Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

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

[Sir John Hayes (South Holland and The Deepings) (Con)]

rose—

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[James Brokenshire]

I will give way twice more and then get into some of the important details that I know right hon. and hon. Members would like me to address.

[James Brokenshire]

I am grateful to my right hon. Friend for that point. The issue of specifici—I cannot even say it; I shall settle for saying the specific authorisations that are granted. They are tightly bound and that is important. That is why we published the guidance that sits alongside the operationalisation of the Bill at the same time as the Bill—to give that sense of confirmation and clarity on how it will operate.

[Mr David Davis]

I hear what my right hon. Friend says about the Human Rights Act, but the defence that the Government put up in the legal case that was brought against them said in terms that the state is “not the instigator” of such activity and

“cannot be treated as somehow responsible for it”.

The memorandum to the Bill states that

“it is to be expected that there would not be State responsibility”.

How is that using the Human Rights Act to underpin the rights of our citizens?

[James Brokenshire]

I know that my right hon. Friend, rightly, takes these issues incredibly seriously. The issues we are talking about go to the kernel of our national security, and equally, our confidence in our criminal justice system and the way in which our operatives, who are there to protect us, act. I do place weight on what he has said.

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[James Brokenshire]

I have been pretty clear about the way this Bill operates and the manner in which agencies and the different bodies that can be authorised are able to act. Clearly, I cannot bind this House for the future, but I am very clear that we stand by our ECHR commitments, which is why this has been expressed in the way that it has in the Bill. I hope that is helpful to him.

[Mr David Davis]

What my right hon. Friend has described is, in effect, a wish not to provide a terrorist checklist, as it were, to test a member of such an organisation. Did he read the article in The Times this morning by probably one of the best Directors of Public Prosecutions of modern times, who would probably know more about this than all of us in this House? It was scathing about that analysis and said it simply did not stand up?

[James Brokenshire]

I am happy to respond to that point specifically. We are not suggesting that there is routine testing of suspected CHIS in all criminal groups, but there is evidence that this does occur more than infrequently, and I say that in clear terms. We are asking CHIS to put themselves in difficult positions to help the state investigate these criminal groups, and it is our judgment that we need to make sure that we can best protect them, and that means avoiding the provision of a checklist of crimes that can be tested against. I note that this risk is not just to CHIS, but to people who are not CHIS but may be suspected of being so.

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[Nick Thomas-Symonds]

I was relieved to have the reassurance that my right hon. Friend’s experience did not involve him personally, but he is entirely right about the reassurances that are necessary in terms of each and every case.

As the Minister has said, there is a section 19 certification from the Home Secretary on the face of the Bill regarding its compatibility with convention rights. In addition to that, I note that in clause 1, what will become the new section 29B(7) of the Regulation of Investigatory Powers Act 2000 mentions the Human Rights Act 1998 specifically. There is a real need for reassurance on this issue, so that the public and the House know that the most heinous of crimes will not be carried out in the name of this Government or, indeed, any other future Government. I appreciate that the European convention on human rights protects the right to life and is clear about the prohibition of torture or, indeed, subjecting anyone to inhuman or degrading treatment or punishment, and that is important, but the Government need to be crystal clear about their intention for when the courts come to consider this legislation, as they inevitably will. We cannot have any doubts about the Government’s intention or Parliament’s intention.

I accept that it is important that the Human Rights Act is, unusually, mentioned on the face of the Bill, and I notice that the accompanying memorandum sets out the following:

“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”

What we cannot have is a position, referred to by the right hon. Member for Haltemprice and Howden (Mr Davis), in which any argument is put on the Government’s behalf in courts or tribunals that this system is not in place covering the activities of covert human intelligence sources, or that this system is somehow free or exempt from Human Rights Act considerations. Nor could we have a situation where there are deliberate attempts to prevent the Human Rights Act from coming into play. That is why we will be pressing the Government on public limits and on their position regarding those limits on criminal activity to be authorised.

[Mr David Davis]

Does the hon. Gentleman agree that, by not specifying in terms, the Government are inviting a challenge to the whole Bill, not under the Human Rights Act but under the torture convention? The international view of torture is more absolute than the international view of murder. Therefore, I think it highly likely that if the Bill goes through as it stands, the Government will be facing the courts within the next year, losing their case and having to rewrite the Bill.

[Nick Thomas-Symonds]

The right hon. Gentleman is absolutely right. If the Bill does not have those safeguards on its face as it should, it will simply be successfully challenged in our courts. It is in nobody’s interests for that position to pertain, which is why I am making this point, on which I hope we can work on a cross-party basis.

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[Nick Thomas-Symonds]

I agree entirely with my hon. Friend, both on the Canada model and on the point, which I put to the Government, that we cannot have a situation in future where there is any doubt about what was meant on the face of this Bill. We cannot have the Government having put forward on their behalf the argument that the Human Rights Act somehow does not apply.

[Mr David Davis]

The Government should not rest too hard on an IPT judgment. It is normal in these intelligence oversight commissions to have unanimity from the judges. In this case it was a 3-2 judgment, and the minority in that judgment described the Government’s argument as “fanciful” and “extraordinary” and as setting “dangerous precedents”, so I do not think they should rest on that at all.

[Nick Thomas-Symonds]

No, and the right hon. Gentleman illustrates precisely the point I am making. That is why the position has to be crystal clear. We cannot have a situation where such arguments are being put in written submissions, or in other ways, before a tribunal or indeed any other court. The public limit—this reassurance—is so important because, as I have said, if the Government do not get it right, and if they are not crystal clear on issues such as murder, torture and sexual violence, they will get into trouble in the courts in any event.

Given the nature of some of the networks that the Bill looks to disrupt, there are also clear concerns about the gendered impact of actions by covert human intelligence sources. The Government must seek to uphold the highest possible standards on gender impact. We will be pushing for such safeguards as the Bill moves forward, particularly in relation to rape and sexual violence. Members have also rightly expressed concerns about the risk of a disproportionate impact on black, Asian and other ethnic minority communities. We will push for safeguards on that, too, as the Bill progresses. When the Solicitor General winds up, I hope he can also provide assurances about the work being undertaken by law enforcement to address that and commit to publishing full and extensive Equality Act 2010 assessments.

On those who make decisions to authorise criminal conduct, the memorandum on the European convention on human rights supplied with the Bill states:

“The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing.”

A legal framework is needed—I am clear that this activity should not continue in the shadows without clear accountability—but at present there is self-authorisation in the Bill.

If the police were to enter the property of any Member of this House, they would need a warrant to do so beforehand. I appreciate that things in this sphere move at speed, but in a number of areas of law we have judges available 24 hours a day who can offer services and give judgments on things such as emergency injunctions, so we will press that issue of prior judicial oversight. The more serious the crime authorised, the more senior the level of authorisation necessary—the right hon. Member for Sutton Coldfield (Mr Mitchell) made that point—subject to that oversight, and there needs to be assurance that the standards that this House sets will be adhered to and implemented.

