Covert Human Intelligence Sources (Criminal Conduct) Bill

– in the House of Commons at 5:59 pm on 5th October 2020.

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Votes in this debate

Second Reading

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

I inform the House that I have not selected the reasoned amendment.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department 6:02 pm, 5th October 2020

I beg to move, That the Bill be now read a Second time.

This legislation is being introduced to keep our country safe and to ensure that our operational agencies and public authorities have access to the tools and intelligence that they need to keep us safe—safe from terrorists, safe from serious organised crime groups, and safe from others who wish to cause harm to our country and our citizens. Specifically, the Bill deals with participation in criminal conduct by covert human intelligence sources—so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups.

Throughout history, those entrusted to uphold the law or safeguard national security have used covert human intelligence to support and progress their activity. From Sir Francis Walsingham’s use of informers to defend the reign of Elizabeth I from internal and external threats, to the deployments by the newly formed detective units of the Metropolitan police in the latter half of the 19th century, to the double-cross system in the second world war, covert human intelligence has always been a vital part of our national security and law enforcement framework.

More recently, though, CHIS have been critical in identifying and disrupting terrorist plots, drugs and firearms offences, child sexual exploitation and abuse, and other serious organised crime. Since March 2017, MI5 and counter-terrorism police have together thwarted some 27 terror attacks. As the director general of MI5 said when the Bill was introduced:

“Without the contribution of human agents, be in no doubt…these attacks would not have been prevented.”

I have been advised that between November 2018 and 2019 CHIS operations within the Metropolitan police area alone led to 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kg of class A drugs, and the recovery of more than £2.5 million in cash. Similarly, CHIS operations in 2019 alone enabled the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. This is an important and unique tactic; by working their way into the heart of criminal groups, CHIS are able to access intelligence that other investigatory powers may simply never detect.

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Foreign and Commonwealth Affairs), Shadow Minister (International Development)

The Minister knows how seriously I take these matters and the equipping of our security services to do the job that they need to do, often in horrendous circumstances that affect the integrity of our country and its individuals, but he will also appreciate that safeguards have to be in place. What does he have to say to those who have raised serious concerns that the Bill, as it stands, does not have the safeguards in place to prevent assault, murder and torture, about which there is an absolute prohibition? He knows that we are a signatory to the convention on human rights, so what does he have to say on those matters?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I hope I will be able to respond to the hon. Gentleman during my speech, underlining some of the safeguards—the importance of oversight, which we attach equally to this Bill, and the operation of a criminal conduct authorisation, as contemplated by the Bill. I hope he will also have noted the specific reference to the Human Rights Act in the Bill, in order to underline some of the important points he makes about convention rights.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office)

The Minister has reeled off an impressive number of statistics, which justify the use of CHIS operations. How many or what proportion of the operations were undertaken by the Food Standards Agency, which will also come under the ambit of this Bill?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

The right hon. Gentleman is drawing me on to talk about some of those wider bodies. I will address that later in my speech, but I point out that the FSA is required to deal with issues associated with misrepresented food—food that may be harmful for human consumption. Therefore the issues of proportionality and necessity are bound within the frame of the Bill, and limit the activities that would be reasonable for such agencies to act upon. Perhaps I can come back to that a little later in my contribution.

Photo of Andrew Mitchell Andrew Mitchell Conservative, Sutton Coldfield

We have had discussions on the points of concern to me, and my right hon. Friend has given answers to three written questions today, which were helpful indeed. He will understand the importance of the point made by Stephen Doughty: that these are significant powers for us to grant in a democratic society. I believe my right hon. Friend has made the point in the past, but will he confirm today that the Human Rights Act trumps the provisions in this Bill which the hon. Gentleman and I are most concerned about?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I am grateful to my right hon. Friend for his intervention. Again, I intend to draw out this point during my contribution in the House this evening. He rightly highlights the import and implication of the Human Rights Act and what that then imports in terms of the convention rights, which we are clear provide restrictions and inhibitions on how agencies are able to operate.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will give way twice more and then get into some of the important details that I know right hon. and hon. Members would like me to address.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The point surely is that as well as proportionality and necessity, the Bill is particular about specificity, so that those matters that lie outside the specific permission can be challenged in court and can indeed lead to prosecutions. That specificity is at the heart of this measure.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I am grateful to my right hon. Friend for that point. The issue of specifici—I cannot even say it; I shall settle for saying the specific authorisations that are granted. They are tightly bound and that is important. That is why we published the guidance that sits alongside the operationalisation of the Bill at the same time as the Bill—to give that sense of confirmation and clarity on how it will operate.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I hear what my right hon. Friend says about the Human Rights Act, but the defence that the Government put up in the legal case that was brought against them said in terms that the state is “not the instigator” of such activity and

“cannot be treated as somehow responsible for it”.

The memorandum to the Bill states that

“it is to be expected that there would not be State responsibility”.

How is that using the Human Rights Act to underpin the rights of our citizens?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I know that my right hon. Friend, rightly, takes these issues incredibly seriously. The issues we are talking about go to the kernel of our national security, and equally, our confidence in our criminal justice system and the way in which our operatives, who are there to protect us, act. I do place weight on what he has said.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I would quite like to answer the previous intervention before I give way again, and I need to make some progress.

I can say to my right hon. Friend Mr Davis that the way in which agencies are required to act under the Bill means that they cannot act in a way that is inconsistent with the convention rights, hence the importation by the specific reference to the Human Rights Act on the face of the Bill to underline that. It is important to state that and be clear as to how the Bill operates and the protections. Stewart Hosie has tempted me, so I will give way one final time, and then I will make some progress, because I know that others want to speak.

Photo of Stewart Hosie Stewart Hosie Shadow SNP Spokesperson (Trade)

On the point that the Minister just made in relation to the Human Rights Act, proposed new section 29B(7) of the Regulation of Investigatory Powers Act 2000 in clause 1 and proposed new section 7A(6) of the Regulation of Investigatory Powers (Scotland) Act 2000 in schedule 1, say, for example, that subsection X is

“without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”

Why is it not more explicit that there is an obligation to obey the Human Rights Act rather than simply referring to it as an example?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

The hon. Gentleman makes an interesting point. Some may argue that the inclusion of those words was not of itself necessary, because those agencies are already bound by that requirement. We take the judgment, because of the very relevant points that have been made during the course of the debate, that being clear on the face of the Bill in that regard is helpful. It is reassuring. It creates the context as to how this regime is intended to operate, and that is why it is included in the way that it is.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

If the hon. Lady will allow me, I will make some further progress, but I will allow her to intervene on me later.

In order to build the credibility and trust of those under investigations, there are occasions where, in carefully managed circumstances and subject to robust independent safeguards, CHIS may need to participate in criminality themselves. This is an inescapable and essential feature of CHIS use and has always been fundamental to this work. Although I am unable to go into the detail about the specific criminality that a CHIS may participate in, for reasons I will come to, limited examples have been discussed in the public domain. For example, a CHIS may be required to join the organisation that they are seeking to disrupt. This membership alone will sometimes be criminal but will be deemed necessary and proportionate to prevent more serious criminality from taking place. Again, without going into the specifics, the use of that tactic enabled the police and MI5 to disrupt a planned terrorist attack on No. 10 and the then Prime Minister in 2017. The necessity of CHIS participation in criminal conduct has been accepted in the UK and around the world for many years. In December 2019, the Investigatory Powers Tribunal found that MI5 has a lawful basis for this activity and recognised that CHIS participation formed an essential part of MI5’s core activities. I want to reassure the House that this Bill does not confer the power to carry out a new activity, but enables CHIS to continue to deploy the methods that they already use. Notwithstanding those powers, this Bill puts that existing practice onto a clearer statutory footing, putting the matter beyond doubt as to Parliament’s intentions. The Bill provides certainty for CHIS and their handlers and will augment our ability to recruit and retain in the future in this regard. It is important to stress that the Bill does not change the position of CHIS who have previously been properly authorised to participate in criminal activity. It has no retrospective effect.

Photo of Julian Lewis Julian Lewis Chair, Intelligence and Security Committee of Parliament, Chair, Intelligence and Security Committee of Parliament

Can the Minister explain one difference between the situation that has applied in the past and the situation that will apply in the future if the Bill goes through as it is? We are now legislating to make properly authorised criminal conduct lawful, rather than continuing with the current position whereby MI5 or another authorising authority is able to argue that it would not be in the public interest for prosecuting authorities to prosecute properly authorised criminal conduct, but there is no guarantee of immunity. What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute. Why the reason for that change?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

The right hon. Gentleman, the Chair of the Intelligence and Security Committee, makes an important point when he draws that distinction. I say to him that, under the current regime, the Crown Prosecution Service will consider the prosecution of a properly authorised CHIS as perverse. So in essence, the Bill will offer no practical difference in the application of the power, because obviously the conduct will have to be properly authorised, as it does now. If something has not been properly authorised, then clearly the authorisation will not have effect. Where CHIS conduct is outside that authorisation, there will be no impact on the ability to prosecute. Public authorities tightly limit the scope of CHIS criminal conduct, so this will not provide a licence to commit crime outside those stringent limits. In reality, the practical difference between providing a defence and making conduct lawful is limited. Indeed, we say that the provisions actually reflect broader provisions within the current legislative regime, governing all other aspects as well. There is a distinction, which the right hon. Gentleman makes, but in practice, we do not see that there is the fundamentals difference that perhaps some might wish to paint into it.

Photo of Steven Baker Steven Baker Conservative, Wycombe

One of the problems that the Government have today is that, for those of us who like the red meat of law enforcement and law and order, the Minister has forced us to look inside the abattoir, and of course we do not like what we see. On this point about stringent limits, will he explain why there is not more in the Bill to put those limits in place? I cannot imagine Ministers will be authorising killing or torture, so why are those things not in the Bill, so that the public can have very clear confidence that they will not be authorised?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will come on to that issue—this is why, although I wanted to give way to many Members, I wanted at the same time to make progress with my speech. I will not go into the limits of what can and cannot be done because of this issue of what is known as CHIS testing—providing a list against which sources can be tested, which has practical implications to it. What I can say to my hon. Friend is that I will come on to the import of the Human Rights Act in just a second, if he will be patient.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will give way to the hon. Lady, who has been very patient.

Photo of Bell Ribeiro-Addy Bell Ribeiro-Addy Labour, Streatham

The Minister has talked about practices that are already permitted, but does he appreciate that there are many, many questions about those practices? That is why there has been the Pitchford inquiry, which has now dragged on for so long that it is about to be called something else. Are the Government not the slightest bit concerned about laying down such a piece of legislation before the inquiry has reported, given the history of agents provocateurs undermining progressive movements such as our trade unions and deceiving women in intimate relationships? All of these things have been carried out before, and people have major concerns about that. Will the Government explain why they have no concerns whatsoever about laying down a piece of legislation without having looked at what that inquiry finds?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

The hon. Lady makes a serious point. First, there is no retrospective effect—it is quite important for me to state that explicitly. Therefore, actions that have occurred in the past and are subject to further inquiry, and potentially further criminal investigation, are untouched by the Bill. On the position moving forward, I have explained the different safeguards. She refers to trade union activity. Trade union activity is lawful. I recognise some of the concerns expressed, and it is important that I state that in order to provide assurance. This is tightly bound—it is about providing the oversight, the governance and the proportionality and setting out the necessity of this for criminal justice, security and other issues that I have already alluded to. I am grateful to her for intervening to allow me, I hope, to be more specific on that point.

Photo of Chris Stephens Chris Stephens Shadow SNP Spokesperson (Fair Work and Employment)

On the previous intervention, there are real concerns about women who are seeking legal redress for sexual assaults at the hands of police officers in the spy cops inquiry. Can the Minister guarantee that if those situations were to occur again, survivors of sexual assault could seek legal redress?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I can certainly say that there are clearly ongoing inquiries in relation to this important and sensitive issue. I have highlighted the lack of any retrospection, and I point the hon. Gentleman to what has happened since then and what the police themselves have underlined in this regard. There is an enhanced regime of what are known as relevant sources—in other words, undercover police officers—and the criminal conduct authorisation is in addition to the regime to authorise and approve a CHIS covert source in the first place.

It has never been acceptable, as the police have said, for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target, or who they may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic in deployment. That is made clear through the code of ethics for the police as well as the updated law enforcement agency undercover operative authorised professional practice.

I hope that I have explained what the Bill does and what it does not do, and therefore how it is quite specific. On the point about what is on the face of the Bill, it is about locking in the existing regime and other safeguards on the authorisation of a source in the first place. That has to happen first, and then, if it is warranted, justified and fits within the boundaries of the Bill, there is the criminal conduct authorisation that sits alongside it, which has to be subject to the earlier authorisation.

Photo of Yvette Cooper Yvette Cooper Chair, Home Affairs Committee, Chair, Home Affairs Committee

Does the Minister agree that sexual assault and rape are clearly prohibited by article 3 of the Human Rights Act? Does he recognise that the importance of the Human Rights Act in providing a safeguard to this Bill means that it would be helpful to hear wider support for the purposes of the Act from across his Government, not just from him on the Front Bench?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

Obviously there is the specific reference on the face of the Bill that I have alluded to, and therefore there is that requirement. As the right hon. Lady will know what the convention rights say, for operational and other reasons I will not go beyond what the convention says. There are very clear issues that I will now, I hope, come on to in that regard that will help to draw this out.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will give way one last time and then make further progress.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

I thank the Minister; he is being very generous. He has been clear that sexual assaults on women such as the ones that have been referred to are entirely prohibited and not allowed, but they have obviously happened. In the past, those cases have been brought forward for proper review. How will they be brought forward in future under this Bill?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I have drawn out the separate regime that operates in relation to the authorisation of, for example, undercover officers, as well as the tight remit, the ambit and some of the additional oversight that is provided in respect of that regime. Again, that is all subject to the supervisory nature of the Investigatory Powers Commissioner and can, therefore, as with the provisions proposed through the Bill, be drawn out through that route. However, I will hopefully make some more progress and be able to get into how the Bill works and some of the further assurances. I may not be quite as generous with interventions, so that I can hopefully make progress and let other right hon. and hon. Members in.

The Bill amends the Regulation of Investigatory Powers Act 2000 by inserting a new section to provide a power for public authorities to grant a criminal conduct authorisation. Equivalent amendments are also proposed to the equivalent legislation in Scotland, subject to ongoing constructive engagement with the Scottish Government.

A CCA may be granted only where it is necessary for one of three statutory purposes: national security, the prevention or detection of crime, or in the interests of the economic wellbeing of the UK. It must also be proportionate to what it is seeking to achieve, and consideration must be given to whether the objective could be achieved by conduct that is not criminal. These authorisations will be tightly bound and granted by a highly trained and experienced authorising officer. They must also be compliant with our obligations under the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. Again, I will expand a little further shortly.

A CCA can also apply only where the deployment or engagement of the CHIS has already been authorised under the existing section 29 of RIPA, and is subject to the limits that that section provides. As such, there is a two-stage process: first, the authorisation of the use of a CHIS and, secondly, the separate authorisation of that source to carry out criminal conduct in the tightly prescribed circumstances proposed by the Bill.

It is worth highlighting that, alongside the Bill, we have published draft provisions of the CHIS code of practice, which provides further detail as to how the authorisation process will work and the factors an authorising officer must consider before granting an authorisation. To be clear, all authorisations are precise and explicit. A CHIS will never be given unlimited authority to commit any or all crimes. The effect of an authorisation is to render the authorised conduct lawful. This model is consistent with the approach we have taken for other investigatory powers. Of course, where a CHIS commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can consider this in the normal way.

Members will understand that, because of the clandestine nature of their work, there are limits to what I can say publicly about the role that CHIS play in saving lives and property, without exposing sensitive information about their methods and techniques. I know that there are concerns about the Bill somehow providing a licence to kill or to commit torture. Let me be clear that there are upper limits to the activity that can be authorised under the Bill, and those are contained in the Human Rights Act. That includes the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. It is unlawful for any public authority to act in a way that is incompatible with the European convention on human rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. Therefore, an act that would be incompatible with the ECHR could not lawfully be granted under this Bill.

We do not believe, however, that it is appropriate to draw up a list of specific crimes that may be authorised or prohibited. To do so would place in the hands of criminals, terrorists and hostile states a means of identifying our agents and sources, creating a potential checklist for suspected CHIS to be tested against. That would threaten the future of the CHIS capability and result in an increased threat to the public. Protecting CHIS from prosecution will have achieved little if we cannot also protect them from being identified by the terrorist and criminal groups they inform against, placing them at personal risk.

