Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-12-01
Topic: Law and Crime
Robin Janvrin (Crossbench, Unknown): My Lords, I support the case for strengthening oversight as put forward in Amendments 46 and 73, and I add my voice to those questioning the case for prior judicial approval of criminal conduct authorisations I speak not as a lawyer or practitioner but as another former member of the Intelligence and Security Committee, where we had plenty of evidence of the importance of covert human intelligence sources. I share the view that we need to get the balance right between, on the one hand, constructing a rigorous legal framework to support the activities of our intelligence and security agencies while, at the same time, still giving them the practical operational flexibility to carry out their difficult work effectively I have listened carefully to the strong arguments in favour of prior judicial authorisation. It is, as has been pointed out, what is required for other activities of the intelligence services and police. Should we not follow the practice of communications interception or search warrants? There are important differences. The person authorised to tap a phone or search a premises will be a public servant: an agent of the state. The person being given a criminal conduct authorisation may be a private citizen—possibly but not necessarily—from the margins of society, acting almost certainly from a complex set of motives and probably knowing that they are putting themselves in danger In the first case, authorisation seems to be essentially a judgment about compliance with the law. However, a criminal conduct authorisation requires, in addition, personal knowledge of the agent concerned and human relationships involved in complex circumstances. It is about making a judgment, possibly urgently, on human motivation, limitations and behaviour, and about operational context and risk. Therefore, on balance, I share the view that the handler or controller is better placed than a judicial commissioner to make that judgment call on what should and should not be authorised. Obviously, I am in no way against judicial authorisation in principle; it is about getting the best decision I would add a small point. For the handler to know that he or she is the authorising officer makes him or her more clearly accountable. It concentrates the mind to sign something off. As my noble friend Lord Anderson observed, it also concentrates the mind to know that your decision will be scrutinised immediately and rigorously. I therefore strongly share the view the present oversight arrangements should be significantly strengthened in the ways put forward in Amendments 46 and 73 to allow immediate scrutiny by the Investigatory Powers Commissioner. My noble friend Lord Anderson and colleagues from the Cross Benches have spoken with much greater experience than me on the need for real-time oversight. I find the arguments persuasive. Indeed, there may be a case for giving judicial oversight powers more teeth—perhaps along the lines of Amendment 47 or something similar Finally, I said at the outset that we are looking to get the balance right between a robust legal framework and operational flexibility. Obviously, this applies across the Bill. I ask the Minister to consider whether, by strengthening significantly the oversight arrangements, she will mitigate some of our other concerns around, for example, immunity or the serious crimes threshold in this important Bill.