Covert Human Intelligence Sources (Criminal Conduct) Bill

Alistair Carmichael Excerpts

2nd reading & 2nd reading: House of Commons
Monday 5th October 2020 Commons Chamber

[James Brokenshire]

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.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

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?

[James Brokenshire]

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.

--- Later in debate ---

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It is a pleasure to follow the right hon. Member for York Outer (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 the right hon. Member for North Durham (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 the right hon. Member for Haltemprice and Howden (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.

--- Later in debate ---

[Sir Robert Neill]

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.

[Mr Carmichael]

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.

[Sir Robert Neill]

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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Alistair Carmichael Excerpts

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 Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move amendment 20, page 1, line 18, at end insert—

“(3A) In section 27 (Lawful surveillance etc.), in subsection (1)—

(a) after ‘applies’ insert ‘(other than conduct authorised under section 29B)’; and

(b) after ‘Part’ insert ‘(other than conduct authorised under section 29B)’.”

This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.

[The Second Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 7, page 2, line 7, at end insert—

“(1A) The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by a judge.

(1B) An application to a judge under subsection (1A) shall be made in writing and be accompanied by an affidavit of the person granting the criminal conduct authorisation which sets out—

(a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required;

(b) the persons or classes of persons to whom the warrant is proposed to be directed;

(c) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

(d) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force; and

(e) any previous application made under subsection (1A) in relation to a person who is identified in the application for the warrant, the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.”

Amendment 25, page 2, line 7, at end insert—

“(1A) Authorisations granted under this section require approval in accordance with section 29C.”

Amendment 14, page 2, line 16, after “person” insert “reasonably”.

This amendment would raise the standard for granting a criminal conduct authorisation from believing that it is necessary and proportionate to reasonably believing that it is necessary and proportionate.

Amendment 11, page 2, line 20, at end leave out “; and” and insert “, taking into account—

(i) balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm;

(ii) explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;

(iii) whether the conduct to be authorised will have any implications for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation;

(iv) evidence, as far as reasonably practicable, of what other methods had been considered and why they were not implemented, or have been implemented unsuccessfully; and

(v) whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought; or”.

Amendment 1, page 2, line 22, at end insert—

“(d) that the authorisation does not have a disproportionate impact on people with one or more protected characteristics within the meaning of the Equality Act 2010.”

This amendment ensures that discrimination on the grounds of protected characteristics will be taken into account before the granting of a criminal conduct authorisation.

Amendment 3, page 2, line 26, leave out “or of preventing disorder”.

Amendment 23, page 2, line 27, leave out from “disorder” to end of line 29.

Amendment 4, page 2, line 28, leave out paragraph (c).

Amendment 15, page 2, line 29, after “Kingdom” insert “so far as those interests are also relevant to the interests of national security”.

This would only allow a criminal conduct authorisation to be granted on economic grounds if it is relevant to national security.

Amendment 5, page 2, line 29, at end insert—

“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source within trade unions.

(5B) In this section, ‘trade unions’ is defined as in the Trade Union and Labour Relations (Consolidation) Act 1992.”

Amendment 6, page 2, line 29, at end insert—

“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source engaged in blacklisting.”

Amendment 10, page 2, line 29, at end insert—

“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”

Amendment 13, page 2, line 36, at end insert—

“(7B) The following conduct may never be authorised by a criminal conduct authorisation—

(a) causing death or serious bodily harm to a person;

(b) obstructing, perverting or interfering with the course of justice;

(c) violating the sexual integrity of a person;

(d) torture or cruel, inhuman or degrading treatment or punishment;

(e) detention; or

(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of a person.

(7C) Subsection (7B) shall not prevent—

(a) a decision not to prosecute in the public interest; or

(b) the entry of a nolle prosequi.”

Amendment 8, page 3, line 2, at end insert—

“(8A) Nothing in this section justifies—

(a) causing, intentionally or by criminal negligence, death or bodily harm to an individual;

(b) wilfully attempting in any manner to obstruct, pervert or defeat the course of justice;

(c) violating the sexual integrity of an individual;

(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;

(e) detaining an individual; or

(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.”

Amendment 22, page 3, line 2, at end insert—

“(8A) A criminal conduct authorisation may not authorise any criminal conduct—

(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;

(b) involving an attempt in any manner to obstruct or pervert the course of justice;

(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;

(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or

(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”

Amendment 2, page 3, line 9, at end insert—

“(9A) The Investigatory Powers Commissioner or any affected person may apply for judicial review, in relation to the conduct of a relevant public authority.

(9B) For the purposes of subsection (1), a ‘relevant public authority’ are those set out in section 2(9) of the Act.”

This amendment ensures that the granting of criminal conduct authorisations are subject to judicial review.

Amendment 18, page 3, line 16, at end insert—

“(11) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with—

(a) the Crown Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place in England & Wales;

(b) the Crown Office and Procurator Fiscal Service, in respect of a criminal conduct authorisation relating to conduct taking place in Scotland; or

(c) the Public Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place Northern Ireland.”

This amendment will ensure that prosecutors can review crimes authorised under this Bill.

