Amendment 63. I very much agree with the comments made by the noble Lord, Lord Paddick, and my noble friend Lady Massey, so I shall be brief.
Like my noble friend, I speak as a member of the Joint Committee on Human Rights. It seems to me that authorisation that goes beyond the police, the National Crime Agency, the Serious Fraud Office and the intelligence services is a step too far. There has to be clear indication by the Government as to why such authorisations are necessary; so far, that indication has not been forthcoming. The list of agencies covered by this provision is so wide—not just Customs and Excise, the Environment Agency, the Food Standards Agency and many other bodies. There is no justification for extending the provisions of the Bill to that extent.
I am very concerned about one other matter. As the Joint Committee on Human Rights noted, under Section 35 of RIPA, the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise covert criminal conduct. I accept that this power has been used sparingly in the past, but—[Inaudible.]—if additional authorities that have little or no relationship to those permitted to make CCAs—[Inaudible.]—regulatory oversight.
In a previous amendment, the noble Lord, Lord Hodgson, indicated that using subordinate legislation to extend powers was going rather too far, and it applies in this instance as well. Surely, it is bad enough having a list of these bodies that—[Inaudible]—but adding to them in the future by a parliamentary process that allows for very limited scrutiny. We all know that subordinate legislation can go through, we cannot amend it and it is—[Inaudible]—because of our relationship with the Commons; therefore, this is potentially an abuse of power. For all those reasons, I support Amendment 63.
My Lords, the noble Lord, Lord Dubs, referred to this as a potential abuse of power and, although I am entirely convinced that that is the last thing in Ministers’ minds, I say nevertheless: be careful what you wish for. I am very troubled by this section of the Bill, which is why I put down three amendments—Amendments 64, 66 and 69—to delete from the list of bodies authorised the Department of Health and Social Care, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency and the Gambling Commission. However, putting those down as probing amendments, I became increasingly convinced that I had not gone far enough, so I say unequivocally that I prefer the amendment of the noble Lord, Lord Paddick, which he introduced a few minutes ago.
This is a troubling Bill. I think that there has been a universal acceptance across your Lordships’ House, because it is the paramount duty of any Government to protect the state and those who live in it, of the need for, and the unavoidable necessity of, the Bill. However, it goes too far. We had a very interesting and challenging series of debates a week ago today, when we talked about whether certain crimes should be on a list of prohibited crimes. We also talked about authorising children—those under the age of 18.
Both those aspects of the Bill troubled me, and I have put amendments down, but this also troubles me: giving almost a carte blanche to a whole range of bodies, some of which are not concerned with the most heinous crimes or with the ultimate protection of the state and citizens. I urge my noble friend the Minister to accept that these are very important and valid points. We certainly will need to come back on Report, and I would like to consult the noble Lord, Lord Paddick, and others on precisely which amendments we go for.
There are two developments in modern legislation that trouble me, as I know they trouble the noble and learned Lord, Lord Judge, more than anything else: the proliferation of Henry VIII clauses and of the granting of almost unlimited powers to Ministers of the Crown, as well as what I call the “Christmas tree Bill”—of which this Bill has some aspects. Having been persuaded that legislation was necessary, and I understand why that was so, the Government have said, “We’ll give as many people as possible as much permission as possible to do what they like, and we will give a particular power”—the noble Lord, Lord Paddick, underlined this graphically—“to the Home Office”. Therefore, power is ultimately given to a party politician whose motives, I am sure, would always be pure in his or her eyes, but it would not necessarily be conducive to enhancing public confidence in the machinery of government. All these issues are touched on in this clause.
We must be very wary of what power we give and to whom we give it. Although we have said before—and I do not for a moment resile from it—that some of the agents, of whom the noble Baroness, Lady Manningham-Buller, spoke movingly a couple of weeks ago, are among the bravest of the brave, there are others who swim in murky waters and have a criminal background. It is not sufficient for the Food Standards Agency or the Environment Agency to say, “We’ll employ a thief to catch a thief”—because that is what it could come down to.
I urge my noble friend, who is due to reply, to take these points as serious points that require the most careful examination before and during Report stage. I am very grateful for the letter I received this morning from my noble friend, inviting discussions and co-operation; she has a very good track record in that regard and is an exceptionally conscientious Minister. Of course, we are not talking about current Ministers here; we are talking about giving an extended power for an indefinite period, whatever the complexion or orientation of the Government.
I strongly support the improvement on my amendments by the noble Lord, Lord Paddick, and I hope we can, on Report, ensure that this Bill is sufficiently trimmed down and that the right number of baubles are removed from the Christmas tree so that we have something in which we can all have a degree of confidence.
My Lords, I am delighted to follow my noble friend, and I associate myself with the comments made previously by the noble Lord, Lord Paddick, who spoke so powerfully, in introducing his Amendment 63. As he said, Clause 2 breaks new ground, giving powers to grant legal immunity and to authorise agents to commit acts that otherwise would be criminal to these other bodies that we have before us this afternoon, which can say that such acts are not to be considered criminal offences.
I echo the comments of my noble friend Lord Cormack. I was hugely moved by the words of the noble Baroness, Lady Manningham-Buller, who paid such justified tribute to those who work in the services that are largely contained in new Part A1 inserted by Clause 2. No one can take away from the risks that they run and the huge efforts they have made on our behalf to keep us all safe, not least those of us working in Parliament and public life; we are extremely grateful for that.
On reflection, as my noble friend Lord Cormack has said, I prefer Amendment 63 but would like to speak to the amendments I have tabled for the purposes of debate today: Amendments 67 and 68 and to oppose the Question that Clause 2 stand part of the Bill. I have absolutely no argument that the bodies listed in categories A1 to E1 of new Part A1—any police force, the National Crime Agency, the Serious Fraud Office, any of the intelligence services and any of Her Majesty’s forces—should not automatically be considered for preferment and allowed to fall under the provisions of this Bill. I assume that that was primarily what was in mind when the Bill was initially drafted.