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Foreign and Commonwealth Affairs), Shadow Minister (International Development)

I am listening very carefully to what the Minister is saying, but will he be clear? This is all predicated on our continued membership of the European convention on human rights and on the Human Rights Act staying as it is, and at the moment we have an Attorney General who has made very clear her intentions towards both those instruments. Can he make it clear that we will stay in the ECHR and that the Human Rights Act will stay as the bedrock of the guarantees on this, but also that other international conventions we are signatories to, including the convention against torture, would also apply in restricting actions that could be authorised under this Bill?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I have been pretty clear about the way this Bill operates and the manner in which agencies and the different bodies that can be authorised are able to act. Clearly, I cannot bind this House for the future, but I am very clear that we stand by our ECHR commitments, which is why this has been expressed in the way that it has in the Bill. I hope that is helpful to him.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

What my right hon. Friend has described is, in effect, a wish not to provide a terrorist checklist, as it were, to test a member of such an organisation. Did he read the article in The Times this morning by probably one of the best Directors of Public Prosecutions of modern times, who would probably know more about this than all of us in this House? It was scathing about that analysis and said it simply did not stand up?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I am happy to respond to that point specifically. We are not suggesting that there is routine testing of suspected CHIS in all criminal groups, but there is evidence that this does occur more than infrequently, and I say that in clear terms. We are asking CHIS to put themselves in difficult positions to help the state investigate these criminal groups, and it is our judgment that we need to make sure that we can best protect them, and that means avoiding the provision of a checklist of crimes that can be tested against. I note that this risk is not just to CHIS, but to people who are not CHIS but may be suspected of being so.

Photo of Julian Smith Julian Smith Conservative, Skipton and Ripon

Does my right hon. Friend agree that the independent commissioner, established under the 2016 Act by this House, has, in the 2018 report of the analysis on MI5 and other agencies, written very positively about the processes, the applications for CHIS and the rigour that these organisations go through? It is important that the House realises that these processes are rigorous, detailed and already in place.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

Yes, and I am grateful to my right hon. Friend for making that point. With his experience as a former Secretary of State for Northern Ireland, he knows the importance of these national security issues in the context of Northern Ireland. He is right, and this point about safeguards and oversight is precisely what I was about to come on to. It is about the rigorous and careful way in which the agencies operate and the focus that they attach to this, as shown in the response the commissioner provided in his 2018 report and equally by the Investigatory Powers Tribunal when it reflected on this.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will give way, but this is probably the last time as I am conscious of time and of getting others in.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

The right hon. Lady makes an important point about training and about ensuring that the high standards necessary here are applied. I would say to her that, equally, such focus needs to be applied to those who operate this regime in order to get this right because of the potential criminality that sits alongside it. There are obligations to report errors to the commissioner, and equally the commissioner will report on those too. Rigorous standards are necessary to ensure that criminal conduct authorisations are made appropriately and well, and the way in which that operates now and will operate for all agencies—whether the Security Service, policing or some of the other agencies—is subject to that clear oversight, and the Bill draws that out and makes it explicit.

As I have said, it is important to state that, in view of the restrictions on what can be disclosed publicly, the Government also recognise the importance of robust independent oversight. The authorisation of CHIS participation in criminal conduct is and will continue to be subject to this robust oversight of the Investigatory Powers Commissioner. The IPC

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I am very conscious that I am now eating into the time of others who may wish to speak, so I will perhaps make some more progress, and we will see where we get to.

The Investigatory Powers Commissioner, and his judicial commissioners, have all held high judicial office. The current IPC, Sir Brian Leveson, was most recently president of the Queen’s bench division and is entirely independent of Government. The commissioners are supported by expert inspectors and others, such as technical experts, qualified to assist the commissioners in their work.

The IPC conducts wide-ranging inspections of public authorities and publishes an annual report on the findings from those inspections. The IPC himself sets the frequency of those inspections, and public authorities are required to provide unfettered access to documents and information. The Bill strengthens the IPC’s role by providing that the IPC must explicitly keep CCAs under review and include information on the use of them in his annual report. The most recent report from the IPC found that in all instances MI5’s authorisations of CHIS participation in criminal conduct were proportionate to the anticipated operational benefits and met a high necessity threshold.

Further, the Intelligence and Security Committee of Parliament has statutory responsibility to oversee the UK intelligence community. Hon. and right hon. Friends on the Committee have a vital role in scrutinising the work of the intelligence agencies, and I am grateful to the Committee for its support for the legislation and welcome its expertise as the House considers the Bill in detail. I also note that Select Committees will equally play an important role in scrutinising the work of law enforcement and wider public authorities.

Photo of Yvette Cooper Yvette Cooper Chair, Home Affairs Committee, Chair, Home Affairs Committee

I am very grateful to the Minister, who has been very generous with his time. Clearly he makes the case that we need to continue with covert intelligence, particularly on extremist groups that may be proscribed. Associating with them in any way is currently a crime, so clearly he makes a strong case for legislation to ensure that such intelligence can continue in the interests of national security. I know that he recognises, though, that having safeguards is also in the interests of national security and of the intelligence agencies and the police.

The safeguards in place on the Investigatory Powers Commissioner in the Bill are still very vague. It is very broad and very much retrospective, as opposed to concurrent assessments. Will the Minister look again at the potential for amendments on authorisation and very timely oversight, and on strengthening the measures on Investigatory Powers Commissioners, so that it is possible to get the details of the legislation right?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

Obviously, we will have continued debate during the passage of the Bill. I believe that it provides strong oversight and governance, but I will continue to reflect. Judicial approval is an important safeguard for the operation of some of our investigatory powers; however, it is not the only way to provide a robust oversight of a power. It is important to recognise the context of this: we are talking about human beings. Some challenging issues operate around this space, which is why we judge that robust retrospective oversight is the right approach, but I will keep the timeliness of that, and how it operates, under reflection so that perhaps further reassurance can be provided, specifically on the point of how soon oversight can occur after an authorisation has been made.

Photo of Andrew Mitchell Andrew Mitchell Conservative, Sutton Coldfield

I am grateful to my right hon. Friend, who is being generous. At what level will the original authorisation take place in the various organisations? From reading the Bill, it seems to me that the level in the police is a relatively junior police officer. In view of the seriousness that such authorisation leads to, should it not be given at chief constable level, and why can it not be given through a warrant overseen by a judge?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I have responded to the latter point on the judgment that we have made in relation to this regime and how we believe that deep retrospective oversight is the right approach. This is distinct from phones or cameras. The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking. There are different elements to how this operates, and the experience and highly trained nature of the authorising officer in some ways informs the relevant authorising level that is specified within the guidance. Robust retrospective oversight is provided equally by the commissioner himself, to give further assurance.

If I may, I shall turn to a separate point about specific public authorities’ ability to grant a criminal conduct authorisation. The RIPA already lists a range of public authorities that use CHIS for general investigative purposes. Far fewer public authorities will be able to grant a criminal conduct authorisation. Only those public authorities that have demonstrated a clear operational need for the tactic are able to use the power. These are the intelligence agencies, the police, the National Crime Agency, the armed forces, Her Majesty’s Revenue and Customs and 10 other public authorities. Pausing momentarily on this list, I want to highlight the role that these wider public authorities also have in investigating and preventing serious criminal activity. The Environment Agency, for example, investigates the illegal dumping of toxic waste that can permanently harm our environment. The Serious Fraud Office investigates complex fraud cases that risk costing the public millions of pounds. The Food Standards Agency investigates deliberate mislabelling and the sale of unsafe food to the public. HMRC tackles the money laundering and trafficking of illicit goods that would risk significant damage to the economy.

We expect the wider public authorities to have only limited use of this power, because a criminal conduct authorisation can be granted only where it is necessary and proportionate to the criminality it is seeking to frustrate. There will, however, be occasions where CHIS will be critical in providing the intelligence to prevent, detect and prosecute serious crimes. This is increasingly important as organised crime groups expand into areas overseen by these public authorities.

This is an important and necessary Bill—

Photo of Steven Baker Steven Baker Conservative, Wycombe

Will the Minister allow me, before he finishes?

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I will, for one final time, then I will wrap up.

Photo of Steven Baker Steven Baker Conservative, Wycombe

I am extremely grateful. He mentioned the armed forces very briskly there. Could he clarify why the armed forces might need to engage in criminal conduct? I suspect it is because they each operate their own military police, and that those police might need to have covert operations, but I would be grateful if he clarified that, because there will be suspicious souls out there worrying that there is some other motive for the armed forces being authorised to break the law.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

My hon. Friend highlights one particular aspect of the role of the Ministry of Defence. It is difficult to go into detail, but one further example I would give is that it might be necessary to access a proscribed organisation. As I say, the reporting regime is quite specific. Indeed, the oversight that is envisaged—and the oversight in the existing legislation—draws this out quite carefully and clearly for the issues that I have highlighted, on proportionality and necessity, as well as those specific aspects in the Bill, stating that it can relate only to national security, criminality and economic wellbeing. It has to anchor to those three elements, as well as to the Human Rights Act application that we have debated at length this evening.

This is an important and necessary Bill. It is not about providing agents with an unfettered ability to break the law and commit any crime. There are strict requirements that must be satisfied, and robust and independent oversight will be in place. The Bill is really looking to achieve just one thing, which is to ensure that our intelligence agencies and law enforcement bodies with important intelligence functions are able to continue to utilise a tactic that has been, and will continue to be, critical to keeping us all safe. Accordingly, I commend the Bill to the House.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary 6:44 pm, 5th October 2020

I am grateful to the Minister for his opening speech, and for his briefings and approach to this Bill. He has been generous with his time and I appreciate that.

First, I thank our police and security services, the National Crime Agency and wider law enforcement for the work they do in keeping us safe. Those on the frontline put themselves in danger every day to help others, to protect us and to prevent loss of life. That work is vital and in the national interest, and we thank them for what they do on our behalf. We on the Opposition Benches recognise the importance of that work, and of covert human intelligence sources and the results they achieve. The issue is how we ensure that vital work continues, but on a statutory footing and with the strong safeguards that are also vital.

I have listened carefully to what our law enforcement agencies have said about covert human intelligence sources. The Minister referenced the director general of MI5, who has said that

“Since March 2017, MI5 and Counter Terror Police have together thwarted 27 terror attacks.”

His judgment was that

“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented.”

To be clear, that activity is saving lives by stopping terrorist attacks on people.

I have also considered the wider data available, particularly on the National Crime Agency. In 2018, for example, covert human intelligence operations disrupted threats to life, arrested serious criminals, seized thousands of kilograms of class A drugs, safeguarded over 200 vulnerable people, and took firearms and rounds of ammunition off the streets. I also appreciate the role that covert human intelligence sources play in addressing heinous crimes such as child sexual exploitation, and organised crime such as black markets in, among other things, vital medicine. We on the Opposition side of the House recognise the importance of that work.

At the same time, though, that work has not been on a statutory footing. Frankly, it should be, alongside formal safeguards. This activity is not new; it has been going on under existing practices for many years, and it should be on a statutory footing because that will allow for the necessary and robust safeguards that we on the Opposition Benches will be pressing for. It should be on a consistent and clear basis, and a system with clear protections should be in place. As we put this system on to a statutory footing, it is a moment to be clear about what we expect of those engaged in this conduct and the standards we should set; as this Bill passes through the House, it is a moment to detail not just those standards, but how we expect them to be implemented. That is why we in the Opposition will not be voting against this Bill tonight, but feel it should move to Committee for consideration and improvement.

I know that there are deep concerns about the safeguards in this Bill and it is to that crucial issue I now turn. The matters we are dealing with today are difficult for any Parliament; they are deep and serious questions for any democratic society, and raise critical issues that the Government will need to address as the Bill progresses through the House and the other place. It is crucial, too, that there is public confidence in what our security services and other agencies that use covert human intelligence sources actually do with regard to authorised criminal conduct. I entirely accept that an agent embedded in a proscribed organisation is committing an offence every day by virtue of being part of it, but is doing so for the purpose of thwarting plots and stopping greater loss of life. I appreciate that, but it is still vital that the wider framework under which they operate has trust and confidence.

Photo of Theresa Villiers Theresa Villiers Conservative, Chipping Barnet

Does the hon. Gentleman agree that Members of this House, when considering this Bill, should take comfort from the fact that we have one of the most rigorous and toughest oversight regimes in the world for regulating our intelligence services?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

I of course welcome the oversight that has been introduced for our intelligence services; the situation is very different from how it was in decades past. However, that does not detract from the additional safeguards that are needed in this specific Bill.

Under the Bill as it stands—I am quoting, because I want to press the Minister on this point—authorisations for participation in criminal conduct may only be granted

“if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder;
or (c) in the interests of the economic well-being of the United Kingdom.”

The Government need to be clear about what is within the scope of that framework. It cannot and should not encompass any lawful activity, nor should we allow mission creep in the years ahead.

I hope the Minister would agree that a Bill such as this one should have no business whatsoever interfering with the legitimate and lawful work of our trade union movement, which is a cornerstone of our democracy and a bastion of rights. I welcome what the Minister said in answer to an intervention—that trade union activity is legitimate and lawful and therefore is not within the ambit of the Bill—but some concerns have been expressed that the words I quoted referring to economic interests could refer to the legitimate work of trade unions. I would welcome it if the Solicitor General, when he responds to the debate, could repeat the Minister’s assurance that trade unions are not meant to come within the ambit of those words.

In addition to the test of necessity, the authorisation may be granted only where it is

“proportionate to what is sought to be achieved by” the conduct. I welcome and note the test of necessity and proportionality. Nothing should be authorised in contravention of the European convention on human rights, to which I will return in a moment. But first the Government must justify the need for each and every agency and body listed in the Bill—what powers, what purpose. Nobody expects details on ongoing investigations—of course we do not—but a sense of the type of issues expected to arise is crucial to enable the House to consider that list properly and whether the presence of the organisation on the list is necessary.

In answer to an intervention from Mr Carmichael, who is no longer in his place, the Minister mentioned, with regard to the Food Standards Agency, mislabelling and unsafe food. We need more detail on that and the links to organised and serious crime. Similarly, the Gambling Commission is another example, and it is absolutely clear as to why that is on the list. I do not propose to go through the list one by one; suffice it to say that each and every one needs to be justified.

Photo of Kevan Jones Kevan Jones Labour, North Durham

As a member of the Intelligence and Security Committee, I have seen how the security services conduct these activities in detail in some cases. When I saw the Bill and the list of organisations, I was a bit shocked, to be honest. The Minister made the argument for the inclusion of the Food Standards Agency; from my experience—not personal experience, I hasten to add—of a case that involved waste theft and the Environment Agency, the lead was the police, and the Environment Agency worked across agencies. I want some assurance as to why it is necessary for the Food Standards Agency or the Environment Agency, for that matter, to have a lead in these situations.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

I was relieved to have the reassurance that my right hon. Friend’s experience did not involve him personally, but he is entirely right about the reassurances that are necessary in terms of each and every case.

As the Minister has said, there is a section 19 certification from the Home Secretary on the face of the Bill regarding its compatibility with convention rights. In addition to that, I note that in clause 1, what will become the new section 29B(7) of the Regulation of Investigatory Powers Act 2000 mentions the Human Rights Act 1998 specifically. There is a real need for reassurance on this issue, so that the public and the House know that the most heinous of crimes will not be carried out in the name of this Government or, indeed, any other future Government. I appreciate that the European convention on human rights protects the right to life and is clear about the prohibition of torture or, indeed, subjecting anyone to inhuman or degrading treatment or punishment, and that is important, but the Government need to be crystal clear about their intention for when the courts come to consider this legislation, as they inevitably will. We cannot have any doubts about the Government’s intention or Parliament’s intention.

I accept that it is important that the Human Rights Act is, unusually, mentioned on the face of the Bill, and I notice that the accompanying memorandum sets out the following:

“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”

What we cannot have is a position, referred to by Mr Davis, in which any argument is put on the Government’s behalf in courts or tribunals that this system is not in place covering the activities of covert human intelligence sources, or that this system is somehow free or exempt from Human Rights Act considerations. Nor could we have a situation where there are deliberate attempts to prevent the Human Rights Act from coming into play. That is why we will be pressing the Government on public limits and on their position regarding those limits on criminal activity to be authorised.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

Does the hon. Gentleman agree that, by not specifying in terms, the Government are inviting a challenge to the whole Bill, not under the Human Rights Act but under the torture convention? The international view of torture is more absolute than the international view of murder. Therefore, I think it highly likely that if the Bill goes through as it stands, the Government will be facing the courts within the next year, losing their case and having to rewrite the Bill.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

The right hon. Gentleman is absolutely right. If the Bill does not have those safeguards on its face as it should, it will simply be successfully challenged in our courts. It is in nobody’s interests for that position to pertain, which is why I am making this point, on which I hope we can work on a cross-party basis.

Photo of Julian Smith Julian Smith Conservative, Skipton and Ripon

In its legal adjudication on the third direction earlier this year, a majority on the Investigatory Powers Tribunal—the special tribunal overseeing the intelligence services—found that the oversight powers currently given to the Investigatory Powers Commissioner provided

“adequate safeguards against the risk of abuse of discretionary power”.