Amendment 26, page 3, line 16, at end insert—

“(11) Nothing in this section permits or authorises any criminal conduct by a covert human intelligence source in relation to investigation of any lawful activity by a member of the House of Commons, who has sworn or affirmed the oath prescribed by the Parliamentary Oaths Act 1866, or of the House of Lords, in the conduct of that member’s parliamentary or representative duties unless—

(a) the criminal conduct by the covert human intelligence source has been personally authorised by the Prime Minister and the Secretary of State, and

(b) the Prime Minister and the Secretary of State have each made a written declaration that the proposed criminal conduct by the covert human intelligence source in relation to the member of Parliament concerned is both proportionate and necessary in order to preserve national security.

(12) The Secretary of State may by regulations make parallel provision to subsection (10) in respect of members of Senedd Cymru, the Northern Ireland Assembly and the Scottish Parliament.”

Clause stand part.

Amendment 16, in clause 2, page 4, line 9, leave out from “services” to end of line 23.

This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.

Clause 2 stand part.

Clause 3 stand part.

Amendment 12, in clause 4, page 5, line 4, at end insert—

“(4ZA) Those persons who have granted criminal conduct authorisations must inform the Investigatory Powers Commissioner within seven days of the granting of the authorisation.”

Clause 4 stand part.

Clause 5 stand part.

Clause 6 stand part.

Clause 7 stand part.

New clause 1—Redress for innocent victims—

“(1) Section 65 (5) of the Regulation of Investigatory Powers Act 2000 (The Tribunal) is amended in accordance with subsection (2).

(2) At the end of subsection (5) insert—

‘(g) any conduct under Section 29B.’”

This new clause ensures that innocent victims are able to seek redress from the Investigatory Powers Tribunal.

New clause 2—Equality Impact Assessment—

“(1) The Secretary of State must prepare and publish an annual equality impact assessment on the use of criminal conduct authorisations on covert operations involving women, children and Black, Asian and minority ethnic communities.

(2) A Minister of the Crown must, not later than three months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”

New clause 3—Oversight by the Intelligence and Security Committee of Parliament—

“(1) At the end of each relevant twelve-month period the Secretary of State must make a report to the Intelligence and Security Committee of Parliament with information on the number of criminal conduct authorisations authorised by the intelligence services and the categories of conduct authorised.

(2) In subsection (1) ‘relevant twelve-month period’ means—

(a) the period of twelve months beginning with the day on which this section comes into force, and

(b) each successive period of twelve months.”

On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the ISC is kept informed of the use of criminal conduct authorisations by the intelligence services.

New clause 4—Trade Unions—

“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source relating to a trade union or a member or officer of a trade union acting or proposing to act in contemplation or furtherance of any issue which is or could be—

(a) the subject matter of collective bargaining within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992;

(b) the subject of a trade dispute within the meaning of section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992; or

(c) within the lawful objects of the trade union.

(2) In this section, ‘trade union’ has the same meaning as in section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.”

This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.

New clause 5—Blacklisting—

“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source in relation to another person who—

(a) is a subject of a prohibited list or is suspected of being a subject of a prohibited list where the action of the covert human intelligence source is related to that fact or suspicion;

(b) compiles, uses, sells, or supplies or proposes or attempts to compile, use, sell, or supplies a prohibited list; or

(c) supplies or proposes or attempts to supply to another information which he knows or can reasonably be expected to know will be used in the compilation or use of a prohibited list.

(2) In this section ‘prohibited list’ has the same meaning as in Regulation 3(2) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 2010/493.”

This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.

New clause 6—Commissioner approval for authorisations to identify or confirm journalistic sources—

“(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.

(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.

(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—

(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and

(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.

(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—

(a) the public interest in protecting a source of journalistic information, and

(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.

(5) Where, on an application under this section, the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.

(6) In this section—

‘Journalistic material’ means material created or acquired for the purposes of journalism.”

New clause 7—Approval for criminal conduct authorisations—

“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—

‘29C Approval for criminal conduct authorisations

(1) This section applies where an authorisation has been granted under section 29B.

(2) The authorisation has no effect until such time (if any) as the Judicial Commissioner has approved the grant of the authorisation.

(3) The Judicial Commissioner may give approval under this section to the granting of an authorisation under section 29B if, and only if, the Judicial Commissioner is satisfied that—

(a) at the time of the grant the person granting the authorisation had reasonable grounds to believe that the requirements of 29B(4), and any requirements imposed by virtue of section 29B(10), were satisfied in relation to the authorisation;

(b) at the time when the Judicial Commissioner is considering the matter, there remain reasonable grounds for believing that the requirements of section 29B(4), and any requirements imposed by virtue of section 29B(10), are satisfied in relation to the authorisation; and

(c) the authorisation granted does not authorise conduct that is incompatible with any Convention rights.

(4) In this section—

“Convention rights” has the meaning given in section 1(1) of the Human Rights Act 1998; and

“Judicial Commissioner” has the meaning given in section 227 of the Investigatory Powers Act 2016.’”

This new clause is consequential on Amendment 25.

New clause 8—Criminal conduct authorisations: Granting to children and vulnerable sources—

“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—

‘29C Criminal conduct authorisations: Granting to children and vulnerable sources

(1) This section applies when the source is—

(a) under the age of 18,

(b) a vulnerable individual, as defined in subsection (5),

(c) a victim of modern slavery or trafficking, as defined in subsection (6).

(2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.

(3) Where a source is one to whom subsection (1) applies the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.

