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.