It is important in our debate on the Bill to recognise those comments in that judgment, which is partly the reason that the Government have introduced the Bill.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

The right hon. Gentleman refers to the Investigatory Powers Commissioner, an issue to which I will return in a moment, but what he is actually referring to is one of the instances where the Government have tried to argue that the Human Rights Act did not apply. It is precisely for that reason, and because such arguments were raised in the past, that I am raising the point that I am.

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Foreign and Commonwealth Affairs), Shadow Minister (International Development)

My hon. Friend is making an excellent speech. I understand that one of the filings that the Government put to the Investigatory Powers Tribunal said that

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

Does he share my concern about the various get-out clauses for the Government in these powers, and does he agree that it is better to have a public limit and safeguards, as they do in Canada for example, on a number of such activities?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

I agree entirely with my hon. Friend, both on the Canada model and on the point, which I put to the Government, that we cannot have a situation in future where there is any doubt about what was meant on the face of this Bill. We cannot have the Government having put forward on their behalf the argument that the Human Rights Act somehow does not apply.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

The Government should not rest too hard on an IPT judgment. It is normal in these intelligence oversight commissions to have unanimity from the judges. In this case it was a 3-2 judgment, and the minority in that judgment described the Government’s argument as “fanciful” and “extraordinary” and as setting “dangerous precedents”, so I do not think they should rest on that at all.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

No, and the right hon. Gentleman illustrates precisely the point I am making. That is why the position has to be crystal clear. We cannot have a situation where such arguments are being put in written submissions, or in other ways, before a tribunal or indeed any other court. The public limit—this reassurance—is so important because, as I have said, if the Government do not get it right, and if they are not crystal clear on issues such as murder, torture and sexual violence, they will get into trouble in the courts in any event.

Given the nature of some of the networks that the Bill looks to disrupt, there are also clear concerns about the gendered impact of actions by covert human intelligence sources. The Government must seek to uphold the highest possible standards on gender impact. We will be pushing for such safeguards as the Bill moves forward, particularly in relation to rape and sexual violence. Members have also rightly expressed concerns about the risk of a disproportionate impact on black, Asian and other ethnic minority communities. We will push for safeguards on that, too, as the Bill progresses. When the Solicitor General winds up, I hope he can also provide assurances about the work being undertaken by law enforcement to address that and commit to publishing full and extensive Equality Act 2010 assessments.

On those who make decisions to authorise criminal conduct, the memorandum on the European convention on human rights supplied with the Bill states:

“The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing.”

A legal framework is needed—I am clear that this activity should not continue in the shadows without clear accountability—but at present there is self-authorisation in the Bill.

If the police were to enter the property of any Member of this House, they would need a warrant to do so beforehand. I appreciate that things in this sphere move at speed, but in a number of areas of law we have judges available 24 hours a day who can offer services and give judgments on things such as emergency injunctions, so we will press that issue of prior judicial oversight. The more serious the crime authorised, the more senior the level of authorisation necessary—Mr Mitchell made that point—subject to that oversight, and there needs to be assurance that the standards that this House sets will be adhered to and implemented.

Clause 4(3) amends section 234 of the Investigatory Powers Act 2016 to require the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in its annual report. It is stated that that will include statistics on use of the power, the operation of safeguards, and errors, which I will come back to in a moment.

I appreciate that that requirement is subject to the existing protections in the Investigatory Powers Act for information that relates to national security. I also appreciate that public authorities will have to disclose all documents necessary to the Investigatory Powers Commissioner. However, as it stands, the requirement is too vague, as was pointed out by the Chair of the Home Affairs Committee, my right hon. Friend Yvette Cooper.

The requirement must involve more than the inclusion of a section or some sort of confidential annexe in the commissioner’s annual report. There is no reason why, for example, categories of crime cannot be published without compromising operational security. Every single authorisation should be notified to the commissioner, who can then provide ongoing oversight. That seems to me to be a far more effective way of giving reassurance on the operation of safeguards and of ensuring that where there are errors—again, I will return to that—something can be done immediately to ensure that such a mistake does not happen again. It seems to me that if this is looked at only on an annual basis, there is more scope for errors to be built into the system. I do not think it is unduly onerous for each and every authorisation to be notified to the commissioner.

I also see no reason why Members of this House—I mean the Intelligence and Security Committee, which deals with sensitive information all the time—cannot have more detail about the use of this power and in what context. Again, that would give far greater reassurance about the use of the power over time and public confidence in it.

In addition, there is the issue of redress and civil claims for wholly innocent victims. In the memorandum on convention rights, the Government state:

“The individuals who are most likely to be affected by the criminal conduct of a CHIS are those with whom the agent is engaging in order to thwart the criminality.”

That may be, but the key words there are “most likely”. What about a wholly innocent person who ends up with material or other loss as a consequence of the actions of a covert human intelligence source?

The position in the Bill is that a complaint can be made to the Investigatory Powers Commissioner with regard to these powers, which can be independently considered. I appreciate that the Investigatory Powers Tribunal has the jurisdiction to determine complaints against public authorities’ use of investigatory powers, including the use of covert human intelligence sources, but that is not the same as a proper civil claim. What if the authorised criminal act is botched? What if there is mistaken identity? Again, that is something that we will press in Committee.

While there is a narrow but fundamental part of the Bill about authorising criminal conduct, I want to talk about some wider issues. In relation to Northern Ireland, it must be clear that legacy issues are not affected by the Bill in the context of the peace process. On the issue of past injustices, I am grateful to the Minister for setting out again that this is not a retrospective Bill, but it has to be clear that those seeking justice for what happened in the past can still do so. We on the Labour Benches are committed to a full, independent public inquiry into the events at the Orgreave coking plant on 18 June 1984. It will only be by shining a penetrating light on the events of that day that we can have justice, and I commend those who have been campaigning on it for so long.

There is an ongoing inquiry into undercover policing—the so-called spy cop scandal, referred to by my hon. Friend Bell Ribeiro-Addy—chaired by Sir John Mitting. The evidential hearings open next month, and it has to be clear that recommendations from that inquiry will be implemented and victims will not be denied access to justice. I appreciated the Minister’s reassurance that such appalling behaviour was never lawful in the past and will not be lawful in the future. We must never stand to one side on issues like this. We commit again to pressing for justice for all victims. The delays in the existing inquiry have been unacceptable. Victims have been put through a terrible ordeal, and the least they deserve is access to justice.

I also want to talk about the practice of deceitful and unlawful blacklisting. In doing so, I refer to my entry into the Register of Members’ Financial Interests regarding my union, the Unite union, and its financial support for my election campaign to this House. I appreciate that the Bill is a narrow one on criminal conduct, rather than the wider issue of when an undercover policing operation begins, but since the blacklisting scandal surfaced over a decade ago, it is clear that these are not merely allegations. I appreciate that, in relation to blacklisting in the construction industry, we have seen a substantial out-of-court settlement, and there are ongoing proceedings. However, Deputy Assistant Commissioner Martin’s findings in the Metropolitan police’s internal investigation stated:

“The report concludes that, on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven.’
Material revealed a potentially improper flow of information from Special Branch to external organisations, which ultimately appeared on the blacklist.”

That is a hugely serious issue. The Government should be on notice that we will not hesitate to raise this and hold Ministers to account on the involvement of our law enforcement in the disgraceful process of blacklisting.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I also declare an interest: a member of my family was blacklisted. This concern is not confined to the Labour party. The probable handing on of information from special branch is something that needs to be resolved as part of the honour of our country.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

I am grateful for the right hon. Gentleman’s support in that matter, and I am happy that the Minister has made clear that this legislation has no impact on the search for justice in relation to that appalling practice.

The aim of this legislation should be to keep people safe and bring dangerous criminals to justice. I appreciate the assurance that this does not, and is not designed in any way to, disrupt legitimate and lawful trade union activity. Should any Bill do that, it would be opposed by Labour Members.

Photo of Bell Ribeiro-Addy Bell Ribeiro-Addy Labour, Streatham

From listening to the arguments that have been made, it strikes me that the Bill is presumably intended to protect undercover officers from facing prosecution in a situation where they should not, because they are doing their work. More experienced Members might be able to give me examples of situations where officers have faced prosecution in those circumstances, but I certainly cannot think of any. A few weeks ago, during our debate on the Overseas Operations (Service Personnel and Veterans) Bill, we were told about ambulance-chasing lawyers, and I am wondering whether we will now hear about police-chasing prosecution services.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Home Secretary

I certainly would never use divisive rhetoric about those before our courts who are protecting people’s rights; we should be absolutely clear about that. This Bill is on the narrow issue of criminal conduct. It should not and would not have anything to do with trade union and lawful activity, and if it ever did, it would, of course, be strongly opposed. On my hon. Friend’s final point, existing practice versus what happens now is a very important issue. At the moment, this happens in the shadows: it happens where prosecuting authorities are given specific information and the prosecutions simply do not take place. This should be on a proper statutory footing, with the safeguards we are arguing for.

Labour’s commitment is to work in the national interest to keep people, their families, their community and the country safe. That is why I have taken the approach I have with the Bill. We recognise the importance of this activity being on a statutory footing, which is why I will not be opposing the passage of the Bill today. However, in Committee we will look to press the Government on their position. We will hold Ministers to account, seeking to improve the Bill on the vital issue of safeguards, so that the public can have confidence in the process, while law enforcement bodies can carry out the vital work of keeping us all safe.

Photo of Eleanor Laing Eleanor Laing Deputy Speaker and Chairman of Ways and Means

I am going to start with a time limit of nine minutes, which is advisory. I put on a time limit of nine minutes so that no individual Member is encouraged to take dozens of interventions and therefore take 20 minutes. I hope that that will be roughly about right to ensure that everybody gets a decent chance to speak on this extremely important issue.

Photo of Julian Lewis Julian Lewis Chair, Intelligence and Security Committee of Parliament, Chair, Intelligence and Security Committee of Parliament 7:11 pm, 5th October 2020

Thank you, Madam Deputy Speaker. I shall endeavour to set a good example.

Both Front Benchers have begun this debate in a solemn, sober and thoroughly non-partisan way. That is greatly to be welcomed. The Opposition Front Bench spokesman, Nick Thomas-Symonds, referred briefly to the oversight role of the Intelligence and Security Committee. I can give advance warning, as it were, that other members of the Committee will be referring—in particular, I believe, my hon. Friend Mark Pritchard—to at least one amendment the ISC will probably put forward, relating to accountability and oversight by the ISC, at a later stage in these proceedings.

The work of the United Kingdom’s domestic and overseas intelligence agencies would be considerably less complicated and decidedly less dangerous if we could rely solely on the technical triumphs which achieved so much in Room 40 in the first world war, and via the Ultra organisation in the second. Sadly, that has never been the case and, as long as spying has existed, spies in human form have proven indispensable. Covert agents operate under extremely hazardous conditions inside hostile organisations, or cells of organisations, where discovery of their true identity and purpose could prove fatal. The explanatory notes accompanying the Bill describe the use of covert human intelligence sources as

“a key tactic in protecting national security and investigating serious crime”,

and the operation of such agents as

“a core part of security, intelligence and policing work”.

It is hard to disagree with that evaluation. If it were known that CHIS agents could never engage in criminal activity in concert with the groups they are infiltrating, it would be simplicity itself for ruthless organisations to devise techniques to flush them out and eliminate them.

Until now, the security service has had an implied power, derived from the Security Service Act 1989, to authorise CHIS agents to take part in criminality. As we have heard, last December the investigatory powers tribunal ruled in favour of MI5 in a case which challenged such authorisations. However, that ruling was by just a 3-2 majority, thus illustrating the point well known to the Intelligence and Security Committee that the switch of a single vote can dramatically change even a carefully pre-planned outcome. [Laughter.] The ISC welcomes the principle behind the Bill to put existing powers to authorise criminal conduct, in certain circumstances, on to an explicit statutory basis.

One of our predecessor Committees was told in 2016 by the then director general of MI5 that CHIS agents are

“the intelligence collection asset that we could not operate without. They give you insight that technical intelligence cannot give”.

Despite necessary redactions, the 2017-19 ISC’s own report on Northern Ireland-related terrorism, presented to Parliament today, although it was drafted before I rejoined the Committee, convincingly concludes at paragraph 39 that:

“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only where necessary and proportionate, and subject to proper scrutiny.”

Like its predecessor, the current ISC believes that these authorisations are essential if innocent lives are to be saved. Indeed, we have seen real examples where precisely that has happened—and where lives would definitely have been lost if a courageous agent had been banned from participating in any criminal activity.

Naturally, this power must be properly circumscribed and must be used, as repeatedly stated, only where necessary and proportionate. At later stages, consideration of the Bill will surely focus on how to apply necessity and proportionality, but I urge colleagues in all parts of the House not to seek too much specificity regarding what criminality meets those standards. Preventing agents inside a criminal enterprise from engaging in a specified checklist of possible crimes would make their unmasking and potential execution very much more likely. It would be dangerously counterproductive to compile such a checklist. We need to remember that there is more than one way for society to have blood on its hands.

Photo of Richard Thomson Richard Thomson Shadow SNP Spokesperson (Business and Industry) 7:17 pm, 5th October 2020

Allow me to begin by placing on the record my party’s gratitude to the agencies covered by the Bill for the work they do to keep all of us safe, and expressing our understanding and appreciation that in carrying out that work, there are circumstances where the use of a covert human intelligence source may be necessary. We accept that it can be legitimate to perpetuate a harm in order to prevent a greater harm down the line, and while naturally attention is drawn to the police, the armed forces and the security services in this Bill, the inclusion of the other agencies listed requires equal attention if we are to protect people’s rights.

I think it is a matter of fundamental principle, when we are dealing with the coercive powers of the state, that we are right to proceed with the greatest of care. Although we accept that the Bill seeks to put on a legal footing many activities that we know have always taken place, even if we have not known that they were taking place, we know that often they have taken place to our great discredit. Putting that on a legal footing, where everyone knows the rules of engagement and the legal parameters within which those activities take place, is a positive.

The Bill must do that in a way which ensures proper safeguards to protect rights, and which commands the support not just of Parliament but of the public at large. Scottish National party Members consider that the Bill still has some distance to go in that regard. Although there are principles inherent to the Bill that we can support, there are outstanding concerns that mean that, while we will not be able to support Second Reading, we look forward to working with the Government to improve the Bill as it progresses. I will use the time available to me to outline those concerns.

First, as the Minister well knows from his dialogue with the Scottish Government, the Lord Advocate in Scotland retains concerns about how aspects of this Bill might progress. I know there has been constructive dialogue between the Scottish Government and the UK Government; we welcome that, and we hope and expect that it will continue. We hope those outstanding concerns can be addressed, allowing the legislative competence motion to be laid at Holyrood.

I come on to the principles we can support. Subject to qualifications regarding potential entrapment, no usage beyond that which is reasonable and proportionate, and any viable alternatives being absent, it can, in certain circumstances, be reasonable to allow the law to be broken in order to prevent a more serious harm from taking place. But our questions today relate to what is and is not reasonable, and how to ensure that the safeguards of governance and scrutiny on that are adequate. As has been said by a few Members, the first of those concerns relates to authorisation. The Bill, as it stands, would allow the authorisation of a CHIS by a senior and experienced officer within the organisation authorising it. I hope hon. Members can see the potential conflict of interest there straightaway, no matter how senior and experienced that authorising officer might be. As far as we are concerned, that is inappropriate. If there were to be a form of external authorisation, that would overcome that concern. We are willing to work with the UK Government to find a way that would permit that authorisation in a way that is reasonable, proportionate, appropriate and with suitable independence.

Our second question relates to the reporting of the authorisations and the planned use of a CHIS. An annual report to Parliament seems to us to be a wholly inadequate way of going about that. Reporting each instance to the Investigatory Powers Commissioner’s Office can fulfil that role, as long as the reports happen either in real time or as close to that as is operationally possible. We would very much welcome the Minister’s observations on that.

Our third question relates to the scope of the illegality being authorised or rendered lawful for all purposes. The Law Society of Scotland has observed that potentially there are no limits on the types of criminal conduct that could be permitted under this authorisation, which raises the obvious concerns about the potential use of murder, torture and sexual violence. I understand the argument the Minister advanced about the prohibitions that would be placed upon any such activities by compliance with the ECHR or the Human Rights Act, which could act as backstops, but we on these Benches remain unpersuaded on that. Given that there is some doubt as to the long-term commitment of supporters of the Government to those human rights backstops, it would be better to see those actions that are to be prohibited enshrined in the Bill.

We have heard about the possibility of a purity test being used, and I can understand those concerns, but that does not seem to an issue in either Canada or the United States of America, where just such legal prohibitions are already in place. Without that, there are real concerns that the Bill could open the way to legitimising the subcontracting of activities that should not be carried out either by or on behalf of the state. I suggest to the Minister that if the provisions of the ECHR and HRA are deemed sufficient, it would be beneficial to see that written more explicitly in the Bill, as that might provide further assurance.