(4) In subsection (3) “appropriate adult” means—

(a) the parent or guardian of the source;

(b) any other person who has for the time being assumed responsibility for his welfare; or

(c) where no person falling within paragraph (a) or (b) is available, any responsible person aged eighteen or over who is neither a member of nor employed by any relevant investigating authority.

(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.

(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015, or exploitation as defined by section 3 of the Modern Slavery Act 2015.

(7) The “exceptional circumstances” in subsection (2) include—

(a) where authorisation of the criminal conduct authorisation is necessary to protect life and limb, including in relation to the CHIS; and

(b) where authorisation of the criminal conduct authorisation is necessary on the grounds of national security.’”

Amendment 21, in schedule 1, page 6, line 22, at end insert—

“(3A) In section 5 (Lawful surveillance etc.), in subsection (1)—

(a) after ‘applies’ insert ‘(other than conduct authorised under section 7A)’; and

(b) after ‘Part’ insert ‘(other than conduct authorised under section 7A)’.”

This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.

Amendment 19, page 7, line 49, at end insert—

“(10) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with the Crown Office and Procurator Fiscal Service.”

This amendment will ensure that prosecutors can review crimes authorised under this Bill.

That schedule 1 be the First schedule to the Bill.

Amendment 17, in schedule 2, page 10, line 19, leave out from “it” to end of line 30.

This amendment is consequential on amendment 16.

That schedule 2 be the Second schedule to the Bill.

[Mr Carmichael]

I wish to speak also to amendments 14 to 19, which were tabled in my name and the names of other right hon. and hon. Members.

It is worth reminding ourselves at the start why we are debating the Bill and why it is being proceeded with in all the dispatch that is apparent, what with Second Reading having been just on Monday of last week. As we know, the Government had a bit of a narrow squeak—a legal term—in the Investigatory Powers Tribunal, and that case is now going off to the Appeal Court. We are now getting what many of us, including those in Reprieve who brought the case to the IPT, have long asked for, and that is a regulatory statutory footing on which the very difficult decisions undertaken by the police, special branch, the security services and others should be done. That is something on which there is broad consensus, which was reflected in the attitude of the House, for the most part, on Second Reading. However, as was apparent from the debate on Second Reading, many of us in different parts of the House have serious concerns about the way in which these matters are being put on to this regulatory statutory footing.

Essentially, it seems to me that the Government have been brought to this point somewhat grudgingly. They have said, “Yes, we will put these things on to a statutory footing, but we will do it in such a broad and general way that, in fact, we will be able to continue to do whatever we have done in the past.” They are seen to embrace change in a way that allows them to continue to behave in the way they have always done. I suggest that that is not, in fact, sensible for any number of reasons. It defeats the purpose of putting these things on to a statutory footing, but I am pretty certain that, sooner or later, it means we will be back here looking at a future Bill because this one is not fit for the purpose the Government claim for it.

The point made repeatedly on Second Reading is that many of the concerns that I and others have, which are reflected in the amendments, are in fact covered by the Human Rights Act 1998. One of the difficulties I have with that is that, throughout their pleadings in front of the IPT, the Government said that the Human Rights Act does not, in fact, apply to the actions of those responsible for covert human intelligence. When we eventually hear from the Minister, could he address a couple of points? First, will this new attitude towards the Human Rights Act, in its applicability to the activities of covert human intelligence sources, be reflected in the pleadings of the Government when it comes to the Appeal Court?

Secondly, can the Minister confirm that the Bill will allow these sources to operate overseas? That being the case, what view do the Government take of the application of the Human Rights Act to the activities of these sources overseas? The position of the Government hitherto has always been that the application extraterritorially—overseas—of the Human Rights Act would not cover these instances, so it is difficult to see if there would be any protection at all in relation to activities overseas.

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

I might be able to help the Government along with this. It appears that the power to authorise a covert human intelligence source to commit crime outside the UK as well is provided for under section 27(3) of the Regulation of Investigatory Powers Act 2000, which states that conduct authorised under part II of that Act

“includes conduct outside the United Kingdom.”

[Mr Carmichael]

With help like that, I am not sure that the Government necessarily need any obstruction. Yes, I am certain that this provision is in the Bill for a reason, but we do need to hear from the Dispatch Box about the relationship between the Human Rights Act and activities that would be carried out overseas. When we hear from the Minister, I hope that he will address that point.

[Mr Kevan Jones (North Durham) (Lab)]

The right hon. Gentleman is making an important point, but the Human Rights Act is not the only protection. There is also the guidance that goes alongside the Bill and that already exists for the operation of CHIS, which is nearly 70 pages long and identifies what can and cannot be authorised.

[Mr Carmichael]

Indeed, and the guidance is important. It is helpful to have that published, but of course, guidance is guidance, and it can be changed much more easily than an Act of Parliament. The concern that I and many Members have is that there is little by way of meaningful limits and protections in the Bill, which is where they really require to be.

I will now address the amendments that I have tabled, and I shall seek to do so as swiftly as possible, because I realise that we are under a degree of time pressure. Amendments 20 and 21 cover the question of civil redress. The Government’s proposition is that, essentially, this is a statutory embodiment of existing practice and guidelines. In fact, the truth of the matter is that the Bill goes much further than the MI5’s current guidelines. The guidelines from 2011 state that

“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution”,

and that authorisation

“may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”

The Bill goes much further than that. It states, in effect, that authorised crimes are lawful for all purposes, which means not only that an agent would be exempt from prosecution but that victims would be barred from seeking redress in the civil courts. Cases where civil claims have arisen from the use of covert activities in relation to the animal rights movement, for example, would not have any legal redress in the courts under the Bill. Essentially, the thinking behind amendments 20, 21 and others is that the independent oversight in the Bill simply is not there. We all know—it is human nature, as much as anything else—that if people are left to mark their own homework, they will always give themselves an A*. Frankly, for matters as important as this, we need something a bit more substantial.

