Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-11-24
Topic: Law and Crime
Shami Chakrabarti (Labour, Centre-left): My Lords, Amendment 3 is linked to Amendment 5, which is at the nub of all this. I am supported in that amendment by the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Warsi. Over many years, including in recent days, when the devil is in the detail in general and when the rule of law is in jeopardy in particular, your Lordships’ House really comes into its own. This is necessarily the case when, as with this Bill, the proceedings in the other place were so truncated and when such a complex but vital area of policy was not foreshadowed in an election manifesto. I say that to emphasise the importance of your Lordships’ consideration of the detail of the Bill I will begin with two preliminary points that are vital background to Amendment 5, in particular. To head off the noble Lord, Lord Cormack, at the pass, I will try to use the phrase "undercover operative" instead of "covert human intelligence source", or CHIS. I cannot say "undercover officer", because of course, so many of the people involved in this activity are not officers of any state agency. They are not James Bond or even Constable Bond, they are members of the community, including the criminal community, as we know First, I accept that undercover operatives must sometimes commit crimes in the public interest. It is unsavoury, but it is vital sometimes to keeping their cover or just operating. As we heard from the Minister a few moments ago, that includes the offence of being a member of a banned organisation, but might also include being in possession of banned items in such an organisation or in a criminal fraternity of some kind, and the crimes might go further still into minor property offences, and, who knows—subject to the public interest, in a particular, very dangerous but potentially life-saving operation. I want to put that on the record at the outset Secondly, I must accept that current litigation still before the courts that challenges the legal foundation of present arrangements whereby undercover operatives will sometimes be authorised and guided in crimes connected with their work potentially risks the viability of current arrangements in a way that would not be satisfactory to me or anyone trying to discharge the burden of government This amendment has been drafted with the acceptance that the Bill is necessary to create a clearer statutory foundation than is currently the case, but there is a very important difference between regularising current arrangements—necessary and even vital evils in the public interest—and, on the other hand, violation of the rule of law. It can be a very fine line, and it is that line that I attempt to correct and safeguard with Amendment 5 Amendment 5 removes the current "lawful for all purposes" civil and criminal immunity used in the Regulation of Investigatory Powers Act and is completely appropriate in that place for the purposes of surveillance; in other words, a necessary and proportionate interference with people’s privacy. It may be perfectly appropriate for surveillance, subject to appropriate checks and balances, but not, I would argue, for other criminal offences. They may be significant property offences or even offences against the person, or other serious interferences with, if not violations of, people’s rights and freedoms. That is why "lawful for all purposes" is not appropriate. We could even be getting into physical harm to people, which does not happen in the case of privacy intrusion or surveillance by themselves.