My Lords, I thank my noble friends Lord Dubs and Lord Rosser and the noble Lord, Lord Paddick, for adding their names in support of this amendment.
The bottom line on this amendment is to include a prohibition on the authorisation of serious criminal offences. It establishes a prohibition on such offences listed in my amendment; these are in similar terms to those in the Canadian Security Intelligence Service Act 1985, which I will refer to later.
I am a member of the Joint Committee on Human Rights, as is my noble friend Lord Dubs, and I will refer to its report on the Bill, published last November. The committee had serious concerns about this part of the Bill, and I shall put this amendment to a Division unless I receive a thorough reassurance from the Minister.
In chapter 4 of the JCHR report, four issues are discussed: first, there being no express limit in the Bill on the type of crime that can be committed; secondly, consideration of the approach taken in other jurisdictions; thirdly, the power to prohibit certain conduct by order; and fourthly, the Human Rights Act as an effective safeguard.
In their written response to the JCHR report, published on Monday, the Government give detailed consideration to the recommendations in this amendment. I am grateful for that, but I do not think it covers all our concerns as a committee. The Minister will perhaps reflect these considerations in her response. It is helpful that the Government restate their commitment to human rights in the response at the end of section 3. They say that
“the United Kingdom is committed to human rights and will continue to champion human rights at home and abroad. The United Kingdom is committed to the ECHR.”
But evidence of the commitment to human rights has to be demonstrated and reinforced, and I am concerned that by not expressing limits in the Bill on the type of crime that can be authorised, human rights are not being defended.
The Joint Committee on Human Rights has expressed the concern that:
“The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.”
The Home Office, in its guidance on limits of authorised conduct, consider this necessary because
“to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”
In their joint written submission to the JCHR, the NGOs Reprieve, the Pat Finucane Centre, Privacy International and Big Brother Watch note that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill. However, the Canadian legislation expressly provides that nothing in the Act justifies the issues set out in my amendment. They are, to summarise: causing death or grievous bodily harm; perverting the course of justice; any offence under the Sexual Offences Act 2003 or the 2009 Act in Scotland; subjecting an individual to torture, inhuman or degrading treatment or punishment, as in the meaning of the HRA 1998; or depriving a person of their liberty.
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The government position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, paragraph 40 of the Joint Committee on Human Rights report points out:
“Reliance on the HRA as providing an effective limit on the conduct that can be authorised appears inconsistent with the Government’s justification for its refusal to exclude specific offences on the face of the Bill. If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the HRA.”
The Committee did not think it
“appropriate to legislate by providing open-ended powers and relying on the HRA as a safety net.”
Paragraph 42 of the Joint Committee on Human Rights report states:
“The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm. The existence of the HRA does not alter this.”
The Committee noted that the Human Rights Act
“has not prevented previous human rights violations connected with undercover investigations or CHIS. For example, the HRA was in force for much of the period when undercover police officers of the National Public Order Intelligence Unit were engaging in intimate relationships with women involved in the groups they had infiltrated.”
The JCHR states that
“The position taken by the Home Office in the ECHR memorandum is concerning. In respect of criminal conduct that violates absolute rights, such as the right to life and the prohibition on torture, the intention behind that conduct cannot justify the violation.”
One of the witnesses to the JCHR inquiry stated that
“to suggest the state bears no responsibility because the conduct may have taken place even without an authorisation is wholly unconvincing.”
The committee noted—as described in some detail in our report—that other countries with similar legislation, including Canada, the USA and Australia, have expressly ruled out enabling the more serious offences. It concluded:
“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation. The protections provided by the HRA are important. However, reliance on the HRA to make up for the lack of any specific constraint on the type of criminal conduct that can be authorised is inadequate. A power as exceptional as that provided by the Bill requires careful and specific constraints … The Bill requires amendment to include a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act.”
I beg to move.