Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-12-03
Topic: Mixed Topics
Richard Rosser (Labour, Centre-left): There are a number of amendments in this group relating to human rights. They variously provide that a criminal conduct authorisation: may not authorise activity that would be incompatible with convention rights; may not authorise murder, torture or rape, or a person under the age of 18 to engage in criminal conduct; cannot authorise causing death or grievous bodily harm, sexual violation or torture; and cannot authorise causing death or grievous bodily harm, perverting the course of justice, sexual offences, torture or depriving a person of their liberty There is also an amendment in my name and that of my noble friends Lord Kennedy of Southwark and Lord Judd, and the noble Baroness, Lady Jones of Moulsecoomb, that would also put explicit limits in the Bill on the types of criminal behaviour that can be authorised. These limits cover causing death or bodily harm, sexual violation, perverting the course of justice, torture, detaining an individual or damaging property where it would put a person in danger. There is an amendment to my amendment from the noble Lord, Lord Hodgson of Astley Abbotts, the purpose of which, as he has explained, is to explore whether the proposed regulatory regime provides adequate safeguards for operations carried out overseas The amendments all follow a similar theme, namely, wanting to include in the Bill clearer and tighter wording in respect of the criminal conduct that can be authorised by a CCA, so that there can be no doubt over what is a permissible criminal conduct authorisation and, more significantly, what is not. The Government’s position appears to be that criminal offences that are contrary to the Human Rights Act are already precluded, given that all public authorities are bound by the Human Rights Act, and thus authorising authorities are not permitted by the Bill to authorise conduct that would constitute or entail a breach of those rights Interestingly, the Bill states in new Section 29B(7) in Clause 1(5), on criminal conduct authorisations: "Subsection (6) 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)." But what are the words "to take into account" meant to mean in this context as regards adhering to the requirements of the Human Rights Act? One can, after all, take something into account and then decide that it should be ignored or minimised in whole or in part. What do the words, "so far as they are relevant", mean in relation to the requirements of the Human Rights Act? In what circumstances are those requirements not relevant in relation to criminal conduct authorisations Turning to an issue that the noble Lord, Lord Anderson of Ipswich, addressed, the Government have maintained that specifying in the Bill offences that cannot be authorised places at risk undercover officers and agents on the grounds that to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against. However, as has been said, the Canadian Security Intelligence Act authorises criminal conduct similar to that proposed in the Bill, and my amendment reflects the wording in the Canadian legislation on the type of serious criminal conduct that cannot be authorised. The Joint Committee on Human Rights has pointed out that the Bill gives the Secretary of State power to make orders prohibiting the authorisation of any specified criminal conduct and that, in line with the Government’s argument, whatever might be prohibited by such an order could presumably also be used by criminals as a checklist against which to test a covert human intelligence source. The JCHR comments in its report: "If limits can be placed on authorised criminal conduct in publicly available secondary legislation without putting informants and undercover officers at undue risk, it is unclear why express limits cannot also be set out in primary legislation." The JCHR report also states: "If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the" Human Rights Act Perhaps, in their response, the Government could say whether they are still committed to the Human Rights Act, since following their 2019 election manifesto commitment to ensuring that there is a proper balance between the rights of individuals, national security and effective government—which suggests that the Government do not think that is the present position—they have announced that there is to be a review into the operation of the Human Rights Act If the Government intend to argue that the Human Rights Act will provide protection in the years ahead against unacceptable use of the powers in this Bill, there needs at least to be a clear statement from the Government that they are committed to the Act and will not be altering its provisions It could be claimed with some justification, however, that the Human Rights Act has not prevented previous human rights violations connected to undercover investigations or covert human intelligence sources. I await the Government’s response to this group of amendments and to the contributions that seek more specific wording in the Bill, to put clear limits on the type of criminal behaviour that can be authorised.