Clause 4(3) amends section 234 of the Investigatory Powers Act 2016 to require the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in its annual report. It is stated that that will include statistics on use of the power, the operation of safeguards, and errors, which I will come back to in a moment.

I appreciate that that requirement is subject to the existing protections in the Investigatory Powers Act for information that relates to national security. I also appreciate that public authorities will have to disclose all documents necessary to the Investigatory Powers Commissioner. However, as it stands, the requirement is too vague, as was pointed out by the Chair of the Home Affairs Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper).

The requirement must involve more than the inclusion of a section or some sort of confidential annexe in the commissioner’s annual report. There is no reason why, for example, categories of crime cannot be published without compromising operational security. Every single authorisation should be notified to the commissioner, who can then provide ongoing oversight. That seems to me to be a far more effective way of giving reassurance on the operation of safeguards and of ensuring that where there are errors—again, I will return to that—something can be done immediately to ensure that such a mistake does not happen again. It seems to me that if this is looked at only on an annual basis, there is more scope for errors to be built into the system. I do not think it is unduly onerous for each and every authorisation to be notified to the commissioner.

I also see no reason why Members of this House—I mean the Intelligence and Security Committee, which deals with sensitive information all the time—cannot have more detail about the use of this power and in what context. Again, that would give far greater reassurance about the use of the power over time and public confidence in it.

In addition, there is the issue of redress and civil claims for wholly innocent victims. In the memorandum on convention rights, the Government state:

“The individuals who are most likely to be affected by the criminal conduct of a CHIS are those with whom the agent is engaging in order to thwart the criminality.”

That may be, but the key words there are “most likely”. What about a wholly innocent person who ends up with material or other loss as a consequence of the actions of a covert human intelligence source?

The position in the Bill is that a complaint can be made to the Investigatory Powers Commissioner with regard to these powers, which can be independently considered. I appreciate that the Investigatory Powers Tribunal has the jurisdiction to determine complaints against public authorities’ use of investigatory powers, including the use of covert human intelligence sources, but that is not the same as a proper civil claim. What if the authorised criminal act is botched? What if there is mistaken identity? Again, that is something that we will press in Committee.

While there is a narrow but fundamental part of the Bill about authorising criminal conduct, I want to talk about some wider issues. In relation to Northern Ireland, it must be clear that legacy issues are not affected by the Bill in the context of the peace process. On the issue of past injustices, I am grateful to the Minister for setting out again that this is not a retrospective Bill, but it has to be clear that those seeking justice for what happened in the past can still do so. We on the Labour Benches are committed to a full, independent public inquiry into the events at the Orgreave coking plant on 18 June 1984. It will only be by shining a penetrating light on the events of that day that we can have justice, and I commend those who have been campaigning on it for so long.

There is an ongoing inquiry into undercover policing—the so-called spy cop scandal, referred to by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy)—chaired by Sir John Mitting. The evidential hearings open next month, and it has to be clear that recommendations from that inquiry will be implemented and victims will not be denied access to justice. I appreciated the Minister’s reassurance that such appalling behaviour was never lawful in the past and will not be lawful in the future. We must never stand to one side on issues like this. We commit again to pressing for justice for all victims. The delays in the existing inquiry have been unacceptable. Victims have been put through a terrible ordeal, and the least they deserve is access to justice.

I also want to talk about the practice of deceitful and unlawful blacklisting. In doing so, I refer to my entry into the Register of Members’ Financial Interests regarding my union, the Unite union, and its financial support for my election campaign to this House. I appreciate that the Bill is a narrow one on criminal conduct, rather than the wider issue of when an undercover policing operation begins, but since the blacklisting scandal surfaced over a decade ago, it is clear that these are not merely allegations. I appreciate that, in relation to blacklisting in the construction industry, we have seen a substantial out-of-court settlement, and there are ongoing proceedings. However, Deputy Assistant Commissioner Martin’s findings in the Metropolitan police’s internal investigation stated:

“The report concludes that, on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven.’ Material revealed a potentially improper flow of information from Special Branch to external organisations, which ultimately appeared on the blacklist.”

That is a hugely serious issue. The Government should be on notice that we will not hesitate to raise this and hold Ministers to account on the involvement of our law enforcement in the disgraceful process of blacklisting.

[Mr Davis]

I also declare an interest: a member of my family was blacklisted. This concern is not confined to the Labour party. The probable handing on of information from special branch is something that needs to be resolved as part of the honour of our country.

[Nick Thomas-Symonds]

I am grateful for the right hon. Gentleman’s support in that matter, and I am happy that the Minister has made clear that this legislation has no impact on the search for justice in relation to that appalling practice.

The aim of this legislation should be to keep people safe and bring dangerous criminals to justice. I appreciate the assurance that this does not, and is not designed in any way to, disrupt legitimate and lawful trade union activity. Should any Bill do that, it would be opposed by Labour Members.

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[Richard Thomson]

I thank the hon. Lady for that intervention. She makes a number of important points, and we will need assurances on those going forward.

The situation is hugely problematic as it stands, and we do not believe that the Government should attempt to escape their vicarious liability on this issue.

[Mr David Davis]

I am following with interest what the hon. Gentleman has to say, and, unusually, though he is an SNP Member I have a great deal of agreement with him. However, in terms of civil liability, perhaps the simplest test is to look at one of the worst cases in recent times, which is the Finucane murder. Whatever we think of Mr Finucane—I would have different politics from him—he was an innocent party, but even more so were his three children and his wife, who were there when a state-supported group—almost—murdered him with 14 bullets over his Sunday lunch. That is a good demonstration of the point that, if this civil exclusion applies, those innocent parties—the wife and children of Finucane—would have no recourse. That surely cannot be right.

[Richard Thomson]

I thank the right hon. Gentleman for that intervention, and he makes the point very elegantly. If individuals are to be exonerated for actions that have been authorised, where is the redress for the innocent whose lives are impacted? It is right to look at the extremities in terms of where that might lead us.

In giving the state the ability to uphold rights, we accept that we must also give it the ability to have limited powers of coercion to uphold those rights. However, those powers must never be in conflict with the fundamental rights of individuals. In terms of the Bill, the only way we can ensure that is through good governance, effective scrutiny, limited scope and clarity on the limitations; ensuring that there is accountability for the use of the powers; and limiting opportunities for their misuse. I believe those are legitimate concerns, which many will share, both inside and outside this place, and we hope to see them addressed as the Bill continues its passage.

Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis 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

[Mr Carmichael]

I wish to speak also to amendments 14 to 19, which were tabled in my name and the names of other right hon. and hon. Members.

It is worth reminding ourselves at the start why we are debating the Bill and why it is being proceeded with in all the dispatch that is apparent, what with Second Reading having been just on Monday of last week. As we know, the Government had a bit of a narrow squeak—a legal term—in the Investigatory Powers Tribunal, and that case is now going off to the Appeal Court. We are now getting what many of us, including those in Reprieve who brought the case to the IPT, have long asked for, and that is a regulatory statutory footing on which the very difficult decisions undertaken by the police, special branch, the security services and others should be done. That is something on which there is broad consensus, which was reflected in the attitude of the House, for the most part, on Second Reading. However, as was apparent from the debate on Second Reading, many of us in different parts of the House have serious concerns about the way in which these matters are being put on to this regulatory statutory footing.