The test for authorising criminal conduct in clause 1 is currently that the person authorising the conduct must believe that it is “necessary” and “proportionate” to do so. Amendment 14 is a very modest amendment that would mean it should be not just believed but “reasonably” believed that it is necessary and proportionate. That is not the most significant bar that will have to be crossed, but the fact that it is not there illustrates just how widely the Bill is drawn.

[Jim Shannon (Strangford) (DUP)]

I suspect that the right hon. Gentleman and I have slightly different opinions on the Bill. My party and I broadly support it, perhaps with some amendments that we consider appropriate. Does he agree that, whatever the outcome of today’s proceedings, it is important for those involved to have the resources and staffing necessary to ensure that the objectives set by the Bill can be achieved?

[Mr Carmichael]

The hon. Gentleman makes an important point; it is not perhaps germane to the legislation, but it is important. As we saw on Second Reading, there is a wide understanding across the House of the very difficult, complex and nuanced nature of the decisions that are taken and then the activities that are undertaken as a consequence of these authorisations. This absolutely should be properly resourced and staffed; that should go without saying. The payback for that resourcing is that these people should also be accountable, with some measure of independent oversight of their activities.

[The Minister for Security (James Brokenshire)]

I do not know whether this will be helpful to the right hon. Gentleman, but I just draw his attention to paragraph 3.10 of the supported guidance, which underlines that the person granting the authorisation should hold a “reasonable belief” that the authorisation is necessary and proportionate. The important point he makes is addressed through the guidance.

[Mr Carmichael]

The Minister does help me and I am grateful for his assistance, because if that reasonable belief is in the guidance, there is absolutely no reason why it should not be in the Bill. As I said to the right hon. Member for North Durham (Mr Jones), guidance can be changed without any meaningful oversight from this House. The Minister makes the point for me very well, so perhaps amendment 14, which I had thought modest, is more significant than I realised. I look forward to hearing his acceptance of it—if we could do that without a Division, it would be all the better. [Interruption.] God loves a trier.

Amendment 15 deals with the issue of economic grounds. As things stand, the Bill allows crimes to be authorised if they are necessary

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

That conjures up all sorts of delicious prospects. If it is decided that we need a different Governor of the Bank of England, can we authorise a CHIS to wipe him out? Could we use this if we decided that a no-deal Brexit was not in the UK’s economic interests? There are at least two or three good Netflix series in this; the possibilities are almost endless. What crimes might be authorised in order to entice a foreign investor to bring their money to the UK or a car manufacturer to keep its UK plant open? There is nothing here to prevent corruption or bribery from being used in these circumstances. Amendment 15 would restrict these grounds to cases that are relevant not only in an economic sense, but to national security. There is precedent for this approach, because amendment 15 matches exactly the amendments the Government themselves made to the Counter-Terrorism and Border Security Bill last year, after my noble Friend Lord Paddick raised similar concerns about detaining people in the interests of the economic well-being of the United Kingdom. If it was good enough for that Bill, there is no reason why it should not be good enough for this one.

Amendments 18 and 19 involve oversight by prosecutors and would require criminal conduct authorisations to be shared with prosecutors before they take effect, to allow for proper independent oversight of these decisions. The amendments cover the same sort of grounds as many others have in their amendments, most notably the Mother of the House, and I believe the hon. and learned Member for Edinburgh South West (Joanna Cherry) will cover this in her contributions. They all come to the same point that there has to be independent oversight where matters are as serious as this.

Amendments 16 and 17 deal with the number of different bodies that can be authorised under the Bill as it currently stands. At present, it extends well beyond the obvious candidates and includes: MI5, the police, the security services, the Food Standards Agency, the Gambling Commission, and the Department of Health and Social Care. With these amendments, we seek to reduce the list to the National Crime Agency, the Serious Fraud Office and the intelligence services.

Mr Evans, you and I have visited an abattoir in the past and we know that there is plenty of blood in an abattoir already without actually adding to it by empowering meat inspectors to be authorised to spill even more of it. We all know, as we complete our tax returns every year, that taxation can be a tortuous business, but I do not think that we should be giving the taxman the power to apply the thumbscrews.

The need for these extra bodies to be given authorisation under these provisions has never been properly explained from the Treasury Bench. Their inclusion demeans the seriousness of those acts, especially by the security services, the police and the Serious Fraud Office that could well be required to use them in very difficult circumstances. It looks to me, almost certainly, as if these provisions have been put in the Bill with a view to giving up the fight when the Bill gets to the other place, which, I suggest, demonstrates a lack of respect not just for them, but for this House as well.