I thank the Minister for the offer to meet; that would be extremely useful before we get to Report. On a number of occasions I was heavily involved, both as a local MP and as chair of the EFRA Select Committee next door, with rural crime. It grieves me greatly that many of these rural crimes are simply not taken as seriously as crimes that occur in towns, market towns or cities, such as London and other major cities in the UK. I am talking specifically of very serious rural crimes with a very heavy criminal content of organised gangs. I pay tribute to the work the Environment Agency has done in this regard by installing covert cameras and trying to solicit as much information and intelligence as it can. With the cost now of disposing of building waste and other hazardous waste, it is becoming extremely attractive to dispose of it on rural property, often privately owned. It is a public duty to remove this waste if on a highway or byway, but the cost of removing it to a private landowner is never considered and it is very difficult for them to resist this type of activity.
The other activity in which I was involved was taking evidence, particularly from the Food Standards Agency, on the passing off of horsemeat as beef and other meat. This is an ongoing activity. I pay tribute to Professor Elliott and others who have been heavily involved. I also pay tribute to the Food Standards Agency, and others agencies, which continues, as do local authorities—both environmental health officers and trading standards officers—to keep safe the food that we eat and ensure that, whatever we purchase, it is what it says it is on the tin or label. This is potentially a multi-million-pound fraud.
I have a simple question for the Minister: why are we seeking to extend the provisions of the Bill, in the terms set out by the noble Lord, Lord Paddick, in Amendment 63, to grant immunity from prosecution to bodies such as the Environment Agency and the Food Standards Agency? It would be perfectly proper for this action to be taken by any police force or the Serious Fraud Office. There was a problem with horsegate—the passing off of horsemeat as beef. I think it was the City of London Police fraud office that was asked to intervene, because no other body was deemed fit to have the wherewithal and capability to deal with that fraud.
I share the unease and anxiety of others who have spoken in the debate this afternoon. We are perhaps inviting unintended consequences and being a hostage to fortune by opening up to criminal activity those acting as authorising agents for CHIS to act on their behalf in bodies such as the Environment Agency and the Food Standards Agency. I would like to understand more the grounds for including these bodies and what activities will be covered.
To continue the theme, I am also deeply concerned that, in amending the Investigatory Powers Act 2016 to provide the exercise of these new powers to authorise criminal conduct falling within the statutory oversight duties of the investigatory powers provision, the secondary legislation that will be required will contain all the information and detail on the specific rank of officeholders within the bodies I have referred to who would be permitted to grant criminal conduct authorisation for the first time. I am very uneasy that this is not on the face of the Bill and that the detail will be provided in subsequent secondary legislation, albeit coming in very short order. I would much prefer that this is not included in such Henry VIII clauses in regulations; it should be in the Bill.
I support the main thrust of the provisions of the Bill, without a shadow of a doubt. However, I query many of the bodies included in the broader Clause (2) —in particular the Environment Agency and the Foods Standards Agency, which I have mentioned—and the fact that we are leaving so much to be decided at a later date; that concerns me greatly. I look forward to reassurance from my noble friend. These are intended as probing amendments.
My Lords, it is my great honour and pleasure to join the debate. I wish to speak to Amendment 70, which seeks to constrain ministerial discretion to amend the list of relevant authorities.
We all know that, as time goes by, Ministers and Governments are tempted to expand the list of regulators. In this case, they would be tempted to expand the list of relevant authorities contained in the Bill. How would they do that? They could bring about primary legislation and allow Parliament sufficient time to scrutinise it, or they could have a rushed amendment through a statutory instrument. I do not favour the second choice.
I am a relative newcomer to the House, but a little amount of research has shown me that, in the last few years, the Government have made considerable use of statutory instruments to rush through legislation, often with little time or detailed parliamentary scrutiny. Statutory instruments can vary in length and breadth. As my noble friend Lord Cunningham of Felling noted on 10 January 2019 in the official record, one statutory instrument was 636 pages long and weighed 2.54 kilos.
The increased length of secondary legislation has not been accompanied by commensurate increase in the time and resources available to Parliament. The House of Lords Secondary Legislation Scrutiny Committee, in its report published on 20 February 2019, expressed considerable concern about the extensive use of secondary legislation and argued that it prevents Parliament effectively fulfilling its scrutiny function. The participants in such debates often receive little briefing to help them prepare for the debate beyond the standard explanatory memorandum provided with the draft secondary legislation. This is often at very short notice. The impact assessments which have accompanied some of these statutory instruments have been deficient.
On 22 May 2019, in the other place, the Shadow Chancellor pointed out, at Hansard col. 6, that statutory instruments often contain “deficiencies, ambiguities and errors” which cannot be properly scrutinised by a rushed passage through Parliament. The deficient parliamentary process in turn leads to more statutory instruments to correct previous errors, and thus an overload is created.
The use of statutory instruments diminishes parliamentary powers to scrutinise the Government and their legislation. During the debate on the present CHIS Bill, many noble Lords have indicated their unease at the daunting list of relevant authorities contained in the Bill and their possible scrutiny and public accountability. There have been concerns about the use of children and vulnerable people who may be used and then discarded, left alone with their families to face private nightmares, flashbacks and mental health problems. Noble Lords have raised concerns about the rule of law, the rights of negatively affected individuals, human rights, and much more. Any future amendment to the list of relevant authorities will raise the same issues again. Such matters cannot be dealt with through statutory instruments and minimal parliamentary debates. They require public consultation, primary legislation, full debate and scrutiny by Parliament, which forces Ministers to justify their policies and practices. For these reasons, I urge the House to support my amendment.
My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.
I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.
Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.
I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.
My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti. I echo her thanks to the Minister for her offer of a briefing. I support Amendments 67 and 70. On Amendment 67, I have little to add to the clear exposition by the noble Baroness, Lady McIntosh of Pickering. This is a really intrusive provision, and the criterion of economic well-being, to which it seems to be related, is too loose to be safe as far as the liberty of a citizen goes. The authorising officer is not even a relevant professional; it is the chair of the Competition and Markets Authority.