Essentially, it seems to me that the Government have been brought to this point somewhat grudgingly. They have said, “Yes, we will put these things on to a statutory footing, but we will do it in such a broad and general way that, in fact, we will be able to continue to do whatever we have done in the past.” They are seen to embrace change in a way that allows them to continue to behave in the way they have always done. I suggest that that is not, in fact, sensible for any number of reasons. It defeats the purpose of putting these things on to a statutory footing, but I am pretty certain that, sooner or later, it means we will be back here looking at a future Bill because this one is not fit for the purpose the Government claim for it.

The point made repeatedly on Second Reading is that many of the concerns that I and others have, which are reflected in the amendments, are in fact covered by the Human Rights Act 1998. One of the difficulties I have with that is that, throughout their pleadings in front of the IPT, the Government said that the Human Rights Act does not, in fact, apply to the actions of those responsible for covert human intelligence. When we eventually hear from the Minister, could he address a couple of points? First, will this new attitude towards the Human Rights Act, in its applicability to the activities of covert human intelligence sources, be reflected in the pleadings of the Government when it comes to the Appeal Court?

Secondly, can the Minister confirm that the Bill will allow these sources to operate overseas? That being the case, what view do the Government take of the application of the Human Rights Act to the activities of these sources overseas? The position of the Government hitherto has always been that the application extraterritorially—overseas—of the Human Rights Act would not cover these instances, so it is difficult to see if there would be any protection at all in relation to activities overseas.

[Mr David Davis (Haltemprice and Howden) (Con)]

I might be able to help the Government along with this. It appears that the power to authorise a covert human intelligence source to commit crime outside the UK as well is provided for under section 27(3) of the Regulation of Investigatory Powers Act 2000, which states that conduct authorised under part II of that Act

“includes conduct outside the United Kingdom.”

[Mr Carmichael]

With help like that, I am not sure that the Government necessarily need any obstruction. Yes, I am certain that this provision is in the Bill for a reason, but we do need to hear from the Dispatch Box about the relationship between the Human Rights Act and activities that would be carried out overseas. When we hear from the Minister, I hope that he will address that point.

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[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and I very much agree with a great deal of what he has said. I hope the Minister will be able to prove to us why it is not necessary to pursue some of these amendments, but I think the right hon. Gentleman put his case very well and very moderately. I appeal to the Minister, who is himself a moderate and considered man, to think about whether it is not appropriate to look at some of the detail of the Bill rather than the thrust of the objective, which we all absolutely support.

I will, if I may, touch on some of the amendments. The broad principle that I have, again rather like the right hon. Gentleman, is that, of course, there will be certain circumstances when it is necessary in the national interest for the brave operatives of our security services to have the power to take actions that might not otherwise be countenanced in the ordinary run of life. I accept that, sometimes, there are people who have put their lives on the line for the country’s sake and that there are circumstances in which they are entitled to protections. I do not have any problem with that, but it is the broad breadth nature of the Bill that is a concern to many of us. Those of us who have served in Government have come across those tempting occasions when submissions come along, and civil servants say, “It will be useful to draw on this widely, Minister, because x, y or z circumstance may occur at some point in the future, so it is better to have this in reserve—in the back pocket.” When one is dealing with things that touch on the exceptional circumstance of the state or its agents being permitted to break the criminal law, or potentially do harm of one kind or another—perhaps out of necessity, but none the less do harm to others—we should be pretty tight in circumscribing those instances as far as we can. We should ensure that, at the very least, there is proper oversight either beforehand when it is appropriate or thereafter by way of proper parliamentary scrutiny—I will come back to that in a moment.

That is why I do not take the line of the official Opposition’s amendment that there should always be pre-authorisation, but I do think, as a basic principle, that there ought to be pre-authorisation at the appropriate level, be that by the judicial commissioner, a prosecutor or another appropriate authority, wherever possible. That ought to be the starting point unless there is some ground, such as a matter of emergency, perhaps literally of life or death, or of the highest importance, where it is not possible to do that. I would like reassurance from the Minister on the test that will be applied as to when these powers will be used, prior to authorisation by a responsible, vetted and highly dependable individual of the kind that we are talking about. That is the first point on which I would like the Minister’s reassurance, and the point about guidance is well made, as far as that is concerned.

My second point, on amendment 20, which has been referred to, is on the position of the exclusion of civil liability. Again, there may be certain circumstances where it is appropriate for agents of the Government to act in a way that may cause some harm to others. A lot of people might not have too much concern if the target of the operation is an organised criminal or a terrorist, or someone who is a threat to us all, but I am concerned that the way in which that particular clause is drawn would also prevent the innocent victim of what might have been an otherwise necessary action—a person who is the collateral damage—from seeking civil redress. I am talking about somebody who was not the target of the steps that were taken but was caught up, literally, in the incident that occurred. Is it really fair or just to say, “Well, that’s just hard luck,” and exclude them from any liability?

The number of cases that this might engage are probably very limited, but the principle is important—someone who has done no harm to the state should not be the victim by happenstance of something that might necessarily and properly have been done in the state’s interests. If we give the state and its agents that power—perhaps reasonably enough—it is not unfair to say that there should be some safeguard for those who, through no fault of their own, might be damaged by it in some way. I hope that the Minister will reflect on that carefully.

There is also the point in the amendments that touches on the authorisation of certain very grave crimes. I appreciate what the Minister said about the intention that our adherence to the Human Rights Act—which I was glad to see the Lord Chancellor restate the other day—is protected, but if that is the case, and given the importance of the subject, why not put that on the face of the Bill? What is lost by that? Should at any time any future Government—I hope not this one—ever derogate in any way from the Human Rights Act, it would be better to have the protection there. My next point is about the scope of the agencies. As the right hon. Member for Orkney and Shetland said, it is pretty difficult think of what types of extreme violence might be authorised in the national interest by the Food Standards Agency? Some greater particularity around that would not be a bad idea either.

I will touch on the point that arises from amendment 13, which is in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and others. It is important because, if we are attempting to adopt a similar approach to our important security partners, why not adopt the same approach that is appropriate in the United States or, I would say, perhaps even more persuasively, Canada? It is a Commonwealth and common law jurisdiction country, which has had no difficulty operating a security regime like our own, with operational efficiency but equal concern for protection against abuse. It has found it perfectly possible to work within a statutory parameter of the kind that is suggested. I would like to understand from the Minister a little better why he thinks that that is not appropriate and why that might not be a safeguard to brave operatives under certain circumstances against the bringing of an unjustified complaint or litigation against them.

[Mr David Davis]

One distinction between amendment 13 and others is that it gives the Director of Public Prosecutions the right to make a judgment. Even if a person has behaved very unlawfully and committed serious crimes, the DPP is allowed to exempt him if he was in fear of his life.

