Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-11-24
Topic: Law and Crime
Helena Kennedy (Labour, Centre-left): My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons: "The use of CHIS requires deep expertise and close consideration of the personal qualities" of that particular undercover operation, "which then enables very precise and safe tasking."—[Official Report, Commons, 5/10/20; col. 662.] I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says: "There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other" judicial "authority" The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case, "a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society" The quote concludes that "it is in principle desirable to entrust supervisory control to a judge" Such scrutiny could be highly compelling for the potential use of CCAs.