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.