On Amendment 70, my noble friend Lord Sikka has covered the ground most persuasively. I simply add my voice to the alarm, echoing the concerns of the noble Lord, Lord Hodgson of Astley Abbotts, that such procedures, which are important to democracy and to liberty, should be capable of amendment only by statutory instrument outside the full parliamentary powers of scrutiny.
My Lords, I am pleased to follow the noble Baroness, Lady Whitaker, although I am afraid I do not take exactly the same approach as she has on this matter; in fact, I oppose the amendments. I understand that for many people they are probing amendments, and many might take a different view when the Minister has explained some of the background to them more fully.
I am reacting slightly to the comments of the noble Lord, Lord Paddick. The noble Lord’s speech introducing this group of amendments might have given some people listening the impression that something very new is being launched, but with his own background and personal experience he knows that we are talking about a well-established practice—the use of covert sources—which, as we know, has been a vital source of information in the prevention of much crime and terrorism in our history. We are not introducing something new here but putting an established practice on a statutory basis and putting in place a much tougher regime for its operation, one that has to be voted on by Parliament, which of course was not the previous situation.
The issue of additional authorised bodies is spoken about as though this is some huge expansion, when it is my understanding—the Minister may be able to confirm this—that it is actually a reduction in the number of bodies that can apply to use the covert-intelligence-source approach. It is not new; each of the bodies listed has previously shown an operational requirement and has been using it in practice to some great benefit for the country. Here I echo what the noble Lord, Lord Paddick said, and which others have echoed, which is an appreciation of the Minister’s email to me—and maybe her letter to others who are more present on the scene—regarding what can be advanced as evidence of where this has been valuable to the organisations concerned.
The suggestion following on from that is that we do not really need all these bodies to be involved and that we should just give it all to the police. As I understand it, in many of these cases the introduction of a covert intelligence source in a particular area of responsibility, whether it be the Environment Agency or the Department of Health and Social Care, may often be to try to find out what is happening in the first place. That is not at a stage where you are producing masses of evidence of something that can be handed straight over to the police; it is about trying to assess whether there is some real threat or danger in these areas.
Many have cited the importance of a code of practice. I think there is general recognition that it is a pretty strong document. It is a huge improvement on what did not exist before, and it has to be voted on by Parliament, so we will have to approve its coming into operation. It will of course be binding on all parties.
The reason why I have taken part in these debates in Committee is that at present we are living in an exceptionally dangerous world. I have previously quoted the evidence from the Minister, James Brokenshire, on the amount of crime of very different sorts that one year’s covert intelligence had helped with. I see that included in that was the fact that no fewer than 27 different terrorist attacks were prevented by covert intelligence in the last three years.
As we listen to the evidence now being given to the Manchester Arena inquiry, the thought that—according to the evidence of the head of MI5, I believe—there were 27 other terrorist attacks that would not have been prevented without covert intelligence, should make people realise the importance of some of the issues that we are dealing with.
If I have one particular sympathy, it is that I was sorry to see that some people have suggested leaving out our Armed Forces. As we sit here now, our forces are deployed in some pretty dangerous quarters of the world. They are in Afghanistan and Iraq, and they are going to the Sahel. Given the dangers that they may face in certain areas, we would not wish the way in which they could draw on intelligence to protect themselves to be in any way restricted.
The Home Office has come in for some attacks. But we should think about the challenges of mass migration, and the illegal migration into this country that it is trying to cope with. When we look at the situation in Greece, we see how this can overwhelm countries. The importance of maintaining our defences in these areas is enormous.
I will add one brief word. I am sitting in the west country at the moment, looking at some pretty devastating scenes of what is called ash dieback, where the face of our countryside has been changed because of the import into this country of a dangerous disease. This is a constant challenge now. The role of the Environment Agency and Defra is critical in protecting our countryside and our way of life.
In my judgment this would certainly be the wrong time to lower our defences and limit still further the number of bodies that can use this important intelligence source. It is vital that, if covertly sourced intelligence exists, it exists under the tightest of rules, with strict oversight. We know that the roles of the Investigatory Powers Commissioner, the judicial commissioners and the tribunal together make up a powerful range of oversight. I support that, and would not wish to see it undermined by niggling away at it and complicating the operation of this most important area.
I will add one last thought. The Investigatory Powers Commissioner has to make an annual report to the Prime Minister, and the Prime Minister has to publish that report and lay it before Parliament. So there is continuing annual oversight of this—something that has never happened on the same scale before. That is a very important addition.
My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.
Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.
Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.
Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.
That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.
The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.
The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.
I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.
My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.
Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.
For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.
I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.
My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?
Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.
We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.
I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.
I look forward to the Minister’s response. There are a number of areas to cover here for the House.
I thank all noble Lords who have taken part in this debate. To echo the words of my noble friend Lord King, we live in a very dangerous world. I made the point last time that 27 terrorist attacks have been prevented in the last three years.
I absolutely appreciate that it might not be immediately obvious why some public authorities require this power. Again, I urge noble Lords to read the case studies that have been published to reassure themselves about the contexts in which they might seek to use the power. Alongside law enforcement and the intelligence services, some of our wider public authorities have important responsibilities for investigating and preventing criminal activity and protecting the economic well-being of the United Kingdom. We should not underestimate the important role that these public authorities play in keeping the public safe.
To answer the point raised by the noble Lord, Lord Paddick, I am happy to share business cases with him and other noble Lords, should they wish me to do so—I promise that I shall not give him only 45 minutes to read them.
I think that noble Lords have fully accepted that there will be occasions where undercover operatives play a critical role in providing the intelligence needed to identify and prevent criminality. As organised crime groups increasingly expand into areas overseen by those public authorities, the need for that robust investigative tool is more important than ever.
My noble friend Lord King made a very important point: the list is not an expansion but in fact a reduction. The information about how many organisations have been taken off the list has not appeared, but I can get that number for noble Lords, if it is to hand, before Report.
