Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-12-03
Topic: Civil Rights
David Anderson (Crossbench, Unknown): My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, "CHIS cannot be authorised to rape." Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.