By authorising law-breaking that is lawful for all purposes, we run the risk of creating an upper limit of illegality, in that it sets out the actions that are permitted without there necessarily being any restraint then on whether or not the actions taken within that parameter of legality remain legitimate, proportionate and appropriate. We would therefore welcome further clarity from the Minister on how Parliament might be assured that any illegal actions authorised for this purpose can be taken and still remain within those parameters, while also being reasonable and appropriate, without going beyond what is needed for that, even if it does not cross that threshold that has already been permitted.

Fourthly, if we are committing a harm to prevent a greater harm, that raises a fundamental question of legal liability. At the margins, the use of these powers could lead to adverse life-changing consequences for the innocent. If individual CHIS operatives are to be exonerated from what in other circumstances would be illegal actions, that might be understandable. What is less understandable is the manner in which the state may ultimately also be able to escape any liability for that, and that is hugely problematic for us.

Photo of Sarah Owen Sarah Owen Labour, Luton North

I thank we all understand and agree that keeping the public safe often means difficult decisions, but the Bill in its current form is weak where it needs to be strong—strong particularly on safeguards around sexual violence, torture and the creep into anti-trade union practices such as blacklisting.

Photo of Richard Thomson Richard Thomson Shadow SNP Spokesperson (Business and Industry)

I thank the hon. Lady for that intervention. She makes a number of important points, and we will need assurances on those going forward.

The situation is hugely problematic as it stands, and we do not believe that the Government should attempt to escape their vicarious liability on this issue.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I am following with interest what the hon. Gentleman has to say, and, unusually, though he is an SNP Member I have a great deal of agreement with him. However, in terms of civil liability, perhaps the simplest test is to look at one of the worst cases in recent times, which is the Finucane murder. Whatever we think of Mr Finucane—I would have different politics from him—he was an innocent party, but even more so were his three children and his wife, who were there when a state-supported group—almost—murdered him with 14 bullets over his Sunday lunch. That is a good demonstration of the point that, if this civil exclusion applies, those innocent parties—the wife and children of Finucane—would have no recourse. That surely cannot be right.

Photo of Richard Thomson Richard Thomson Shadow SNP Spokesperson (Business and Industry)

I thank the right hon. Gentleman for that intervention, and he makes the point very elegantly. If individuals are to be exonerated for actions that have been authorised, where is the redress for the innocent whose lives are impacted? It is right to look at the extremities in terms of where that might lead us.

In giving the state the ability to uphold rights, we accept that we must also give it the ability to have limited powers of coercion to uphold those rights. However, those powers must never be in conflict with the fundamental rights of individuals. In terms of the Bill, the only way we can ensure that is through good governance, effective scrutiny, limited scope and clarity on the limitations; ensuring that there is accountability for the use of the powers; and limiting opportunities for their misuse. I believe those are legitimate concerns, which many will share, both inside and outside this place, and we hope to see them addressed as the Bill continues its passage.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin 7:27 pm, 5th October 2020

I would like to put on record my thanks to all those who serve in our security agencies—they keep us all safe every day of every week—and to add my support for this important Bill.

Covert human intelligence sources, or agents, provide invaluable information to the UK’s intelligence agencies and those tasked with fighting serious and organised crime. These sources provide vital information—often time-sensitive—in saving lives. Even as I speak, they are probably saving lives—lives not in the abstract, but real lives; the lives and futures of men, women and children. We know that terrorists are no respecters of age, gender, faith, nationality or community. They seek to kill and to maim, to divide, to terrorise and to spread misery and fear.

Covert sources disrupt plots, secure prosecutions and give our intelligence agencies a critical human intelligence edge. Let me be clear: this type of human intelligence work is unique and cannot, as we have heard from the distinguished Chairman of the Intelligence and Security Committee, be replicated through regulated signals intelligence or communication intercepts. Covert sources save lives. As the head of the Security Service recently said, without covert human intelligence sources many of the attacks planned over recent years would not have been foiled. Covert human intelligence sources deny terrorists success.

I think there has been some misunderstanding about some parts of this Bill. It seeks to put existing powers on an explicit statutory basis and existing practice on a clear and consistent statutory footing, and surely that should be welcomed by the House. I am very pleased that the Minister has been explicit today about safeguards. They are needed, necessary and very welcome.

For the record, I would not be supporting the Bill if those robust safeguards and those meaningful checks and balances were not in place. Clause 4 should offer reassurance to any colleague who still has concerns about oversight. In it, colleagues will find a reference to significant oversight measures, with the Investigatory Powers Commissioner having significant powers of scrutiny and oversight.

I referred to my right hon. Friend Julian Smith, who rightly referenced improvements of oversight over recent years. However, it would provide further reassurance to colleagues from all parts of the House if those oversight measures were strengthened further to include an annual report to the Intelligence and Security Committee on the use of those authorisations, broken down by each organisation the Committee oversees and by the category of the conduct authorised. The Committee will be looking potentially to table an amendment to the Bill as it progresses through the House, although the Government are at liberty to listen to some of the comments that are being made today. I hope that amendment will reassure those on the Opposition Front Bench, as well.

I am also reassured that all authorisations will be compliant with the European convention on human rights, and rightly so. Indeed, I encourage all right hon. Members and hon. Members to read the Government’s ECHR memorandum, which accompanies the Bill.

Covert human intelligence sources are vital in the fight against terrorism, as well as against serious and organised crime. They are a critical operational element for the security of the whole of the United Kingdom and the whole of the Union. Given the improved oversight and scrutiny, the important application of the test of proportionality, the legislation’s compliance with the Human Rights Act and the European convention on human rights, and with further amendments to it, I support the Bill.

Photo of Diana R. Johnson Diana R. Johnson Labour, Kingston upon Hull North 7:32 pm, 5th October 2020

I am very pleased to be called this evening to make a short contribution in this Second Reading debate. This is the first opportunity I have had to speak since becoming a member of the Intelligence and Security Committee, and I start by paying tribute to all who work in our security services to protect us and our freedoms from those who do not operate under the rule of law and do not value our freedoms.

We have heard at some length the background for why the Bill is necessary. People who infiltrate criminal or terrorist groups do so at great risk to themselves to provide that unique source of intelligence. We know that many terrorist and serious criminal acts have been thwarted by that information. Innocent lives have been saved, including that of a current Member of this House. Moreover, because of the largely criminal nature of the people under investigation, the individual is sometimes required to participate in criminal activity themselves. It is therefore important that organisations such as MI5 protect those individuals who are putting themselves at such risk by authorising them to carry out criminal acts in certain limited circumstances and with specific safeguards.

The ISC can only comment on the organisations that it oversees: MI5, MI6 and GCHQ. The ISC strongly supports the principle behind the legislation, and we support the use of criminal conduct authorisations by the security and intelligence agencies on the condition that they are properly circumscribed, used only where it is necessary and proportionate, in a way that is compatible with the Human Rights Act and subject to proper scrutiny. As this is a Government Bill, it is for the Minister to make the case for the specific provisions within it and to answer the legitimate questions and challenges of hon. Members, many of which he has faced this evening.

The Intelligence and Security Committee has taken evidence from the police in relation to a number of our past inquiries, so I think the Committee would support their use of the powers. I would, however, like to press the Minister, as other Members have already, on the list of bodies included in the Bill, some of which the Committee does not have oversight of, and for which it is not immediately obvious why they should be given such power.

The Minister talked about the mislabelling of food as an example of why the Food Standards Agency, which has already been raised with him, should be included in the Bill. In the Bill Committee, we will really want to see further information about the kind of cases that the Food Standards Agency would be dealing with that makes it appropriate for it to be in the Bill. The same goes for the Environment Agency, about which my right hon. Friend Mr Jones has already raised questions. What does the Minister think about other Select Committees having oversight in the areas for which they are responsible—the Environment, Food and Rural Affairs Committee having oversight with regard to the Food Standards Agency and the Environment Agency, for example?

Speaking personally, I would really like the Minister to give full consideration to what the Chair of the Home Affairs Committee and the shadow Home Secretary have said about additional powers to strengthen the oversight of the Investigatory Powers Commissioner. I am pleased that the Minister has already said that he is willing to look at the timing of that oversight, which could be quite important. I would also like to be reassured about the authorisation procedures and the level at which advance authorisations can be signed off within organisations. What level of experience and knowledge would he expect a person to have, and where will that be set out?

I agree with what Mark Pritchard said, and I hope that the Minister will look at giving additional responsibilities to the Intelligence and Security Committee to have oversight of the use of these powers. That could really help with the concerns of parliamentarians about the use of the provisions by ensuring a level of ongoing parliamentary scrutiny. I hope that in Committee we can look at those proposals in detail in order to achieve balanced and workable legislation that safeguards those who put their lives at risk while upholding the rule of law, to which we all subscribe.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham 7:38 pm, 5th October 2020

I am in awe of the constant, cold courage of those who run huge risks for us as covert human intelligence sources; in fact, in a past life I was involved slightly. I am clear that covert agents play a vital part in disrupting terrorist plots, and they often save lives. It is vital that such agents gain the trust of those on whom they have to report if they are to gain the information that the authorities need to keep us all safe. In view of the largely criminal nature of people under investigation, covert agents are sometimes required themselves to participate in criminal activities; we all understand that. If they do not participate in those activities, it will cause their loyalty to that group to be questioned. Suspicions will immediately be raised and they could be in peril, or, sometimes, in mortal danger. It is therefore essential that covert agents are able to participate in some criminal activity. Organisations such as MI5 need to be able to authorise them to do so—obviously in certain circumstances and with the safeguards that we hope to put in the Bill.

In order to decide whether to authorise such covert agents to participate in criminal activity, intelligence organisations will have to consider whether the anticipated result of that involvement, which is getting information that could help save lives—information rather than intelligence, because there is a difference—outweighs the criminal conduct. This is a very fine balance, and it requires very, very experienced officers to make that judgment. Obviously, we all understand that this is an ethical dilemma for us, but I accept that it is necessary and I will be fully supporting the Bill.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence) 7:41 pm, 5th October 2020

It is a pleasure to take part in this debate, Madam Deputy Speaker, and I am grateful to be called to speak so early.

I listened very clearly to the Security Minister, and I am grateful to him for his thoughtful engagement with me and my hon. and right hon. colleagues in my party. Although I think it is right that some of the issues have been raised in this debate, as they are worthy of further exploration, I want to place it on record that the Security Minister knows that he has our support on Second Reading. We look forward to thoughtful engagement over the weeks to come.

There have been references already to Northern Ireland in this debate; Dr Lewis referred to the Intelligence and Security Committee’s report, which was published just today. It spans two years of activity, culminating just before the election, and provides stark reading for those who believe that issues in Northern Ireland have moved on. It provides a very stark assessment of the proportion of MI5’s work that still pertains in Northern Ireland and the fact that there is a need for that work. Those of us who represent Northern Ireland understand that, while the security situation has evolved and got so much better over the past two decades, MI5’s work is still important to us. With that brings the need to operate beyond the realm of what is legal in the truest sense—of necessity our state is required to engage in acts that might not be considered lawful on the face of it. The Security Minister has gone through very clearly and properly what is proportionate, what is necessary, and the appropriate tests that are embedded in the process by an authorising officer, who must be accountable for those decisions through the oversight that has been referred to earlier in the debate. That is crucially important.

During my short time in this Chamber—the past five years—I have referred to the incidents that have occurred in my constituency, including the murder of a prison officer, and the attempted murder of a police officer within the past year. I engage with that police officer regularly. The fear and concern that arose as a result of him being targeted going from his home to his local golf club with a device under his car because of his service in the Police Service of Northern Ireland highlights acutely the dangers that still pertain within our society.

In the past six weeks, MI5 has had an extraordinarily successful operation in Northern Ireland, and we now have within our prison system—not yet before the courts— almost the entirety of the New IRA’s army council. That is a huge success. It was down to not only the bravery of our security services in Northern Ireland but a covert human intelligence source. I am referring to open source data, so there is no concern about what I have shared. It has been raised within the courts. An agent of our state was embedded within the New IRA and its political apparatus for over a decade. Being involved in what he was involved in—being a member of the New IRA—is necessarily a criminal offence as it is a proscribed organisation. Holding information that is of use to terrorists is a criminal offence. Booking a property that the army council was meeting in and therefore enabling our security services to place listening devices and so on in that property was crucially important. That individual—just to encapsulate the dangers that come from this—has now left Northern Ireland and is in protective custody. His name is in the public domain and there is no need for me to share it today.

I noted on the “Irish Republican News” website a brief but quite explicit and chilling threat at the end of its analysis of what happened following the individual’s arrest. It says:

“The apparent exposure of a leading double agent within Saoradh”— the political body—

“recalls December 2005, when top Sinn Féin official Denis Donaldson was exposed as an MI5 agent.”

Photo of Eleanor Laing Eleanor Laing Deputy Speaker and Chairman of Ways and Means

Order. I hope that the hon. Gentleman will be very careful about matters to which he refers and individuals whom he identifies either by name or otherwise, because I know he fully appreciates that some matters are sub judice and some matters are under investigation, and that we have to be extremely sensitive in these circumstances.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

I hope you appreciate, Madam Deputy Speaker, that not only do I agree entirely with you but I have been very careful in what I have shared and I will not delve beyond that which is public.

I just want to finish the quote about the case that occurred in 2005:

“After four months living in isolation, he”—

Denis Donaldson— was shot dead in an attack claimed by another…IRA group”.

That has to encapsulate for Members the severity —the seriousness—of the danger that arises for those who engage on our behalf and who serve our country. [Interruption.] I see that there seems to be some level of concern. Those who have listened to what I have said as I have gone through it should have total comfort. Not only is what I have said appropriate, but they should also know me and the way in which I approach these issues, and understand that it would not be my intention, nor is it my purpose, to say anything inappropriate in this debate.

Photo of Eleanor Laing Eleanor Laing Deputy Speaker and Chairman of Ways and Means

Order. Just to confirm, I am certain that the hon. Gentleman has no intention of saying anything inappropriate and that he is very careful, but because this is so sensitive, I simply reiterate that there is a difference between that which is in the public domain and that which is sub judice. I have the duty of urging that anything that is sub judice should not be mentioned in the Chamber. The hon. Gentleman has already made his point very well, and it might not be necessary for him to go into further detail.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

Thank you, Madam Deputy Speaker. The point that I was making has been made, so I see no need to re-emphasise it or to go over it again. The Minister has our support, and we will engage thoughtfully with him as this Bill progresses. I ask the Minister to look at clause 1(5), which is amending part of RIPA, where it outlines what is permitted within a criminal conduct authorisation. I simply ask the question whether

“for the purpose of preventing or detecting crime” sufficiently encapsulates issues of self-defence and whether that needs to be expounded more clearly.

The Minister touched on the Bill not being retrospective. He is right that the Bill in itself is not retrospective, but it would be useful if the Solicitor General, in his concluding remarks, could touch on retrospective authorisation of criminal conduct. We know clearly from the Bill that, when somebody is authorised as a CHIS, they can be authorised either at that time or subsequently for criminal conduct. The question is not whether they are authorised in advance, but whether if they engage in criminal conduct that would require authorisation, that authorisation can be given after the commission of the conduct. I hope the Solicitor General will refer to that. I do not see any preclusion of it, as there is nothing contained in the Bill that suggests it has to be in advance. Can it come after the conduct has been engaged in, and people are aware of that and an authorisation is sought for it?

Madam Deputy Speaker, time is marching on, and I will let you proceed. Thank you very much.

Photo of Theresa Villiers Theresa Villiers Conservative, Chipping Barnet 7:51 pm, 5th October 2020

On 12 February 1989, the solicitor Pat Finucane was shot 14 times as he sat down for dinner with his wife and three children in his home in north Belfast. He died in front of them, and his wife Geraldine was seriously injured as well. The 2012 review of the case by Sir Desmond de Silva, QC, concluded that two agents of the state, Brian Nelson and William Stobie, were heavily involved in that brutal killing. This was a truly shocking finding, albeit that Sir Desmond concluded that there was no overarching state conspiracy to kill Mr Finucane. David Cameron issued an apology on behalf of the Government to the Finucane family, one of whom was of course elected to this House last year.

I am afraid this case shows the horrific consequences that can result where decisions about agents are handled badly, where clear and binding rules are not in place for handling covert human intelligence sources, and where proper oversight and accountability is not in place. But I can assure the House that, during my time as Northern Ireland Secretary, I saw the clearest of evidence that modern police and security forces are utterly transformed since the appalling events that were the subject of the De Silva review. That is especially true of agent handling and the legal framework that governs it now. What I saw at first hand as Secretary of State was that today’s police and intelligence services have a rigorous focus on compliance with legal and human rights requirements in all aspects of intelligence gathering, including the use of agents, so that is why I support the Bill this evening.

Agents, as others have pointed out, provide invaluable information and play a crucial role in disrupting terrorist plots and serious crime. The simple fact is that we would become far more vulnerable to, for example, Islamist terrorist attacks if the intelligence services could no longer effectively use agents. More people would fall victim to terrorist attack. Certainly, the nature of the organisations these agents infiltrate unfortunately means that sometimes it is simply impossible for them to remain in place and provide information without some involvement in criminality. I wish this were not the case, but I would provide the reassurance that we already have one of the toughest and most comprehensive oversight regimes in the world for regulating our intelligence services.

