Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-01-11
Topic: Law and Crime
Alfred Dubs (Labour, Centre-left): My Lords, in moving Amendment 5, I shall speak also to Amendment 23, which is grouped with it. I intend to seek the opinion of the House, unless I get a dramatic concession from the Minister at the end of the debate These amendments impose a requirement for prior judicial approval of criminal conduct authorisations, with some provision for urgent cases. I speak as a member of the Joint Committee on Human Rights. Our report, which has been widely applauded in this and previous debates on the Bill, has obviously been very helpful, and I am using a lot of information from it. I am also grateful to Justice, which provided a comprehensive report, with proposals for amendments. I am grateful to the Minister, who arranged for my noble friend Lady Massey and myself to have a briefing with some of the officials and senior police officers. We had a detailed discussion, and although it was directed at amendments relating to children which will be discussed on Wednesday, some of it is nevertheless relevant to the amendments that I am proposing today. I think I may quote from that without pre-empting the discussion about children on Wednesday The Government claim that prior judicial authorisation is not necessary because: "The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking."—[Official Report, Commons, 5/10/20; col. 662.] As I understand it, the Government believe that authorisations are better left to public authorities’ delegated authorising officers, who are, supposedly, more equipped to deal with CHIS than judicial commissioners, who are one step away However, the noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who has been quoted more than once in this debate, said: "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 authority." That seems pretty clear The use of prior judicial authorisation has, of course, been discussed in the past in relation to RIPA. But in 2016, the European Court of Human Rights held that judicial authorisation "offers the best guarantees of independence, impartiality and proper procedure." This is particularly pertinent to surveillance, which is, "a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society" The court concluded that "it is in principle desirable to entrust supervisory control to a judge" That is part of the basis of this amendment Concerns about whether this is feasible do not carry much weight. There is no reason why judicial commissioners could not review CCAs; they are already well-practised in making complex assessments of sensitive material in an independent, detached manner and at short notice, and they are always very senior judicial figures The Select Committee looked at all this. It is very clear that the Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. The report of the Joint Committee on Human Rights noted that, while the process of granting criminal conduct authorisations would be kept under review by the Investigatory Powers Commissioner, his "role in the oversight of CCAs is entirely ‘after the event’ … nor does the Bill provide for the IPC to be informed of authorisations at the time they are made, so that prompt scrutiny can take place." The report further noted: "The lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigatory functions", such as police search warrants and phone tapping. The former Director of Public Prosecutions, Sir Ken Macdonald—as he then was—has been quoted several times as saying that: "Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed." This has been quoted so often it must go in the Oxford Dictionary of Quotations. The argument in favour of judicial approval is there I refer to the Pat Finucane case in Northern Ireland—one of a number of cases—which is also mentioned in the report of the Joint Committee on Human Rights. There was a real abuse of powers which under my amendment would, I am pretty sure, have been prevented by a judicial commissioner. That case is very much unfinished business. Indeed, there is a plea, which I fully support, for a full independent review of what happened when Patrick Finucane was murdered by, or with the knowledge of, British agents. That is business for another day but, in the meantime, we have this amendment Some of these amendments are so crucial to the working of the Bill that it is difficult not to tread from one into the area of another, but this amendment is fundamental. Prior judicial approval for a CCA is absolutely essential to providing the safeguards which were referred to in the previous debate and which we need before we can allow such a Bill to become law in this country. I beg to move.