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, it is again a pleasure to follow the noble Lord, Lord Rosser. We agree with the arguments he put forward for the need for additional safeguards, beyond what is contained in the Bill. My noble friend Lady Hamwee and I have Amendments 17 and 43 in this group Amendment 43 provides for a senior judge to undertake a review of the use of informants and agents and their participation in crime; in other words, to get answers to the questions, "Why do we need this Bill?" and "How far should it go?", questions the Government have been unable to provide any evidence for. Contrary to what the Minister claimed in Committee, this review would not duplicate the oversight that the Investigatory Powers Commissioner provides in his annual review of the current use of the powers under the Regulation of Investigatory Powers Act. Instead, it would answer the questions we have been asking at every stage of this Bill that the Government have been unable to answer How widespread is the practice of using agents or informants who have been tasked to participate in crime? Who has been involved? Have they been brave men and women whose sole motivation is the public interest, or have they been people who lack civil responsibility, who do it for money and who have been engaged in very questionable activity—or is it both? The evidence we have heard on this point, arguably from equally reliable sources, has apparently been contradictory. To what extent has immunity from prosecution been a factor in the loss of intelligence and in potential covert human intelligence sources being deterred from helping public authorities? The Government have been unable to tell us, but this review would be able to answer the question—fundamental to the provisions of this Bill—of whether they are all needed. It would also answer the other crucial question: are the safeguards adequate That brings me to our Amendment 17. We have heard from Members of your Lordships’ House who have had hands-on, practical, operational experience of the issues covered by the Bill, of whom I am only one. I hesitate to use the word "expert" after I was once described as an expert on drugs—a rather dubious accolade—so I shall use the term "practitioners". What we have heard from practitioners are the operational difficulties of prior judicial or ministerial authorisation. Practitioners have highlighted the differences between the existing provisions of the Regulation of Investigatory Powers Act—which relate to the interception of communications—and the new provisions, which relate to the use of covert human intelligence sources tasked to commit crime; I will refer to them as "participating informants" The former usually involve the use of technology, such as the planting of a listening device or corrupting the software of a mobile telephone or a computer. The stream of information can be turned on and off remotely, without the target even knowing. The latter involves placing someone in an uncontrolled, unpredictable, often volatile situation, where the participating informant often interacts with dangerous criminals and often must use their own initiative to deal with rapidly changing and unpredicted scenarios with no real-time contact with their handlers or authorising officers. The former is passive and controllable intrusion. The latter is interactive and often uncontrollable The noble Lord, Lord Anderson of Ipswich, told us in Committee that he had been "converted to the idea of prior judicial approval" in the case of communications interception—as he has just restated—but that, again, tasking a CHIS "requires decisions of a quite different nature based on immersion in the human complexities of fast-changing situations. Those decisions depend on close personal knowledge of a person’s character, which will often be unreliable and volatile, and on assessments of the underworld group in which that person is embedded. The authorisation of criminality is simply one part of that complex human relationship." The noble Lord also said that judges were good at assessing "the likely operational dividend against the likely intrusive effects".—[Official Report, 24/11/20; col. 198.] Our Amendment 17 is the result of listening to practitioners—and to those like the noble Lord, Lord Anderson of Ipswich, who has experience of being an Investigatory Powers Commissioner—and coming up with a compromise. The amendment allows the practitioners to do what they are good at: use the close personal knowledge of the participating informant’s character, assess the underworld group in which that person is to be embedded and define the crimes that the participating informant is to be authorised to commit However, once the informant has been granted a criminal conduct authority by the authorising officer, that now participating informant cannot be used or deployed unless the Investigatory Powers Commissioner has authorised use or deployment. The Investigatory Powers Commissioner must consider the purpose and extent of the deployment and the type of criminality, in general terms, that it is anticipated the informant will be participating in. If the informant is not to be used to commit crime, IPC authority is not required. It is only once the informant is authorised to commit crime that IPC authority is needed If I may use this analogy, if you want to deploy a missile, you need one level of authority—in this case, the authorising officer. If you want to arm the missile with a warhead, you need another level of authority—in this case, the Investigatory Powers Commissioner. If the purpose or extent of the deployment changes, or the type of criminal activity in general terms changes, the IPC has to re-authorise the use of the participating informant. Contrary to what some critics have said, it would not be the case that, once given, IPC authority would give the authorising public authority carte blanche to use the participating informant at will The amendment allows judges, the Investigatory Powers Commissioner and his judicial commissioners, who must hold or have held high judicial office, to do what they are good at: consider the likely operational dividend against the likely intrusive effects, including the potential for collateral damage or injury. If it is necessary to deploy the participating informant urgently, prior approval is not required but notification must be given as soon as reasonably practicable and, in any event, not less than seven days after deployment Our amendment attempts to square the circle. How can you have prior judicial authorisation without getting the Investigatory Powers Commissioner involved in the sordid details of participating informants but at the same time safeguarding against the kind of malpractice we have seen in the past, such as that described by the noble Lord, Lord Hain: infiltrating anti-apartheid groups, the Lawrence family support group, legitimate environmental groups and trade unions I believe that Amendment 17 provides prior authority by the Investigatory Powers Commissioner in a way that would be more practical in an operational setting. Amendments 22 and 33 lack the power to stop a CCA without Amendment 34; in any event, they do not amount to prior judicial authorisation, which is what many noble Lords have been calling for. As Amendment 17 authorises the deployment once the CCA has been granted, and not the criminal conduct authority itself, I believe that it is consistent with Amendments 5 and 16—that these amendments, if passed, would not pre-empt Amendment 17, which would also not pre-empt any other amendments in this group In Committee, the Minister said: "We have been consistently clear that we want this important legislation to command the confidence of Parliament and the public and are thus willing to consider proposals which provide greater reassurance on oversight but do not impact operational effectiveness."—[Official Report, 1/12/20; col. 651.] As a former police officer, I can say that this amendment fits the Bill. I intend to test the opinion of the House when we get to Amendment 17.