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[Bell Ribeiro-Addy]

The hon. and learned Member is absolutely right, and that is why we cannot be comforted by those assurances. They would have to be put on the face of the Bill for us to have any assurance that the Government would not move forward in that way.

It is unfortunate that the Government are laying down a Bill like this, at a time like this, without putting in place clear limitations and proper oversight to prevent what are the gravest violations and curbing the use of such powers for political reasons. Our democracy has to be protected and our rights have to be upheld. Our police and security services should exist to uphold the rule of law, not break it. I therefore urge all Members to vote for the amendments and, if they are not passed, to vote against the Bill.

[Mr David Davis]

I will pay attention to your encouragement to be brief, Mr Evans. Although I support the intent of the amendments in the name of the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the right hon. Member for Orkney and Shetland (Mr Carmichael), and the hon. Members for Streatham (Bell Ribeiro-Addy) and for Walthamstow (Stella Creasy), I will focus solely on amendment 13.

There is no doubt that there is a need for a Bill like this. Infiltrating terrorist gangs and going under cover as an informant is dangerous and risky work which often requires breaking the law, and the Bill enables authorisation of those breaches of the law. However, amendment 13, in my name and in those of others, explicitly exempts the most serious crimes of murder, torture, rape and others from powers in the Bill. The Government argue that that is not necessary because the Human Rights Act already limits their actions. The question before the House today is this: do we believe that? Do we think that that is sufficient?

Back in the early 1990s, I was one of the Ministers who took the Intelligence Services Act 1994 through the House. Section 7 of the Act enabled MI6 officers abroad to commit crimes in the interests of the state. Inevitably, in the tabloid press, it became known as the James Bond clause, but that is precisely what it was not. It was not a licence to kill. It was a licence to bribe, burgle, blackmail and bug, but it was not a licence to kill. Nevertheless, within a decade, section 7 was being used to authorise rendition, torture and the mass invasion of innocent people’s privacy—crimes that were never countenanced when the Act was put in place. I know that, because I did all the work behind it. It should be understood that the authorisation of those crimes, often within the United Kingdom, occurred after the Human Rights Act had been passed—indeed, while the ink was still wet on its pages in some cases—and it provided precisely zero protection. Likewise, the European convention on human rights, the international convention on torture and the 1949 Geneva convention, to all of which we are signatories and some of which are absolutely binding in law, provided no protection whatever.

[Mark Pritchard (The Wrekin) (Con)]

My right hon. Friend has huge experience in this area, both legislatively and professionally. He is an expert. If a checklist, as he suggests, is put in the Bill, is that not also a checklist for terrorist gang leaders to prove a rite of passage and loyalty to somebody who might be working covertly on behalf of our national security interests?

[Mr Davis]

I will say a couple of things on that. First, if the gangster is smart enough to read the Act, he is smart enough to read the Human Rights Act. Secondly, I put a specific reference in amendment 13 to the Director of Public Prosecutions, so that if my hon. Friend is in such a circumstance and he has to do something violent to prevent himself being killed, that is an exoneration for the DPP. So it specifically allows that clouding, if you like, of the judgment. I draw his attention to the intervention in The Times last week—I was going to mention it later, but I will mention it now—by one of the best DPPs of modern times, Lord Ken Macdonald. He is not of my politics, but he is very, very experienced and he knows all about these things. He described this as Soprano-watching judgments and Soprano-watching logic. I am afraid that I agree with him, and I will come back and illustrate why in a second.

Officers in the intelligence and policing agencies can face huge pressure to authorise improper criminal activity, particularly when the demands on the agencies themselves become enormous. We saw that after 9/11, when after the dodgy dossier we had all the rendition issues. I always said in those days that we should not prosecute the individuals, because they were trying to prevent a 9/11 happening in Canary Wharf, but it was still wrong. Those morally indefensible actions by the state and their agents occur at the darkest times in our history, and we must remember that. We must write our laws to cope with the darkest times in our history, which is what we are trying to do here today.

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[Mr Carmichael]

On the point about rendition, the right hon. Gentleman will recall the Intelligence and Security Commission, when considering the Belhaj and Boudchar cases, said that in effect our services had outsourced work that they were not allowed to do in law themselves. Does not that alone indicate that those services require proper independent scrutiny? They should not be left to mark their own homework.

[Mr Davis]

The right hon. Gentleman is right, and we should not forget that the clause that was used requires ministerial approval, not approval by an officer under the pressure of, as it were, almost the battlefield sometimes. A Minister in Whitehall approved it, and it still happened. There were two sets of inquiries into those problems, one by Lord Stevens, who is nobody’s softy, and one by Sir Desmond de Silva. The latter concluded that the problems required some recognised limits to the extent to which agents should become involved in criminal enterprises and a rigorous regulatory framework to prevent abuses—not a woolly reference to the Human Rights Act.

[Sir Robert Neill]

I am glad that my right hon. Friend is making a powerful speech, referencing not only Lord Stevens of Kirkwhelpington but the late Sir Desmond de Silva, whom some of us knew personally and who came up with his conclusion from his long experience at the criminal Bar and also the experience of being a prosecutor in the international war crimes tribunals. He was certainly no soft touch, and he was used to going after bad people, but believed it was necessary to do so within proper constraints.

[Mr Davis]

My hon. Friend is absolutely right. Sir Desmond did something else in his report: he quoted Lord Atkin, who, in a landmark case during world war two, said that

“amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

I am afraid that the Bill, necessary as it is, does not meet that test, and that is the problem.

[Mark Pritchard]

Will my right hon. Friend give way?

[Mr Davis]

You will kill me, Mr Chairman, but I will give way.

[Mark Pritchard]

My right hon. Friend rightly mentions the Pat Finucane case which David Cameron, as Prime Minister, correctly apologised for, but does my right hon. Friend recognise that since then the security services have more judicial oversight than ever before? We did not then have the Investigatory Powers Commissioner, and even the powers of this House for more oversight of the security services have increased. There has been a marked difference. Times have changed.

[Mr Davis]

Well, they have changed a bit. One of the things that the Intelligence Services Act 1994 created was the Intelligence and Security Committee. The Committee tried to look into rendition and torture just recently, under its previous Chairman, and it was refused access to 15 cases, so I am now suing the Government on exactly this matter, to force them to have to have a proper judge-led tribunal. So even now, it is not good enough; after 20 years, it is still not good enough.

The trouble is that others do it better. America and Canada learned the hard way about the need to include specific limits on the crimes that agents can commit. In those countries, informers and their handlers were involved in carrying out numerous cases of racketeering and murder, and they were found out. Since then, both countries have set clear limits. Just as an aside on the overall public interest, we all want our agencies to be able to work, but the FBI investigation found that the lack of limits and the wooliness of the controls led to more crimes, not fewer, so the so-called Soprano effect worked in reverse in terms of protecting the public interest.

The Bill puts no express limits on the crimes that the agencies can authorise—not on murder, not on torture and not on rape—and it claims that the Human Rights Act provides a safeguard. However, their own submissions in court, which have already been referred to by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the right hon. Member for Orkney and Shetland, showed that their own lawyers do not believe that. If Members have a bit of quiet time travelling back to their constituencies, they should read the Investigatory Powers Tribunal’s findings on the behaviour of the agencies. It is almost a James Bond novel in its own right. The scathing descriptions of the operations are worth reading.

