Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-11
Topic: Law and Crime
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, it speaks well of the House that there is such concern about safeguards to buttress criminal conduct authorisations while, on the whole, accepting their use. Noble Lords identify the need for external validation and the oversight of the activities of different agents—of course, here we are dealing only with criminal conduct authorisations, not the whole of what they do—who are not identical across all the "public authorities", as they are called, that fall within the Bill. We need to deal with all of them In most amendments, noble Lords identify the importance of someone with the authority of high judicial office, who therefore commands confidence, as well as the need to be practical, putting their arguments in the context of operational demands and realities, and paying attention to the timeframe. Of course, there are different proposals. I recall a discussion in a Select Committee a while ago about how, when you are a Minister, having to sign things off brings home to you that you are accountable—you have to answer for your decisions. We have heard from colleagues who have held high political office—of course, I have not had experience of this or judicial office. We support judicial authorisation The noble Lord, Lord Carlile, asked who judges the judges—but there is always that question, in the same way that there is always the question of who scrutinises the scrutineers. I have had the impression that the very experience of considering something after the event equips one for considering issues in advance, and commissioners are judges as well My noble friend spoke to all the amendments, including our Amendment 43, which is an outlier, not because it is inconsistent with the others—it is not—but because it is about a review of the regime rather than particular grants of CCAs. We do not suggest that the Investigatory Powers Commissioner is not alert to how CHIS may be used, but Amendment 43 would provide for a review of the regime—or the scheme, if you like—in the round, as distinct from tweaking legislation, which is what we are doing now, in response to court proceedings. As my noble friend said, it attempts to square the circle In their response to the JCHR, published this morning, the Government said on the issue of review that the current process "provides for systemic review of all public authorities’ use of the power and allows for continuous improvement" and so on. I think that "systemic" is probably not a typo, but I wondered whether it meant "systematic"; maybe it means both. I think the noble Baroness, Lady Manningham-Buller, would say it means "systemic" On Amendment 17, my noble friend stood back to consider the process as a whole; if he sets the grant of a CCA in the context of the deployment of the CHIS, it applies to agents used by the police and the intelligence services—not in exactly the same situations, of course—and provides for urgency We sought in Committee to answer the question of what follows with our own amendment to that of the noble Lord, Lord Anderson. Amendment 34, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, addresses the need for an outcome. His amendment is clear about determination, and I think that the noble Lord, Lord Anderson, said he would accept it. I was interested in the point made by the noble and learned Lord, Lord Thomas, about how the matter might evolve. We do not oppose Amendments 33 and 34, but notification is not approval, as noble Lords have noted, so they are different issues, and the amendment of the noble Lord, Lord Anderson, and our amendment are compatible. My noble friend Lord Thomas of Gresford was very persuasive on the possible fallout if there is no prior notification. The breadth of his speech has spared me, and therefore your Lordships, having to wind up on that, so I am grateful to him In Committee, the noble Lord, Lord Carlile, spoke of "operational practicality together with rigorous scrutiny."—[Official Report, 24/11/20; col. 210.] I would summarise amendments on the subject of this debate as indicating that we prize independence, objectivity and respect for the rule of law—the protection of the citizen against the state as well as by it. We particularly support, of course, Amendment 5 and our Amendment 17.