To answer the point made by the noble Lord, Lord Anderson, the officers in the public authorities are experts in their fields and are best placed to take appropriate and proportionate action to tackle the harms caused by criminal groups operating in the areas that they regulate. To answer his other point, they will have received specific training, which reflects the specialist remit in which they operate. I note that having the capability to carry out their investigative work themselves allows the police to focus on their priorities, as my noble friend Lord King and the noble Lord, Lord Anderson, noted.
I shall provide some more detail on some of those public authorities that have been specifically mentioned today: the Environment Agency, the Food Standards Agency and the Home Office. Organised crime groups are becoming increasingly involved in areas that the Environment Agency regulates, such as the waste sector. The agency’s statutory duties include the protection of the environment, natural resources and, of course, human health. As such, it is the investigating authority for offences that create serious risk of harm to people and the environment, such as illegal landfills, the misdescription of hazardous waste and illegal waste exports.
To speak to the point made by my noble friend Lady McIntosh of Pickering on just using the police—notwithstanding the points made by my noble friend Lord King and the noble Lord, Lord Anderson—the recently established Joint Unit for Waste Crime, which is hosted and led by the Environment Agency, brings together various agencies such as the NCA, the police, HMRC and others to share intelligence in a multiagency way, as quite often happens, and crack down on organised crime groups using the waste sector. I am happy to point out that it has already had a number of operational successes.
I can now give the answer on the reduction in the number of agencies on the list: it is a reduction of 22.
To get back to my point, serious and organised waste crime has been estimated to cost the UK economy up to £1 billion a year. An independent review in 2018 found that the perpetrators are often involved in other serious criminal activities, such as largescale fraud and, in some cases, modern slavery. Just as the police need these powers to investigate crimes such as drug smuggling or child sexual exploitation, so too does the Environment Agency need the appropriate tools to gather intelligence about, and tackle, serious and organised waste criminals.
The Food Standards Agency has a specialist food crime unit and a law enforcement capability within the agency. The unit was established in 2015, following a review of the 2013 horsemeat incident that my noble friend Lady McIntosh of Pickering mentioned, and is responsible for protecting consumers and the food industry from food crime. The presence of substandard food produce within the marketplace undermines confidence in the UK food industry, and a robust approach to policing that is essential. At a time when demand on other law enforcement agencies is high, the Food Standards Agency has the sole responsibility for policing food crime. Customers should have confidence that their food is safe, and that it is what it says it is. The FSA needs the right tools to keep the public safe from consuming products that endanger their health. The ability to authorise an undercover operative to sometimes, where necessary and proportionate, participate in crime will support that mission. I urge noble Lords to read the published case studies for both those agencies to get a sense of how the power will be used in practice.
Noble Lords were interested in the inclusion of the Home Office. Its inclusion relates specifically to the work of Immigration Enforcement, which uses CHIS to collect information and evidence, while maintaining cover, in relation to organised immigration crime, document fraud, clandestine entry into the UK, human trafficking and money laundering.
I can provide noble Lords with a real-life example. Immigration Enforcement investigated the activities of the proprietor of a car wash in West Yorkshire. The subject of the investigation made an unsolicited approach to an undercover operative purporting to be a lorry driver and offered him £1,500 for each person he was willing to smuggle into the UK from mainland Europe. A series of subsequent deployments secured evidence to show that the suspect was intrinsically involved in the organised clandestine smuggling of Iraqi migrants from Turkey through mainland Europe. The subject was later arrested, convicted of conspiracy to assist unlawful immigration and sentenced to five years’ imprisonment. We know of other such cases that did not result in some of those poor people getting out of those situations alive. I hope that this reassures noble Lords as to the types of activity that these wider public authorities will be authorising and, indeed, the importance of this capability in tackling these wide-ranging issues that have the ability to impact on us all.
To reiterate two further points of reassurance, an authorisation must be proportionate to the activity that it seeks to prevent, and the Investigatory Powers Commissioner will have oversight of the use of this tactic by all these wider authorities. As part of this, and recognising the concerns of some about the experience of using public authorities, I note that inspectors from the IPC’s Office can identify whether a public body is failing to train and assess its officers to a sufficiently high standard and make recommendations in response to this—again, going to the point made by the noble Lord, Lord Anderson. I hope that, in setting out the operational necessity of providing this power to wider public authorities, I have also reassured my noble friend Lady McIntosh of Pickering that Clause 2 should stand part of the Bill.
I turn finally to Amendment 70, which seeks to prevent the list of public authorities being amended by statutory instrument. Although the list can be amended by statutory instrument, the addition of new public authorities will, of course, be subject to the affirmative procedure and will therefore be debated in both Houses to ensure that there is proper oversight. I hope that this reassures the noble Lord, Lord Sikka, that this amendment is not necessary.
With those words, I hope that the noble Lord will feel happy to withdraw his amendment.
My Lords, I have received no requests to speak after the Minister, so I call the noble Lord, Lord Paddick, to conclude the debate on this group of amendments.
My Lords, I thank the Minister for her words and I thank all noble Lords who contributed to this debate.
I do not think that the Minister addressed the points made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, from the human rights perspective. What justification is there for public authorities to grant CCAs where it is difficult to see such CCAs being proportionate to the crimes that they seek to address? Authorising an undercover operative to commit a crime is very serious and needs to be proportionate to the harm that it seeks to address. Obviously, it will help when we see the business cases; I am very pleased that the Minister has agreed that we can look at them.
Can public authorities be added by statutory instrument? The Minister said that it will be via the affirmative procedure. I have already given the example of where authorities were added to those that could access communications data and the House was not able to properly scrutinise that statutory instrument because we were not given access to the business cases until the last minute. If that repeats itself, we will not be able to scrutinise adequately the addition of public authorities by statutory instrument.