Amendment 13, tabled in my name, addresses the most egregious elements of the Bill. It puts hard limits on the extent of criminal conduct that can be authorised by officers, and it specifically prohibits murder, torture, serious bodily harm, sexual assault and other heinous crimes. Crucially, it explicitly permits prosecutors to drop a case in a situation where an agent is truly forced to participate in a serious crime and where a decision not to prosecute is in the public interest. There is a real need for legislation in this area, but the Bill as it stands carries real risks of serious injustice. My amendments would give the intelligence services the protections they need, but stop short of giving them carte blanche authorisation to carry out the heinous crimes in the name of the state that have happened too often in the past.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It is an honour to follow the right hon. Member for Haltemprice and Howden (Mr Davis), and I agree with much of what he has said. I think there is agreement in this Chamber that we need this legislation, because the hallmark of a grown-up democracy is that it does not shy away from taking the necessary actions to keep a country safe, and nor does it say, “Don’t ask, don’t tell.” This legislation puts on a statutory footing those practices that are part and parcel of security in this country. The question for all of us is whether it also provides the necessary accountability and oversight to ensure that they are just. I recognise that covid and the speed with which this legislation has been brought through militate against our doing our job properly on this, because we are doing it so quickly, but today I want to flag up one particular issue of concern. I suspect that it will be in the other place that we will see progress on these issues.

We know that this is a narrow Bill with a specific role around criminal conduct. I also recognise and understand the concerns that my hon. Friend the Member for Streatham (Bell Ribeiro-Addy) raised—I am sorry that she is no longer in her place—about the ongoing inquiries and the timing of this legislation. I hope the Minister will address those points in his comments and tell us what the Government would do, should those inquiries come back with further requirements for support. I also want to put on record my support for amendment 13 and for the Front-Bench amendments from my own party.

We recognise that there are genuine concerns about the Human Rights Act. In other debates in this place, people have talked about rewriting the Act, and I hope the Minister will deal with that issue. Also, it is a circular argument to suggest that the practices set out in amendment 13 and the amendments from my own Front Bench are already covered, if the Government will not accept amendments to ensure that they are part of how this legislation is dealt with.

I also hope that the Minister will talk about the equalities impact of the legislation. I represent a community that has, at best, a tangled relationship with many of the agencies that will have these powers. We are in a position of privilege in this House, so it is right and proper that we have oversight of those who do not share those same benefits.

I rise to speak in particular to new clause 8—especially the issue at the heart of this legislation, which for me is about the people who can consent to be a covert human intelligence source. It is worth looking at the definition:

“Someone who maintains a relationship for the covert purpose of providing information to another person”—

that is, not just someone who has a one-off conversation with our security services or police about something, but someone who is asked to maintain what is potentially a position of harm to support an investigation.

The right hon. Member for Haltemprice and Howden talked about the James Bond code. In most of our discussions about CHIS, we have envisaged those James Bond figures—the people from our security services or police conducting covert investigations. But I want to talk about those who are not the James Bonds: the children and vulnerable people who become covert human intelligence sources and who need us to make sure in this legislation that they are properly protected.

For the last year, there has been a legal challenge to the Government about how children have been used as covert human intelligence sources. It was settled last week in the High Court, when the Government agreed to update their guidance and code of practice on how children could be involved in this legislation. It is worth taking a step back at this point to reflect on that: we are talking about young people—children being asked to do what we previously envisaged James Bond doing. I hope that I am pushing at an open door with the Minister with the new clause because that code of practice and the recognition at the High Court that there was a case to answer reflect the fact that we need to get this right.

Our first instinct may be that no child should ever be involved in intelligence work in this way, and I sympathise with that. But when we look into the cases where it has happened, we see that there may be exceptional circumstances in which a child may become an informant. It is right, therefore, that we should have incredibly strict guidelines that have the interests of that child at heart when that happens. I am open to the idea that understanding what constitutes those exceptional circumstances is very difficult, but the new clause comes from the belief that the child’s primary interests should be, as a matter of fact, at the heart of any engagement with state services.

Let us talk for a minute about the children we are discussing. For many of us who represent communities where issues such as county lines are a real problem, they are the children in the gangs and those who have been part of child sexual exploitation, who may know valuable information and have relationships with those exploiting them. For the police and the security services, they become incredibly valuable sources of information.

Those are important investigations—nobody is suggesting otherwise. But the new clause recognises that there may be a conflict of interest between the investigation and the best interests of an incredibly vulnerable person. A young child drawn into county lines who knows the people organising things and has been given a gun—I can think of such cases—is still a child. We have a duty to that child to ensure that they are not exploited, even if people feel that the investigation is merited.

The Minister will say that that happens very rarely. The Government’s own figures show that 17 children in 11 jurisdictions were used in this way in the past couple of years. One of them was just 15—a 15-year-old child being asked to continue a relationship that puts them at harm because that helps an investigation. What troubled me was that one of the other Ministers told the court that we should actually make more use of children in such circumstances—that they could be valuable because they were getting involved in criminal activity themselves.

Again, take a step back and think that through. In other parts of our legislation, we recognise that when children engage in harmful practices it is our duty to stop that. Yet in that court case and this process with CHIS, Ministers are saying, “Actually, we might want to maintain that because it will help with an investigation”—the children would have “unique access” as “juvenile undercover agents”. They are children, Minister, and it is absolutely right that we act to protect them and see them as children first. That is what new clause 8 seeks to do.

Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

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

[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.

[Mr David Davis (Haltemprice and Howden) (Con)]

My right hon. Friend does great service to this House and the Committee. Given what he has just said, does he believe that these terrorists are unable to read the Human Rights Act?

[Dr Lewis]

I have the advantage of having been present when my right hon. Friend made that very point on Second Reading, and therefore I was entirely prepared for that intervention. I will give a response that is perhaps slightly unorthodox, despite the emphasis put on the Human Rights Act by my right hon. and learned Friend the Solicitor General.

In my previous role as Chair of the Defence Committee, it became more and more obvious that the Human Rights Act, and the European convention on human rights, had had serious, and perhaps largely unanticipated, adverse consequences for the operations of our military. I suspect that if applied too literally, they would have equally adverse effects on the operations of our security and intelligence services. As the years go by, and as experience shows, I fully expect that there will have to be amendments to the Human Rights Act. I believe that although terrorists could indeed read it, they would take rather more seriously a categoric list of forbidden offences in the Bill than they would the rather generalised content of the Human Rights Act. I do not expect my right hon. Friend to be wholly satisfied with that, but it is my honest opinion.

Consequently, terrorist groups whose operations might have been compromised by technical means, rather than by human infiltration, would be likely to ask their genuine members to commit more and more forbidden offences, simply to prove their loyalty. The outcome would inevitably be an increase in murders and other serious offences on their lordships’ list, which would not have happened but for the incorporation in statute of such a collection of prohibited crimes.

