My Lords, I start by making it absolutely clear that I do not blame the Minister or those who have written her brief. All I am saying to the House is that Members of this House involved in this debate have hands-on experience of these issues. I include the noble Lord, Lord Davies of Gower, and the noble Baroness, Lady Manningham-Buller, in that. I ask the Government to listen very carefully to those with that experience; that is all. I can confirm that the Minister and I are friends.
The amendments in this group seek to prevent the use of criminal conduct authorisations in connection with the activities of trade unions or legitimate political activity, or to compile lists to exclude people from employment because of their involvement with trade unions or their activities. Others seek to ensure that they are not used disproportionately against minorities and to find out how the Government intend to respond to the Undercover Policing Inquiry.
There are difficulties with Amendments 28 and 29. What happens if a trade union, or its members, is involved in criminal or seditious activity, such as, as was suggested earlier, the activities of Arthur Scargill and the National Union of Mineworkers? Who defines what political activity is legitimate? If members of a trade union have been involved in criminal activity, are there not circumstances where they could legitimately be discriminated against by employers?
We have sought to take a more general approach. In an earlier group, I mentioned our Amendment 56A in this group. It might have been better in the group where we discussed prior judicial authorisation, but the amendment did not come to me until midway through that debate. That is why it is in this group. However, it addresses exactly the issues that the noble Baroness just spoke about. Therefore, it is legitimate for it to be in this group.
I believe there is consensus around the House that agents of the state, in particular the police, should not be able to authorise covert human intelligence sources—an informant or agent—to participate in crime, granting everyone involved legal immunity in the process, without more rigorous and independent oversight. Otherwise, the sort of activity that the amendments in this group seek to prevent could take place.
As we have already debated, the problem with the prior judicial authorisation of a criminal conduct authorisation, which has to define very precisely what exactly the CHIS is or is not allowed to do, is that the agent or informant is often being sent into an uncertain, rapidly changing scenario in an uncontrolled environment, often involving chaotic individuals. Straitjacketing the agent into an exact set of actions, stepping outside of which would remove his legal immunity, is not practical, not least if the CCA has to be referred back to a judge, the Investigatory Powers Commissioner or even a Secretary of State before the criminal conduct authorisation can be changed. These are often fast-moving situations, involving complex human interactions that cannot be paused while a decision is made.
It is essential that covert human intelligence sources are not tasked to commit crime in a way that is not legitimate, whether by mistake or corruptly. The draft revised code of practice is not reassuring on this point. For clarity, I will set out what could happen in practice: a handler, who is in in contact with the informant and wants him to participate in crime, makes an application to an authorising officer—in urgent cases, a police inspector or equivalent and, otherwise, a superintendent. Paragraph 5.8 of the draft code of practice says:
“authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible”.
There could be a situation where a drugs squad sergeant investigating a drugs gang gets urgent authority from his own drugs squad inspector to authorise an undercover drugs squad officer to engage in a drug deal in which the sergeant, the undercover officer and, arguably, the authorising officer are all immune from legal action. It is not difficult to see the potential for abuse in such situations. Noble Lords will be able to imagine a similar scenario, where the target of the operation is a legitimate peaceful protest or the proper activities of a trade union.
Amendment 56A in my name and that of my noble friend Lady Hamwee seeks to resolve this conundrum. It seeks to ensure that, if it is intended that an agent or informant is to participate in crime, the
“nature and extent of the deployment have been approved by the Investigatory Powers Commissioner”
in advance, not the precise details of the criminal conduct authorisation. It is pre-approval, if you will: a CCA cannot be granted unless and until the Investigatory Powers Commissioner has agreed to the mission, in general terms, on which the CHIS is about to embark.
The amendment does not require the prior approval of the exact and precise terms of the criminal conduct authorisation. Instead,
“the purpose and extent of the deployment, and … the type of criminal activity”
likely to be involved must be explained, in general terms, to the Investigatory Powers Commissioner, who must approve the use of the agent or informant in the intended way. The Investigatory Powers Commissioner could, for example, approve the deployment of an agent into a terrorist organisation, but would, in all likelihood, refuse the use of a CHIS to spy on the legitimate activities of a trade union.
We suggest that this would provide the reassurance that many noble Lords seek by ensuring that a covert human intelligence source should not participate in crime without prior judicial approval, but without the Investigatory Powers Commissioner becoming involved in trying to understand the personality of the CHIS and those he will interact with, or becoming involved in the exact detail of the criminal conduct authorisation prior to the event. It would give the handler the flexibility he needs, but ensure that the CHIS is deployed only for a legitimate purpose. Such prior approval of deployment would apply only where it is intended that the agent or informant will be authorised to commit crime.
Clearly, there needs to be provision for urgent cases, which the amendment attempts to give, but what constitutes an urgent case also needs to be defined—although there is guidance in the draft code of practice about this. The question of legal immunity needs to be dealt with separately, but I urge the Government to seriously consider this compromise, and I hope that the Minister will undertake to discuss this amendment with me before Report.
As with all activity by the state and its actors, the impact on minorities should be monitored, and we support Amendment 78. However, we feel that it is too early to expect the Government to set out how they will respond to the Undercover Policing Inquiry, as this will depend on its findings.