The noble Lord, Lord Cormack, talked about being very troubled and the Bill going too far, which leads us on to the noble Lord, Lord King of Bridgwater; I look forward to the jousting between the noble Lord and myself on these sorts of issues. The noble Lord said that I gave the impression that there was something very new in what is being discussed here and that it was a well-established practice. If only he were right. The point is that the granting of legal immunity to people who are being authorised to commit crime is a completely new scenario that no public authority in the past has been able to do—except the Crown Prosecution Service, after the event. I accept that this is a very dangerous world, as the Minister started her remarks with, and that 27 terrorist attacks have been prevented as a result of actions—but not, I would humbly suggest, by the actions of the Gambling Commission or the Food Standards Agency.
The Minister talked about the horsemeat scandal and how it had the potential to undermine public confidence in the food supply. How can getting a CHIS to commit a crime be proportionate to addressing an undermining of confidence, in the human rights sense of proportionality? She talked about the Home Office and the power being specifically required for Immigration Enforcement—so why not, on the face of the Bill, authorise Immigration Enforcement within the Home Office, rather than the Home Office in its entirety? In the communications data statutory instrument, which authorises public authorities to access communications data, the Military Police, not the Armed Forces generally, is authorised. Why not authorise just Immigration Enforcement and not the Home Office?
The noble Baroness, Lady McIntosh of Pickering, asked: why not call in the police to deal with criminality that these other public authorities have responsibility for? The noble Lord, Lord Anderson of Ipswich, gave some very good reasons why that might be the case, such as that it might not be high on the list of police priorities. But that then comes back again to the question of necessity. He felt that they needed to demonstrate a need—we will look to see whether these agencies have demonstrated the need when we look at the business cases—and that training was essential; he was hoping that it would be alongside police colleagues, but the Minister did not seem to think that that would be the case. He raised this other interesting issue about the fact that, if these agencies do not use this power very much—that is, if they are not exercising it—they will need to be trained more frequently because they are not used to using it. This raises more concerns, in my mind, about these other agencies. The noble Lord also talked about safeguards, as we have discussed in other parts of the Bill.
Clearly we will return to this issue on Report. At the moment, I beg leave to withdraw the amendment.
Amendment 63 withdrawn.
Amendments 64 to 70 not moved.
Clause 2 agreed.
Amendment 71 not moved.
Clause 3 agreed.
Schedule 1: Corresponding amendments to the Regulation of Investigatory Powers (Scotland) Act 2000
Amendments 72 to 74 not moved.
Schedule 1 agreed.
Clause 4: Oversight by the Investigatory Powers Commissioner
Amendment 75 not moved.
My Lords, we come to the group beginning with Amendment 75A. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
75A: Clause 4, page 5, line 10, at end insert—
“(4B) Where the Investigatory Powers Commissioner becomes aware of any potentially unlawful or improper conduct undertaken in connection with a criminal conduct authorisation, which is not authorised by the criminal conduct authorisation, the Commissioner must refer the matter to the police for investigation.”Member’s explanatory statement
This amendment would introduce a requirement for the Investigatory Powers Commissioner to refer potentially unlawful or improper conduct undertaken through a criminal conduct authorisation to the police for investigation.
My Lords, I am afraid I am going to disappoint a lot of noble Lords for whom I have huge respect, but I am afraid I do not think this Bill is necessary. That is not to say that the old system was good, because it clearly was not, but this Bill is worse. It could have been better, but it is not, so I would like to see it scrapped. However, in the meantime, our job in your Lordships’ House is to try to improve it and to get the Government to listen and understand why they are improvements.
In the previous group, the noble Baroness, Lady Chakrabarti, talked about overreach. That is part of the problem I have with this Bill, but it is not the only part. As some noble Lords have said, it is a dangerous world and we have to do what we can to keep people safe, which is all very true—and all the examples the Minister gave of how to use these powers are very reasonable. However, at some point, we have to ask ourselves, “What are we prepared to lose to keep ourselves completely safe?” In the previous group, the noble Baroness, Lady Whitaker, talked about liberty and democracy, and those are some of the things we are losing with this Bill. It is an erosion. Your Lordships’ House is very concerned about the erosion of democracy —about more and more powers going into statutory instruments.
The two amendments I have tabled require that unlawful conduct that goes beyond the criminal conduct authorisation, or that should not have been authorised in the first place, be reported to the police or a relevant oversight body—for example, the Independent Office for Police Conduct. My Amendments 75A and 75B reveal a deafening silence in the Bill about what happens when something goes wrong. I hope the Minister can explain that to us. What happens when an authorisation is granted that clearly should not have been? What happens if somebody goes beyond their authorisation and commits additional criminal offences? Amendment 75A would require that the authorising authority refer to the police any criminal conduct that was not authorised. Amendment 75B would require “unlawful or improperly granted” criminal conduct authorisations to be referred to the relevant oversight body—for example, the IOPC.
This is a gaping hole in the Bill: we are talking about state-authorised crime, and the police and other government authorities must not be complicit in criminality that goes beyond the legal authorisation in this Bill. Otherwise, it creates an additional quasi-authorisation where handlers can just sweep things under the carpet when it is dangerous to admit they have done them. They can pretend they did not happen. I hope the Minister will recognise these gaps in the Bill and work to address them on Report.
My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.
It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.
The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.
The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.
However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?
My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for drawing attention to the points I made, and I am sorry if I sounded too aggressive on some of them. The point I did not make, which I shall make now, is on how much crime is committed. One would expect that, in most cases, it would not be the commission of crime so much as association with people while they committed crimes, with the person in question not necessarily being directly involved but having some complicity, which is one of the problems.
The requirements, as I understand them, if they are in that situation and a criminal conduct authorisation is issued, are that it has to be proportionate, it may not be issued if what is sought to be achieved can be done in another way, and it has to be part of an effort to prevent more serious criminality. Those three conditions are perhaps not mentioned very much but are important.
I have left out some issues that I might have discussed. We have just talked about possibly leaving the Department of Health and Social Care out of the Bill. Think of this moment when organised crime, throughout the world, is seeing how it can get into the vaccines business in one way or another. The challenge that that will pose will feature in our news broadcasts and papers in the days ahead. It will obviously be a big issue. One recalls that the NHS was practically brought to a grinding halt from its systems being hacked and disrupted.
