Covert Human Intelligence Sources (Criminal Conduct) Bill

Conor McGinn Excerpts

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

[Mr Deputy Speaker (Mr Nigel Evans)]

Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to follow the Solicitor General, but I am sure he will understand when I say that I would much prefer to have been following the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire). We wish him well, and I want to thank him for his engagement with me and the shadow Home Secretary, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), on the progress of the Bill throughout its passage. I am grateful to colleagues in the other place who have shown their customary high standards of diligence and ensured that the Bill contains some robust and vital checks. It returns to us in substantially better shape than when it left us.

As I have said throughout the Bill’s passage, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has made it clear that security is a top priority for the Labour party. Under his leadership and that of the shadow Home Secretary, we will support a robust policy in fighting terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our community safe. We are, of course, grateful to those in the police, the security services and wider law enforcement who put their own safety and lives at risk to protect us, and we will meet our duty to support them.

It is the responsibility of Members of Parliament to ensure that there is a system in place that allows our law enforcement to uncover, disrupt and ultimately bring to justice illegal and dangerous activity that threatens the safety and security of the British people. The Solicitor General reminded us of the sobering context of this debate, given the number of terror plots that have been disrupted. The latest figures show that in the last year alone covert human intelligence sources foiled 30 threats to life. It is therefore right that, finally, we should put on a statutory footing the activity of those who work to disrupt some of the vilest crimes imaginable. It is vital that through this process, in creating a statutory framework for the operation of the CHIS, we seek to make sure that there are formal checks, balances and safeguards that ensure that the Bill is fair and protects those who work under its jurisdiction, as well as innocent parties who may be affected by their activity.

Lords amendment 1 was proposed by Cross-Bench peers, and it seeks to ensure a fair and reasonable frame- work for those making an authorisation. It adds the word, “reasonably” so that, with an order to grant an authorisation, the person authorising would need reasonably to believe that it was necessary and proportionate. Without confusing the House with the use of too many “reasonables”, that would seem eminently reasonable. When dealing with sensitive matters of this nature, that places trust in those authorising the activity required, but ensures that their judgment is guided by the parameters of what is deemed appropriate or reasonable.

Lords amendment 2 progresses an amendment that we tabled in the Commons on Report, and which has received support in both Houses. It adds so-called Canada-style limitations to the Bill, including on death, grievous bodily harm, perverting the course of justice, sexual offences, torture and the deprivation of liberty. The Solicitor General has sought to assure us that the Bill is explicit about the fact that the Human Rights Act is applicable in all circumstances, but there is merit at least in exploring the setting-out of specific limitations on the Bill for the sake of clarity and reassurance. Like him, I do not want to see circumstances in which these horrendous offences are set as a test for the CHIS in the field—I know that that view is shared by my right hon. Friend the Member for North Durham (Mr Jones)—but if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.

Lords amendment 3 builds on amendments that we introduced in the Commons, and ensures that victims of violent crime in particular are not ineligible for criminal injuries compensation by virtue of the fact that the crime was the subject of a criminal conduct authorisation. We heard many powerful arguments for the amendment during the passage of the Bill. It is vital that, as well as clarifying permissible action for agents working to keep us safe, the Bill ensures that victims are properly protected and can seek redress and compensation if those boundaries are broken. The amendment would ensure that victims can seek adequate redress from the criminal injuries compensation scheme. All victims deserve an unimpeded pass to attaining justice. Despite the unique and rare circumstances of what we are discussing, the provision none the less protects victims of any criminal acts with proper and due process.

Lords amendment 4 makes a change to the Bill that would ensure an authorisation involving children and vulnerable people could be authorised only in exceptional circumstances. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), as the Solicitor General has done, for her strong campaigning, along with the right hon. Member for Haltemprice and Howden (Mr Davis), other Government Members and the shadow Home Secretary, my hon. Friend the Member for Torfaen, who has taken part in intensive discussions and lobbied on these incredibly important matters.

The amendment has also been supported by the Children’s Commissioner, because it provides the necessary safeguards. The Children’s Society urged the Government to look at the complex interrelationships between different forms of exploitation and abuse, and suggested that they need to be properly considered in policy, policing and child protection. The anomaly that would see 16 and 17-year-olds treated differently if they commit a criminal offence of their own volition, rather than one they are instructed to commit as CHIS, needs to be addressed. I hope the Government listen to the concerns of Parliament, as the Solicitor General outlined, and to those of experts, children’s advocates and wider civil society on this issue.

