Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-11-24
Topic: Law and Crime
Brian Paddick (Liberal Democrats, Centre to centre-left): My Lords, in moving Amendment 6, in my name and that of my noble friend Lady Hamwee, I will speak also to the other amendments in this group Section 27(2) of the Regulation of Investigatory Powers Act 2000 states: "A person shall not be subject to any civil liability in respect of any conduct of his which … is incidental to any conduct" that, for the purposes of this Bill, is authorised by a criminal conduct authority. Our Amendment 6 removes this immunity from civil liability. My support in the last group should make it absolutely clear to the Committee that I feel that that is the solution to this problem. It would be only in the very unfortunate circumstance that those amendments are not incorporated into the Bill that I would revert to this amendment This part of RIPA was intended to deal with the interception of communications. This might involve placing a listening device in a car or a room or intercepting phone calls, text messages or emails. This could be done only if it was authorised in advance by an Investigatory Powers Commissioner and by the relevant Secretary of State, and against only the most serious criminals, such as terrorists. While intercepting communications is a serious matter, the physical or financial harm to the—suspected—very bad person targeted is likely to be minimal The criminal conduct authorities—CCAs—under this Bill authorise undercover operatives to commit crimes in which innocent members of the public could be involved and seriously harmed. A frequent scenario in the past would have been recruiting a member of a gang of armed robbers, who was allowed to participate in an armed robbery during which, by either accident or design, the undercover operative working for the police may have harmed the security guard, potentially very seriously Noble Lords will also be familiar with—and other noble Lords have already mentioned—undercover police officers befriending and entering into sexual relationships with environmental activists. Despite the Government’s implied promise at Second Reading that such things would never happen again, in fact, what the Government have said is that an undercover operative would never be "authorised" to have sex with someone they were tasked to enter into a relationship with, not that it would never happen again There are two clear and distinct issues here, where someone may seek civil damages. One is where the handler authorises a CHIS to engage in a crime in a way that is not lawful, necessary or proportionate. The other is where the CHIS, whether an undercover officer or, potentially, a member of a terrorist group who passes information back to the police, goes beyond the authority of a CCA. This could be something "incidental to any criminal conduct" they have been authorised to do An undercover police officer could argue that he had no choice but to become intimately involved with the activist he was tasked to befriend, and that even if the sexual activity was not specifically authorised, it was "incidental to" the conduct that he was authorised to engage in. To grant him, and potentially the police force concerned, immunity from being sued for damages in such circumstances is repugnant. This illustrates that RIPA was never intended for, and is ill suited to, granting immunity under criminal conduct authorities. The Government will say that, even if the CHIS evades civil action, the police force that tasked him, for example, will not. However, that seems to be cast into doubt by what the Minister said in the first group about the extent of the immunity granted, in that that immunity would extend also to the person tasking the CHIS. Again, there are two distinct issues with this. The first is that if the conduct authorised under a CCA is "lawful for all purposes", it seems to me that the police force, too, is immune from civil action. The second is that—I speak from personal experience in the police service, as others have—racist and sexist behaviour in police forces reduced only when police officers and their police chief found themselves personally liable for their behaviour. If they had not acted in the course of their duties as a constable, the chief constable could deny vicarious liability, and the officer would be personally liable for any damages. It is the threat of legal action, whether criminal or civil, that ensures that handlers and CHISs keep within the law. Removing civil liability from a CHIS would remove another important check on their behaviour. We cannot support Amendment 8, for a number of reasons. First, it says that criminal conduct under the authority of a CCA is lawful for the purpose of the criminal law. Clearly, we do not agree with that. As I have argued in the previous group, we do not believe that that should be the case. Secondly, it requires the authorising body to indemnify the CHIS against having civil action taken against him. For the reasons I have just explained, the personal liability of the CHIS in such circumstances is an important check on their behaviour. Amendment 71 would allow a complaint to be brought before an Investigatory Powers Tribunal, which may award compensation. But there is normally a time limit of one year after the taking place of the conduct to which the complaint relates, which seriously reduces the scope for compensation to be applied for, compared with the normal seven-year limit for other civil actions. I do, however, believe that the proposal has some merit, and perhaps with further adjustment it may be more acceptable. I beg to move.