Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-11-24
Topic: Law and Crime
Pauline Bryan (Labour, Centre-left): My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that "nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act" and that "there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations"—[Official Report, 11/11/20; cols. 1046-47.] but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities "clear and detailed guidance that they must follow in deciding whether to grant an authorisation."—[Official Report, 11/11/20; col. 1045.] The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed "serious errors". It says: "In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services." These were the very criteria used to issue the erroneous CCA in the first place I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.