My Lords, I support Amendment 56A in particular. In the earlier debate on the issue of prior judicial authorisation, I made the point that notification of an authorisation of criminal conduct to the IPC, as suggested by the noble Lord, Lord Anderson, and other noble Lords, lacked teeth. In response, the Minister argued that the oversight role of the Investigatory Powers Commissioner has teeth. She said that it includes ensuring that public authorities comply with the law and follow good practice. She added that public authorities must report relevant errors to the IPC office; for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards, saying that the role of the IPC was to make recommendations to public authorities in areas that have fallen short of the required standard. This all may happen after a criminal event has taken place. The so-called safeguards would then bite on nothing.
Alternatively, the Minister relied on a framework in which the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice. Like the noble Lord, Lord King of Bridgwater, I have looked at this, but cannot find any guidance as to the areas in which it is appropriate for all these public authorities to deploy CHISs. It says simply that the deployment must be
“necessary and proportionate to the intelligence dividend that it seeks to achieve”
and
“in compliance with relevant Articles of the European Convention on Human Rights”.
The authoriser himself or herself is charged with considering whether the activity to be investigated is an appropriate use of the legislation, which rather begs the question of what, when and where is appropriate. It is entirely the subjective opinion of that individual authoriser. He may object to the secret cultivation of leeks in Dorset, for all that the noble Baroness, Lady Jones, might know.
Examples of the deployment of covert agents, as outlined by the noble Lords, Lord Hain and Lord Mann, and the noble Baroness, Lady Jones, herself, and in the case of the Lawrence family, are dismissed as errors of the past, and that in the bright future under the provisions of this Bill, they would not happen. I agree entirely with the noble Baroness, Lady Chakrabarti, that we learn from the past, and that in this Bill there is a blurring. This bright future includes a novel element: the authorisation of crime with complete and total immunity against prosecution, or against civil suit. The Bill envisages that covert human intelligence sources will be employed in the future by a wide variety of public authorities in a wide variety of unknown situations and areas. Let us consider the areas referred to in these debates: protests against apartheid in South Africa, protests involving the cooling towers of electricity stations, and protests up trees. As for the Lawrence family, I cannot imagine what public interest was being pursued.
I recall prosecuting a case in which the defendants were charged with sending letter bombs. It emerged in the evidence at the trial that a covert security service officer was happily waving a banner in a protest march through Caernarfon in support of the aims of the bombers, shortly before the trial took place. Waving a flag may not be an offence outside Northern Ireland, but the case involved a serious crime that resulted in a 12-year sentence of imprisonment. As prosecutor, I received a knock on my door at home from the local policeman from Rhosllanerchrugog, warning me about my personal security during the trial, and telling me not to open any large letters. Two days later, I was contacted for the same purpose by the security services, who presumably did not feel the same urgency or concern for my safety as my local bobby.
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The banner-waving secret service agent was not committing a criminal offence by joining a protest, but in this Bill, we are concerned with authorising criminal offences. It is not a matter of the past; this must still be going on. Are there CHISs currently deployed in penetrating Extinction Rebellion? Is the committing of criminal offences as part of the investigation of these protest movements necessary and proportionate? Is the question of public interest to be left unchecked and unhindered in the hands of an investigating authority, however well trained its individual authorising officers may be? Such an individual authoriser may have lost the capacity for moral judgment, as the noble Baroness, Lady Bryan of Partick, said earlier today.
Amendment 56A does not seek prior authorisation of the specific terms of a CCA. As my noble friend Lord Paddick made clear, there is no straitjacket, having regard to the uncertain and chaotic circumstances of the deployment. However, it does involve the need
to satisfy the Investigatory Powers Commissioner that criminal activity is necessary and proportionate in the area in which the covert source is being tasked, outlining its nature and its extent. The proposal is that the IPC should be informed of the deployment of the source with authority to commit criminal offences in a particular area, and his oversight of the issues of necessity and proportionality is invoked. That is the sensible and workable safeguard. There is also provision in the amendment for another process if a speedy decision is needed.
The Minister promised the other day to consult with the noble Lord, Lord Anderson, and those supporting his amendment. Clearly, the matter is still in play. I suggest that the Minister consult with the proposers of Amendment 56A to see whether this is not a far better way forward.