As I said earlier, the ISC has had a comprehensive briefing from MI5, explaining how those authorisations are used in practice. We are convinced that the Security Service uses them appropriately and proportionately. We are also reassured that the measures in the Bill legalise only what is specified in each criminal conduct authorisation. That means that any other criminal behaviour not covered by the terms of a CCA may be subject to prosecution—a safeguard that will hopefully encourage the House to reject Lords amendment 2. This is one of those occasions when it is necessary—really necessary—to keep our enemies guessing.

--- Later in debate ---

[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.

[Mr David Davis]

As I was listening to the right hon. Gentleman’s very thoughtful speech, it occurred to me that it might be a mistake to have the same Bill cover the security services and everything up to and including the Food Safety Agency.

[Mr Jones]

I have to agree. One thing I do not agree with about the Bill is the scope in terms of some of the organisations that it covers; I raised my concerns about that on Second Reading.

Use of CHISs disrupts child exploitation, county lines, organised crime and—increasingly, when it comes to the security services—right-wing extremism, for which human intelligence is part of the suite of intelligence gathering that those services need to use. I do not agree with Lords amendment 2.

Lords amendment 4 is about juveniles. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), who has raised what is clearly an emotive issue. I think that covert human intelligence sources should be authorised for the investigation of juvenile criminality only in very exceptional circumstances. But as the Solicitor General said, the impression being given again is that somehow the Bill for the first time gives our security services or police the ability to authorise juvenile covert human intelligence sources. It does not: the ability is there already.

When I intervened on the Solicitor General, I referred to the CHIS code of practice. The Regulation of Investigatory Powers (Juveniles) Order 2000 sets out the additional safeguards relating to junior CHISs. The Government need to find some way of incorporating that in the Bill. The Solicitor General said that it was rather long, but something needs to be there, to answer the issues being raised. I accept—I have seen evidence of this—that there are occasions when junior CHISs are needed: work around county lines gangs is just one example. But the provisions need strengthening, and I ask the Solicitor General to look at that when the Bill goes back to the other place.

Lords amendment 5, on judicial oversight, is important. It is important that the Investigatory Powers Commissioner looks at these issues. Personally, I am not in favour of pre-authorisation because, having spoken to MI5 and seen the transcripts of at least one of the interviews in one terrorist case, I see that these situations are dynamic. It would be very difficult if authorisation had to be obtained every time.

However, I am very much in favour of the Investigatory Powers Commissioner having scrutiny over the authorisations afterwards; that would allow an extra tier of judicial oversight, which would certainly knock on the head some of the nonsense we have heard about the Government or the security services being given the powers to murder people. I asked the Solicitor General about the annual report because it is important for public transparency and scrutiny of this place. I welcome what the Solicitor General said about bringing back an amendment on the issue. That would also allow us on the Intelligence and Security Committee to have some scrutiny.

Like my hon. Friend the Member for St Helens North, I am a little disappointed that Scotland has not agreed to this; to protect the public, it is vital that it does. However, I am reassured by what the Minister said in the House of Lords about that not in any way limiting MI5 operations in Scotland in the national security interests of the whole UK.

Finally, I turn to the issue just raised by the right hon. Member for Haltemprice and Howden (Mr Davis). If I have one big concern about the Bill, it is the Christmas tree of other agencies that are to have these powers; I have not yet personally been given a good explanation of why the Food Standards Agency needs them, for example. I am quite comfortable and satisfied not only that the security services, police and other agencies are able to run CHISs, but that they do it. They know what to do, they do it on a regular basis, and they have officers with huge experience. That gives me some reassurance that the operation of the Bill, when it becomes law, will be done properly. I would like some convincing that the Food Standards Agency and others that use these powers on a less regular basis will necessarily have that thoroughness.

Let me conclude by again thanking the Solicitor General and the right hon. Member for Old Bexley and Sidcup, who have interacted on the Bill with Members across the House, and by once again thanking the men and women of our security services.

[Mr David Davis]

May I, too, start by paying proper credit to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)? James is a very old friend, a very long-standing colleague and an old protégé of mine. I spoke to him only a few days ago, and I have to tell the House that, given the seriousness of the operation that he is facing, he is both calmer and braver than I would be. We wish him well.

The origins of this Bill are, to say the least, somewhat doubtful. It started out with a circumstance where the state faced the prospect of being taken to the English courts over its current practice of giving many state agencies, including the Food Standards Agency, the right to authorise any criminal activity by their informants or agents, and having that power taken away from it. That is the origin of this Bill; that is where it comes from.

So what did the Government do? They cobbled together all the existing practices of their various police, intelligence and other agencies, good and bad—there were both good and bad—and set out to put them into law. That is not just theoretically problematic; it does not work perfectly today. For example, the Investigatory Powers Commissioner uncovered a case a couple of years ago where an MI6 agent or informant clearly very seriously broke the law, in breach of the guidelines he had been given, and the agency did not even inform the Minister before it carried on and allowed him to do the same again.

I am not prissy about the operation of our intelligence and police agencies. I was one of the Ministers who took through this House the Intelligence Services Act 1994. That is the one with the so-called licence-to-kill clause—the 007 clause, section 7 of that Act—which explicitly permits the action of the agencies to commit crimes under English law, but with restrictions and ministerial oversight built into it.

Nevertheless, this Bill, unamended, in my view goes too far, as is demonstrated by the fact that the amendments in front of us today were voted for in the Lords by a past Cabinet Secretary, a past Home Office permanent secretary, a past Foreign Office permanent secretary, a past National Security Adviser, a past Director of Public Prosecutions and a past reviewer of our counter-terrorism legislation—every single one of them more familiar at a close and tactical level than any Minister serving in Government. That is not meant as an insult; it is just a fact of life.

I have sympathy with many of the Lords amendments, but the business before us today contains, in my view, two vital amendments passed in the other place: Lords amendment 4, concerning the use of children as agents; and Lords amendment 2, placing limits on the type of crime that can be sanctioned. Both are entirely sensible amendments that significantly improve the Bill.

Let me start with child spies. The use of children as undercover informants is, in my view, very largely a morally repugnant policy. It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place. The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs, or continuing victims—continuing: that is the important point—of child sexual abuse, when they are recruited as intelligence sources. We should normally be seeking to move heaven and earth to remove these children from their horrible situations. Instead, the Bill would allow them to be sent back into harm’s way with minimal safeguards in place.

I am speaking from memory here, so I hope I get this exactly right, but in the other place, an example was given of a 17-year-old who was basically sold for sex to a variety of people, along with a number of other young women and children—legally, children—under one of these CHIS arrangements, and this was allowed to continue. The result was that the child involved was the witness to a murder, and not just the witness: she was effectively coerced by her circumstance into helping to cover up the murder, having to hide the evidence and so on. This was a youngster who had been a product of the care system, who had bounced from authority to authority—as we have seen happen in so many terrible cases—yet she was left in these circumstances in pursuit of getting more information about the criminal she was under the control of.

