Covert Human Intelligence Sources (Criminal Conduct) Bill

Bob Stewart Excerpts

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

[Bob Stewart (Beckenham) (Con)]

I am in awe of the constant, cold courage of those who run huge risks for us as covert human intelligence sources; in fact, in a past life I was involved slightly. I am clear that covert agents play a vital part in disrupting terrorist plots, and they often save lives. It is vital that such agents gain the trust of those on whom they have to report if they are to gain the information that the authorities need to keep us all safe. In view of the largely criminal nature of people under investigation, covert agents are sometimes required themselves to participate in criminal activities; we all understand that. If they do not participate in those activities, it will cause their loyalty to that group to be questioned. Suspicions will immediately be raised and they could be in peril, or, sometimes, in mortal danger. It is therefore essential that covert agents are able to participate in some criminal activity. Organisations such as MI5 need to be able to authorise them to do so—obviously in certain circumstances and with the safeguards that we hope to put in the Bill.

In order to decide whether to authorise such covert agents to participate in criminal activity, intelligence organisations will have to consider whether the anticipated result of that involvement, which is getting information that could help save lives—information rather than intelligence, because there is a difference—outweighs the criminal conduct. This is a very fine balance, and it requires very, very experienced officers to make that judgment. Obviously, we all understand that this is an ethical dilemma for us, but I accept that it is necessary and I will be fully supporting the Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Bob Stewart 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

[Dr Julian Lewis (New Forest East) (Ind)]

Thank you, Dame Rosie; I shall endeavour to be helpful. It is only by the good fortune, dare I say it, of there having been yet another statement on the covid crisis that many members of the Intelligence and Security Committee are able to take part in this debate at all. I have written to the Leader of the House about this, and I appeal to the Government’s business managers in future not to schedule legislation of this sort, which is directly relevant to the Intelligence and Security Committee, on the same day that it is known that the Committee has an immovable meeting. I am grateful to the right hon. Member for North Durham (Mr Jones) for being willing to leave our main meeting early, so as to be sure that new clause 3 could be covered, and I will now make some remarks about that new clause.

The Intelligence and Security Committee, as was stated on Second Reading, strongly supports the principle behind this legislation. CHIS play a vital role in identifying and disrupting terrorist plots. They save lives, often at great risk to themselves. Sometimes they must commit offences to maintain their cover, and their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. We welcome the Bill, which will place the state’s power to authorise that conduct on an explicit statutory footing.

However, concerns were raised on Second Reading that the Bill does not provide for sufficient safeguards and oversight measures. The ISC agrees. There is a clear role for the Investigatory Powers Commissioner, and it is absolutely right that the commissioner is able to use his judicial oversight powers to ensure that those powers are used only with due care and consideration by the agencies that authorise criminal conduct.

The Bill, as it stands, does not provide for any parliamentary scrutiny of the use of these authorisation powers, so the amendment that the ISC has tabled—new clause 3—proposes not to duplicate the role of the Investigatory Powers Commissioner in any way, but instead to require the Secretary of State to provide the Intelligence and Security Committee of Parliament with an annual report of information on the number of criminal conduct authorisations that have been authorised by the agencies that the Committee oversees as well as on the categories authorised. All we are looking for is a simple table saying that these are the categories of offences that have been authorised, those are the totals in each category and this is the grand total.

[Bob Stewart (Beckenham) (Con)]

It is only the number and the category; there is no detail, because that would be extremely dangerous.

[Dr Lewis]

That is absolutely right, and the whole point about the detail is that that is the job of the Investigatory Powers Commissioner. What we want to do is give an added layer of extra scrutiny on the scale and the categorisation, but nothing in terms of particularity of any individual case.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Bob Stewart Excerpts

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

[The Solicitor General]

The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.

Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.

[Bob Stewart (Beckenham) (Con)]

Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.

[Mr Deputy Speaker (Mr Nigel Evans)]

As always.

[Bob Stewart]

Forgive me—I am on my knees.

Having done this sort of thing, albeit in a relatively minor way, I want to clarify one thing. Often, information was given to people who were doing this kind of work in the field by juveniles. That does not make the juvenile a source. That information can still obviously be passed on, but clearly there are restrictions on using that juvenile in future. However, the information given by juveniles certainly must not be stopped.

[The Solicitor General]

Not for the first time, my hon. Friend makes a very powerful point by dint of his experience in these matters, and in a moment I will give an example that he might find interesting on that exact point. As I said, the Investigatory Powers Commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in. The commissioner also noted that decisions to authorise were only made when that was the best option for breaking the cycle of crime and danger for the young person involved.

To demonstrate how authorisations for juvenile covert human intelligence sources are managed in reality by the police, let me give an example that can also be found in the IPC’s most recent annual report:

“In one…case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group”—

a gang. The juvenile owed money to the gang. He or she

“approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”

That is a particularly instructive example of the sort of circumstances in which that can apply.

