Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-13
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.