Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Michael Ellis and Conor McGinn

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

[The Solicitor General]

With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.

First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.

Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.

The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.

We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.

I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.

Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.

I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.

My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.

Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.

I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.

The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.

Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.

[Conor McGinn]

I appreciate the Solicitor General giving way and I am reassured by much of what he says, but having just said that the Government would not accept amendment 1 because of the need to be consistent across the law, will he comment on the fact that it is still an anomaly that 16 and 17-year-olds who commit a crime of their own volition are entitled to different protections from 16 and 17-year-olds who commit a crime as a result of a criminal conduct authorisation?

[The Solicitor General]

The reality, of course, is that the safeguards that I have adumbrated in regard to CHIS are very relevant here and, as I have mentioned, there are considerable safeguards that form the protections that we can say with confidence mean that those 16 and 17-year-olds will have very good protection.

I will now turn specifically to the point raised by the requirement for an appropriate adult to be placed for sources aged 16 or 17, which I would like to explore a little bit more. The Regulation of Investigatory Powers (Juveniles) Order sets out a requirement for an appropriate adult to be in attendance at all meetings between a public authority and a source below the age of 16. It must be considered on a case-by-case basis for sources aged 16 or 17, and this is the case for any general authorisation of the CHIS and any specific additional authorisation for participation in criminal conduct, which is what we are debating in this Bill.

Let me be clear, though, that when each case is being considered carefully, there is a presumption that there will be an appropriate adult in place—that is the default position, unless there is a justification for not having an appropriate adult in place. An example of such a justification might be that doing so would not be in the best interests of the child. The best interests of the child are always at the heart of the decision making. If the authorising officer believes that an appropriate adult should not be in place, that justification must be documented, and can be considered by the IPC.

I would caution the House against using examples, whether real or hypothetical—it does tend to be risky to do so, and puts young people at risk—but criminal gangs will seek to apply the scenario that has been set out to their own experience, which could result in them wrongly identifying and putting at risk of harm anyone suspected of being a CHIS. As such, the example suggested by the hon. Member for Walthamstow and by my right hon. Friend the Member for Haltemprice and Howden does not fit with the framework of safeguards that is in place for juvenile CHIS. This could not happen, and we do not recognise the example given.

However, as I said in my earlier remarks, the Government are listening. We will continue to listen, and will do so by means through which we can provide further reassurance about these authorisations. I hope these conversations can continue, and that we can find a means of providing additional reassurance while not risking the safety of a juvenile CHIS. While it is not appropriate to put all 74 pages of the code of practice into the Bill—I think I said “hundreds” earlier, but it is actually only 74 pages— I agree with the right hon. Member for North Durham that it may be appropriate to include some of those safeguards, including confirmation that a juvenile could only be authorised in exceptional circumstances. Not all of the code of practice applies to this Bill, but some parts may, so the right hon. Gentleman makes a perfectly good point.

Turning briefly to Lords amendment 5, I think there is consensus that the additional oversight provided by the requirement to notify a judicial commissioner is reassuring. The commissioner will see all authorisations of juvenile CHIS, and likewise will be able to confirm that all authorisations are compliant with the Human Rights Act.

In response to the question posed by my hon. Friend the Member for Bromley and Chislehurst, let me offer reassurance about what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag any concerns to the authorising officer, and they would work collaboratively to address such concerns. If an authorisation has been granted but the activity not yet started, the judicial commissioner and authorising officer will work together to address those concerns. If the activity has started, the authorising officer must take into account any concerns that have been raised, and will continue to discuss these with the judicial commissioner. It would not be the case that a public authority would simply ignore feedback from the IPCO: it is a collaborative process, and the views of the commissioners carry serious weight. However, ultimately, it would be a matter for the court to determine.



Finally, in response to the right hon. Member for North Durham, who asked whether any concerns raised by the IPC will feature in the annual report, I can confirm that the IPC must include statistics on the use of this power, including any errors and areas where improvement has been recommended.

I hope that I have been able to provide additional clarity and reassurance on these issues, and that the House will vote to reject these amendments.

Question put, That this House disagrees with Lords amendment 1.