The Bill also raises the possibility of 16 and 17-year-olds being authorised by any of a number of different agencies to spy on their parents. These agencies include police forces and the intelligence services, but it also extends to the others that the right hon. Member for North Durham (Mr Jones) referred to earlier. Do we really want to give such arbitrary and unfettered powers to such agencies? I, for one, do not under any circumstances. Amendment 4 would limit the deployment of child spies to exceptional circumstances, where all other methods to gain information have failed, and only if there is no risk of any reasonably foreseeable harm. We are not talking about MI5 or MI6 here, but about police agencies that are dealing with people, no doubt in county lines operations, sex trafficking operations and so on. Their first duty is to rescue the child, so it is an entirely sensible amendment, which I will support. It introduces real, meaningful safeguards that have been endorsed by the Children’s Commissioner.

However, on its own, amendment 4 is not enough. In its current form, the Bill also allows organisations to permit their employees and informants to commit criminal activity, with no express limit on the crimes that can be authorised—a point addressed by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee. In my view, this lack of an express limit is wrong. It can never be right for the state to authorise the gravest of crimes—we are talking about a narrow group of crimes here: torture, murder, or sexual violence—yet that is precisely what this Bill will do if left unamended. I am as sceptical about the human rights protections as my right hon. Friend, but for different reasons, and I will explain why. For a start, allowing this type of behaviour puts us out of step with our international allies. Our Five Eyes security partners recognise the need for limits. Australia, Canada, and nowadays America all have common-sense limits on what their covert agents can do to prevent this line from being crossed. We must now do the same.

Lord Carlile of Berriew, who frankly is a long-standing opponent of mine in these things—he mostly takes the authoritarian state line, despite the fact that he is nominally a liberal—has described this Bill as the most constitutionally dangerous legislation presented in his working life. I agree, which is why I support Lords amendment 2, which places clear, common-sense limits on the crimes that covert agents can be authorised to commit, ensuring that the worst crimes such as murder, torture and rape can never be authorised. It mirrors an amendment I tabled in Committee in the Commons, and if the CHIS Bill becomes law without those limits, it is almost certain to be challenged in the courts and may eventually be overturned. This will not be the first time we have been here: those who have been here for some years will remember the Data Retention and Investigatory Powers Act 2014, which went through the same process. Tom Watson and I took it to court; we won, and the Government had to rewrite it. I hope we do not have to do the same with this Bill—it would be unwise to repeat that experience.

Let me explain why that is a risk. The argument made by some hon. Members, particularly those on the Intelligence and Security Committee—who have close involvement with this issue, and whose experience I recognise—has to be put up against one test: if it is impossible for us, why is it not impossible for Australia, America and Canada? They can operate; why can’t we? The Government have to answer that question, otherwise I think they will find that this Bill will not stand.

There are real risks to providing these powers without limit. At the end of last year, the Investigatory Powers Commissioner reported that he had identified several weaknesses in MI6’s agent-running practices in the UK, leading to several errors, and, even worse, that high-risk covert agents had indulged in serious criminality overseas. Only this morning, MI5 confirmed in court that it would authorise one of its informants to carry out murder as part of its activities. So much, frankly, for the safeguards of the Human Rights Act. If MI5 is willing to say that in court, where in this exercise is the protection of the Human Rights Act, which was the Government’s defence last time and, indeed, the Minister’s defence today?

There is a real need for legislation in this area; I agree about that with pretty much everybody who has spoken. This is better in law than in some standard written inside an agency, with all the influences that being inside an agency brings to bear on it. There is a need for legislation, but this legislation is, bluntly, thrown together. In many ways, it incorporates some of the worst elements of the preceding arrangements, which need to be put right. The Minister kindly said that he will be listening before the Bill goes back to the Lords for amendment. I think there are amendments that could meet most of the concerns of those who have spoken, and that is what I would like to see before it goes back to the Lords.

--- Later in debate ---

[Sir Edward Leigh]

I would like to associate myself with the arguments that have been adduced today by the Solicitor General and by my right hon. Friend the Member for New Forest East (Dr Lewis). I am afraid that I must disagree with my other very good friend, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Nobody doubts his complete honesty and passion in these matters, and I hope that he does not accuse me of being an authoritarian, because I really am not. I hope I am as committed to civil liberties as anybody, but we are under a ruthless attack. The Minister mentioned 28 attacks, and we all know the appalling atrocities that have been committed on our streets in recent years. We all know about the Manchester bombing and about Lee Rigby. The list is endless. We all know that there are absolutely ruthless people who care nothing about our values and who are prepared to destroy and kill innocent people. This is not a game of cricket, and we cannot play and defeat these people by traditional policing methods. We cannot rely simply on bugging their mobile phones. As my right hon. Friend the Member for New Forest East, who speaks with more experience than anybody else as Chairman of the Intelligence and Security Committee, said, we rely absolutely on covert intelligence sources: people going into these organisations and acting with extraordinary bravery.

I understand the motivation of what has been said in the other place, and I can understand why people are adducing these arguments based on human rights, but there is a possibility that if we were to accept these Lords amendments we would be putting the lives of our own people at risk. The most powerful point made by the Solicitor General was almost at the beginning of his speech when he said that the state should not prosecute people for actions that the state asks them to do. These people are working for us. They are working to defend our people, and I have to say to my right hon. Friend the Member for Haltemprice and Howden that if it is a choice between my daughters being blown up on the London tube and there being some slight and occasional infringement of the human rights of terrorists and potential terrorists, I know where my choice is. I think that the public are also on this space.

[Mr David Davis]

I do not think that my right hon. Friend was in the Chamber for the beginning of my speech, because I was going to refer to him and tell him that I did not agree with him that the Blairite approach to terrorism worked at all. Indeed, I think it made it considerably worse. In my speech I listed a whole series of people—the Home Office, the Foreign Office, security and prosecution specialists—who knew their way around this like the back of their hand, and they were not making the recommendations because they thought they needed to uphold some civil liberty. They were making the recommendations because they thought that what they were proposing worked better than what the Government were proposing, and that is what I think, too.

[Sir Edward Leigh]

I apologise for missing that. I was summoned in to see the Speaker, as I warned the Deputy Speaker, so I missed that part of my right hon. Friend’s speech, but I listened to everything that was said in the early part of the debate, and I followed it carefully. I made an intervention on the Opposition spokesman, and I still believe it. I frankly trust Mr Blair and Mr Brown more than I trust the former leader of the Labour party on these issues.

[Sir Edward Leigh]

Of course I agree with that, and I wanted to make that point as best I could. It is quite a weak argument to say that, because certain people who have been in authoritative positions make a certain argument, that it is therefore a clincher in argumentation. Actually, the point put by my right hon. Friend the Member for New Forest East was far more powerful, frankly. He was adducing a specific example. If it is laid down in statute that a covert agent cannot take a particular action, that is an invitation to terrorist or gangster groups to have an initiation ceremony based precisely on what is forbidden by Parliament. I thought that that was a completely unanswerable argument.