This Bill will put that on an even clearer statutory footing by confirming the rules on authorisation of agent criminal activity. The core principle underlying all our laws regulating intelligence gathering is that activities can be carried out only if they are both necessary and proportionate, and under this Bill, that golden thread will continue to run through our rules on the use of agents and authorising criminal behaviour.

While there are horrific legacy cases such as those of Brian Nelson and William Stobie, there have been hundreds and hundreds of other men and women who have been agents whose story is very different. These are men and women who have put their lives at risk to provide information to help the police and security services; men and women who have saved many lives, but whose bravery has to remain unacknowledged and untold for their own safety. We will never know their names, and we will never hear their stories in this House, but for their sake and in order to ensure that we can continue to combat the lethal threats we face from terrorism and serious crime, I urge this House to back this Bill in the Division Lobby this evening.

Photo of Kevan Jones Kevan Jones Labour, North Durham 7:55 pm, 5th October 2020

In the fast-moving electronic age that we live in, I think there is a misunderstanding that somehow, the state can beam into everyone’s communications and listen to everything that is going on, and that that is the way in which modern-day intelligence is gathered. As outlined by Dr Lewis, that could not be further from the truth. The role of human intelligence is of vital importance, not only for our intelligence work in this country but for police work in other areas.

As a member of the ISC, I have seen examples of terrorism cases in which human intelligence has prevented the deaths of our citizens. Is this a pretty area we are dealing with? Honestly, no, it is not. The individuals who the police and other security agencies are engaging with have to interact with people who are not pleasant. That is the nature of the territory we are dealing with, and in order to keep their covers in place, those individuals will have to engage in certain amounts of criminal activity. I have seen some examples of what they do; I am not going to go through them tonight, or refer to any of those cases, because that would be completely wrong. However, as has been referred to by Gavin Robinson, the obvious one is membership of a proscribed organisation, which would be deemed as breaking the law.

We also need to highlight this idea that somehow, authorisation of these things is a free-for-all. I welcome this legislation, because it will put on to a statutory footing something that is quite a grey area in its legal position, but its opponents seem to think that there is no control of authorisation at all. As Theresa Villiers has just outlined, the authorisations are very clear about what can and cannot be done.

For some unknown reason, a curveball has come into this debate that I had not really expected: the idea that this Bill will affect trade unions. I am not sure how it can do so. Likewise, regarding rape and serious sexual assault, I agree that those safeguards should be there, but I think they are already in the Bill. The individual who did the authorisation would not authorise that, and if a CHIS who was involved in general activities undertook one of those acts, they would not get immunity for doing it. Again, I think a lot of things have been thrown into the debate about this Bill that do not actually apply to it.

Photo of Rehman Chishti Rehman Chishti Conservative, Gillingham and Rainham

With regard to the appropriate checks and balances and the need for authorisation to be proportionate and necessary, does the right hon. Gentleman agree that it would be wrong to straitjacket our agencies? There needs to be discretion. Our country works with judicial discretion, whereby judges can depart in exceptional circumstances. Without knowing what will come, it would not be appropriate to straitjacket the action that may or may not be taken with regard to what is proportionate and necessary.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The hon. Gentleman raises a good point about proportionality, which is key. Clearly the authorising officer will not authorise something if they know that it is disproportionate to the act, which was covered earlier in the debate. I am also pretty confident about what is proposed in terms of the Investigatory Powers Commissioner, but like Mark Pritchard, I would like to go one step further. We need more detailed oversight in the ISC. It is not necessarily about seeing individual warrants, but there could perhaps be an annual report listing the categories in which warrants were issued. That would be helpful for us to look at, and if we wanted more information about any of those, we could use the powers we have to request that. We may well table an amendment on that in Committee.

I turn to the issue of the other organisations listed in the Bill. There is a tendency sometimes, when civil servants see a piece of legislation, to jump on to it. The list of organisations weakens the strong case for why we need this legislation. I have not yet heard a good justification for why the Food Standards Agency needs these powers. My concern is that the police and the security services—MI5, MI6 and others—are used to dealing with CHIS and giving authorisation, and they have the training. The danger of extending this to other organisations is that the expertise that comes from regular use is not there, and that concerns me. For example, the Environment Agency usually works in co-operation with the police, and I would be happy for the police to have the lead in terms of CHIS, rather than the Environment Agency. In Committee, we need justification for why all these organisations need to be included and reassurance that this is not a case of civil servants seeing this as a good way to add some powers to a Bill.

I support this Bill. This is a complex area, and some of the things that we are asking individuals to undertake are not pleasant, but it is vital work for keeping us safe. Like my hon. Friend Dame Diana Johnson, I pay tribute to not only the brave individuals who provide information but the men and women of our security services who work day in, day out to keep us safe.

Photo of Julian Smith Julian Smith Conservative, Skipton and Ripon 8:03 pm, 5th October 2020

I support the Bill, and I congratulate the Security Minister on bringing his practical knowledge from many years to guiding the Bill through the House. I want to make four brief points on the security services.

This Bill makes the ongoing function explicitly clear in law, but it is really important that we fully understand that there are already very clear processes in place regarding agent handling and how they interact with criminal acts. As the third direction hearing and adjudication by the Investigatory Powers Tribunal showed, no further powers were required. It was just a win—it was 3-2—but the IPT said that it was lawful. The 2018 Investigatory Powers Commissioner report, which is well worth reading, confirms that there is adequate guidance in place within MI5 regarding agent handling and that the then Prime Minister directed the commissioner to ensure that that guidance was being enforced. The report also points to the quality of applications by MI5 for the use of CHIS, noting that there are strong controls already in place.

The second point is that this Bill builds on an already rigorous oversight regime for our intelligence services. This stringent control environment has developed over many years, but the Investigatory Powers Act 2016 established a new single oversight body. The Investigatory Powers Commissioner has had a transformative impact on the level of oversight on all aspects of intelligence gathering. As IPCO’s annual reports show, the double lock on warrantry applications, for example, involves detailed interaction between the authorising Secretary of State and their officials, and IPCO and its judicial commissioners. Anybody who has been involved in the process will know that it is a very strong double lock. The Investigatory Powers Tribunal, which is independent of Government, provides a further independent appeal route, which is available to all at no cost.

The third point, with regard to CHIS, agents and criminality, is that this is an area of intelligence-gathering activity that is invariably difficult to manage in the same way as other intelligence gathering—for example, warrantry —is. We cannot hope to micromanage such activity from this House. The House and colleagues have to take comfort from the initiatives of the Intelligence and Security Committee, the application of the European convention on human rights to CHIS activity, and the role of independent commissioners to provide rigorous oversight. The Bill is clear that these powers do not give carte blanche to agents. The Crown Prosecution Service can still consider prosecutions for activities that fall outside those that have been authorised.

Finally, it is vital to note, as my right hon. Friend Theresa Villiers, the former Secretary of State for Northern Ireland, has just stated, that the Bill is not retrospective and will not impact on any historical investigation.

The women and men in our intelligence agencies, and those who supervise and work with them, work behind the scenes, are never publicly recognised. They are civil servants of the highest quality and integrity, and I believe the Bill will further strengthen their ability to do their work.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office) 8:07 pm, 5th October 2020

It is a pleasure to follow Julian Sturdy, who made a characteristically thoughtful, measured and knowledgeable contribution to the debate. It is a debate that I am very proud to be part of, because I think the House has approached this subject tonight in exactly the right way. I suspect that we have probably done that because of how the Minister opened the debate. I am also grateful to see him still in his place. He sets a good example that others in Government might do well to follow.

I am, however, a little bit weary when I consider this Bill, because it looks like almost yet another Bill into which so many other things have been ladled, so that at the end of the day, after it has been through the other place, the Government might get what they want. The right hon. Member for York Outer also has a history as a Government business manager and has no doubt been in meetings where he is given instructions to go and defend the indefensible, so that the Government can then concede the indefensible and might then be left with what is defensible. I have to say, it is a tactic that is just a little bit tired and lacks subtlety and nuance. I suggest that this is a good point at which the Government might seek to do things differently.

Considering the importance of the matter, my real frustration with this Bill is that it is a colossal missed opportunity. We all know the importance of putting these things on a statutory footing, and it is a significant advance that we should be doing so. However, that we should do so in such a haphazard way, and which compares so badly with other jurisdictions, such as Canada, which has undertaken the same business in recent years, puts a duty on this House to engage with the Minister and to seek to improve the Bill at later stages.

The House will be aware that I tabled a reasoned amendment, which was not selected. I did that because of the serious concerns I have about the Bill. In the normal course of things, when a reasoned amendment is not selected, one considers whether it would be appropriate to divide the House. On balance, I am persuaded that that is not the right thing to do, but it is important that we should have the opportunity at later stages to give substantial consideration to three particular areas. First, there is the inadequacy of the authorisation, and on that I can do no better than to quote the words of Lord Macdonald, the former Director of Public Prosecutions, from his article in The Times this morning. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other authority. Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”

The second area that causes me serious concern is the total lack of any limitation on the offences that would be covered. We are back in familiar territory here. This is not dissimilar to the territory we were covering when we considered the Overseas Operations (Service Personnel and Veterans) Bill. Why would it not, for example, include torture? I would say to the Government’s business managers that if, in Committee, this House were to introduce a limitation on murder, sexual offences and torture, the Bill would be virtually bomb-proof when it got to the other place.

Thirdly, there is the question of the scope. The Minister referred, with quite disarming elan, to the “10 other public authorities” that are covered in the Bill. I referred earlier to the Food Standards Agency, and others have referred to the Environment Agency and the Gambling Commission. This is a matter of concern because, as Mr Jones said, including these organisations in the same breath as the police and military intelligence and other serious operators in this field is seeking to do too much. In fact, it would undermine the substance of the work of the more serious bodies.

I am afraid that the answers we have had from the Minister are somewhat lacking in conviction. The idea that the protections or limitations can be found in the Human Rights Act and that they are necessary, because to have them on the face of the Bill would somehow give a checklist to the bad guys that they could use to test and to imperil agents in the field, is, if we consider it in its entirety, somewhat lacking in conviction. The Minister seems to be suggesting that serious organised criminals can get legal advice or will look for themselves to the face of this Bill, but that they will not look to the face of the Human Rights Act. If these limitations are there, they are there for all to see, regardless of where they are. I would also be more persuaded if it had not until fairly recently been the policy of the Conservatives to repeal the Human Rights Act. If we were to see them return to that position, I wonder what protections would be left.

The other point about the protection coming from the Human Rights Act is the one that was made by Mr Davis in an intervention on the Minister. The reliance on the Human Rights Act stands in stark contrast to the position taken by the Government in their submissions to the Investigatory Powers Tribunal, where they were adamant that, where an agent is authorised to commit severe abuses such as torture, the Human Rights Act does not apply because—I quote from the Government pleadings—

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

It seems to me that the Government are pleading one case here tonight and a quite different and contradictory case in the IPT.

These are all matters to which we can return in Committee. I think we must, and judging by what we have heard from Government Back Benchers today, we almost certainly will. This is an important matter, which it is good to have put on a statutory footing, but the way in which the Government are doing it is cack-handed. It requires this House to do its job and to improve the Bill before it today.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee 8:15 pm, 5th October 2020

It is a pleasure to follow Mr Carmichael and my right hon. Friend Julian Smith, both of whom made important and powerful speeches. I agree with what both of them said, and the two are not irreconcilable.

It seems to me that the Government, having brought forward a necessary and appropriate measure—it is right to put these matters on a statutory footing—need to bear in mind the need to tighten up the language in a number of places. I support the basic thrust of the Bill, but there is nothing more profound than to authorise the agents of the state to break the criminal law. That can be done only in the most exceptional circumstances, and those circumstances are not things that can be trailed in public, so obviously we need a degree of discretion about how we do it. I will deal swiftly with just a few matters.

First, given that principle, I am concerned about how we deal with the pre or post-authorisation arrangements. Having put the matter on a statutory footing and having previously established the independent commissioner and then the tribunal, I would be worried about the exclusion of pre-authorisation save in the most exceptional circumstances. I am not saying that every type of criminal offence should be excluded at this stage, but when we come to Committee, we should examine whether we should in any circumstance contemplate setting on the face of an Act of Parliament provision for someone committing the offence of murder, for example, or something equally extreme, other than when they would probably be entitled to run the defence of self-defence anyway.

Given the ability of any High Court jurisdiction to deal immediately and swiftly with interlocutory matters, there is no reason to think that the same arrangements cannot be made in relation to the commissioner. The quality of the commissioners— Sir Adrian Fulford and now Sir Brian Leveson—is of such an extent that I would have thought that their early authorisation would be a great support to our security services in doing what they have to do. We must think about where the balance lies.

The second point I wish to deal with is the list of organisations. The obvious ones are there, and of course they must be supported. Like others, however, I question the need to list bodies such as the Food Standards Agency and, up to a point, the Financial Conduct Authority. Is this really a Bill about counteracting terrorism and life-or-death threats, or is it actually just about enabling the National Crime Agency—a worthy body in itself—to deal with economic crime? That may be a legitimate concern, but I do not think it should be put in this type of legislation, unless it is spelled out a bit more carefully.

The Minister of State and I have personal and shared casework experience relating to constituents of overreach and mission creep on the part of Her Majesty’s Customs and Excise, which frankly behaved appallingly. Ultimately, it was overridden by the courts, but I am worried that it might be thought that the imprecise definition of serious crime could be stretched to cover some of the cases we have dealt with. The Minister looks as though he thinks that is impossible, but serious crime is not defined in statute; it is a matter of fact and degree. It requires either a definition or, more likely, a more robust pre-application process.

Photo of James Brokenshire James Brokenshire The Minister of State, Home Department

I appreciate the contribution that my hon. Friend, the Chair of the Justice Committee, is making and perhaps we can continue this conversation. I point him to the issues of proportionality and necessity, the requirement to consider matters that are not criminal to the end itself and the safeguards that the Human Rights Act provides, which I set out earlier. Therefore, there is a strong framework, as well as the subsequent oversight, but I will listen carefully to what he says. I am reflective on some of the timeliness of oversight, as I indicated, and I appreciate his points.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I understand the spirit in which my right hon. Friend makes that point. I suspect that many of those fears could be set at nought if we can do this sensibly. The point is that without either having an obligation to comply with the ECHR on the face of the Bill and certain most grave offences being excluded in the Bill, or, on the other hand, greater clarity on the timeliness and the way in which that will work, there are still issues that we need to deal with.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office)

Is not another factor that comes into play after necessity and proportionality human nature? It is human nature for people who work all the time in these specific areas—whether that is customs and excise, the Gambling Commission or food standards—to persuade themselves that the thing that they are doing is the most important thing, and they see the whole world differently. The most zealous enforcers of anything that I have ever come across were television licensing enforcement officers. I can say only that I take some small comfort from the fact that they are not on the face of this Bill.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

To my shame, I was once instructed to prosecute a list of television licence enforcements in the Epping magistrates court, when it still existed—a most inappropriate waste of court time, I have to say, thereafter. However, the point is well made.

Everybody supports where we want to go, but a bit of tightening up in Committee would not be awry on all those matters. We have to reassure the law-abiding citizen about, not a deliberate mission creep—not anything done by mala fides—but the over-zealousness of the public official, and that, so often, is actually where things are eroded in our public life. It is about the person who genuinely believes that he or she is doing the right thing, but who does things in an over-zealous way and encroaches, time and again, upon the protections that are necessarily there. That is what I want the Minister and the Solicitor General to take away.

We all want this Bill to go through swiftly, but it would do no harm to reflect a little, improve it and, above all, have faith in the process that we have set in statute with the independent complaints commissioner. For heaven’s sake, if people such as Brian Leveson and Adrian Fulford are not to be relied upon, why not bring them in at the very earliest point in the process, rather than having them retrospectively sweep up and pass judgment? I trust them and I think the public trust them more than almost anybody, and I suspect that that would support morally and effectively the agents that we have to employ under these very difficult circumstances.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak 8:23 pm, 5th October 2020

I welcome plans to place these activities on a statutory footing. I doubt that any of us can feel comfortable about criminal actions undertaken at the behest of the state, but it is naive in the extreme to pretend that we do not live in a world where undercover operations are necessary. The reality is that we need people to carry out these activities, often in great secrecy and sometimes outside the law, as it stands. The question is surely whether such actions are sanctioned, controlled and approved, or involve rogue elements in a very opaque area. I admire those whose actions keep us safe, and I am only too aware of the risks and temptations that might face individuals embedded in alien environments for long periods. Any legislation must ensure maximum supervision by controllers and handlers.