Finally, I wish to touch on other amendments that have been moved by other right hon. Members. I have added my name to the one from the Mother of the House covering the approval of the judicial commissioner and the one removing economic interest grounds and I support their inclusion in the Bill. Amendment 13 in the name of the right hon. Member for Haltemprice and Howden (Mr Davis), which removes murder, torture and others, would be one of the most obvious amendments that could be made to this Bill to render it genuinely fit for purpose. It is the purpose of this Bill that commands unity; it is the detail of it that requires still so much improvement.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

There are 22 Members—because a couple have withdrawn—on the call list. It would be really useful if Members could focus their attention on self-limiting their speeches so that we can get in as many as we possibly can.

--- Later in debate ---

Of course, that was not the only violation that occurred during the troubles, and we all know the terrible pressures that applied to everyone, even people in this House, during that time, but that is what we have to accommodate, from rendition to murder, not at the behest of the state but with the acquiescence of the state.

[Mr Carmichael]

On the point about rendition, the right hon. Gentleman will recall the Intelligence and Security Commission, when considering the Belhaj and Boudchar cases, said that in effect our services had outsourced work that they were not allowed to do in law themselves. Does not that alone indicate that those services require proper independent scrutiny? They should not be left to mark their own homework.

[Mr Davis]

The right hon. Gentleman is right, and we should not forget that the clause that was used requires ministerial approval, not approval by an officer under the pressure of, as it were, almost the battlefield sometimes. A Minister in Whitehall approved it, and it still happened. There were two sets of inquiries into those problems, one by Lord Stevens, who is nobody’s softy, and one by Sir Desmond de Silva. The latter concluded that the problems required some recognised limits to the extent to which agents should become involved in criminal enterprises and a rigorous regulatory framework to prevent abuses—not a woolly reference to the Human Rights Act.

--- Later in debate ---

[James Brokenshire]

I appreciate the seriousness of the point that the hon. Gentleman has made, and he will know more than anyone in this Chamber about the huge issues involved and, equally, about the statements that have been made by the Government in relation to that appalling murder. I am sure there will be other opportunities to debate that matter further, but I hear the point that he makes. Obviously, this has been considered at length before, but that does not in any way cut across the statements that the Government have made in condemning, underlining and apologising for what happened.

The use of the CHIS—the covert human intelligence source—does, as I say, underline the need for this oversight to be provided by an experienced and highly trained authorising officer, but it is about more than that. It is about the Investigatory Powers Commissioner, who already has wide-ranging powers to support him to carry out his oversight functions, and about the real role that he has. This is why we judge that deep and retrospective oversight is the most appropriate way to provide oversight of this power. This includes regular and thorough inspections of all public authorities that use the power, to ensure that they are complying with the law and following good practice. The frequency of these inspections is decided by the commissioner, and inspectors must have unfettered access to documents and information to support those functions.

Amendment 12 from the Opposition would require a judicial commissioner to be notified of an authorisation within seven days of its being granted. I have underlined the role of the commissioner, which means that we will not support the amendment today. We also believe that amendment 7 and new clause 6 would impact on the operability of the regime. However, I can say to all hon. and right hon. Members that I am giving careful consideration to how this retrospective oversight could be strengthened further, and to how this might be addressed in the Bill’s passage in the other place.

Amendments 18 and 19 relate to oversight by prosecutors. A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed. There is therefore no need to introduce a requirement for prosecuting authorities to play a role in the authorisation process. However, the IPC, supported by judicial commissioners and inspectors, ensures public authorities’ compliance with the law through inspections and investigations. That could lead to information being passed to prosecutors if they felt that that was necessary. I would also highlight that where a CHIS commits criminality outside the tight parameters granted by the authorisation, prosecutors can consider a prosecution in the normal way.

[Mr Carmichael]

Will the Minister be addressing the point that I put to him about operations overseas and the application of the Human Rights Act? That is important.

[James Brokenshire]

The UK will comply with obligations under the Human Rights Act, including when they arise extraterritorially. The UK is also bound by obligations under international human rights law.

I wanted to speak to the new clause tabled by the Intelligence and Security Committee and I thank its members for their support for the Bill. I think that underlines the role for the ISC in the scrutiny that they apply. Indeed, as the Minister who took the Justice and Security Act 2013 through Parliament, I recognised, in the creation of that Committee, its role in providing that rightful scrutiny and confidence in relation to this matter. I welcome the spirit with which new clause 3 has been tabled to emphasise the important role of the Committee, which I respect and appreciate.

I have written to the Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), to underline ways in which I believe we can provide the information that has been sought by the Committee, and I will place the letter in the Library to provide that certainty and clarity. I would say to my right hon. Friend that operational agencies will consider requests and specifics in the usual way, and I can commit to them considering that through the 2013 Act. The fact that it may relate to a live operation should not preclude that information’s being shared. I hope that that will be helpful to him in underlining the importance of the information’s being forthcoming.

--- Later in debate ---

[James Brokenshire]

I have two minutes left and I still have a few more amendments I would like to discuss.

On the issue of the economic wellbeing of the United Kingdom, it is an established statutory purpose for investigatory powers. It recognises that threats to the economic wellbeing of the UK could be immensely damaging. It might include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government. Similarly, preventing disorder is an important and legitimate law enforcement function found in all investigatory powers legislation. Where illegal activity takes place, public authorities listed on the Bill have responsibility to take action that is necessary and proportionate.

