My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this
“would place sources, and the wider public, at risk.”
As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.
Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.
What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.
The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.
To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.
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If the House is not convinced by our failure to understand the Commons reason, it simply needs to look at the experience of Australia, Canada and the United States to see that it does not hold water. We will be supporting the noble Baroness, Lady Chakrabarti, when she divides the House on Motion B1.
The history of Motion E1 is as follows. As the noble Lord, Lord Anderson of Ipswich, just said, he proposed—and the Government accepted—that when a criminal conduct authorisation is granted, the person granting it must give notice to a judicial commissioner as soon as practicable and in any event within seven days. As the noble Lord just said, a judicial commissioner is a current or former High Court judge especially trained to deal with the authorisation of investigatory powers such as this. Indeed, the police and the security services cannot tap someone’s phone, for example, without prior authority from a judicial commissioner and a Secretary of State. In the case of the police and the security services telling a source to commit a crime, no independent prior authority is required from anyone. Anything the police or the security services authorise the source to do is lawful for all purposes. Not only can they authorise someone to commit a crime, they can also grant complete legal immunity to that person. In Committee, my noble friend Lady Hamwee and I asked, “So what? What happens next? Once the judicial commissioner has received notice that a criminal conduct authorisation has been granted, what happens then?” We tabled an amendment in Committee to try to establish the answer.
The noble and learned Lord, Lord Thomas of Cwmgiedd, took up the cause on Report, requiring the judicial commissioner to inform the person who granted the authorisation to cease all further activity if the independent senior judge determined that the authorisation should not have been granted. The noble and learned Lord even allowed for the activity to continue for a while if that was necessary for the purpose of safely disengaging the CHIS. The Commons objected to a judicial commissioner—an independent senior judge—stopping a CHIS committing a crime when that judicial commissioner had decided that such activity was illegal. Let us just think about that for a minute.
Instead, the Government are proposing that it is for the authorising officer in the police or the security services to determine what action, if any, should be taken once he has been told by an independent senior judge that what he has authorised is against the law. The authorising officer is required only to write back to the judicial commissioner to say what he has decided
to do, and that is a requirement only in the codes of practice, not in the Bill. Despite what the noble Lord, Lord Anderson says—that because it says that the authorising officer needs to say what action he intends to take and therefore no action is not an option—the action that the authorising officer could decide to take is simply to consult a senior officer and write back to the Investigatory Powers Commissioner to say that they will carry on regardless.
Not only can the police or security services continue to task a source to commit a crime against the independent determination of a senior judge, but that source has complete legal immunity, despite the judicial commissioner saying that the criminal conduct authority should never have been granted. If ever there was evidence of a Government simply giving operational partners whatever they asked for, whatever the consequences, this Bill is it.
Our amendment to Motion E requires that if the judicial commissioner determines that the authorisation should not have been granted, he must inform the person who granted the criminal conduct authority of his decision. He must also inform the relevant prosecuting authority and all further activity that will or might be undertaken under the authority of that criminal conduct authority ceases to be lawful for all purposes. Contrary to what the Minister said, this does not interfere with the operational decision to deploy the CHIS or with tasking the CHIS to commit crime. The judicial commissioner cannot stop the activity but he can prevent further activity being immune from prosecution.
The Minister, I respectfully suggest, has misinterpreted our amendment and it is disappointing that she did not offer an opportunity to discuss it and clarify her understanding of it. In such a scenario, the situation simply reverts to the existing system, whereby the actions of the CHIS are referred to the CPS after the event to decide whether it is in the public interest to prosecute, rather than the CHIS being given prior legal immunity. That would happen if, and only if, the judicial commissioner determines that the criminal conduct authority should not have been given.
I intend to move Motion E1 at the appropriate point to test the opinion of the House.