I want to be sure that the Bill ends up legitimising conduct which is necessary. I recall the dissatisfaction with the Regulation of Investigatory Powers Act 2000 as it became apparent that many more agencies were using it to snoop in a way that had not really been envisaged during its passage and that had little to do with security. I acknowledge that the Bill extends beyond national security and covers crime, fraud and other abuses, but we need legislation that is narrow in scope and tightly controlled. We need a presumption against criminal acts unless absolutely necessary and, at all times, behaviour that is proportionate. I want to be certain that the doubts raised by Amnesty that the Bill could end up providing informers and agents with a licence to kill, are wrong. I want to know that, in accordance with section 9.3 of the code of practice, all material obtained through the authorisation of a CHIS is subject to proper safeguards and any breaches properly reported. We need to be certain, as section 2.12 of the code highlights, that appropriate care will be taken to ensure that it is clear what is and is not authorised, and that all CHIS activities are properly risk assessed. I also wonder if 12 months is the appropriate period.

It seems to me that the Bill can be improved to address those matters. Some items that appear in the code and other safeguards might be better on the face of the Bill. Like others, I want to be clear that what we legitimatise is consistent with this country’s obligations under the European convention on human rights and the Human Rights Act. At a time when this House is grappling with some Ministers appearing unduly relaxed about breaking the law, we must be certain that this Bill does not weaken respect for the law, or risk creating a two-tier system with laws for ordinary citizens from which members of Government agencies are exempt. We must know this country will abide by the highest ethical standards, no matter how inconvenient it might sometimes be. We have to know there is no intention of legitimising routine law breaking. I feel we need further assurances about control and supervision, and more about the nature of reporting to the Intelligence and Security Committee and the Investigatory Powers Commissioner. We also need guarantees about further opportunities for Parliament, if the Bill makes it on to the statute book, to scrutinise how it works in practice.

There are those who say we should oppose the Bill on Second Reading. For me, that would mean voting against the principle of a Bill that tries to clarify what is already a very murky area. I believe it is in our interests to try to achieve a viable piece of legislation, but it would be a dereliction of duty if we did not seek to improve the Bill and the safeguards around covert operations. I want legislation that is effective, ethical and does what it says on the tin. The Bill needs improvement and I hope that, if it receives a fair wind tonight. the Government will approach the next stage with an open mind, because that is in everyone’s interests.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam 8:29 pm, 5th October 2020

It is a great pleasure to follow Steve McCabe and to speak in this debate, in which there have been two significant points of consensus. The first is that it is right to provide for authority to be given to commit criminal offences in appropriate circumstances. The most obvious example of that is the infiltration of criminal organisations the membership of which is in itself an offence. The second point of consensus is that if the first is so, it is better for it to be on a clear statutory basis. For that reason, I welcome the Bill.

That is not to say, though, that there are not legitimate concerns about the Bill, and many of them have been expressed already. There is more to say about the distinction to be made between civil liability and criminal liability—doubtless we will return to that issue as the Bill progresses—but the majority of the concerns expressed so far have been about scope and safeguards, so I shall briefly say something about both those things.

On scope, it seems to me that it is absolutely right that the provisions of the Bill should be tightly circumscribed so that the criminal law is broken to the minimum degree necessary to prevent greater crime. It has been said more than once that the Bill leaves open the possibility that crimes such as murder and torture could be committed with apparent authority. I am not sure that that is so. Clause 1(5) sets out what will become section 29B of the Regulation of Investigatory Powers Act 2000. What will be subsections (6) and (7) of new section 29B require a person who may authorise criminal conduct to take into account, first, whether the same objective could be achieved without committing a crime and, secondly, other relevant matters, including the Human Rights Act. That is a somewhat diffident way to express it, but it has a significant effect. Section 6 of the Human Rights Act makes it clear that public authorities, which is what we are concerned with here, may not act in a way incompatible with a convention right, including the right to life and the right not to be tortured. For as long as the UK remains a signatory to the convention and the Human Rights Act remains in force, it must be a relevant matter in the scenarios that have been raised, so the Bill’s meaning in that respect is clear.

Frankly, my concern is with criminal conduct beneath the level of murder and torture but which still may be quite serious. Here, we rely on the wording of what will be subsections (4) and (5) of section 29B of RIPA, as set out in the Bill, to counter the risk that too wide a latitude is given to break the law than is warranted and the consequent risk that an agent takes disproportionate criminal action. The point made by my hon. Friend Sir Robert Neill about the tightening of language is important here. Under the terms of the Bill as they stand, criminal conduct authorisation may not be granted unless the person granting it believes three things set out on page 2 of the Bill. They are,

“that the authorisation is necessary on grounds falling within subsection (5)…that the authorised conduct is proportionate …and…that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.”

The first question that has to be asked is what kind of belief is needed. Is it honest belief, reasonable belief? Surely, it must be the latter. It would be helpful if that could be clarified at an early stage. It matters so much because of the weight put on new subsection (4)(b), which states

“that the authorised conduct is proportionate to what is sought to be achieved by that conduct”.

Proportionality is vital to the rationale and effect of the Bill. It is also vital, of course, to answering many of the perfectly legitimate points that have been raised about the inclusion of some other agencies—several of which have been mentioned—in the list of those that can authorise criminal conduct. It must be the case that it is not proportionate to commit a relatively serious criminal offence to prevent the commission of a relatively minor one. Proportionality is at the heart of what happens in relation not just to agencies such as MI5 but all the other agencies on that list.

Finally, I want to say a word or two about safeguards. It has not been raised particularly in the course of the debate so far, but there are those who say that we should not offer authorisation in advance but instead rely on prosecutorial discretion to deal with those cases where agents commit criminal offences. I yield to no one in my faith in prosecutorial discretion—I have exercised it myself a few times and I know that it can have a significant role to play—but I think it would be wrong to put all of the burden there, and to leave those already taking considerable risk exposed to almost equally considerable legal uncertainty, when there is another way of doing it. It would also be a step back, for those individuals who are taking those risks, from where we are now, where authority and therefore reassurance is given in advance, albeit not on the legal basis that we all seek to achieve.

I have rather more sympathy for the points that have been made about judicial oversight. If we cannot get to a place where prior judicial approval is in place—I am perfectly willing to be persuaded by my right hon. Friend the Minister that there are significant practical difficulties with that—it seems to me fundamentally important that the oversight is as proximate as possible to the action. If it cannot happen in advance, it must happen as soon as possible afterwards. That is an area in which we must all focus as the Bill moves into Committee. I certainly hope it gets there, because I believe it is a good Bill, but, as others have said, it is capable of improvement.

Photo of Claire Hanna Claire Hanna Social Democratic and Labour Party, Belfast South 8:36 pm, 5th October 2020

Like others, while acknowledging that regulation of covert human intelligence sources should be on a legislative footing and that they have a role in modern policing, we have concerns about the Bill. I would like to offer some cautionary tales and some lessons from fairly recent history in Northern Ireland about what can go wrong when the state engages in crime, even if Members understand, or potentially even endorse, the outcomes that those agents are seeking to achieve.

In that context, the scale of this Bill is quite something. It expresses no limit on the type of crimes that can be authorised if the agent believes the action is proportionate, the authorising officer need only take into account whether the objective sought could be achieved through means other than crimes, and Members have already addressed the almost bizarrely wide range of agencies that are in scope. I am sure that people have spoken about the early period of operation of RIPA and the scenarios in which those provisions were used incorrectly.

The arrangements for operational oversight and post-operational accountability are weaker than those for phone tapping or law enforcement searches, despite having a potentially much bigger impact. As former Director of Public Prosecutions Lord Ken Macdonald has said, the Bill will make it easier for a policeman to commit a serious crime than to search a shed.

The Bill would block redress through the courts for those who might experience adverse effects. It is probably disingenuous for the Bill to rely on the Human Rights Act as a safeguard, because this Government have made it clear that they do not believe that that Act applies to the actions and potential abuses of their agents, up to and including torture. The Overseas Operations (Service Personnel and Veterans) Bill, which we considered just two weeks ago in this House, proposes to severely restrict the possibility of prosecuting those serious criminal wrongdoings, which of course have been illegal under international law since 1948. This Bill will not and cannot be read in isolation from those other pieces of legislation. The fact that the Human Rights Act has been a whipping boy for many, particularly on the Government Benches, means that people will not have faith that it will be allowed to stand in the way the provisions of this Bill.

The existing extraterritorial provisions of RIPA suggest that, in theory, this Bill could apply outside the UK and, indeed, in the Republic of Ireland—that MI5 could, from its Loughshore base in Belfast, authorise a serious criminal act just over the border in Donegal or Dublin. That prompts a number of questions that I hope the Minister will be able to address. If the UK authorities were sanctioning or authorising a crime, would they be compelled to notify their counterparts in Irish agencies? Has this been discussed with Dublin? It is not a case of whether they would do these things; it is a case of whether the Bill gives them space to do so.

I speak from some experience in Northern Ireland when I say that serious crimes up to and including murder, particularly when committed by the state, are very possible. That leads first to a generation of victims and survivors, then to deep alienation from the state and further on to the perpetuation of conflict. I would caution Members about going down that road.

Many in the House might say in good faith that agents committing a serious crime was rare, and I have no doubt that most of those involved in this form of policing would not and could not conduct that sort of activity. Unfortunately, we know from very recent history that it was not just one or two bad apples. I will speak carefully because files have been referred to the DPP, and I understand the caution, but there is a continuing investigation into the agent known as Stakeknife. That investigation was discussed at length at the Northern Ireland Affairs Committee last month by John Boutcher, the former chief constable of Bedfordshire police, who is leading the investigation. He has highlighted how probably dozens of people were murdered by those in control of the IRA, but with the knowledge and sanction of those in command and control of British security agencies.

RUC special branch agent Mark Haddock is believed to have been involved in over 20 murders. As other Members have mentioned, Ken Barrett, a British agent, was involved in the murder of lawyer Pat Finucane, which former Prime Minister David Cameron conceded involved shocking levels of collusion. Multiple agents killed with impunity for Britain, and they were tangled up with both loyalist and republican paramilitaries. Current proposals from the Government relating to Northern Ireland already make the families feel like the lives of their loved ones did not matter and that the rule of law does not seem to be relevant in the case of their murders, but the Bill really risks bringing back the ghosts of our policing past.

I want to be very clear: the SDLP acknowledges the realities of life, policing, crime and terrorism. Gavin Robinson gave a very fair assessment of the continuing a security threat in Northern Ireland, which we are far from blind to. However, the necessary mechanisms have to be regulated under statute to avoid doubt and to uphold the rule of law, which only works if provisions are underpinned by appropriate human rights frameworks and oversight. We are not in the wild west, where the means justify the ends.

I say again that, from the SDLP’s perspective, these are not words that we casually say. We are not a party that points out all the problems and will not engage in the solutions. When the SDLP joined the Policing Board in 2001, our members did so under very serious threats and intimidation by the IRA, but we did that heavy lifting on the Policing Board precisely because we needed a new beginning for policing in Northern Ireland. We were not just going to leave the details of policing for others to deal with.

That new beginning to policing in Northern Ireland is among the most successful elements of the post-Good Friday agreement era. Policing was so divisive for many generations, but the PSNI and its oversight mechanisms are a bastion of policing in the modern era. In just five years, the Policing Board and its partners in the police, the Northern Ireland Office, the Department of Foreign Affairs and the community, and particularly the brave young women and men who stepped up and joined the police, together implemented the mechanisms and the oversight recommendations—85% of them—in the Patten report. That included the overhaul and reform of intelligence policing, because there were not at that point any rules governing what an agent could or could not do.

That was the old regime, and it did not serve the rule of law or the purpose of progressing Northern Ireland. The Bill runs the risk of recreating the new in the image of the old. That would betray the work that so many people did, fearlessly and relentlessly, to improve the outcomes from policing. The Bill compounds the problem, with even less oversight than the policing model that we tried so hard to change.

I must also say that this legislation will be viewed in the context of other actions by the Government. The statement on 18 March relating to legacy turned on their head commitments that we had previously received on truth, justice and accountability, and it breaches a treaty. The United Kingdom Internal Market Bill turns commitments to Northern Ireland and Ireland on the their head, and it breaches a treaty. The Overseas Operations (Service Personal and Veterans) Bill turns requirements for the investigation of crimes and breaches on their head. That is three proposals and three blows to confidence. People in my constituency are watching agog at the actions of this Government and the exercise of arbitrary, unilateral, reckless state power, and I caution Members that constituents in other areas will begin to do that as well. Confidence is being damaged left, right and centre, and a Bill such as this, if unamended, will only compound that error.

Photo of Apsana Begum Apsana Begum Labour, Poplar and Limehouse 8:45 pm, 5th October 2020

Madam Deputy Speaker, thank you for calling me to speak in this important debate. Like many others, I am astounded at the gravity and significance of this Bill. The Government have said that the Bill seeks to place existing practice on a clear and consistent statutory footing and reflect existing practice, but of course many have criticisms of existing practice, and the case law shows that the legalities in this area have not yet been fully considered. This Bill goes way, way beyond the status quo, and it comes just over a week after the Overseas Operations (Service Personnel and Veterans) Bill, which could result in torture and other serious crimes being protected from prosecution.

Barely a week passes without this Government announcing yet another departure from recognised rules of domestic and international law. Just before the summer, the Counter-Terrorism and Sentencing Bill passed through Parliament, delaying the long-awaited review of Prevent, which fosters discrimination against Muslims, and introducing significant curtailments of civil liberties, which will disadvantage ethnic minorities. Last week, we debated the Coronavirus Act 2020, about which human rights and anti-racist campaigners have raised concerns that powers are being used in discriminatory ways, particularly against black, Asian and minority ethnic people.

The trajectory is chillingly clear. As Unite the union says, there is much to be concerned about in this Bill in respect of the impact on freedom and justice in the UK. The Joint Committee on Human Rights has expressed concern about the human rights implications of the Bill. Is it not the case that the Human Rights Act cannot be seen as a safeguard against the authorisation of agent criminality because the Government have previously taken the position that the HRA does not apply to crimes committed by their covert agents? Is it not the case that because an individual cannot currently be prosecuted under the HRA or the European convention on human rights, an agency or Government can only be sued after the event for damages, meaning that there would not be any protection for victims nor any disincentive for agents under this Bill? Is it not the case that covert agents would not only be committing crimes, but be inciting crimes to build their cover and undermine the moral authority of protest movements?

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am sorry, but the hon. Lady obviously does not know the way in which covert agents are working. They are under strict protocols now; there is no legislation covering this issue. Although I accept the need for some more protections in the Bill, it gives authorisation in legal statute, which is not there at the moment.

Photo of Apsana Begum Apsana Begum Labour, Poplar and Limehouse

I take the point, but I believe that under the HRA a prosecution cannot currently be brought, so that is not a safeguard that is actually in statute. [Interruption.] I will make some progress.

Is it not the case that covert agents would not just be committing crimes, but be inciting crimes to build their cover and undermine the moral authority of protest movements? It is, I suppose, why organisations such as Privacy International, Reprieve and others argue that the Government cannot convincingly claim that the HRA will provide a sufficient safeguard. Perhaps the Minister will say more about that today.

Let me come to what is for many the crux of the Bill. There is a grave and real danger that it could end up providing informers and agents with a licence to kill. Put simply, it is deeply alarming that the proposed law does not explicitly prohibit MI5 and other agencies from authorising crimes such as a torture and killing. This is not an abstract or philosophical question. We have seen the consequences of undercover agents in paramilitary organisations operating with what some believe to be apparent impunity while committing grave human rights abuses, including murder. Independent inquiries have found that, at times, when intelligence units of the security forces were running informants they were acting as though the law did not apply to them. This legislation also cuts across a case that is going through the courts—the third direction case—and does not give Parliament the chance to hear the higher Court’s views about the state of the law.

We have heard much rhetoric today about safety and security. Are there safeguards for potential victims of crime, for our trade unions and for people expressing their hard-won right to protest? Are there protections for ethnic minorities—Muslims, in particular—who we know are disproportionately at risk of state violence?

Photo of Apsana Begum Apsana Begum Labour, Poplar and Limehouse

I will make progress. This legislation seeks to allow the state legally to act with impunity in its surveillance missions. It hard not to see the Bill as another iteration of the expansion of state surveillance and the criminalisation of marginalised communities. We should not let our fundamental values of human rights, justice and equality be undermined.

On the international stage, we must stand up for the values we share: of justice, human rights and democracy, and of working with others to keep people safe by ending conflict and tackling the climate emergency. It is because I believe in those fundamental values and because I am committed to keeping all our communities safe that I will stand up against the Government’s increasingly draconian approach, which seeks to strip away the very freedoms that people in my constituency and all over the UK hold dear.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 8:51 pm, 5th October 2020

Following Apsana Begum reminds me of how much we miss her predecessor, who was such a well-respected Member of the House.

Hegel concluded:

“What is reasonable is real;
that which is real is reasonable.”

The reality of the means by which we counter the wicked plots and plans of those intent on maiming and murdering Britons—of all kinds and types, by the way—are made reasonable by the character of those deadly schemes. In essence, we must match the most ruthless adversaries in our diligence, determination and decisiveness. To do so is entirely reasonable.