There is this, as well, if it is not too dramatic. At the time of Brexit, when we may be moving towards no deal, there is an idea to take from HMRC its ability to keep every possible assistance. In trying to deal with some of the problems it will have, it will need all the help it can get.
My concern about these amendments, and referral to the police or judges to overview the operations of CCAs, is that a clear structure is set up. The Investigatory Powers Commissioner is a very senior judge and the judicial commissioners are very senior. My concern all the way along is that nobody has challenged how vital covert intelligence sources can be, in a range of different fields. The question is whether we can still keep those covert sources coming. The more we expand the range of people who have access to that information, the bigger the danger of leaks, and then there will be fewer sources available in the future. That is why I think the structure set up of the Investigatory Powers Commissioner and his judicial commissioners, with a tribunal and an annual report to Parliament on its operations, has important safeguards. Going much further than that starts to undermine the security of the information and imperil the safety of some brave people, who are giving evidence to help keep our country safe, in a range of different fields.
My Lords, it is a pleasure to follow the noble Lord, Lord King of Bridgwater, with whom I completely agree on maintaining the status quo on the involvement of covert human intelligence sources and the ability of the police and security services to authorise these people to engage in crime. I have no argument with him on those issues. But, as the noble Baroness, Lady Chakrabarti, said, the issue for us is the police granting immunity from prosecution or from any legal action at all.
My noble friend Lady Hamwee and I have Amendment 79, but I will take the amendments in this group in order. Amendment 75A from the noble Baroness, Lady Jones of Moulsecoomb, is intended to require the Investigatory Powers Commissioner to identify unlawful or improper conduct through a CCA to the police for investigation. I have a great deal of sympathy for what the noble Baroness is trying to achieve, but I am not sure that her amendment achieves what she sets out to.
The amendment talks about conduct that is not authorised by the criminal conduct authorisation, but we are also concerned with conduct that is unlawful or improper that is authorised by a CCA, by accident, inexperience or corrupt practice. This does not appear to be covered by the amendment. Of course, if it is the result of police malpractice, referring the matter to the police may not be enough to ensure that it is properly dealt with.
Rather than relying on my own experience, I have spoken to experienced handlers and controllers, as the noble Minister has—although, as will become apparent, not the same ones. There is genuine concern about the potential for corrupt practice when criminals and police officers are working together, as they do for the majority of police covert human intelligence sources. I was a police officer for over 30 years and I cannot tell you the distress it causes me to say what I am about to say, but it needs to be said.
Examples are cited of criminals who have gone beyond what they have been authorised to do and, in some cases, have engaged in criminal enterprises of their own but, because of their value to the police as a covert human intelligence source, a “text”—apparently the technical term for the brown envelope secretly handed to the presiding judge, informing the judge that the defendant is a valuable police informant—has been handed to the judge and, as a result, the defendant has been acquitted or given a nominal sentence, even when they have conducted a criminal enterprise. Some cases are likely to be covered by the noble Baroness’s amendment, but not all of them.
Amendment 75B is probing and I look forward to the Minister’s reply.
Amendment 79 in this group calls for a review of the use of covert human intelligence sources in crime. We are getting many different and contradictory narratives here. The noble Baroness, Lady Manningham-Buller, talks about agents run by MI5 being “brave men and women”. She cannot
“accept that they are people who lack civic responsibility, that they do it for the money or that they are engaged in very questionable activity.”—[Official Report, 24/11/20; col. 211.]
I know from having been briefed by the security services at GCHQ and Vauxhall Cross exactly the sorts of people that the noble Baroness is talking about. I have no doubt at all that the agents that she has experience of are exactly as she describes.
From my personal hands-on experience as a controller of police covert human intelligence sources, and from having handed over considerable sums of money to criminals who have been police informants, I tell the Committee that many police covert human intelligence sources lack civil responsibility, do it for money, and are engaged in questionable activity. I quote from an email sent to me by a former police colleague:
“From my wealth of experience of handling, actively tasking and using participating informants I can say that these people are among some of the most devious and manipulative people on the planet. Often desperate or open to manipulation by over-zealous or even corrupt officers.”
The agents run by MI5 are very different from many police informants.
The Minister, in her letter dated 3 December, says that she has
“talked to officers who train MI5 and police handlers—experienced agent handlers and controllers”,
who describe the current situation as “unsatisfactory” and that
“they have lost intelligence gathering opportunities and, on occasion, been unable to recruit CHIS, or had CHIS walk away from their role, because clear protection from prosecution had not been provided”.
I quote my former police colleague again:
“I’m always sceptical of anyone from within the discipline and who has a vested interest in promoting and enhancing their topic … The present system, with all its inherent difficulties is the only feasible way of maintaining control of a sometimes-volatile situation. As frustrating as it may be for those running covert operations of this nature … it is those of us that have experienced this world who know exactly why the current restraints are there and how they maintain control of investigations.”
In answer to my question, “How many intelligence-gathering opportunities have been lost as a result of the current system?”, the Minister says, “Police authorities do not gather statistics on intelligence opportunities lost”. In answer to my question, “How many CHIS have been prosecuted for authorised criminal conduct?”, the Minister says, “We do not collect these statistics. I understand the numbers are low, but it is not unprecedented.” Will the Minister please provide a detailed example of where this has happened? Was it because the criminal conduct should not have been authorised, or is she relying on someone telling her, “I’ve heard of a case but I don’t know anything about it”? Or maybe the Minister will say, “The people you’re talking to are from the past and the police can be trusted now?”
Today we learn that the second largest police force in England has not recorded one in five crimes reported to it—including 25% of violent crime—and has written off crimes without proper investigation. In seven out of 10 cases of domestic violence, it recorded that the victim did not want to pursue the case, without any evidence that this had actually happened. How many of those victims went on to sustain serious harm in another assault? Was children’s safeguarding also missed in cases that were not properly investigated?