[Mr David Davis]

rose—

[Sir Edward Leigh]

But if my right hon. Friend wants to defeat it, let us hear it.

--- Later in debate ---

[Mr Davis]

I knew my right hon. Friend would liven up the debate. The test is not the test of authority. It is an empirical test. America, Australia and the other Five Eyes all have these limitations, and their intelligence agencies seem to work perfectly well.

[Sir Edward Leigh]

So he says, but I am no expert.

[Sir Edward Leigh]

Exactly, and I hazard a guess—as we have seen with the covid outbreak—we are a uniquely open society. We have very large levels of immigration. We have large minority communities. By the way, 99.9% totally oppose terrorists, do not believe in that and all the rest of it, but we know we are fundamentally and hugely vulnerable as a nation, probably much more vulnerable than Australia or New Zealand, so the fact that Australia does certain things does not apply. Personally, speaking for myself, I would rather listen to arguments from my right hon. Friend the Chair of the Intelligence and Security Committee, who has been briefed by MI5 and MI6, than to arguments adduced at second hand by my right hon. Friend the Member for Haltemprice and Howden, who tells me that in New Zealand and Australia they do things in a different way and are at no higher risk. In any court of law, the evidence adduced by my right hon. Friend the Member for New Forest East is more powerful than the arguments adduced by my other right hon. Friend.

We have just heard a passionate defence of children. No one denies the commitment of the hon. Member for Walthamstow (Stella Creasy) to the welfare of children, but when I was reading about this debate in some Sunday papers and other parts of the media at the weekend, it gave the impression that we were almost going back to Stalin’s Russia, and getting children to spy on their parents. This is ridiculous—we have to have a sense of proportion. We live in the United Kingdom. We have a system of law. Can we not trust our operatives in MI5, MI6 or the police force to act proportionately and in a necessary way?

[Mr David Davis]

No. That is why we have the law

[Sir Edward Leigh]

I am sorry, we already have human rights legislation—my right hon. Friend places a lot of faith in that. Like my right hon. Friend the Member for New Forest East, I think we have seen numerous instances where our armed forces have been treated appallingly in the past. There is great public concern about that. We do not want to put our security services, who are living in an infinitely more dangerous world, in the same position in which we put our armed forces. The Bill as it stands is proportionate and reasonable, and there has to be an element of trust. Personally, I think that it is extraordinarily unlikely in our country that MI5, MI6 or the police forces would act in such a way that if we knew what they were doing we would be horrified and think it was corrupt or that they were somehow abusing children. I suspect that if we use minors who are 16 or 17 in a certain way that is done very carefully. I suspect that we are not initiating any new behaviour at all and we are rescuing young people from cruel fate.

Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I agree with the hon. Member for Bromley and Chislehurst (Sir Robert Neill) when he said that this Bill has been improved by the work that has been done across the two Houses of Parliament and across the Benches. With that in mind, I will start by acknowledging the work that has been done on the issue around the use of children—the concept of juvenile CHIS. I acknowledge the work of Baroness Kidron, Lord Russell, Lord Young and Lord Kennedy who led the debates and discussions on these issues in the other place, and they have brought us to a much better place as a result. If we are honest, when this Bill first came to us, there was no discussion about children and what might happen if children were used as covert intelligence sources, so it is important that we recognise the work that they did to get us to this place, with the amendments before us.

I also put on record my thanks to the right hon. Member for Haltemprice and Howden (Mr Davis). I do not know whether that is helpful to him, but I know that he is speaking after me. Certainly, it might be of concern to our Whips that I agree with much of what he has said with regard to this Bill. We share the concern that it is important to have the right legislation in place for these issues, because we know that covert intelligence sources are already being used. In that sense, I also want to thank the Minister for Security for listening to our concerns and I wish him well in his recovery.

I also pay tribute to the work of Just for Kids Law and JUSTICE, which have been phenomenal champions of the young people we are talking about today. I also thank the Minister in the other place, Baroness Williams, for her work and the Solicitor General before us today, who has had to step into this debate. I hope that now that he has had time to look at this issue, he will reconsider what he said a couple of weeks ago when he suggested that some of our concerns and examples were not valid and could not have happened, not least because his colleague, Baroness Williams, has acknowledged that those very cases about vulnerable children aged 16 and 17 being exploited and then put at risk and used as covert intelligence sources were in fact real.

With that in mind, I agree very much with the shadow Minister that the Bill is much improved and that the Government have moved on this issue. We now have in the Bill the exceptional circumstances principle—that we should only ever ask children to put themselves in harm’s way and to commit criminal acts in very exceptional circumstances. Indeed, our argument that there should always be an appropriate adult as part of those conversations has certainly moved forward, as has our suggestion that IPCO should be overseeing this. Those are very welcome developments and it is important that we recognise that.

There is an understanding that we need to go further in recognising that appropriate adults are not always part of these conversations and the discrepancies that that creates. If a child is arrested for shoplifting at the age of 16 or 17, there will always be an appropriate adult involved in their conversations with the police, but if a child is asked at the age of 16 or 17 to spy on their parents or to commit a criminal act as part of an investigation there might not always be an appropriate adult. That reflects a bigger challenge that I hope the Minister will take up: that this legislation is obviously looking only at the use of criminal conduct authorisations, and yet what this debate has shown is that across the House and across the different sections of Parliament there is a concern about the use of children at all as covert intelligence sources. I make a plea to him today that the long-awaited code of practice be published—we were promised it during the passage of the Bill, but we have not yet seen it—and that we look at that much bigger concern about ensuring that there is always appropriate welfare and safeguarding protection for children of all ages, recognising that the United Nations and, indeed, this country have signed up to recognising children under the age of 18—so 16 and 17-year-olds—as children who require our protection. We need to extend the principles that we have put in this Bill regarding criminal activities to all their engagement.

I think that everyone recognises that our security services and the police do a phenomenal job and work in some very difficult circumstances. We also recognise our responsibility in this place to those young people that we ask, in these exceptional circumstances, to put themselves in the way of harm. The Bill certainly takes us much further towards having the protections in place that we would all wish, but we know that there is more work to do. I appeal to Ministers to continue to work with organisations such as Just for Kids Law, to listen to the concerns of not just the right hon. Member for Haltemprice and Howden but Members across the House about where we might cut across international standards and welfare protections, and to recognise that the best states are those that protect everyone, including those people that we put in harm’s way, whether they are in our secret services or they are young people.

Thank you very much, Madam Deputy Speaker, for allowing me to participate in this debate and support the hard work of our Members of Parliament on this issue.

[Mr David Davis (Haltemprice and Howden) (Con)]

I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.

I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.

I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.

The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.

That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides

“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]

However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, said that

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.

That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.

[The Solicitor General]

I will do it at the end.

[Mr Davis]

That is fine. I will say one last thing with respect to that. If the Government do not make it clear and that still hangs as an ambiguity around the Bill, then the Bill, along with the Overseas Operations (Service Personnel and Veterans) Bill, could well end up with this country being in the International Criminal Court for reasons that the House did not intend. It is that important that the Minister makes that clear.