As the Minister said, since 2017 numerous terrorist attacks have been anticipated and thwarted through the skilful efforts of the security and intelligence agencies and the police, but some have not. The death at terrorist hands of 22 innocent civilians in Manchester, including many children, haunts us all. At the heart of our democracy here in Westminster, where four individuals were executed on the bridge and PC Keith Palmer lost his own life heroically resisting the murderer sent to hell by the bullets of other heroes, we saw again what Islamist terror can mean for the innocent. Those and all other tragedies of this type haunt us, but they also harden our resolve. As we are strengthened by grief, those we mission to keep us safe from such ills each and every day need to be sure that we stand for them and by them, and that is just what the Bill does.

Photo of Rehman Chishti Rehman Chishti Conservative, Gillingham and Rainham

Like my right hon. Friend, I fully support the Bill going through. He mentioned the Daesh-inspired extremism. Does he agree with me that the first duty of the state is to protect its citizens, and the legislation that has been put through this Parliament on counter-terrorism has been designed with that in mind, irrespective of creed, colour or background? What I have seen with the Prevent and Channel programmes, having sat on the Home Affairs Committee, is that there are now far more individuals from right-wing-inspired extremism than there are from Daesh-inspired extremism. The threat to our country is therefore from both kinds of extremism, and the legislation we put through this Parliament is designed with the duty to protect our citizens of all creeds, colours and background.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

That is certainly true, as my hon. Friend will know that I was once responsible for overseeing the Prevent programme and indeed introduced the Prevent duty. Extremism of all kinds that leads to violence and threatens life and limb needs to be countered. The mechanisms we use to do so are common to all those who seek, in my earlier words, to maim and murder us.

When I guided the Investigatory Powers Bill through this House as the Security Minister, I learned that infiltration is a vital tool for our security and intelligence agencies to penetrate terrorist groups. Those brave enough to do so must be credible to those they need to trust them, so it is axiomatic that they must look and sound like those they live among and do as they do. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they fail to convince those they infiltrate, it is no exaggeration to say they may be killed—indeed, that is the essence of undercover agents’ work.

The Bill, as has been emphasised repeatedly, provides a clear legal basis for that long-standing, invaluable covert tactic, which enables the detection and discovery of crucial, critical intelligence that other investigative tools might never detect. We have heard, as I have said repeatedly, that 27 terrorist attacks have been averted, in part because of interception and infiltration. Preventing those atrocities has saved real lives of individuals loved and known, who live today thanks to the tireless work of our police and intelligence services.

Of course there must be accountability and scrutiny, as I recognised during the passage of the Investigatory Powers Bill, in which we introduced the double lock to which my right hon. Friend Julian Smith has drawn the House’s attention. We also established the Investigatory Powers Commissioner and, indeed, the Investigatory Powers Tribunal. It is critical that we look at things in a way that reassures members of the public that powers are used only where necessary and proportionate, as the Minister emphasised. Our standards must be maintained as we struggle with threats from those who have no meaningful ethical standards.

As well as being proportionate and necessary, the security agencies’ test for all their work, as Mr Jones pointed out, is that the particularity of any criminal endeavour entered into must—as the Bill makes clear—be specific, limited and detailed in permission granted. Where the objective can be secured without criminal activity, it will be; criminal activity will apply only where there is no other credible alternative. It is essential that it be limited to only the activity specifically authorised in the criminal conduct authorisation granted exclusively by highly trained and experienced officers. Moreover, there will be effective scrutiny, with authorisations overseen by the independent Investigatory Powers Commissioner, the ISC kept informed of the use of CCAs, and the tribunal able to investigate any complaints against public authorities’ use of the power.

Reasonableness is defined by the bitter reality of our continuing struggle against the individuals and groups whose defining purpose is to do us harm. It is my estimation that as terrorists become more adaptable and flexible and as terrorism itself metamorphoses, we will need to look again at the power, resources and legal means by which those whom we wish to keep us safe do their work. Historically, major pieces of legislation have gone through this House perhaps every decade or a little more, but I suspect that we will legislate more often as terrorism changes, particularly as a result of the changing nature of communications and other technology.

We must resource and equip the brave men and women who put themselves at great risk in our interest to keep us safe and to safeguard our way of life. To legislate to give them the much-needed powers provided by the Bill is both timely and, most of all, it is reasonable.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Attorney General) 8:57 pm, 5th October 2020

It is an honour to follow Sir John Hayes.

I approach the Bill, as I am sure we all do, knowing that what is at stake is trust in our legal system and public consent for those agencies that we empower to protect us all. Given the provisions enabling criminality, sufficient scrutiny is therefore vital. It is right that the Government have sought to remedy the previous murky arrangements and bring clarity through legislation, but the Bill needs to be beyond reproach when it is enacted.

As hon. Members have already identified, the Bill with its ambiguity and its powers gives a legal power to individuals to commit crimes. That is rightly alarming to the public. The phrase

“authorised conduct is rendered ‘lawful for all purposes’” on page 3 of the explanatory notes must be questioned and clarified. It is not sufficient to state that all public bodies are bound by the Human Rights Act to comply with the European convention on human rights; it must be set out in the Bill, for the sake of public confidence, that the very worst acts of violence, including sexual violence, torture and murder are not permissible. The Bill is looked at by all people, not just those to whom it applies. Confidence in our Government and in our institutions is significant.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree that explaining the Bill to the public is very difficult. We therefore need to have the safeguards that the right hon. Lady talks about, but the example that she just gave would not get through the authorisation stage, which is overseen by the commissioner at the moment. Does she think that there is another way of doing it, without having a long list of crimes and of what can and cannot be done?

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Attorney General)

That is a very fair point, which we have discussed to a considerable degree. None the less, there is a public revulsion at the prospect of sexual violence, murder and crimes of that nature, which warrant being mentioned in the Bill for that very reason.

Equally profound and disturbing at first appearance is the power to grant authorisations, which will be given to organisations to decide for themselves internally, without judicial oversight and with limited redress for victims. It is quite extraordinary that there is no provision for how innocent victims of authorised criminal conduct might be compensated, which is surely to be expected in the Bill. I also believe—this point has already been well expressed, but I want to add my voice to it—that trade unions have legitimate concerns, given that covert surveillance has been undertaken in the past against entirely legitimate trade union activity in conjunction with criminal blacklisting.

While quick to quote the book of human rights, the Government have failed to quote chapter and verse of what is permissible and what is beyond the pale. Would the use of sensory overload or stress positions by agents constitute torture and be a violation of human rights? Would they then be criminally culpable? What guarantee can the Minister give that a future UK Government, or even this one, might not seek to legislate for derogations from the European convention on human rights? Given the horizon-spanning nature of the criminal conduct covered by the Bill, where is the threshold for authorising acts, such as phone tapping, that rightly concern the public? What does “proportionate” actually mean? If we do not define it, who does? By what algorithm do we assess the range of proportionality? Where is the shift and the mission creep there?

The Government have also empowered a range of organisations with this new authorisation of criminality, from the Environment Agency to England’s Department of Health and Social Care, but how do the Government intend to prevent creep by Government Departments and the erosion of law? What safeguards will the Government put in place within those Departments? Does the Investigatory Powers Commissioner have sufficient measures and capacity to deal in a timely fashion with the incremental increase in his workload?

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Does the right hon. Member agree that it is all well and good having oversight after the effect, but there is a real danger that the authority providing authorisation before the effect is the same authority that is doing the investigation? We all have systems of tunnel vision when we are in the middle of something and are unable to see the wider aspect, and independence at the pre-authorisation stage is really important.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Women and Equalities) , Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Business, Energy and Industrial Strategy), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Attorney General)

Professional intent, although very laudable in certain circumstances, in this instance could well lead to unpredicted circumstances, and possibly most undesirable ones.

The Bill at present is ill defined and explained, with a focus trained on selected specific issues, and it risks undermining the trust upon which the public agencies tasked with our defence depends. Many, including the Front Benchers of Her Majesty’s Opposition, have said that that will be discussed on Report and in Committee. It is very important, and will evidently be significant when we are able to table amendments and discuss the Bill in detail. However, consideration is down for Thursday week. There will be a Thursday afternoon for Committee and all remaining stages. That is insufficient for the level of scrutiny that a Bill of this seriousness warrants. I beg the Government to consider whether, in all honesty, that is the impression that they wish to leave on the international stage, on which we hope to lead in the rules-based dimension in the future.

Photo of Maria Miller Maria Miller Conservative, Basingstoke 9:04 pm, 5th October 2020

It is a great pleasure to follow Liz Saville Roberts. She is absolutely right that public confidence is a critical issue with regard to a Bill of this nature. I am sure that those on the Government Front Bench will have been listening very carefully to her remarks, and indeed those of everybody today. I sense that one or two Members’ contributions, perhaps including that of Apsana Begum, were not thought to have been much in alignment with everybody else’s. Well, I say all power to her for voicing her views, because it is important that the Government hear everybody’s views, whether or not they are consistent with what might be felt elsewhere.

Having listened very carefully to the debate, I think that, by and large, there is cross-party support for the proposed legislation, notwithstanding the specific issues that have been raised by hon. and right hon. Members throughout, particularly on issues of safeguards and oversight. That support stems from a clear understanding of the role of covert human intelligence sources in helping to keep safe us every day of the week—safe from those who scheme every day to take the lives of innocent British citizens in terrorist attacks like the one that we saw here in Parliament not so long ago.

This very narrowly focused Bill seeks to put on a statutory footing activities that frankly most of us would like never to know about—courageous work done by people who may never have the value of their work recognised publicly because of the security issues involved. The Bill gives those agents a more legally certain environment within which to operate and give more protection, through the safeguards, to those in broader society. In the past, activities that have involved breaches of the law, including belonging to a proscribed organisation, were undertaken on the basis of what appears to have been an implied power. The right hon. Member for Dwyfor Meirionnydd talked about murky proceedings. I do not know whether that is the correct term, but it seemed to fit. The Bill removes any ambiguity and, in doing so, ensures that already strong procedures and oversight are more transparent and perhaps, hopefully, more understandable to everybody concerned.

We have heard some very learned analysis of the way that the Bill works from some very learned Members, particularly my hon. Friend Sir Robert Neill and my right hon. and learned Friend Jeremy Wright. I do not intend to compete with their many years of expertise, but I do want to look at some of the issues that are presented by the safeguards in the Bill.

It was important that my right hon. Friend the Minister put on the record some of the actions that have been undertaken by covert human intelligence sources in the past—actions that could never be sanctioned or authorised either in the past or, indeed, under this new legislation. Understandably, the debate has focused on safeguards to ensure that further such unauthorised behaviour is eliminated. The Bill and the code of practice set out very clear safeguards that, as other hon. Members have pointed out, are for the most part already in place and operational. However, the Bill puts in place a protocol and safeguards to put them on a statutory basis, be that authorisation from a trained and experienced officer, oversight by the Investigatory Powers Commissioner or accountability to the Intelligence and Security Committee under my right hon. Friend Dr Lewis, with the Investigatory Powers Tribunal to investigate and determine complaints and grievances independent of Government and any Government organisations.

However, if these procedures are already in place, then I am concerned to hear from the Minister how we are going to make sure that they work better in future, because a number of issues raised in the debate require some further thought and response from the Government. Many are rightly concerned that in the past women have been sexually abused and even raped as part of covert operations. The Minister has been clear that these actions would never be sanctioned, either in the past or now, but regardless of the rules, reports of widespread involvement by officers in these sorts of very serious sexual assaults are concerning and have emerged. What will be done differently under this Bill to stop such blatant abuses happening in future?

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

I wonder whether the right hon. Lady agrees that the Bill is partly about enabling self-restraint, and therefore putting certain things that cannot be done into the Bill provides an understanding for officers so that it is clear, whereas a more general human rights approach could create the danger of it being less clear, just as in Canada or America.

Photo of Maria Miller Maria Miller Conservative, Basingstoke

The hon. Gentleman could argue that point from completely the opposite side, because by in some way bringing into question whether this piece of legislation will be treated like all other pieces of legislation—in other words, that a Minister will authorise it only if it is compliant, under the Human Rights Act, with sections of the European convention on human rights—I think he actually brings the whole thing into question; probably unintentionally, of course.

Going back to the point that I was making, what will be done differently? First, the Bill briefing note provides some detail on what might be done differently, but there is room for perhaps a little more, perhaps in Committee or beyond. The Bill provides detail on training for authorising officers about the way this new legislation would work, but absolutely no mention is made of training for the agents themselves. Given the problems of the past, can the Minister outline more fully what training agents receive on awareness, knowledge and expertise in the application of the Human Rights Act? I think many Members could do with some training on that at certain stages, because it is incredibly complex, and compliance with the European convention on human rights adds even more complexity.

Secondly, in 2016 the College of Policing published “Undercover policing: Authorised Professional Practice”, which is national guidance for officers. It would be helpful if the Minister updated the House on the status of that guidance, and whether any further operational guidance is envisaged for agents who will be under this new legislation. Covert human intelligence has an impact on many vulnerable people in society, and particularly women who may have had intimate sexual relations with undercover officers. Is the Minister reviewing the effectiveness of the way that policy impact is assessed to ensure that these sorts of blatant breaches are caught more quickly and, drawing on what my right hon. and learned Friend the Member for Kenilworth and Southam said, caught right away, rather than at a point in the future? The 70-page code of practice that accompanies the Bill is welcome, but perhaps a little unwieldy. How will the intent behind this Bill be turned into practice for agents on the ground?

Finally, if errors are made or agents do not follow the rules, there needs to be a clear and transparent pathway of redress for victims. What is that pathway for victims: what path would they follow under this legislation, and how is it different from what went before? All legislation we pass in this place is authorised by Ministers on the proviso that it accords with the provisions in the Human Rights Act and the European convention on human rights—this goes to the point made by Lloyd Russell-Moyle—but mention has been made of the defence used by the Government previously in apparently carving out the actions of agents as being separate from the rules applying to public authorities. We have heard an explanation of that already in the debate today, but I think more clarity on that would be helpful when we think about building confidence both within the Chamber and beyond.

In conclusion, I fully support the Bill before us today, and there is a great deal of merit in what the Government are attempting to do. I again pay tribute to all those in our security services who work to help keep us safe. This legislation will put on a firmer footing the protocols within which they work and the safeguards that are there to ensure those provisions work as we intend them to do, which is to bring criminals to justice. Governance, security and oversight will not diminish this Bill; they will strengthen it to give it the full confidence of this House and the people we represent.

Photo of Zarah Sultana Zarah Sultana Labour, Coventry South 9:13 pm, 5th October 2020

As I am making the final Back-Bench speech, I will not be taking any interventions—apologies.

On 12 February 1989, Pat Finucane, an Irish lawyer in Belfast, sat at his kitchen table to have dinner with his wife and three children. As they ate, two gunmen burst through the door, entered the room and shot Mr Finucane 14 times. He was killed by a loyalist paramilitary group that, as the Prime Minister at the time, David Cameron, admitted in 2012, was acting in complicity with British security services. Far from stopping Mr Finnigan’s murder, the Prime Minister described the

“shocking levels of state collusion”—[Official Report, 12 December 2012;
Vol. 555, c. 296]

in Mr Finucane’s murder. His family are still owed a public inquiry into the murder.

Deeply troubling acts of state agents such as those in the Finucane case are not isolated. In 2010, it came to light that for 40 years, Britain’s police had run covert operations spying on thousands of civilians. More than 1,000 political groups were spied on. Overwhelmingly, it was left-wing, anti-racist and climate justice groups that were spied on, with just three far-right groups included on the list. The spy cops revelations have shown that police operatives deceived women into sexual relationships and even spied on grieving families seeking justice, including the parents of Stephen Lawrence.

This Bill must be opposed. It places no limits on the crimes that state agents can be authorised to commit. It does not prohibit torture. It does not prohibit murder. It does not prohibit sexual violence. Instead, all it requires is that authorising officers themselves believe that the conduct is appropriate, necessary by broadly defined criteria and meets requirements that may be imposed by an order made by the Secretary of State. Even the FBI expressly bans operatives from certain criminal conduct, but this Bill does not ban any type of criminal conduct for British state agents.

The grounds upon which the authorisations can be granted are ill-defined and wide-ranging. They include not only national security but “preventing disorder” and to promote

“the interests of the economic well-being of the United Kingdom.”

That has rightly raised alarm bells for trade unions such as my union, Unite, and justice campaigns such as the Orgreave Truth and Justice Campaign, who fear that these powers could be used to interfere with the legitimate activities of trade unions.

