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Lords considers Commons changes to the covert intelligence bill

10 February 2021

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The House of Lords considered Commons amendments to the Covert Human Intelligence Sources (Criminal Conduct) Bill, on Tuesday 9 February.

Members discussed restrictions on certain types of criminal activity, safeguards for juveniles and vulnerable adults and the power of the Judicial Commissioner to overturn criminal conduct authorisations.

The were two divisions (votes) on proposed amendments (changes) to the bill.

Types of criminal activity

The first vote was on an amendment to Motion B1, which sought to retain a previous Lords change (amendment 2) that prevents criminal conduct authorisations being granted for activities including grievous bodily harm, perversion the course of justice, sexual offences, degrading or inhuman treatment or deprivation of liberty.

Members voted 143 in favour and 311 against, so the change was not made.

Judicial Commissioner

The second vote was on Lords amendment 5B, which sought to ensure that the original authoriser, the Director of Public Prosecutions and the Director of Public Prosecutions for Nothern Ireland, are all notified in the event of a Judicial Commissioner concluding that a criminal conduct authorisation should not have been granted.

Any future criminal activity conducted under such an authorisation would therefore not be classed as 'lawful for all purposes'.

Members voted 127 in favour and 296 against, so the change was not made.

The bill returns to the House of Commons for further consideration of Lords amendments.

Third reading: Thursday 21 January

Members discussed a number of government amendments to bring devolved activity in Scotland in line with previous Lords changes to the bill.

Members also considered a motion in the name of Baroness Jones of Moulsecoomb (Green Party), that the Lords should not pass the bill on the grounds that it:

  • grants blanket prior legal immunity for otherwise criminal conduct without sufficient safeguards or oversight
  • provides no system of prior judicial authorisation
  • does not recover profits obtained under a Criminal Conduct Authorisation which could include proceeds from the sale of drugs, weapons, human trafficking and slavery
  • fails to provide compensation to victims of crimes authorised under the bill
  • represents a significant expansion of undercover policing without regard to the ongoing Undercover Policing Inquiry.

Following a debate on the floor of the Hosue, members voted 29 in favour and 440 against, so the motion was disagreed to.

Report stage day two: Wednesday 13 January

Members discussed subjects including authorisations granted to children vulnerable persons, safeguards for juveniles and redress for victims.

There were six divisions (votes) on proposed amendments (changes) to the bill.

Serious criminal offences

The first division was on amendment 15, which prohibits the authorisation of serious criminal offences, including intentionally causing death or grievous bodily harm and obstructing or pervering the course of justice.

Members voted 299 in favour and 284 against, so the change was made.

Deployment of covert human intelligence source

The second division was on amendment 17, which ensures notification is given to the Investigatory Powers Commissioner of the purpose and extent of the deployment and type of criminal activity it is anticipated.

Members voted 259 in favour and 283 against, so the change was not made.

Victims of violent crime

The third division was on amendment 22, which ensures that victims of violent crime are not rendered ineligible for criminal injuries compensation by the fact that the crime was the subject of a criminal conduct authorisation.

Members voted 331 in favour and 240 against, so the change was made.

Children and vulnerable persons

The fourth division was on amendment 24, which ensures that no criminal conduct authorisations may be granted for an individual who is either under the age of 18, a vulnerable person, or a victim of modern slavery of trafficking, unless the authorising officer believes that exceptional circumstances apply. If granted, there must be a person holding a position with a relevant investigating authority who has responsibility for ensuring an appropriate adult is present at all meetings. 

Members voted 339 in favour and 235 against, so the change was made.

Judicial Commissioner

The fifth division was on amendment 34, ensures that on a determination by a Judicial Commissioner that an authority should not have been granted, activities under the authorisation cease immediately.

Members voted 298 in favour and 259 against, so the change was made.

Journalistic sources

The final division was on amendment 42, which requires commissioner approval for authorisations to identify or confirm journalistic sources.

Members voted 262 in favour and 269 against, so the change was not made.

Report stage day one: Monday 11 January

Members discussed a range of subjects, including authorisations granted on economic grounds and maintaining the legal status quo. Members also asked the government to think again on the reasonable belief of the necessity held by those granting authorisations.

There were five divisions (votes) on proposed amendments (changes) to the bill.

Legal status quo

The first division was on amendment 1, which, as part of a wider change to the bill, seeks to preserve the legal status quo whereby those authorised to engage in criminal conduct are not rendered immune from civil or criminal liability.

Members voted 153 in favour and 309 against, so the change was not made.

Judicial approval

The second division was on amendment 5, which seeks to impose prior judicial approval for all Criminal Conduct Authorisations, with provision for urgent cases.

Members voted 278 in favour and 283 against, so the change was not made.

Reasonable belief

The third division was on amendment 6, which inserts a requirement that an individual granting an authorisations hold a 'reasonable' belief in the necessity and proportionality, and the existence of satisfactory arrangements.

Members voted 282 in favour and 259 against, so the change was made.

Economic grounds

The fourth division was on amendment 9, which ensures that a criminal conduct authorisation is only granted on economic grounds if it is also relevant to the interests of national security.

Members voted 119 in favour and 263 against, so the change was not made.

Agent provocateur

The final division was on amendment 11, whch prohibits the authorisation of criminal conduct where the covert human intelligence source acts as an agent provocateur.

Members voted 111 in favour and 255 against, so the change was not made.

Committee stage day four: Thursday 10 December

Members discussed judicial approvals and the restriction of criminal conduct authorisations to children, vulnerable persons and victims of modern slavery.

Committee stage day three: Thursday 3 December

Members discussed topics including the restriction of criminal conduct authorisations to prevent serious crimes only, authorisations granted to children and vulnerable people, and redress for innocent victims affected by the authorisation of criminal conduct.

Committee stage day two: Tuesday 1 December

Members discussed judicial approval of criminal activity, definition of serious crime and permissions to commit economic crimes.

Committee stage day one: Tuesday 24 November

Members discussed a range of topics, including immunity from civil liability, criminal conduct authorisations for children, vulnerable people and compensation for innocent victims.

Second reading: Wednesday 11 November

Lord Steward of Dirleton (Conservative), Advocate General for Scotland, opened the debate with his maiden speech, the first speech by a member in the chamber.

Speakers included a former Independent Reviewer of Terrorism Legislation and a former Deputy Assistant Commissioner of the Metropolitan Police.

Baroness Williams of Trafford (Conservative), Home Office Minister and the bill's sponsor in the Lords, responded on behalf of the government.

Lord McLoughlin (Conservative) and Lord Walney (Non-Affiliated) also made their maiden speeches.

Covert Human Intelligence Sources (Criminal Conduct) Bill

This bill aims to:

  • amend Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) to empower security and intelligence agencies, law enforcement agencies and other public authorities to authorise Covert Human Intelligence Sources (CHIS) to participate in necessary criminal conduct
  • put existing practice on a clear and consistent statutory footing
  • provide similar amendments to the Regulation of Investigatory Powers (Scotland) Act 2000 to authorise CHIS use and conduct in Scotland.

Image: PA