This is the Minister’s police force. The point I am trying to make here is: who do we believe? What is the problem that the Bill is trying to solve? What is the nature and extent of the problem? We have no idea, and with the greatest respect, I am sure that the Government have no idea either. We are relying on anecdote and subjective opinions because no one, not least the Government, knows the facts. Our Amendment 79 would establish the facts.
Two amendments in this group stipulate the action that the Investigatory Powers Commissioner must take on becoming aware of unlawful or inappropriate conduct linked to a criminal conduct authorisation, or on becoming aware of an inappropriately granted or unlawful criminal conduct authorisation. I will listen with interest to the Government’s response to these two amendments.
A third amendment requires a review within six months by a High Court judge that would consider the grant of criminal conduct authorisations in relation to children or vulnerable people, the conduct of covert human intelligence sources, the oversight and monitoring of, and reporting on, such conduct, the oversight of persons allowed to authorise criminal conduct authorisations, and the sanctions available if they misuse those powers.
Under the terms of the Bill, the Investigatory Powers Commissioner has the power to conduct investigations, inspections and audits, but would not appear—I will listen to what the Government say in response—to have the capacity to investigate every time a criminal conduct authorisation is used. The Commissioner also covers the use of the power to grant criminal conduct authorisations in the annual report, which must also be laid before Parliament but which may be redacted. Of course, we do not know how much the annual report will reveal in practice. As an annual report, it will be reporting a long time after any particular issues with criminal conduct authorisations may have arisen.
It is surely important to have as much transparency as possible in how, and in what kind of circumstances, covert human intelligence sources and criminal conduct authorisations are used and granted, since the powers and activities provided for in this Bill are considerable and potentially wide ranging. They have to be applied appropriately, and the greater the transparency that is possible, the more likely that is to be the case and the greater the public confidence in how the powers are being deployed, and with what objectives in mind.
The review referred to in Amendment 79, which would be laid before Parliament, would be one way of contributing to that transparency and ensuring public confidence. If the Government are not going to accept the amendment, I hope that in response they will indicate a willingness to look further at the powers, duties and role of the Investigatory Powers Commissioner to ensure that transparency in how and in what circumstances the powers given in the Bill are exercised is maximised as far as possible. I await the Government’s response.
My Lords, I thank all noble Lords who have spoken in this debate. I know that the noble Lord, Lord Paddick, would not expect me to respond to the case that he brought before the House this afternoon, but I would be happy to sit down and discuss it with him, if he would like. I think what he wants from Amendment 79 is to require a review of all criminal conduct authorisations to be undertaken by a High Court judge, with the review to be commenced six months after the Act has come into force.
The IPC, supported by judicial commissioners, already has oversight of all criminal conduct authorisations. He and his judicial commissioners have all held high judicial office and are entirely independent of the Government. The commissioners are supported by expert inspectors and others, such as technical experts, who are qualified to assist them in their work. They are responsible for inspecting the full range of agencies and departments that will use this power and will ensure that they are complying with the law and following good practice. This includes investigating systems and processes, checking records and paperwork, interviewing key staff and investigating any known errors.
The frequency of these inspections is decided by the Commissioner, and the inspectors must have unfettered access to documents and information to support the Commissioner’s functions. This allows inspectors to undertake thorough and robust investigations of each police authority’s use of the power, covering the entire chain of events and decision-making.
A report is issued after each inspection that sets out IPCO’s conclusions and recommendations and identifies any areas of vulnerability or non-compliance. It also identifies areas of good practice which may be of interest to other similar organisations. The report will enable organisations to take action on the basis of IPCO’s recommendations. This process provides for systemic review of all public authorities’ use of the power and allows for continuous improvement in the authorisation and management of the capability.
Amendments 75A and 75B seek to put obligations on the IPC to report conduct to other bodies. Criminal conduct authorisations will be subject to the existing error-reporting processes for investigatory powers, which require public authorities to report all relevant errors to the IPC. This would include situations where undercover operatives’ conduct has taken place without lawful authorisation or there has been a failure to adhere to the necessary safeguards. Where it amounts to a serious error, the IPC must inform the person of an error relating to them where it is in the public interest.
As I have said, the IPC is entirely independent of government. He has wide-ranging powers to carry out his oversight functions, as set out in the Investigatory Powers Act. This includes the ability for judicial commissioners
“to provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”.
This is subject to various considerations such as consulting the Secretary of State where providing that advice or information might be contrary to, for example, national security. I should add that the primary responsibility for reporting agent crime falls on the public authority, which has its own specific policies to deal with this. However, IPCO could advise the public authority that it ought to refer criminal conduct to the appropriate authorities or ultimately report it itself, subject to the statutory process set out in the Investigatory Powers Act. These amendments are therefore not considered necessary.
The noble Lord, Lord Paddick, talked about the problems with the iOPS system at the Greater Manchester Police, which resulted in crimes not being followed up or certainly not being reported. I know that the GMP has said that it will robustly look into this matter. It is absolutely not acceptable but the force is taking measures to deal with it.
The noble lord, Lord Rosser, asked me to look further at the real-time oversight that the IPC could provide. I have undertaken to work with the noble Lord, Lord Anderson, and others on that. I therefore hope that noble Lords will withdraw or not move their amendments.
The noble Baroness, Lady Chakrabarti, used an interesting phrase, “necessary evil”. I wonder how many necessary evils it takes to get an overload of evil, which is not a phrase that I use often. However, particularly in relation to the current “spy cops” inquiry, we know that evil things have taken place under the old system. I therefore have no doubt that it would be better to have a different system, but it is not this Bill.
The noble Lord, Lord King, said that if this matter could be dealt with in a different way—that is, by not giving consent for criminal behaviour—then it would be. However, in my experience, that does not necessarily happen because people become tired; they are human and feel fractious. They want to do something in the quickest way, which is not always the best option. For example, the use of tasers in the UK used to be rare but now that they have been rolled out further, their use has increased exponentially. That has nothing to with the greater number of tasers: it is because police officers no longer have to negotiate with people who are wielding knives or going through mental health problems. They can just taser them. It is not always true that if something can be done in a better way, it therefore is.