Lords amendment 4 seeks to add further safeguards for the authorisation of juveniles and vulnerable adults when they are granted a criminal conduct authorisation. While the Government recognise the spirit of these amendments, Lords amendment 4 as drafted creates operational issues. For example, the amendment defines exceptional circumstances as

“where all other methods to gain information have been exhausted”.

That requirement has a tendency to risk the workability of the power and, crucially, the safety of the juvenile because there may be occasions, in the cut and thrust of these things, where there are other ways to gain the information, but those other ways may not be the safest way to extricate the juvenile from the situation that he or she finds themselves in and to lead to the best outcome for the juvenile involved. The words in the amendment are too prescriptive and creative operational and workability issues.

--- Later in debate ---

[Mr Kevan Jones]

May I join colleagues in the House in sending best wishes to the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire), for a speedy recovery?

In his contribution to this debate, my hon. Friend the Member for St Helens North (Conor McGinn) said that we were talking about issues that take place in the shadows. Well, we are, because many of the activities that our security services undertake cannot, quite rightly, be talked about publicly. I wish to put on record my thanks to the men and women of our services who protect us.

The Chair of the Select Committee, the right hon. Member for New Forest East (Dr Lewis), said that covert human intelligence is important. It is, but there is an emphasis these days that, because we have electronic eavesdropping, data collection and everything else, it is a thing of the past. May I recommend that you, Mr Speaker, and other Members read John Ferris’s excellent new book on the history of GCHQ? It was always the case, even during the second world war, that human intelligence along with intercept was the way in which we got the full picture around intelligence. That is important.

Why do people become covert human intelligence sources? Having seen some of the cases, I can say that the reasons vary. In some cases, they are very brave individuals who put their lives at risk to protect others, and the interface with our security services is vital. I said on Second Reading that, sadly, certain labels got stuck on this Bill right from the beginning. It was felt that, somehow, it would allow the state suddenly to authorise everything from torture to murder. Certainly in my party, it is felt that if a Member is a true socialist on the left, they would have to oppose this Bill every step of the way. I am sorry, but I think that that is very unfortunate. People should read what is in the Bill. We should be welcoming the Bill, as my hon. Friend the Member for St Helens North said. What it is doing is putting on a statutory footing what is taking place anyway. If we look at the law as it stands at the moment, certain authorisation of and participation in criminality by CHISs has always been accepted as necessary by UK courts as long as it is proportionate to the safeguarding of the public. However, it is not on a statutory basis, so actually people who have concerns about the operation of our security services should welcome the Bill. Certainly, in MI5’s case there is an implication about this in the Security Service Act 1989, but the Bill, for the first time, puts it on a statutory footing, which we should welcome.

Having said that, there are aspects of the Bill that need to be improved. Will there be situations in which the individuals that we are talking about have to be part of criminal activity? Yes, there will be. I have been a member of the ISC for a number of years now. I have been briefed, along with other Members, by MI5 not just on this Bill but on others. I have also, in a previous inquiry, read the transcripts between handlers and CHISs. I will not divulge their contents; all I can say is that the information and intelligence obtained in the transcripts that I read was vital to disrupt a number of terrorist plots. This will not go away if we just think that it is too hot to handle; it has a real impact on our daily lives in this country in terms of national security.

I understand what those who tabled Lords amendment 1 want. They want some protection in the Bill so that the list of things that can be authorised can be a checklist. As the Solicitor General and the right hon. Member for New Forest East have already referred to, setting that checklist will make the operation of CHISs very difficult. I do not necessarily agree with what the right hon. Member for New Forest East said about the Human Rights Act, but the idea that the Bill will allow murder, rape and everything else is just not true. That assures me that the justifiable and proportional approach in the Bill is important. We also have the cover-all in terms of the Human Rights Act, so I do not accept, for practical reasons, that Lords amendment 2 would either improve the Bill or make it easier for our security services to operate.

[Bob Stewart]

I thank the right hon. Gentleman, who happens to be a good friend, for letting me intervene. I am slightly worried that if we put something into statute and law, it would be utterly tragic if someone who was operating covertly was killed as a result of having a constraint on him or her—there are hers too—that identifies them, and the next thing we know they are stuck in a ditch somewhere with a round in the back of their head. That is the dilemma we face.

[Mr Jones]

It is, and there is another thing of which I would like to reassure the House, from a security point of view and from my position on the ISC. As I think I said on Second Reading, such decisions are not taken lightly by the security services. Senior officers authorise and control CHISs for good reasons. Do they have some difficult calls to make? Certainly, from one of the transcripts that I read, they do. Do they, on occasions, withdraw authorisation? Yes, if they think that the individual is doing something that is not justifiable or proportionate.

The other point is that we, and a lot of the Bill’s opponents, have concentrated on the security services, but remember that it will be used by the police and others.

--- Later in debate ---

[Bob Stewart]

I thank my really good friend, my right hon. Friend, for letting me intervene. I speak from experience, because I have run an organisation—I will not be too precise—and there were several hundred people on my books. Not one was a child. We did not need a law to tell us not to use children. We did not use children, and there was no flipping law that stopped us.