Turning to new clause 8, I do not underestimate the concerns expressed about the use of juvenile or vulnerable individuals as covert human intelligence sources. There are provisions contained within the code and the guidance, as the hon. Member for Walthamstow (Stella Creasy) knows, and I have sought to discuss those issues with her outside of this place. The provisions also highlight the role of an appropriate adult, but I will continue discussions, because I recognise that there are concerns across the House. In good faith I would be pleased to continue those discussions to see whether there are other issues there.

On the issue of undercover officers and the authorisation of sexual relations, I will reiterate what police leaders have already said publicly: it is never acceptable for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of deployment.

Equally, we discussed trade unions on Second Reading, and I re-emphasise that the Bill does not prevent legitimate and lawful activity, which is precisely what trade unionism is all about. That is why the code of practice is explicit on that. Indeed, section 20 of the Investigatory Powers Act 2016 in another context also highlights that.

We must not forget the human element of this capability. We are not talking about machines and equipment, which is why the Bill is framed in this way. They are real people who are making significant personal sacrifices, and they must be able to continue living their lives safely and securely. That is what this Bill is about. Through the information they provide, lives are saved, which is why the measures in this Bill matter so much.

[Mr Carmichael]

The House has had a debate this afternoon that has been both good and frustrating at the same time: good because of the quality of speeches and the thoughtfulness of those who have made them; frustrating because it needed so much more time. As the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the Chairman of the Home Affairs Committee and the right hon. Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee said, this is really no way to go about this sort of business. The difficulty for the Minister is that it is counterproductive, because all he has done in railroading our proceedings today is give a green light to those at the other end of the building, who lack our democratic mandate, to crawl all over this and fillet his Bill, which they most assuredly will do. I will seek to divide the Committee and test its opinion on amendment 16, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Alistair Carmichael Excerpts

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

[Sir Edward Leigh]

I think that is powerful evidence. This is about common sense; it is about proportionality and being reasonable. We cannot use law or statute to provide a sort of envelope around every action that the security services do. In the real world that does not work. It may be counterproductive, dangerous, and could put our own people at danger.

Finally, perhaps the Minister can comment on the fact that Lords amendment 5 would require all criminal conduct authorisation to be notified to the judicial commissioners, as set out in the Investigatory Powers Act 2016. Again, that sounds reasonable, but it also provides the judicial commissioners with the power to cancel an authorisation if they determine that it should not have been granted. That would require the covert activity to cease immediately. Such authorisations would only need to be notified to the judicial commissioners within seven days of them being granted. That means that they might cancel an authorisation, and insist that the activities carried out under it cease immediately, in the middle of the very acts in question. As I understand it—I may be wrong—the amendment would therefore undermine the very ability of our security services to recruit covert human intelligence sources. I mention that point because am not sure that it has already been raised in this debate. Let us be reasonable and proportionate, and let us leave the Bill as it is.

[Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]]

It is a pleasure to follow the right hon. Member for Gainsborough (Sir Edward Leigh), and I confess that I am slightly frustrated sitting here in my sitting room in Orkney. I suspect that if I were with you on the green Benches, Mr Deputy Speaker, I would have joined the right hon. Members for Haltemprice and Howden (Mr Davis) and for New Forest East (Dr Lewis) in engaging in the debate as it went along. Such is the nature of the times in which we find ourselves.

The thesis that the right hon. Member for Gainsborough offers the House tonight proceeds on the basis that it is necessary to empower those who engage in protecting us through the work of the security services, by offering them unlimited power and leaving everything up to their discretion. The thesis that I offer in rebuttal to that—this is very much in line with what the right hon. Member for Haltemprice and Howden said—is that we best serve the people who put themselves in the way of danger by laying down the limits with which we authorise their activity. It seems to me that to leave everything to their discretion means that we abdicate our duties as parliamentarians, and subcontract them to those who do not have the authority that we have, and who as a consequence are left exposed.

May I add my name to the long list of those who send good wishes to the right hon. Member for Old Bexley and Sidcup (James Brokenshire)? He is a Minister who brings an incredible amount of diligence, care and thoughtfulness to his work in the House, and it was a matter of significant regret and sadness when I heard that he found himself again unwell. No Member of the House would not concur in sending him the very best of wishes.

I thank their lordships in the other place for the manner in which they have further scrutinised the Bill. They did so in a typically thoughtful and reasoned manner, and I invite the Solicitor General to consider the nature of those who have sent us these amendments. They include Lord Anderson of Ipswich, Lord Thomas of Cwmgiedd, Lord Paddick and Baroness Hamwee, a former independent reviewer of terrorism legislation, a former Lord Chief Justice, a former senior police officer, and a distinguished legal practitioner of many decades and experience. This is not some cabal of over-zealous radicals and anarchists. These are people, men and women, who have significant experience in the realities—the practicalities—of those matters before the House. I suggest gently to the Solicitor General that their views require rather more substantial and considered rebuttal than we have heard from those on the Treasury Bench today.

I will canter through the different amendments that come to our House tonight from their lordships. On Lords amendment 1, inserting the word “reasonably” would effectively turn a subjective test into an objective test. This comes back to the point that I made at the start. It is for the benefit and protection of those who are required to engage covert human intelligence sources and send them out into the field that there should be some objective measures that they know their conduct and judgments can be measured against.

Lords amendment 2 introduces a number of limitations —Canadian-style, essentially. I thought that the objections that we heard from those on the Treasury Bench in relation to this were somewhat synthetic. In terms of our standing in the world community and as important protectors of the concept of the rule of law, I suggest again to the Minister that this is something that really requires a bit more care for our reputation on the world stage.