The Bill grants these powers to a dizzying array of agencies—not just intelligence agencies and the police, but the Competition and Markets Authority, the Gambling Commission and the Environment Agency, just to name a few. The oversight for authorisation of potentially serious crimes is scandalously weak. There are no provisions in the Bill for warrants or independent judicial approval. Instead, authorisation will be granted internally, which means that incredibly serious crimes could be authorised with less oversight than is currently required for phone tapping or police searches. As the human rights group Reprieve has noted, survivors of the spy cops scandal have sought justice through the courts for abuses they suffered, but this Bill will block future claims being brought forward, since it outlaws civil action against authorised activities. That is utterly unconscionable.

In the Bill’s defence, the Government claim that public authorities are bound by the Human Rights Act, and for that reason, the prohibition of crimes such as torture is guarded. In reality, that offers no protection against agent criminality, because in the Government’s view, the Human Rights Act does not apply to crimes committed by covert agents. The Government told the Investigatory Powers Tribunal in November 2019 that, in tasking agents, the state

“is not the instigator of that activity and cannot be treated as responsible for it”.

According to the Government’s own standards, the Bill will therefore not place any limits on the crimes that agents could be authorised to commit—not on torture, not on murder and not on sexual violence.

Photo of Zarah Sultana Zarah Sultana Labour, Coventry South

I must make progress.

This Bill marks the latest step in a frightening descent into authoritarianism by this Government. In the past two weeks, they have proposed the effective decriminalisation of torture by British soldiers overseas, the shipping of asylum seekers more than 4,000 miles away to be imprisoned on Ascension Island, the ban on anti-capitalist teaching materials in schools and now this—licensing undercover agents to commit torture, sexual violence and murder. This descent into authoritarianism should be a concern to us all. It must be resisted.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office) 9:19 pm, 5th October 2020

It is a pleasure to close the debate on behalf of the Opposition. The serious and sombre tone of the debate, which is appropriate given the measures we are discussing, was set by the Security Minister and the shadow Home Secretary. The debate has been well informed and enhanced by the contribution of former Cabinet Ministers, particularly Secretaries of State for Northern Ireland, who have a working knowledge of these matters, and also the former Attorney General and the Chairs of the Intelligence and Security Committee and Justice Committee.

As the Leader of the Opposition has made clear, security is a top priority for the Labour party under his leadership. As I have said before from this Dispatch Box, we will be forceful and robust in supporting the fight against terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our communities safe. We will meet our duty to support those who put their own safety and lives at risk to protect us. We acknowledge and understand the purpose of this Bill, which seeks to put on a statutory footing the activity of those working to disrupt some of the most vile crimes imaginable, including terrorism, the activities of violent drug gangs, serious and organised crime, and child sexual exploitation.

We know that the threat from criminal and terrorist activity is very real and that the ability to gather intelligence is a vital tool in disrupting this activity, preventing further crime and bringing those responsible for it to justice. Since March 2017, the security services and counter-terror police have thwarted 27 terror attacks. In 2018, covert human intelligence sources helped to disrupt over 30 threats to life, leading to the arrest of numerous serious organised criminals and the seizure of more than 3,000 kilograms of class A drugs, and taking more than 50 firearms off the street.

During the course of those operations, it is inevitable that agents will at times transgress existing laws in a limited way. This activity has been happening for a long time. It is not always comfortable for us in this House to think about what we need people to do to protect us and prevent harm coming to us, but real life is not a film. There is no Superman, it is not a fairy tale and there is not always a happy ending. That is why it is a step forward that this activity will now be properly covered by statute and open to greater transparency, accountability, regulation and safeguarding in a way that it has not been before.

We are told that under this legislation covert human intelligence sources will not be given carte blanche—the Minister made that very clear. It is therefore absolutely vital that during the passage of the Bill we get those safeguards and the processes and structures for accountability and proportionality absolutely right, both for the maintenance of our country’s hard-won civil liberties and human rights and for the protection of those who undertake such activity, as my hon. Friends the Members for Birmingham, Selly Oak (Steve McCabe) and for Kingston upon Hull North (Dame Diana Johnson) outlined so eloquently.

The Bill is certified as compliant with the Human Rights Act, as the Minister set out. All public authorities are bound by it to act in a way that is compatible with the rights protected by the European convention on human rights, including the right to life, the prohibition of torture or subjecting someone to inhuman or degrading treatment. The Human Rights Act is specifically mentioned in the Bill, providing important and necessary protection. However, it is right that during the Bill’s progress we will be pressing the Government on safeguards as to what acts can be carried out. I therefore take this opportunity to let the Government know, as Richard Thomson and Mr Carmichael have, about those areas where we believe the Bill requires scrutiny and can be strengthened on its journey.

We need to explore in greater detail how we might get closer to the specifics of what offences can be allowed, as has been done in, for example, Canada and indeed the United States. There is nothing in the Bill to limit or specify the kinds of offences covered, only that they are to be necessary and proportionate. Despite the fact that the Human Rights Act is applicable in all circumstances, we will be pressing the Minister for an understanding as to why offences such as murder, torture and sexual violence are not explicitly ruled out in this legislation.

Moreover, the Bill certifies that an authorisation may be given only if it is deemed necessary

“in the interests of national security…for the purpose of preventing or detecting crime or of preventing disorder;
or…in the interests of the economic well-being of the United Kingdom.”

These are broad statements that could have wide-ranging interpretations, particularly the last of the three, by a large list of agencies. We want to explore some of that and will press for assurances.

We also want to look at levels of accountability and sign-off for authorisation. As the Bill stands, the use of such powers will be overseen by the independent Investigatory Powers Commissioner, who can report on an annual basis. We believe the Bill needs to go further and that each and every authorisation should be notified to the commissioner in real time, so that scrutiny can be robust and ongoing. I also welcome indications from the members of the Intelligence and Security Committee that they too will seek to bring forward safeguards in that respect through amendments.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I appreciate the hon. Gentleman’s comments and, indeed, the tone of his contribution, but he must surely acknowledge that being very specific about what covert agents can and cannot do would expose them to great risk, for those they infiltrate would know what their parameters of activity are likely to be.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

The right hon Gentleman makes a very fair point. I completely appreciate that and have taken into account the comments that have been made by Ministers and those with experience of this, but I just seek simply to see whether there is a way that we can add more reassurance for people around some of the specificity of these matters without exposing people to the dangers that have been rightly outlined.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

My hon. Friend is doing very well. He has been in the Chamber for only 20 minutes and this is his third intervention, but I will, of course, give way to him.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

I did apply to speak, but I was refused by the Speaker’s Office, so I have been listening to the debate in my office.

Would it not be better if we took a Canadian or even an American model, where there are some things that are excluded from the scope of actions? This idea of testing does not seem to cause problems for the Canadians or the Americans.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. The hon. Gentleman said that he had been refused permission to speak by the Speaker’s Office, but if he had submitted his name in time, he would have been on the list, so I do not quite understand. Perhaps he would like to come and see me and explain exactly what happened.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

Sorry, Madam Deputy Speaker, I did not mean to start a discussion with the Speaker’s Office. My hon. Friend makes an important point, which is why I specifically referenced Canada and the United States in terms of the model that we would probe.

I wish to make some progress now and draw to a conclusion. We also have concerns over the potential use of these powers in relation to retrospective action. It says that approval will be sought as soon as it is practically possible. Our view is that there should be a time limit on that, and we would look to a period of around a month. I am happy to discuss this with the Minister as there does need to be some sort of a hard deadline on retrospective authority. There is nothing in the Bill to prevent retrospective action, which could see it being abused. Where there are allegations of historical injustices involving law enforcement and the security services, justice must take its course and the Bill cannot interfere with that.

We will also be carefully scrutinising the number and nature of the public agencies approved for this activity, which was a point very well made by my right hon. Friend Mr Jones. These are serious powers—granting the ability for an individual to break the law—so there must be a clear and substantial case for the many agencies listed in the Bill. We also want assurances that the powers are not to be used to undermine the legitimate activities of trade unions, civil society groups or campaigns. Opposition Members are very clear that there can be no repeat of the historical attitudes and, frankly, the moral and legal corruptions that led to workers being blacklisted, to political interference or, indeed, to inappropriate relationships as the Spycops inquiry will examine. Similarly, it must also be the case that victims who have been wronged are not inadvertently prevented from seeking adequate forms of redress or fair compensation. On the issue of trade unions specifically, the Investigatory Powers Act 2016, which is the only legal basis for the use of powers to obtain communications, specifies that the monitoring of trade unions is not grounds for such activity, so will the Solicitor-General assure the House—if he cannot do it now, perhaps he might write to me if he would be so good—that nothing in this Bill changes that? Furthermore, the process of blacklisting trade unionists has been unlawful since 2010, with the passing of the Employment Relations Act 1999 (Blacklists) Regulations 2010, and, again, will he confirm that nothing in this Bill would affect that?

I want to turn briefly to the issue of legacy in Northern Ireland. I welcome the Minister’s assurance that this Bill in no way impinges on or affects that process. I urge the Treasury Bench to take into account the comments that were made both by Gavin Robinson and Claire Hanna. Let me say this: I know Pat Finucane’s wife, Geraldine, and I know her sons John and Michael and her family. For 10 years, before I came into the House and since I have been in the House, I have steadfastly admired and supported them in their quest for justice, and that is not something that I will resile from at this Dispatch Box now. Let me also say that I do not need to be convinced about the consequences of the state exceeding its power in this arena. I do not need to read a briefing about it. I do not need to hear it in a meeting because I and the community in which I grew up lived with the consequences of it, which is why we need to get this right.

In summary, we on the Opposition side of the House understand the importance of this Bill. I have set out the areas of concern that we have, and where we would like to see the Bill strengthened, we will work with the Government constructively to try to do so robustly and effectively. This legislation puts existing practice on a clear and consistent statutory footing. It acknowledges the need for the role of covert human intelligence sources and, above all else, it must keep the public safe. I believe that security and human rights are not incompatible, but co-dependent, and that will govern the approach that I take as this Bill proceeds through the House.

Photo of Michael Ellis Michael Ellis The Solicitor-General 9:30 pm, 5th October 2020

Let me start by thanking colleagues across the House for the constructive way in which Members have approached today’s debate. I think we all agree that national security and preventing serious crime is an area in which we want to ensure that operational agencies are best equipped to protect us and keep us safe, and this Bill does just that. It is in that spirit that we have engaged many Members in advance of this debate, and I can assure Members that we will look to continue to work together as the Bill passes through Parliament.

If I may, I will respond briefly to some of the points made during the debate. My right hon. Friend the Security Minister has already responded to a number of interventions, but turning first to safeguards and oversight, I agree with those colleagues who have emphasised the importance of ensuring that there is robust oversight of the use of criminal conduct authorisations, or CCAs. That is why we have a world-leading investigatory powers regime, and it is why there is significant, independent oversight of the use of those powers; few other countries in the world, if any, have such a regime. With regards to safeguards within the public authority, all authorising officers are highly trained. My right hon. Friend Mrs Miller spoke about training a few moments ago, and I can say that these officers are experienced and have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct.

In response to the point raised by my right hon. and learned Friend Jeremy Wright, let me confirm that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. All authorising officers must be appropriately trained, and the independent Investigatory Powers Commissioner can identify if any public body is failing to train their officers or assess them to a sufficiently high standard. To respond specifically to the point raised by Gavin Robinson, I can confirm that an authorisation must be granted before activity commences. The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation; this is not a retrospective Bill.

I turn now to independent oversight. The Investigatory Powers Commissioner is entirely independent of Her Majesty’s Government and has wide-ranging powers to support his crucial oversight functions, which include the ability to inspect all the public authorities able to grant a criminal conduct authorisation at a frequency of his choosing. Public authorities are required to provide unfettered access to all of their documents and information, and the results of those inspections are published within his annual report. A public authority must then take steps to implement any recommendations made by the IPC. This Bill looks to provide robust independent oversight, while ensuring that such oversight does not result in a loss of operational effectiveness. Authorisations may need to be granted at short notice, and here I want to emphasise the human element of CHIS, unlike other investigatory powers. That human element means that these decisions cannot really be retaken; they impact directly on the safety and welfare of covert human intelligence sources.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

While dealing with safeguards and scrutiny, can my right hon. and learned Friend confirm that the tribunal has the ability to deal with any complaints about inappropriate use of these powers? Furthermore, will he do as I did when I took the Act through the House and give an absolute assurance that this will not be applied to civil society organisations, including trade unions?

Photo of Michael Ellis Michael Ellis The Solicitor-General

Yes I can, and I will come to that point in a moment.

I have been listening to the views expressed in the debate by the Chair of the Home Affairs Committee, my right hon. and learned Friend Nick Thomas-Symonds that providing the Investigatory Powers Commissioner with more real-time oversight would strengthen that oversight. We have always been clear that we are willing to engage with workable proposals; I understand the spirit in which these remarks were made and I am listening carefully.

I thank the members of the Intelligence and Security Committee for their support for the Bill and recognise the important role they play in providing oversight of our intelligence agencies. The Committee’s oversight role is complemented by the work of the Investigatory Powers Commissioner, who is tasked with providing information on public authorities’ use of the power.

The shadow Home Secretary made a specific point regarding the disproportionate impact on women or members of the BME community. Those under investigation are targeted because of their criminal or terrorist activities, not on the basis of such characteristics. If there are any specific concerns, I am of course happy to discuss them further, but I can confirm that that is the case.

Regarding limits, I understand the concerns expressed by colleagues around the House, but let me be clear: covert human intelligence sources will never be provided with unlimited authority to commit all or any crime. They will never be provided with an authorisation that is contrary to our obligations under the Human Rights Act. The Bill makes that specifically clear. This is not a “licence to kill” Bill. An authorisation is tightly bound: it must be necessary, and it must be proportionate to the activity it seeks to prevent.

As my right hon. Friend Dr Lewis and others set out, creating a specific list of prohibited activity, were we to do that, would place into the hands of criminals, terrorists and hostile states the means to create a checklist against which suspected covert human intelligence sources could be tested. That would threaten the future of CHIS capability and consequently increase the threat to the public. The Investigatory Powers Commissioner has wide-ranging powers to ensure that the requirements of the legislation, which have been clearly set out in the House today, are adhered to.

Let me deal with some international comparisons. Different countries have different legal systems, threat pictures and operational practices; simply comparing legislation, therefore, gives only a partial picture. However, with regard specifically to Canada—our strong ally, which has been mentioned a number of times this evening—our understanding is that the parts of the Canadian Security Intelligence Service Act to which Members have referred do not actually relate to covert human intelligence sources. The specifics of what a CHIS may be tasked by the agency to do in Canada—the information some say is contained in the Canadian Act—is not on the face of their legislation. That is our understanding.

Regarding the point made about trade unions, economic wellbeing is of course one of the established statutory purposes for which the covert investigatory powers may be deployed by public authorities. That is to recognise the threats to the economic wellbeing of the United Kingdom and that they could be immensely damaging and fundamental in their effect. For example, such threats may include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government itself. However, it is not the intention in the Bill to prevent legitimate and lawful activity, including activity by trade union organisations. Preventing such activity would not be necessary for the purpose of economic wellbeing. Trade unions have historically been a bastion of rights in this country and they are, of course, a lawful authority.

In response to concerns about the Bill’s impact on potential victims’ ability to seek compensation, it is not the intention of the Bill to affect any individual’s ability to pursue a claim for compensation where appropriate. It is not the case that any or all conduct by a CHIS could be exempted from civil liability under the Bill regime.

Finally, I have heard several Members, including Mr Carmichael and Mr Jones, question the need for wider public authorities to have the power. These public authorities have important investigative and enforcement responsibilities. It is right that they are given the necessary powers to undertake these functions themselves. Very briefly, I could perhaps give an example to do with the Food Standards Agency, which has been mentioned a number of times.

The Food Standards Agency is tasked with protecting consumers and the food industry from food crime within food supply chains. Examples of food crime include the use of stolen food in the supply chain, the unlawful slaughter of animals, the diversion of unsafe food not fit for human consumption, adulteration of foodstuffs, substitution or misrepresentation of foodstuffs, and document fraud. The continuing presence of an individual within a workplace may necessitate them actively participating in presenting, packaging and relabelling produce in order to misrepresent its quality and fitness for consumption, which would be criminal offences. As I say, all public authorities will be subject to the same robust safeguards and oversight and it is right that we equip them all with the powers they need to protect us.

In closing, we should not underestimate the immense contribution that covert human intelligence sources have made, and continue to make, to protecting the public and this country. We can never publicly set out the exact details of what they do on our behalf, but let me assure hon. and right hon. Members that without them lives would have been lost. They are exceptional people, courageous and devoted, and we are all grateful to them. It is right that covert human intelligence sources, their handlers and the public authorities to whom the Bill relates have the certainty and clarity to continue to use this tactic. It is also right, however, that this is subject to robust safeguards and independent oversight. This legislation will achieve both those things and ensure we can continue to bring to justice those who want to do us harm.

Question put, That the Bill be now read a Second time.

Division number 125 Covert Human Intelligence Sources (Criminal Conduct) Bill

Aye: 182 MPs

No: 21 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

The House divided: Ayes 182, Noes 20.

Question accordingly agreed to.

Bill read a Second time.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.