Clause 1 - Authorisation of criminal conduct

Part of Covert Human Intelligence Sources (Criminal Conduct) Bill – in the House of Commons at 2:00 pm on 15th October 2020.

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Photo of Yvette Cooper Yvette Cooper Chair, Home Affairs Committee, Chair, Home Affairs Committee 2:00 pm, 15th October 2020

I welcome the remarks of James Sunderland about the important work that our security and intelligence agencies do.

We now have just a few short hours for the Committee stage of this Bill today. We will end up, in effect, with no Report stage. It is only 10 days since Second Reading. Third Reading is likely to be squeezed by how long it takes us to vote at the moment. I say to the Minister that this is an irresponsible way to deal with legislation that is so important. He will know that I say that as someone who strongly supports the vital work of our security and intelligence agencies, and our senior police, who deal with serious and organised crime, terror threats, and child abuse. They work with great bravery to keep us safe, and we owe them our thanks.

The Minister will also know that I have long supported much of the counter-terror work that the Home Office does, as well as its work with the police and intelligence agencies. I agree with the core purpose behind this Bill, which is to provide a legal framework for the difficult work that our Security Service, counter-terror police and National Crime Agency need to be able to do in order to keep us safe. But that is why we should take care to get the details of the legislation right. That is important because it is not only about the rule of law and safeguards for our democracy, but about the interests of the Security Service and the police. It in their interests to have the proper safeguards in place for the vital work they do. It protects them and it also protects individual officers, who have to take very difficult decisions under pressure with great integrity.

I find it difficult to believe that the court timetable has necessitated this condensed timetable. The Investigatory Powers Tribunal reported in December last year. Preparations were under way at that time for legislation, in case it might be needed. We could have had more consideration of this. We could have continued with it for a further couple of weeks in this House and then accelerated the timetable had it proved necessary at the last minute, given the court timetable and the potential for an imminent court decision.

We will therefore have an accelerated discussion of a whole range of different, important and very sensible amendments that have been put forward, such as those on pinning down the safeguards for human rights considerations and putting them more explicitly into the Bill. I strongly support the words of my hon. Friend Stella Creasy about the need to ensure that there is proper protection for children. There are measures to protect children in the use of covert human intelligence, but there should be additional safeguards in case there are ever circumstances in which children are being asked to break the law. Such safeguarding is important and does need to be seriously responded to. I also support the reinforcement of existing protections against things such as blacklisting and interference in trade union activity—protections that have been secured by work by Labour MPs on previous legislation.

The two key issues that I wanted to focus on—and the amendments that reflect those—are first around independent checks and secondly around the scope of the legislation. The Bill as it stands does not include sufficient independent checks. There is no independent check in advance and the independent checks in retrospect are very limited; all we have is the retrospective oversight of the Investigatory Powers Commissioner. Those are permissive provisions rather than clear requirements on the commissioner, which means that we will have no idea in the House, in retrospect, whether the IPC has been forensic, looking at every individual case, or whether it has had to focus on other issues that year as part of its report.

That is why the amendments that have been tabled are really important, particularly the Labour Front-Bench amendment 7, which proposes prior judicial authorisation, and amendment 18, tabled by Mr Carmichael, which proposes a prosecutorial approach. I also strongly support the amendments tabled by the Intelligence and Security Committee to give it stronger retrospective oversight.

I understand the concerns that have been raised by the agencies about prior oversight—about the pace at which decisions need to be taken and where responsibility and expertise should lie. The Minister and I have both heard the arguments on the issues of intercept and surveillance rehearsed again and again, and we now have prior authorisation for intercept and surveillance, even though for a long time it was disputed that that would ever be workable; the agencies, the Home Office and other organisations have found ways to make that prior authorisation work. If the Government want to argue that these circumstances are somehow different, my point that we should have had time to debate that in proper detail is reinforced—to look at, for example, how amendment 7 might have been honed or adjusted in order to capture properly the circumstances that the agencies face, but to make sure that there are independent checks in the system. I say again that independent checks provide additional protection and safeguards for those in agencies and organisations who are making difficult decisions.

On the scope of the legislation, the Government and the Investigatory Powers Tribunal have provided a clear explanation of the current legal and oversight position for MI5, and the limitations of that legal position and how the Bill intends to address things, but they have not done the same for the Food Standards Agency, the Department of Justice, the Gambling Commission, HMRC or the Health and Social Care Department, for example. We do not know from the Government’s explanations the legal basis for any authorisations of criminal activity that those bodies are currently undertaking. We do not know of the problems or the flaws in those provisions; why are changes and amendments needed? Does this new legislation strengthen or reduce the safeguards for bodies such as the Food Standards Agency, the Gambling Commission and so on? It is therefore very difficult to judge whether the scope of this Bill is appropriate for those organisations relative to their current legal position—should they be excluded completely or should there be a much narrower scope for those organisations compared with organisations that, for example, do the most serious counter-terror work? Should there be further safeguards in the Bill that look to be appropriate.

The Minister and I both know what happened with the original RIPA legislation in the 2000s. It was very well-intentioned, as was the work that it was supposed to cover, but over the years its scope became wider and wider. A wider range of organisations used it for a wider range of purposes, and eventually the legislation rightly had to be constrained by being amended. Let us get this legislation right now, rather than having to amend it later.

Members have rightly talked about the importance of the Human Rights Act safeguards and the case for strengthening that in the Bill. An amendment has also been tabled on Orgreave. I have long been a supporter of a proper inquiry into what happened at Orgreave and the need for justice. We did work on that in the Home Affairs Committee and received responses from different police forces. I am convinced that there are archived papers that have never been examined or independently scrutinised about what happened that day, and they really ought to be, in order for the coalfields communities to feel that we have seen truth and justice on Orgreave.

It is clear that legislation is needed. We should not be blocking legislation on this but seeking to amend it. We should also give the House of Lords a chance to table amendments, with their expertise, and I hope they will have more time to consider amendments than we have had. If the House blocks legislation, the courts will intervene, and that will be unsatisfactory, no matter what the Appeal Court decides. If the Appeal Court decides that the status quo is fine, we will not have this legislation—we will not have a statutory footing for the operations that we have discussed, we will not have the safeguards in place, and we will not have transparency. On the other hand, if the Appeal Court decides that the status quo is not appropriate and strikes down the legal basis for this activity, MI5 and the National Crime Agency will suddenly end up without a legal basis to do the urgent work that is so important to keep us safe. Let us be honest: we will also face emergency legislation being brought to the House with even less time to consider it than I am complaining about today. It is far better for us to have proper consideration of legislation, but I really urge the Minister to ensure that there is more time for this to be discussed and more opportunity for amendments to be tabled in the other place following our debate.

The Government have been making it difficult for Parliament to scrutinise this legislation properly and get the details right. However, we should not be deterred from attempting to do so, and I hope that the other place will be able to help us do so. We need strong safeguards not only in the interests of democracy and the rule of law but to better protect our national security. We know that the work these agencies do is saving lives. It has saved the lives of friends and colleagues of many of the people in this place. That is why it is so crucial, and it is because it is so crucial that it is important we get the legislation right.