The noble Lord, Lord Paddick, said that authorised action was also a problem and I very much agree. I have only met undercover police spies who were whistleblowers—knowingly, that is. They were incredibly brave and well-motivated in their job. However, they found it overwhelmingly difficult and saw or did things that they felt that they should not have been doing or been involved with. I do not make a blanket criticism of people who act as undercover police spies. However, while we need to protect them, we also need to protect ourselves, the general public and the rule of law.
The noble Lord, Lord Paddick, also asked: who do we believe? That is a problem. It is possible to believe every word that the Minister said in defence of the greater controls already in the Bill. However, I am influenced by the fact that I have seen such controls flouted. I come, therefore, from a different, untrusting point of view. People do not always act honourably and play by the book. My two amendments, or Amendment 79, which I also support, would, therefore, be a good idea.
The noble Lord, Lord Rosser, in his usual calm and collected way, asked for further information. I look forward to him putting pressure on the Government to explain themselves more fully.
I will check Hansard but I am sure that I will still have concerns. In the meantime, I beg leave to withdraw my amendment.
Amendment 75A withdrawn.
Amendment 75B not moved.
We now come to the group consisting of Amendment 75C. I remind noble Lords that anybody wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.
75C: Clause 4, page 5, line 16, after “authorisations)”, insert “including—
(i) information on the number and types of criminal conduct authorisations requested and the number granted;(ii) whether these authorisations produced any operational benefits;(iii) any material damage or civilian harm incurred as a result of acts authorised”Member’s explanatory statement
This amendment is intended to probe the adequacy of information provided to Parliament on criminal conduct authorisations, and to probe how the efficacy of these authorisations will be evaluated.
My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.
The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.
During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.
First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.
My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.
Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.
My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.
To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.
My Lords, not for the first time in consideration of this Bill in Committee, the noble Lord, Lord Hodgson of Ashley Abbots, comes to your Lordships’ House with an excellent amendment, a very good idea and an even better speech, which I cannot improve on. Transparency does influence conduct, and the information that he suggests ought to be included in reports speaks to common sense. We ought to know on a regular basis the number and nature of criminal conduct authorisations issued under the new legislation, the operational benefits that have been obtained from those authorisations and, crucially, the kind of damage to property and people—the incidental harm—that has come about as a result of those criminal conduct authorisations.
I do not want to labour the point—it has been a long Committee—but I want to have one final attempt at putting a question to the Minister to which I do not think I have yet heard the answer. This is my last opportunity to put this in Committee before we go forward to Report.
Why is it necessary to go further than the status quo in the scheme for this legislation? Why cannot undercover operatives, whether they are highly trained police or MI5 officers, or whether they are—and perhaps they are in greater number—members of the civilian community, including the criminal community, just be subject to the current law, which is that when they are authorised to do this work, including with criminal conduct, they will know that their conduct will be second-guessed after the fact? They currently have the ultimate incentive —and we have the ultimate safeguard—to behave proportionately and as well as possible, which is that they might, just possibly, if they over-step the mark, be subject to legal sanction after the event. That is the law that applies to uniformed police officers and people driving police cars and ambulances at high speed, with a very strong public interest defence. It is probably a presumption against prosecution, but it is that tiny risk of being judged after the fact that makes most people behave well according to the criminal law. Why should that be replaced with a total, advance and blanket immunity from prosecution and civil liability? Why quite go so far and therefore cause some of the greatest concerns that have been excited by this legislation?
I hope that the Minister will not mind me putting that fundamental, simple question one more time. I look forward to her answer, and indeed to our further work at the next stage of the Bill’s passage.
My Lords, the horse will be out of the stable again in January: refreshed, I hope. I am sure that the Minister will welcome the pause after the marathon she has had to undergo. I am not for a moment suggesting she is anything like a horse—I am sorry, perhaps I should not have followed that simile.
My noble friend Lord Paddick recently spoke to Amendment 79, and it is clear that several noble Lords have concerns in this area, so we will come back to it. Noble Lords clearly agree on the importance of evaluating what goes on and of transparency, as has already been mentioned. However, I cannot help thinking in the context of the precise formulation of this amendment of what the noble Baroness, Lady Manningham-Buller, talked about a week or two ago, to which my noble friend referred: the problem of the extent to which one can report in detail without endangering those who are protecting us and whom we, in turn, do not wish to endanger. I cannot help thinking that if a lot of the material listed in Amendment 75C were to be published, an awful lot of it might be redacted. However, I am with the noble Lord, Lord Hodgson, in spirit, and I think that his last point about material damage or civilian harm is an important one that we must not lose sight of. We still need to explore how best and to what extent we can achieve what is obviously troubling a number of us.
The purpose of the amendment moved by the noble Lord, Lord Hodgson of Astley Abbotts, is described as being to probe the adequacy of information provided to Parliament on criminal conduct authorisations and to probe the efficacy of the authorisations.
I think that this comes back to the issue of transparency. To be a little more particular, will we be told in advance, during the passage of the Bill, precisely what kind of information about criminal conduct authorisations will be provided to us and to the public by the Investigatory Powers Commissioner in the annual report or other reports? At the moment, I am not clear about what information will be provided and what it will cover, and whether it will give us a feel for what is happening over criminal conduct authorisations or whether we will be told that the information provided will be limited and that, on grounds of security, it cannot be disclosed.
I hope that, at least in their response either to this amendment or on Report, the Government will be prepared to spell out what information will and will not be provided so that we all know where we stand on this issue.
My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.
My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).
I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.
Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.
My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.
Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.
I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.
Amendment 75C withdrawn.
Amendment 76 not moved.
Clause 4 agreed.
Amendments 77 to 79 not moved.
Clause 5 agreed.
Schedule 2: Consequential amendments
Amendment 80 not moved.
Schedule 2 agreed.
Clause 6: Commencement and transitional provision
Amendments 81 to 83 not moved.
Clause 6 agreed.
Clause 7 agreed.
Bill reported without amendment.