Retained EU Law (Revocation and Reform) Bill

Debate between Stella Creasy and David Davis

Report stage
Wednesday 18th January 2023 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I will be brief. My arguments will be simple and they will go straight to amendment 36.

When the right hon. Member for Leeds Central (Hilary Benn) spoke, I had a flash of déjà vu, back to the days when I co-operated with his father, thwarting the Blairite attempts to bypass Parliament some years ago. It came back to me that his father and I also shared a view on the European Union, with both of us knowing that it was undemocratic. We knew that both from ministerial experience and because we had read out history; Monnet and Schuman had designed it to be undemocratic, which was why we wanted to leave.

I say to the Minister, given what was said before from the Front Bench, that I come at this as a convinced and campaigning Brexiteer. I remind the House, given the substance of this Bill, that I resigned from Cabinet to preserve the right to diverge from the EU. So I agree with the aims of the Bill, but I also agree with the SNP spokesman, the hon. Member for Stirling (Alyn Smith), about its effectiveness in delivering those aims. I voted and campaigned to improve democracy; I wanted to take back control in order to give it to Westminster, not to Whitehall. However, that is what we have here.

When the Minister was speaking earlier, she talked about the consultations, but they were not with us—they were with the Scottish Government, the Welsh Government, the Departments of State and not with us. But we are the people who are responsible for this legislation. What is more, we are being asked to sign a blank cheque—one might almost say a pig in a poke—because we do not even know how many pieces of legislation are going through on the back of this Bill, let alone what they are. That, of course, is not democratic. We have heard the anoraks talking about this SI Committee, that sifting Committee and so on. That is not the Floor of this House. These issues are sufficiently important—some of them, not all of them—to be debated in the Chamber. Just glancing down the list, I see: aviation safety; compensation rules; insider trading; protecting a pensioner’s payout when a company goes bust—I cannot think of anything more significant to our constituents than that; and preventing the trafficking of illegal weapons. These are substantive issues that need to come to us.

[Stella Creasy]

I hesitate to stop the right hon. Gentleman, but does he therefore agree with me that the fact that Ministers have already unilaterally decided to revoke the piece of legislation that protects our constituents getting 50% of a pension pot if their company goes bust, without any consultation with us because they will use the powers in the Bill simply to let it be deleted, makes exactly his case as to why this is not democracy or taking back control?

[Mr Davis]

If the hon. Lady had given me 30 seconds, I would have made exactly that point. I agree with her. This morning, or last night, we had No. 10 rushing to brief the papers and to write to us saying that the Bill will not remove existing rights and protections, which is plainly not true, and that it will not impinge on environmental rights and so on. That demonstrates what a great hole there is in the middle of this legislation. If those matters were covered in the law, we would not need to have that assurance. All of the non-governmental organisations that are concerned—I do not agree with all of them—would not have had to have their say either.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Stella Creasy and David Davis

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I agree with the hon. Member for Bromley and Chislehurst (Sir Robert Neill) when he said that this Bill has been improved by the work that has been done across the two Houses of Parliament and across the Benches. With that in mind, I will start by acknowledging the work that has been done on the issue around the use of children—the concept of juvenile CHIS. I acknowledge the work of Baroness Kidron, Lord Russell, Lord Young and Lord Kennedy who led the debates and discussions on these issues in the other place, and they have brought us to a much better place as a result. If we are honest, when this Bill first came to us, there was no discussion about children and what might happen if children were used as covert intelligence sources, so it is important that we recognise the work that they did to get us to this place, with the amendments before us.

I also put on record my thanks to the right hon. Member for Haltemprice and Howden (Mr Davis). I do not know whether that is helpful to him, but I know that he is speaking after me. Certainly, it might be of concern to our Whips that I agree with much of what he has said with regard to this Bill. We share the concern that it is important to have the right legislation in place for these issues, because we know that covert intelligence sources are already being used. In that sense, I also want to thank the Minister for Security for listening to our concerns and I wish him well in his recovery.

I also pay tribute to the work of Just for Kids Law and JUSTICE, which have been phenomenal champions of the young people we are talking about today. I also thank the Minister in the other place, Baroness Williams, for her work and the Solicitor General before us today, who has had to step into this debate. I hope that now that he has had time to look at this issue, he will reconsider what he said a couple of weeks ago when he suggested that some of our concerns and examples were not valid and could not have happened, not least because his colleague, Baroness Williams, has acknowledged that those very cases about vulnerable children aged 16 and 17 being exploited and then put at risk and used as covert intelligence sources were in fact real.