Lords amendment 3 is different from all the others, because all the others relate to the practice and conduct of people who are the sources, whereas this relates to those who are victims. It is entirely right that protections should be put in the Bill for those who are victims—innocent victims, in particular—of this sort of criminality. Again, I ask the Minister to reconsider the position on what is a very modest protection, but an important one none the less for those who will find themselves in that position.

The hon. Member for Walthamstow (Stella Creasy) made a powerful and impassioned case on Lords amendment 4. It is a well-accepted principle throughout the criminal and civil law of this country that we treat children differently. I again suggest that the Government need to be a bit more circumspect in relation to that.

I thought that the hon. Member for Bromley and Chislehurst (Sir Robert Neill) dealt very effectively and eloquently with Lords amendment 5. In the event that conduct is deemed to have been unlawful, even retrospectively, surely that is the point at which it should be stopped. The Government’s case that our intelligence services can serve the national interest by continuing with conduct that has been considered by a judicial authority to be unlawful undermines the force of their arguments.

I want to remind the House of the genesis of this legislation. As the right hon. Member for Haltemprice and Howden and the right hon. Member for North Durham (Mr Jones) touched on, the third direction by the former Prime Minister was being tested in the investigatory powers tribunal. The Government had what I think would be best described as a narrow squeak there, and it was then, as a measure of some panic, that they decided to bring in this legislation in anticipation of the fact, or in fear, that their position would be overturned in the Appeal Court. I think that that was a not unreasonable view to be taken by the Government in all the circumstances. It is worth noting, in relation to the effectiveness of the Human Rights Act as a protection in this area of law, that not only is the Human Rights Act itself under review by the Government, but that the reliance on the Human Rights Act in Parliament stands in very stark contrast to the repudiation of it being applicable in their pleadings in the tribunal. I do not think the Government can have it both ways. The bringing of the Bill is in itself is a good and worthy ideal, but these are matters that should be regulated by Parliament. We realise that this is not done for any sort of Damascene conversion, but that it is, in fact, a panic measure.

The thinking behind the Bill seems to be that the Government accept that there has to be change inasmuch as the regulation of this activity has to be put on to a statutory footing. At the same time, however, they want to do it in such a way that nothing actually changes. It is done on a fairly crude world view, if I may say that. Somehow or other, law enforcement is always about good guys doing good things, pursuing bad guys who have done bad things. Those of us who have worked in the criminal courts and elsewhere know that is often a bit more nuanced than that. The sort of world view that brings this legislation is one which very quickly brings us to the point where the end can be seen always to justify the means. The bottom line is that those who are involved in these difficult areas of judgment very often do get them wrong.

I offer not a directly applicable example here, but one that I think should give the House cause to pause: the operation under the Blair Governments of extraordinary rendition and the cases of Boudchar and Belhaj. Jack Straw, as Foreign Secretary, and Mark Allen were essentially responsible for the rendition of Belhaj and Boudchar to Libya—incredibly, to say it now—and they did so in contravention of every stated Government policy. Ultimately, those cases were required to be settled with non-disclosure agreements and substantial amounts of public money paid in compensation.

Those cases illustrate the fact that there is a need for us as Parliament to put limits on what can be done by those who we charge to operate in this field. It should not be prescriptive, but it should be something that is there to which they can have reference, so that we can have security of knowledge that the work they do on our behalf is done properly. That is what these amendments are about. That is why this Bill has gone so badly wrong. The amendments from the other place seek to improve the Bill and my party will this evening vote in support of maintaining them.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Alistair Carmichael Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Sir John Hayes (South Holland and The Deepings) (Con) [V]]

This legislation is first and foremost about taking risks to save lives. The information acquired by covert human intelligence sources, often requiring great personal sacrifice at the cutting edge of terror, disrupts plots, secures prosecutions and prevents death and destruction, all of which takes courage and skill; sharp minds and brave hearts. As the Chairman of the ISC, my right hon. Friend the Member for New Forest East (Dr Lewis), said, reiterating the advice from MI5, if it was not for the covert intelligence sources, many of the attacks foiled in recent years would not have been prevented, and dozens of individuals presently alive would have been killed and, with them, loves lost and lives blighted.

The Bill before us is timely and necessary. It is right that the Government have engaged with those in the other place and elsewhere to improve safeguards, but in the end, for all the talk of rights, it is wrongs that ruin lives. The people whom we mission to keep us safe expect of us the legal means and mechanisms that are necessary for them to succeed, and by definition, those tasked with infiltration of organisations intent on wickedness are fraternising with individuals and groups capable of ruthlessness, often rationalised as a means to a desirable end. Not only would abject and inflexible refusal to engage in any and all criminal activity by covert human intelligence sources render it impossible to gain or retain trust, it would place those who are defending our interests in direct danger.

I am grateful, therefore, that this Bill provides our brave operatives with legal protection. While carefully authorised participation in criminality has been, for some time, accepted in the UK courts as a necessary and proportionate means to safeguard the public, there remains at present no formal, single, statutory basis for that. This Bill alters that by providing legal clarity, as previous contributors have made clear. It means that the current authorisation to engage in monitored criminal activity, which confers no immunity from prosecution, will be put to an end. By amending the Regulation of Investigatory Powers Act 2000, we can correct what has, up until now, been an uncertain situation by ensuring that those engaged in preserving and protecting our freedoms and liberties are not themselves treated as common criminals.

