Clause 1 - Authorisation of criminal conduct

Part of Covert Human Intelligence Sources (Criminal Conduct) Bill – in the House of Commons at 3:15 pm on 15th October 2020.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs) 3:15 pm, 15th October 2020

I rise to speak to amendments 25, 23 and 22, and new clause 7 in the name of the Mother of the House, Ms Harman. She has asked me to do so because she is operating on a proxy vote at the moment. She has asked me to remind the Committee that these amendments, as well as having her support and cross-party support, also reflect concerns on the part of the Joint Committee on Human Rights, of which she and I are both members. I will run through them quickly and not address them in detail because we have heard a lot of good speeches and I want to make a couple of points that have not been made.

Amendment 25 and new clause 7 relate to judicial oversight of the grant of authorisations. They would not be effective until there was judicial authorisation from a judicial commissioner and there would be a test of reasonable grounds. Amendment 23 relates to the grounds for granting authority. As with amendments tabled by other hon. Members, we wish to take out references to preventing disorder and to economic wellbeing. Amendment 22 deals with imposing clear and specific limits on the types of crimes that could be authorised, which is done by other Five Eyes countries. I will come to that in a moment.

I also wish to speak to new clause 6 in my name and that of my hon. Friend Chris Stephens, which also has cross-party support. It reflects concerns of the National Union of Journalists in relation to matters that we discussed previously when the Investigatory Powers Act was going through the House and there was a successful campaign to require prior judicial authorisation when any application was made to identify confidential journalistic sources. Currently, those applications must be given prior authorisation by a judicial commissioner. Our fear is that this Bill, as currently framed, would give back-door access to identifying sources, so new clause 6 attempts to deal with that.

I wish to give my support and that of the Scottish National party to amendments tabled by Bell Ribeiro-Addy in relation to trade union protection; I know that my hon. Friend the Member for Glasgow South West has worked hard on those matters. I also support amendments 20 and 16 in the name of Mr Carmichael and new clause 8 in the name of Stella Creasy.

Like others, I am extremely concerned about the fact that the Bill is being railroaded through. The indication that not even the modest amendment put forward by the Intelligence and Security Committee will be taken on board by the Government suggests that they are not giving the time of day to amendments lodged by others as we hoped for on Second Reading.

I mentioned what other Five Eyes countries do. The approach that the UK Government want to railroad through in the Bill stands in stark contrast with that of two of our closest allies: the United States of America and Canada, which are two of our closest Five Eyes intelligence partners. The Canadian Parliament prohibits serious offences from these sorts of authorisation, including murder, torture and violating the sexual integrity of an individual. Canada’s intelligence service can only use its authorisation process to give agents a defence to prosecution, rather than any blanket immunity. In America, the FBI has for many years run agents using guidelines that expressly ban certain criminal conduct. According to guidelines issued by the US Attorney General, the FBI may never authorise an informant to

“participate in any act of violence except in self-defense”.

The approach of the United Kingdom Government is without precedent. That is why my colleagues and I in the SNP will not be taking any lectures from Government Front Benchers or Back Benchers about our commitment to the security of these nations or the prosecution of serious crime.

The Bill has some implications for devolved powers, because in Scotland the prosecution of serious crime is a devolved matter. I regret to say that, while there has been regular engagement with the Scottish Government and Scotland’s Lord Advocate in relation to aspects that will impinge upon the investigation and prosecution of serious crime in Scotland, the expectations of the Scottish Government and our chief Law Officer have not been met so far by the Government, particularly in respect of independent judicial oversight and prosecutorial independence. As the Bill stands, in so far as it impinges on the prosecution of serious crime in Scotland, the Scottish Government will not be able to recommend a legislative consent motion.

My colleagues in the Scottish Government, like others in this House, recognise that, because of recent litigation, there is a need to provide a statutory footing for the security services and law enforcement agents to sanction some lawbreaking when serious crime is being investigated by covert human intelligence sources. But we think that the Bill goes far too far, and we are frankly exasperated by the lack of time given for scrutiny of the Bill and the Government’s attitude towards the many and varied amendments lodged, which is typified by the fact that they do not even seem prepared to accept the modest amendment tabled by the Intelligence and Security Committee.

I want to say something about the human rights aspect. On Second Reading and during this debate, there have been claims that the Human Rights Act is a sufficient safeguard, so we do not need to delimit the offences that can be authorised. That is wrong, and it is close to a disingenuous claim by the Government. The Government themselves, in the third direction case before the Investigatory Powers Tribunal, argued that the Human Rights Act does not apply to crimes committed by CHIS. They said:

“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.”

That position is repeated in the human rights memorandum published with the Bill, which claims that

“there would not be State responsibility under the Convention”— the European convention on human rights—

“for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct…
and/or where the conduct would take place in any event.”

Based on that analysis, an informant could be authorised to actively participate in shooting on grounds that the perpetrator intended to disrupt crime or that the shooting would take place in any event. I just think that is frankly wrong, and I think we are being given false reassurance by reference to the Human Rights Act. I will not push my amendment to a vote, or any of the amendments in the name of the right hon. and learned Member for Camberwell and Peckham, but the Scottish National party will support any other amendments that would ameliorate the Bill.