With that in mind, I agree very much with the shadow Minister that the Bill is much improved and that the Government have moved on this issue. We now have in the Bill the exceptional circumstances principle—that we should only ever ask children to put themselves in harm’s way and to commit criminal acts in very exceptional circumstances. Indeed, our argument that there should always be an appropriate adult as part of those conversations has certainly moved forward, as has our suggestion that IPCO should be overseeing this. Those are very welcome developments and it is important that we recognise that.

There is an understanding that we need to go further in recognising that appropriate adults are not always part of these conversations and the discrepancies that that creates. If a child is arrested for shoplifting at the age of 16 or 17, there will always be an appropriate adult involved in their conversations with the police, but if a child is asked at the age of 16 or 17 to spy on their parents or to commit a criminal act as part of an investigation there might not always be an appropriate adult. That reflects a bigger challenge that I hope the Minister will take up: that this legislation is obviously looking only at the use of criminal conduct authorisations, and yet what this debate has shown is that across the House and across the different sections of Parliament there is a concern about the use of children at all as covert intelligence sources. I make a plea to him today that the long-awaited code of practice be published—we were promised it during the passage of the Bill, but we have not yet seen it—and that we look at that much bigger concern about ensuring that there is always appropriate welfare and safeguarding protection for children of all ages, recognising that the United Nations and, indeed, this country have signed up to recognising children under the age of 18—so 16 and 17-year-olds—as children who require our protection. We need to extend the principles that we have put in this Bill regarding criminal activities to all their engagement.

I think that everyone recognises that our security services and the police do a phenomenal job and work in some very difficult circumstances. We also recognise our responsibility in this place to those young people that we ask, in these exceptional circumstances, to put themselves in the way of harm. The Bill certainly takes us much further towards having the protections in place that we would all wish, but we know that there is more work to do. I appeal to Ministers to continue to work with organisations such as Just for Kids Law, to listen to the concerns of not just the right hon. Member for Haltemprice and Howden but Members across the House about where we might cut across international standards and welfare protections, and to recognise that the best states are those that protect everyone, including those people that we put in harm’s way, whether they are in our secret services or they are young people.

Thank you very much, Madam Deputy Speaker, for allowing me to participate in this debate and support the hard work of our Members of Parliament on this issue.

[Mr David Davis (Haltemprice and Howden) (Con)]

I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.

I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.

I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.

The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.

That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides

“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]

However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, 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.”

I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.

That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Stella Creasy and David Davis

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Mr Davis]

Well, they have changed a bit. One of the things that the Intelligence Services Act 1994 created was the Intelligence and Security Committee. The Committee tried to look into rendition and torture just recently, under its previous Chairman, and it was refused access to 15 cases, so I am now suing the Government on exactly this matter, to force them to have to have a proper judge-led tribunal. So even now, it is not good enough; after 20 years, it is still not good enough.

The trouble is that others do it better. America and Canada learned the hard way about the need to include specific limits on the crimes that agents can commit. In those countries, informers and their handlers were involved in carrying out numerous cases of racketeering and murder, and they were found out. Since then, both countries have set clear limits. Just as an aside on the overall public interest, we all want our agencies to be able to work, but the FBI investigation found that the lack of limits and the wooliness of the controls led to more crimes, not fewer, so the so-called Soprano effect worked in reverse in terms of protecting the public interest.

The Bill puts no express limits on the crimes that the agencies can authorise—not on murder, not on torture and not on rape—and it claims that the Human Rights Act provides a safeguard. However, their own submissions in court, which have already been referred to by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the right hon. Member for Orkney and Shetland, showed that their own lawyers do not believe that. If Members have a bit of quiet time travelling back to their constituencies, they should read the Investigatory Powers Tribunal’s findings on the behaviour of the agencies. It is almost a James Bond novel in its own right. The scathing descriptions of the operations are worth reading.

Amendment 13, tabled in my name, addresses the most egregious elements of the Bill. It puts hard limits on the extent of criminal conduct that can be authorised by officers, and it specifically prohibits murder, torture, serious bodily harm, sexual assault and other heinous crimes. Crucially, it explicitly permits prosecutors to drop a case in a situation where an agent is truly forced to participate in a serious crime and where a decision not to prosecute is in the public interest. There is a real need for legislation in this area, but the Bill as it stands carries real risks of serious injustice. My amendments would give the intelligence services the protections they need, but stop short of giving them carte blanche authorisation to carry out the heinous crimes in the name of the state that have happened too often in the past.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is an honour to follow the right hon. Member for Haltemprice and Howden (Mr Davis), and I agree with much of what he has said. I think there is agreement in this Chamber that we need this legislation, because the hallmark of a grown-up democracy is that it does not shy away from taking the necessary actions to keep a country safe, and nor does it say, “Don’t ask, don’t tell.” This legislation puts on a statutory footing those practices that are part and parcel of security in this country. The question for all of us is whether it also provides the necessary accountability and oversight to ensure that they are just. I recognise that covid and the speed with which this legislation has been brought through militate against our doing our job properly on this, because we are doing it so quickly, but today I want to flag up one particular issue of concern. I suspect that it will be in the other place that we will see progress on these issues.

