Covert Human Intelligence Sources (Criminal Conduct) Bill

Claire Hanna Excerpts

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

[Claire Hanna (Belfast South) (SDLP)]

Like others, while acknowledging that regulation of covert human intelligence sources should be on a legislative footing and that they have a role in modern policing, we have concerns about the Bill. I would like to offer some cautionary tales and some lessons from fairly recent history in Northern Ireland about what can go wrong when the state engages in crime, even if Members understand, or potentially even endorse, the outcomes that those agents are seeking to achieve.

In that context, the scale of this Bill is quite something. It expresses no limit on the type of crimes that can be authorised if the agent believes the action is proportionate, the authorising officer need only take into account whether the objective sought could be achieved through means other than crimes, and Members have already addressed the almost bizarrely wide range of agencies that are in scope. I am sure that people have spoken about the early period of operation of RIPA and the scenarios in which those provisions were used incorrectly.

The arrangements for operational oversight and post-operational accountability are weaker than those for phone tapping or law enforcement searches, despite having a potentially much bigger impact. As former Director of Public Prosecutions Lord Ken Macdonald has said, the Bill will make it easier for a policeman to commit a serious crime than to search a shed.

The Bill would block redress through the courts for those who might experience adverse effects. It is probably disingenuous for the Bill to rely on the Human Rights Act as a safeguard, because this Government have made it clear that they do not believe that that Act applies to the actions and potential abuses of their agents, up to and including torture. The Overseas Operations (Service Personnel and Veterans) Bill, which we considered just two weeks ago in this House, proposes to severely restrict the possibility of prosecuting those serious criminal wrongdoings, which of course have been illegal under international law since 1948. This Bill will not and cannot be read in isolation from those other pieces of legislation. The fact that the Human Rights Act has been a whipping boy for many, particularly on the Government Benches, means that people will not have faith that it will be allowed to stand in the way the provisions of this Bill.

The existing extraterritorial provisions of RIPA suggest that, in theory, this Bill could apply outside the UK and, indeed, in the Republic of Ireland—that MI5 could, from its Loughshore base in Belfast, authorise a serious criminal act just over the border in Donegal or Dublin. That prompts a number of questions that I hope the Minister will be able to address. If the UK authorities were sanctioning or authorising a crime, would they be compelled to notify their counterparts in Irish agencies? Has this been discussed with Dublin? It is not a case of whether they would do these things; it is a case of whether the Bill gives them space to do so.

I speak from some experience in Northern Ireland when I say that serious crimes up to and including murder, particularly when committed by the state, are very possible. That leads first to a generation of victims and survivors, then to deep alienation from the state and further on to the perpetuation of conflict. I would caution Members about going down that road.

Many in the House might say in good faith that agents committing a serious crime was rare, and I have no doubt that most of those involved in this form of policing would not and could not conduct that sort of activity. Unfortunately, we know from very recent history that it was not just one or two bad apples. I will speak carefully because files have been referred to the DPP, and I understand the caution, but there is a continuing investigation into the agent known as Stakeknife. That investigation was discussed at length at the Northern Ireland Affairs Committee last month by John Boutcher, the former chief constable of Bedfordshire police, who is leading the investigation. He has highlighted how probably dozens of people were murdered by those in control of the IRA, but with the knowledge and sanction of those in command and control of British security agencies.

RUC special branch agent Mark Haddock is believed to have been involved in over 20 murders. As other Members have mentioned, Ken Barrett, a British agent, was involved in the murder of lawyer Pat Finucane, which former Prime Minister David Cameron conceded involved shocking levels of collusion. Multiple agents killed with impunity for Britain, and they were tangled up with both loyalist and republican paramilitaries. Current proposals from the Government relating to Northern Ireland already make the families feel like the lives of their loved ones did not matter and that the rule of law does not seem to be relevant in the case of their murders, but the Bill really risks bringing back the ghosts of our policing past.

I want to be very clear: the SDLP acknowledges the realities of life, policing, crime and terrorism. The hon. Member for Belfast East (Gavin Robinson) gave a very fair assessment of the continuing a security threat in Northern Ireland, which we are far from blind to. However, the necessary mechanisms have to be regulated under statute to avoid doubt and to uphold the rule of law, which only works if provisions are underpinned by appropriate human rights frameworks and oversight. We are not in the wild west, where the means justify the ends.

I say again that, from the SDLP’s perspective, these are not words that we casually say. We are not a party that points out all the problems and will not engage in the solutions. When the SDLP joined the Policing Board in 2001, our members did so under very serious threats and intimidation by the IRA, but we did that heavy lifting on the Policing Board precisely because we needed a new beginning for policing in Northern Ireland. We were not just going to leave the details of policing for others to deal with.

That new beginning to policing in Northern Ireland is among the most successful elements of the post-Good Friday agreement era. Policing was so divisive for many generations, but the PSNI and its oversight mechanisms are a bastion of policing in the modern era. In just five years, the Policing Board and its partners in the police, the Northern Ireland Office, the Department of Foreign Affairs and the community, and particularly the brave young women and men who stepped up and joined the police, together implemented the mechanisms and the oversight recommendations—85% of them—in the Patten report. That included the overhaul and reform of intelligence policing, because there were not at that point any rules governing what an agent could or could not do.

That was the old regime, and it did not serve the rule of law or the purpose of progressing Northern Ireland. The Bill runs the risk of recreating the new in the image of the old. That would betray the work that so many people did, fearlessly and relentlessly, to improve the outcomes from policing. The Bill compounds the problem, with even less oversight than the policing model that we tried so hard to change.

I must also say that this legislation will be viewed in the context of other actions by the Government. The statement on 18 March relating to legacy turned on their head commitments that we had previously received on truth, justice and accountability, and it breaches a treaty. The United Kingdom Internal Market Bill turns commitments to Northern Ireland and Ireland on the their head, and it breaches a treaty. The Overseas Operations (Service Personal and Veterans) Bill turns requirements for the investigation of crimes and breaches on their head. That is three proposals and three blows to confidence. People in my constituency are watching agog at the actions of this Government and the exercise of arbitrary, unilateral, reckless state power, and I caution Members that constituents in other areas will begin to do that as well. Confidence is being damaged left, right and centre, and a Bill such as this, if unamended, will only compound that error.