Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2021-02-09
Topic: Civil Rights
Shami Chakrabarti (Labour, Centre-left): My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.