We know that this is a narrow Bill with a specific role around criminal conduct. I also recognise and understand the concerns that my hon. Friend the Member for Streatham (Bell Ribeiro-Addy) raised—I am sorry that she is no longer in her place—about the ongoing inquiries and the timing of this legislation. I hope the Minister will address those points in his comments and tell us what the Government would do, should those inquiries come back with further requirements for support. I also want to put on record my support for amendment 13 and for the Front-Bench amendments from my own party.

We recognise that there are genuine concerns about the Human Rights Act. In other debates in this place, people have talked about rewriting the Act, and I hope the Minister will deal with that issue. Also, it is a circular argument to suggest that the practices set out in amendment 13 and the amendments from my own Front Bench are already covered, if the Government will not accept amendments to ensure that they are part of how this legislation is dealt with.

I also hope that the Minister will talk about the equalities impact of the legislation. I represent a community that has, at best, a tangled relationship with many of the agencies that will have these powers. We are in a position of privilege in this House, so it is right and proper that we have oversight of those who do not share those same benefits.

I rise to speak in particular to new clause 8—especially the issue at the heart of this legislation, which for me is about the people who can consent to be a covert human intelligence source. It is worth looking at the definition:

“Someone who maintains a relationship for the covert purpose of providing information to another person”—

that is, not just someone who has a one-off conversation with our security services or police about something, but someone who is asked to maintain what is potentially a position of harm to support an investigation.

The right hon. Member for Haltemprice and Howden talked about the James Bond code. In most of our discussions about CHIS, we have envisaged those James Bond figures—the people from our security services or police conducting covert investigations. But I want to talk about those who are not the James Bonds: the children and vulnerable people who become covert human intelligence sources and who need us to make sure in this legislation that they are properly protected.

For the last year, there has been a legal challenge to the Government about how children have been used as covert human intelligence sources. It was settled last week in the High Court, when the Government agreed to update their guidance and code of practice on how children could be involved in this legislation. It is worth taking a step back at this point to reflect on that: we are talking about young people—children being asked to do what we previously envisaged James Bond doing. I hope that I am pushing at an open door with the Minister with the new clause because that code of practice and the recognition at the High Court that there was a case to answer reflect the fact that we need to get this right.

Our first instinct may be that no child should ever be involved in intelligence work in this way, and I sympathise with that. But when we look into the cases where it has happened, we see that there may be exceptional circumstances in which a child may become an informant. It is right, therefore, that we should have incredibly strict guidelines that have the interests of that child at heart when that happens. I am open to the idea that understanding what constitutes those exceptional circumstances is very difficult, but the new clause comes from the belief that the child’s primary interests should be, as a matter of fact, at the heart of any engagement with state services.

Let us talk for a minute about the children we are discussing. For many of us who represent communities where issues such as county lines are a real problem, they are the children in the gangs and those who have been part of child sexual exploitation, who may know valuable information and have relationships with those exploiting them. For the police and the security services, they become incredibly valuable sources of information.

Those are important investigations—nobody is suggesting otherwise. But the new clause recognises that there may be a conflict of interest between the investigation and the best interests of an incredibly vulnerable person. A young child drawn into county lines who knows the people organising things and has been given a gun—I can think of such cases—is still a child. We have a duty to that child to ensure that they are not exploited, even if people feel that the investigation is merited.

The Minister will say that that happens very rarely. The Government’s own figures show that 17 children in 11 jurisdictions were used in this way in the past couple of years. One of them was just 15—a 15-year-old child being asked to continue a relationship that puts them at harm because that helps an investigation. What troubled me was that one of the other Ministers told the court that we should actually make more use of children in such circumstances—that they could be valuable because they were getting involved in criminal activity themselves.

Again, take a step back and think that through. In other parts of our legislation, we recognise that when children engage in harmful practices it is our duty to stop that. Yet in that court case and this process with CHIS, Ministers are saying, “Actually, we might want to maintain that because it will help with an investigation”—the children would have “unique access” as “juvenile undercover agents”. They are children, Minister, and it is absolutely right that we act to protect them and see them as children first. That is what new clause 8 seeks to do.