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.