Of course, all criminal authorisations by the security and intelligence agencies must be properly circumscribed, absolutely necessary, proportionate, compatible with law, and—most importantly—subject to proper scrutiny, which is what this Bill also does. I am pleased that the Government have added to that scrutiny during the course of the Bill’s consideration and through the amendments they have accepted. Along with other members of the ISC, I have made clear that any and all authorisations must be specifically limited, and any criminal activity outside that expressly approved can, of course, be prosecuted. Moreover, authorisation must be reasonable, and positive and potential outcomes should outweigh criminal conduct. I think all Members of the House will agree that it is essential that criminal conduct authorisations must only be granted by highly trained and experienced authorising officers.

Finally and most importantly, effective scrutiny must underpin the entirety of this legislation. Authorisations must be overseen by the independent investigatory powers commissioner; the ISC should be kept informed of the use of CCAs; and the Investigatory Powers Tribunal will investigate any complaints about public authorities using this power. Lord Anderson’s amendment, accepted by the Government, on the timely referral of these matters to a judicial commissioner is helpful and valuable.

It is the very nature of law enforcement that risks and rewards must be balanced and considered. Few would doubt that access to unique information is essential to the prevention of horrors beyond our dreams but, tragically, not beyond our lived experience. Certain controlled criminal conduct, subject to specific safeguards, is necessary for our protection. This is the pragmatic principle on which the Bill is based, and I am pleased to support it.

This Bill does strike a balance between powers and scrutiny. It strikes a balance between giving those whom we have missioned to defend us what they need, and ensuring that in doing so, they act properly. It clarifies the law protecting operatives, and makes clear the circumstances in which those powers should be used. Its provisions are specific and limited; its purpose is right; and its time is due. It should be supported by all Members across the House.

[Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]]

First, on behalf of my party, I welcome the amendments that have come from the other place that the Government are accepting. These are important concessions, which certainly improve the Bill. It has be said, however, that the Bill as a whole remains inadequate in the protections that it puts in place, and it bears the hallmarks of its history. Let us not forget that the Government did not bring in this Bill because they had a sudden damascene conversion to the need for scrutiny of this particular area of security and intelligence. They brought it in because they thought that they were at risk of losing a case in the Court of Appeal, having had a very close judgment in the Investigatory Powers Tribunal.

Essentially, in bringing in the Bill in this way, the Government have tried to recreate in statute the very loose and uncontrolled system that they have had prior to this. I suggest to the House that that will not stand the test of time. The right hon. Member for Haltemprice and Howden (Mr Davis) is absolutely right when he says that we need to hear from the Solicitor General at the Dispatch Box tonight clear undertakings in regard to the operation of the Human Rights Act as it applies to this Bill—soon to be an Act, no doubt.

The ambiguity is not just inherent in the Bill, as the right hon. Member for Haltemprice and Howden correctly said. Actually, that ambiguity can be seen between the way in which the Government have sought to argue their case in the Investigatory Powers Tribunal and the way in which they have presented their case in relation to this Bill. The Government have sought to claim that acts of torture by covert agents could be justified

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

That, in itself, is not consistent with the Human Rights Act. It is clearly wrong and has been described as such by the Joint Committee on Human Rights in its report on the Bill. The Committee found that covert agents could not be authorised to get involved in abuses such as torture and that

“the intention behind that conduct cannot justify the violation.”

It has also been said, I think by the Intelligence and Security Committee, that the Bill is effectively about the Government outsourcing decisions that they could not take for themselves. That approach should provide us with concern and does worry us, because we know that these provisions will not then stand the test of time, and we will be back in the same territory that we have seen in recent years with other legislation, where the Government have to come back with legislation that is retrospective or seeks to amend the law to catch up with the courts.

I fear that we have a Bill that is not the last word on this matter. The Houses have made significant improvements to it, but it remains some distance from what the country needs and what those who do this very dangerous work on our behalf deserve to have.

[James Sunderland (Bracknell) (Con)]

This Bill is vital and goes to the heart of keeping communities safe from those seeking to do us harm. Covert human intelligence has been essential in disrupting many of the terrorist plots stopped by our agencies, and I was happy to vote the Bill through on Second Reading, the simple reason being that defence of the realm is the primary objective of any Government.

As we know, a criminal conduct authorisation may be granted where it is necessary for one of three purposes: national security, the prevention or detection of crime, or the interests of the economic wellbeing of the UK. From the relative comfort of this place, it is perhaps not for us to reason why, nor should we dare to understand the pressures that our security services are under, but it is for us to give them the tools that they need to do their job and to allow them the freedom of action that they need to keep us safe. There is a clear distinction, for clipping the wings of the Bill could be, and will be, counter- productive.

Lords amendment 3 allows anyone who has been the victim of a crime under a CCA to remain able to claim compensation under the criminal injuries compensation scheme or Northern Ireland’s CICS. That is fine, but as the Minister has outlined, the Government are listening to ways of providing additional resources to Parliament and the public on what safeguards may be possible and operationally workable. That would be achieved by an amendment in lieu that makes it clear that a person can access the compensation scheme where appropriate, so I am sympathetic to Lords amendment 3B on criminal justice compensation and urge the Government to consider it as a concession, as they now are.