Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-11
Topic: Law and Crime
Shami Chakrabarti (Labour, Centre-left): My Lords, I shall be speaking to Amendments 1 and 2, which are linked. For the avoidance of doubt, I shall be pressing Amendment 1 and, if necessary, Amendment 2, but they are linked. They are for the purposes of removing the total criminal and civil immunity for undercover agents authorised under this measure and would replace that with public interest defences and public interest consideration This seems to me, first, to better reflect in the new statute the status quo in our law and practice, which was originally advanced publicly as the motivation for this legislation. Secondly, therefore, it seems to me to create a better, safer balance between, on the one hand, empowering undercover agents to protect their cover when engaging in very important life-saving undercover operations of a kind that we have heard about at length during the passage of the Bill—and, on the other, protecting all of us, especially wholly innocent citizens, from potentially grave crimes and abuses of power by undercover agents for many years into the future. I remind noble Lords that we are not just talking about intelligence and police officers; we are talking about a much larger number of agents of the state who are members of the community, including the criminal community, whose co-operation is, of course, sometimes rightly sought by state agencies At this point in the proceedings, I thank the Minister, the new Advocate-General for Scotland, who is not due to speak in this debate, for his wholly courteous engagement with these amendments, both publicly and privately. By doing so, I emphasise the importance of our ability to disagree well and in good faith with each other, in this Chamber at least I have been a student of constitutional law all my adult life, and, in particular, I am an admirer of attempts at embedding the rule of law in great old democracies such as the United Kingdom and the United States. I am sure that I am not alone in still feeling quite shaken by the scenes from the American Capitol last week. They demonstrate, to me, at least, that this is no time for complacency when it comes to democracy and the rule of law; it is no time for any complacency on either side of the Atlantic, even on the part of those public commentators who have said that no such scenes and grave abuses of executive power could ever transpire here. That is not a sensible position While I have greatly benefited from the wisdom of all sides of your Lordships’ House during the passage of the Bill, I have just occasionally found some speeches a little complacent when noble Lords have discussed abuses of undercover agents in our own country in the past—for example, in the context of the "spy cops" inquiry, which is still pending and yet to be concluded or to fully investigate the true extent of abuses by undercover police and police agents over many decades Some noble Lords have been very crisp, clear and, sometimes, short in expressing their view that that was the past—such abuses by undercover agents are all in the past and should not be raised as a concern for the future. I know that that is well meant and comes from a place of understandable commitment to aspirations such as public and national security, but these are not times for such complacency—certainly not in the context of legislative scrutiny. As such, I disagree with some of those arguments, but I will be clear that I do not for a moment impugn the good faith or the intentions of those who have advocated the Bill in this precise form, however mistaken I may think them to be I regret the "shadowy sources" who chose to impugn my own motives and good faith in pressing these amendments in the Guardian this morning. Frankly, I say to those sources, who were sadly reported as being on my own side: they should grow up. Reasonable dissent reasonably put is not disloyalty in a great old democracy such as ours—far from it. With respect, I address opponents of my argument and these amendments, which I do not believe to be wrecking amendments or catastrophic to the principal purpose of the Bill, which is to put criminal authorisations for the purposes of keeping cover on a statutory footing. I say to those who disagree with me: please play the ball—or the argument—and not the woman, or at least put your name, publicly and honestly, to your briefing to journalists and so on because, as we saw last week, rather shockingly, democracy and the rule of law are all-too-fragile treasures I followed this kind of legislation in the realm of home affairs for about a quarter of a century, which makes me very junior in my experience and expertise in your Lordships’ House. For my part, at least, as a former government lawyer, a human rights lawyer and campaigner and, much more recently, a legislator, I believe that the Bill, unamended, is one of the most dangerous that I have ever seen presented to your Lordships’ House The problem is that this is about a very long list of agents—not just officers—of the state, including some from the community and criminal community and some very vulnerable and volatile people. They will now be capable of being authorised by other agents of the state to commit unlimited crimes—with no limit to the types of crime included—and they will be authorised in advance with total impunity from any second-guessing or civil or criminal consequence after the fact. Forgive me, but I find that proposition quite breathtaking in the United Kingdom This is why the cross-party, all-party group Justice—I declare an interest as a member of it, and I know that there are other members from across your Lordships’ Benches—have advised that the Bill, unamended, contains a number of violations of fundamental human rights, including under the European Convention on Human Rights. The Bill has also drawn heavy criticism from Amnesty International and other advocacy groups for human rights, the rule of law and victims—as well as from a number of former police officers, not least the noble Lord, Lord Paddick, who will speak in a moment, after many decades of police service. It has also drawn heavy criticism from former undercover police officers and agents who have spoken of their own practical experience and why the Bill, unamended, is so dangerous That is not to say that the Bill does not have some very good intentions behind it, but we know about the road paved with good intentions. The good intentions are, no doubt, to put a practice that has been implicit on a firmer statutory footing, not least because it has been challenged If people are to be put under cover and sometimes even advised to perpetrate crimes to keep their cover—for example, as a member of a proscribed organisation, handling stolen goods or drugs, or committing speeding offences; things that they must necessarily do to keep their cover—and if they are to be authorised to do that by their superiors and handlers, perhaps that should be put on to a firmer statutory footing. That is ultimately the good intention behind this legislation. However, as we have discussed before, the legislation goes much further and creates this total advanced immunity.