Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-11
Topic: Law and Crime
Brian Paddick (Liberal Democrats, Centre to centre-left): My Lords, in moving Amendment 7, I will speak also to Amendments 8, 9 and 10 in my name and that of my noble friend Lady Hamwee, and Amendment 11 in the name of the noble Baroness, Lady Chakrabarti The primary force of this Bill comes from inserting a new clause into the Regulation of Investigatory Powers Act 2000. Section 5 of the Regulation of Investigatory Powers Act 2000 deals with the interception of communication warrants that have to be issued by a Secretary of State. It states that the Secretary of State shall not issue an interception warrant unless she believes it is necessary, and it goes on to define "necessary" in subsection (3): "Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—(a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; (c) for the purpose of safeguarding the economic well-being of the United Kingdom" There is a paragraph (d), but it is not relevant today. This definition of "necessary" appears at other places in the 2000 Act, including Section 32, on the "Authorisation of intrusive surveillance" Section 81 deals with general interpretations and subsection (3) sets out the tests, either of which need to be satisfied if a crime is to be considered a "serious" crime, and they are: "(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose." In previous groups, we have set out why we believe covert human intelligence sources committing crimes is more serious than other forms of intrusive surveillance. Agents or informants are difficult to pull out of a situation if it suddenly changes, whereas listening devices can be switched off. Agents or informants are often placed at continuing personal risk in a way that technicians deploying listening devices are not. Listening devices are deployed against serious criminals, but innocent bystanders are more likely to be caught up in the criminal activity of agents or informants The list goes on, and yet this Bill allows criminal conduct authorisations to be granted in order to tackle any sort of crime and any level of disorder. Of course, CCAs have to be necessary and proportionate, but so does the deployment of listening devices, the interception of communication and the interference of equipment as set out in the other parts of the Regulation of Investigatory Powers Act 2000. But in those cases, in addition to being necessary and proportionate, they also have to target "serious" crime The Government make great play of the fact that these new provisions should be consistent with existing provisions in this area. In that case, they should agree to our Amendments 7 and 10, which limit the granting of criminal conduct authorisations to serious crime as defined by the 2000 Act. Preventing disorder is not mentioned in any of the existing provisions of the 2000 Act. We believe that a clear distinction needs to be made between, say, lawful protests, marches and demonstrations, and serious disorder. Our Amendment 8 seeks to achieve this Amendment 9 takes a slightly different approach, as things have moved on from when the 2000 Act was drafted. The issue of the interests of the economic well-being of the United Kingdom has been considered by this House more recently. In the Investigatory Powers Act 2016, in various places—including subsection (2)(c) of Section 20, which deals with the grounds on which targeted interception warrants are granted—the necessary grounds include it being "in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security" The same definition applies to obtaining communications data, bulk interception warrants, bulk equipment interference warrants and, in fact, every provision for the granting of authorisations in the 2016 Act This House considered the same issue in relation to the powers granted to border security officers to stop, question and detain under the Counter-Terrorism and Border Security Act 2019. Under part 1 of Schedule 3, an "act" is defined in paragraph 1(6) as hostile if, among other things, it "threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security" The same definition, including the additional phrase "in a way relevant to the interests of national security", appears in relation to the power to make and retain copies of articles We had exactly the same discussions when it came to those Bills, which post-date the 2000 Act, as we are having now: that the economic well-being of the United Kingdom needs to be qualified to include where that is relevant to the interests of national security. In relation to the 2016 and 2019 Acts, the Government accepted those arguments and changed the legislation. In case the Minister raises it, the definition of "serious" crime in the 2016 and 2019 Acts is almost identical to that in the 2000 Act The Minister will have to come up with a convincing argument as to why this Bill is different from both the Investigatory Powers Act 2016 and the Counter-Terrorism and Border Security Act 2019. Quite clearly, consistency with the 2000 Act was not accepted as a good enough reason when it came to the 2016 and 2019 Acts. If the Minister fails to produce a compelling reason not to accept our Amendment 9, I intend to test the opinion of the House On Amendment 11 in the name of the noble Baroness, Lady Chakrabarti, I simply repeat what I said in Committee. For as long as I can remember, the use of an agent provocateur was explicitly prohibited in police guidance on participating informants, and yet it appears nowhere in this Bill, nor in the draft statutory codes of practice The only argument that the Minister came up with against this amendment in Committee was that Article 6 of the European Convention on Human Rights protects the right to a fair trial, an existing principle of English and Scottish law, and that the use of agents provocateurs could affect a fair trial. He also pointed out that Section 78 of the Police and Criminal Evidence Act 1984 allows a court to consider and exclude such evidence. However, as the noble Baroness, Lady Chakrabarti, convincingly responded to the Minister in Committee, agents provocateurs may be used in circumstances where there is no trial. For example, agents provocateurs may provoke a legitimate organisation to do or say something that undermines its credibility in the eyes of the public, short of a criminal offence, or they may provoke criminal offences that would otherwise not have been committed where no one is arrested or charged. The Government’s argument appears to be that agents provocateurs are acceptable provided that no one faces trial Amendment 11 is necessary, and we will support it if the noble Baroness divides the House. I beg to move Amendment 7.