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[Sir Edward Leigh (Gainsborough) (Con)]

It is welcome that, under new management in the Labour party, the country can probably rest assured that after an interlude the Labour party have returned to the attitude that prevailed under the Blair and Brown leaderships and can be trusted on security issues. I hope therefore, in that spirit of bipartisanship, the Labour party will think carefully about dividing the House and recognise that many of the arguments promoted by the Solicitor General actually made a lot of sense. We might put our agents’ lives at risk if we were to set limits on what could be authorised, so I hope the hon. Gentleman can give me a reassuring reply on that.

[Conor McGinn]

I think I might put the first part of what the right hon. Gentleman said on my election leaflets the next time around. On the second part of what he said, I respect entirely the point he made. I listened carefully to the Solicitor General and I will explain in my conclusion our approach to the Bill, which I think has been one where we have sought to co-operate, given its serious and sensitive nature. We rightly and understandably wanted to scrutinise the Bill in its entirety and would seek to improve it were we in the position of introducing it. I hope that will make sense in the next few minutes.

Before I come to that conclusion, let me say that it is unfortunate and disappointing that the Government and the Scottish Government have not been able to reach an agreement. We encouraged those discussions from the outset to ensure that the Bill covered the entirety of the United Kingdom. Even at this late stage, I urge them to work together, because it is important that the public in Scotland have confidence not only that their safety and security is protected, but that they have the safeguards that other parts of the United Kingdom will have, too.

In conclusion, we feel that the Bill has been improved by the amendments. It is not perfect—far from it—but it does provide an important legal framework for activity that previously operated with none. We recognise that it provides formal safeguards and protections for those who operate in this field at this precise moment and who seek to keep us all safe. It provides clarity and guidance for those who have to make difficult decisions in the interests of law enforcement in areas of serious and highly organised terrorism and crime, and it provides protection and the potential for recompense for those who may be adversely affected.

As I have said before, this is uncomfortable territory for the whole House and for many of us personally. It covers activity that operates, frankly, in the shadows, tackling serious and deadly crime and some of the most heinous and awful offences imaginable. The Opposition are committed to working in the national interest to keep people, their families, our communities and the country safe. We know that it is not just the Government who have to make difficult decisions to do this but us as well. I want to be clear: we would and will put forward a different Bill with the safeguards we have outlined at its heart. But when it comes to national security and keeping the public safe, we are not prepared to allow these matters to remain outside parliamentary scrutiny and without any statutory footing. We have a duty to the public and to those who keep us safe.

We acknowledge the importance of putting CHIS activities on a statutory footing, and we have unapologetically worked to scrutinise robustly and responsibly the way in which that is done. We have hopefully ensured some vital safeguards, accountability and protections, and we will continue, as always, to place national security, human rights and support for victims at the centre of our approach to these matters.

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

On behalf of the Intelligence and Security Committee, I entirely endorse the tributes and good wishes paid by the Solicitor General and the hon. Member for St Helens North (Conor McGinn) to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). His professionalism, calmness and dedication as Security Minister and in other roles are a model for us all. We admire him greatly and wish him the best of health.

Despite extraordinary technical advances in surveillance and espionage methods, human sources in intelligence operations remain indispensable, especially in the counter-terrorist work of our Security Service. Going undercover to join terrorist groups or remaining in a terrorist group, having become disillusioned with its objectives, in order to frustrate them, calls for courage of the highest order. The Intelligence and Security Committee has been briefed by MI5 on specific instances of this, and we accept that, without the use of covert human intelligence sources, many of the attacks foiled in recent years would have succeeded in their horrific aims. That is what justifies the authorisation of specified criminal acts, on occasion, in order to maintain an agent’s cover and in proportion to the potential harm that he or she is working to prevent.

As pointed out on Second Reading on 5 October, the report on Northern Ireland-related terrorism compiled by our predecessor Committee and presented to Parliament that same day firmly concluded at paragraph 39:

“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only when necessary and proportionate, and subject to proper scrutiny.”

Precisely because covert human intelligence sources are so effective, ruthless terrorist organisations have no qualms in devising tests of the utmost depravity to flush out agents infiltrating their ranks. That is why the provisions of Lords amendment 2 to prohibit the granting of criminal conduct authorisations, or CCAs, are certain to be as counterproductive as they are well-intentioned.

What the amendment proposes, if enacted, would soon come to constitute a checklist of atrocities that could be used to expose undercover agents known to be forbidden from carrying them out. As sure as night follows day, it would also increase the number of such atrocities committed. In order to flush out MI5 agents by putting suspects to the test, paranoid extremists would resort to testing more and more of their group members, if they felt that their organisation was coming under pressure and suffering setbacks.

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[The Solicitor General]

With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.

First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.

Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.

The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.

We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.

I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.

Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.

I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.

My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.

Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.

I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.

The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.

Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.

[Conor McGinn]

I appreciate the Solicitor General giving way and I am reassured by much of what he says, but having just said that the Government would not accept amendment 1 because of the need to be consistent across the law, will he comment on the fact that it is still an anomaly that 16 and 17-year-olds who commit a crime of their own volition are entitled to different protections from 16 and 17-year-olds who commit a crime as a result of a criminal conduct authorisation?

[The Solicitor General]

The reality, of course, is that the safeguards that I have adumbrated in regard to CHIS are very relevant here and, as I have mentioned, there are considerable safeguards that form the protections that we can say with confidence mean that those 16 and 17-year-olds will have very good protection.

I will now turn specifically to the point raised by the requirement for an appropriate adult to be placed for sources aged 16 or 17, which I would like to explore a little bit more. The Regulation of Investigatory Powers (Juveniles) Order sets out a requirement for an appropriate adult to be in attendance at all meetings between a public authority and a source below the age of 16. It must be considered on a case-by-case basis for sources aged 16 or 17, and this is the case for any general authorisation of the CHIS and any specific additional authorisation for participation in criminal conduct, which is what we are debating in this Bill.

Let me be clear, though, that when each case is being considered carefully, there is a presumption that there will be an appropriate adult in place—that is the default position, unless there is a justification for not having an appropriate adult in place. An example of such a justification might be that doing so would not be in the best interests of the child. The best interests of the child are always at the heart of the decision making. If the authorising officer believes that an appropriate adult should not be in place, that justification must be documented, and can be considered by the IPC.

I would caution the House against using examples, whether real or hypothetical—it does tend to be risky to do so, and puts young people at risk—but criminal gangs will seek to apply the scenario that has been set out to their own experience, which could result in them wrongly identifying and putting at risk of harm anyone suspected of being a CHIS. As such, the example suggested by the hon. Member for Walthamstow and by my right hon. Friend the Member for Haltemprice and Howden does not fit with the framework of safeguards that is in place for juvenile CHIS. This could not happen, and we do not recognise the example given.

However, as I said in my earlier remarks, the Government are listening. We will continue to listen, and will do so by means through which we can provide further reassurance about these authorisations. I hope these conversations can continue, and that we can find a means of providing additional reassurance while not risking the safety of a juvenile CHIS. While it is not appropriate to put all 74 pages of the code of practice into the Bill—I think I said “hundreds” earlier, but it is actually only 74 pages— I agree with the right hon. Member for North Durham that it may be appropriate to include some of those safeguards, including confirmation that a juvenile could only be authorised in exceptional circumstances. Not all of the code of practice applies to this Bill, but some parts may, so the right hon. Gentleman makes a perfectly good point.

Turning briefly to Lords amendment 5, I think there is consensus that the additional oversight provided by the requirement to notify a judicial commissioner is reassuring. The commissioner will see all authorisations of juvenile CHIS, and likewise will be able to confirm that all authorisations are compliant with the Human Rights Act.

In response to the question posed by my hon. Friend the Member for Bromley and Chislehurst, let me offer reassurance about what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag any concerns to the authorising officer, and they would work collaboratively to address such concerns. If an authorisation has been granted but the activity not yet started, the judicial commissioner and authorising officer will work together to address those concerns. If the activity has started, the authorising officer must take into account any concerns that have been raised, and will continue to discuss these with the judicial commissioner. It would not be the case that a public authority would simply ignore feedback from the IPCO: it is a collaborative process, and the views of the commissioners carry serious weight. However, ultimately, it would be a matter for the court to determine.



Finally, in response to the right hon. Member for North Durham, who asked whether any concerns raised by the IPC will feature in the annual report, I can confirm that the IPC must include statistics on the use of this power, including any errors and areas where improvement has been recommended.

I hope that I have been able to provide additional clarity and reassurance on these issues, and that the House will vote to reject these amendments.

Question put, That this House disagrees with Lords amendment 1.