Covert Human Intelligence Sources (Criminal Conduct) Bill

Gavin Robinson Excerpts

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

[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to take part in this debate, Madam Deputy Speaker, and I am grateful to be called to speak so early.

I listened very clearly to the Security Minister, and I am grateful to him for his thoughtful engagement with me and my hon. and right hon. colleagues in my party. Although I think it is right that some of the issues have been raised in this debate, as they are worthy of further exploration, I want to place it on record that the Security Minister knows that he has our support on Second Reading. We look forward to thoughtful engagement over the weeks to come.

There have been references already to Northern Ireland in this debate; the right hon. Member for New Forest East (Dr Lewis) referred to the Intelligence and Security Committee’s report, which was published just today. It spans two years of activity, culminating just before the election, and provides stark reading for those who believe that issues in Northern Ireland have moved on. It provides a very stark assessment of the proportion of MI5’s work that still pertains in Northern Ireland and the fact that there is a need for that work. Those of us who represent Northern Ireland understand that, while the security situation has evolved and got so much better over the past two decades, MI5’s work is still important to us. With that brings the need to operate beyond the realm of what is legal in the truest sense—of necessity our state is required to engage in acts that might not be considered lawful on the face of it. The Security Minister has gone through very clearly and properly what is proportionate, what is necessary, and the appropriate tests that are embedded in the process by an authorising officer, who must be accountable for those decisions through the oversight that has been referred to earlier in the debate. That is crucially important.

During my short time in this Chamber—the past five years—I have referred to the incidents that have occurred in my constituency, including the murder of a prison officer, and the attempted murder of a police officer within the past year. I engage with that police officer regularly. The fear and concern that arose as a result of him being targeted going from his home to his local golf club with a device under his car because of his service in the Police Service of Northern Ireland highlights acutely the dangers that still pertain within our society.

In the past six weeks, MI5 has had an extraordinarily successful operation in Northern Ireland, and we now have within our prison system—not yet before the courts— almost the entirety of the New IRA’s army council. That is a huge success. It was down to not only the bravery of our security services in Northern Ireland but a covert human intelligence source. I am referring to open source data, so there is no concern about what I have shared. It has been raised within the courts. An agent of our state was embedded within the New IRA and its political apparatus for over a decade. Being involved in what he was involved in—being a member of the New IRA—is necessarily a criminal offence as it is a proscribed organisation. Holding information that is of use to terrorists is a criminal offence. Booking a property that the army council was meeting in and therefore enabling our security services to place listening devices and so on in that property was crucially important. That individual—just to encapsulate the dangers that come from this—has now left Northern Ireland and is in protective custody. His name is in the public domain and there is no need for me to share it today.

I noted on the “Irish Republican News” website a brief but quite explicit and chilling threat at the end of its analysis of what happened following the individual’s arrest. It says:

“The apparent exposure of a leading double agent within Saoradh”—

the political body—

“recalls December 2005, when top Sinn Féin official Denis Donaldson was exposed as an MI5 agent.”

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. I hope that the hon. Gentleman will be very careful about matters to which he refers and individuals whom he identifies either by name or otherwise, because I know he fully appreciates that some matters are sub judice and some matters are under investigation, and that we have to be extremely sensitive in these circumstances.

[Gavin Robinson]

I hope you appreciate, Madam Deputy Speaker, that not only do I agree entirely with you but I have been very careful in what I have shared and I will not delve beyond that which is public.

I just want to finish the quote about the case that occurred in 2005:

“After four months living in isolation, he”—

Denis Donaldson—

was shot dead in an attack claimed by another…IRA group”.

That has to encapsulate for Members the severity —the seriousness—of the danger that arises for those who engage on our behalf and who serve our country. [Interruption.] I see that there seems to be some level of concern. Those who have listened to what I have said as I have gone through it should have total comfort. Not only is what I have said appropriate, but they should also know me and the way in which I approach these issues, and understand that it would not be my intention, nor is it my purpose, to say anything inappropriate in this debate.

[Madam Deputy Speaker]

Order. Just to confirm, I am certain that the hon. Gentleman has no intention of saying anything inappropriate and that he is very careful, but because this is so sensitive, I simply reiterate that there is a difference between that which is in the public domain and that which is sub judice. I have the duty of urging that anything that is sub judice should not be mentioned in the Chamber. The hon. Gentleman has already made his point very well, and it might not be necessary for him to go into further detail.

[Gavin Robinson]

Thank you, Madam Deputy Speaker. The point that I was making has been made, so I see no need to re-emphasise it or to go over it again. The Minister has our support, and we will engage thoughtfully with him as this Bill progresses. I ask the Minister to look at clause 1(5), which is amending part of RIPA, where it outlines what is permitted within a criminal conduct authorisation. I simply ask the question whether

“for the purpose of preventing or detecting crime”

sufficiently encapsulates issues of self-defence and whether that needs to be expounded more clearly.

The Minister touched on the Bill not being retrospective. He is right that the Bill in itself is not retrospective, but it would be useful if the Solicitor General, in his concluding remarks, could touch on retrospective authorisation of criminal conduct. We know clearly from the Bill that, when somebody is authorised as a CHIS, they can be authorised either at that time or subsequently for criminal conduct. The question is not whether they are authorised in advance, but whether if they engage in criminal conduct that would require authorisation, that authorisation can be given after the commission of the conduct. I hope the Solicitor General will refer to that. I do not see any preclusion of it, as there is nothing contained in the Bill that suggests it has to be in advance. Can it come after the conduct has been engaged in, and people are aware of that and an authorisation is sought for it?

Madam Deputy Speaker, time is marching on, and I will let you proceed. Thank you very much.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Gavin Robinson Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Dr Lewis]

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

[Gavin Robinson (Belfast East) (DUP)]

I support new clause 3. I think the emphasis behind it is right, and the work that the right hon. Gentleman’s Committee does is very important. There was an interesting line in the report published by the Committee on 5 October on Northern Ireland terrorism that touches on this Bill. It said, “Authorisations are used sparingly”, and then it gave the proportion of members of the services that have had authorisations, but that number featured in the published report as “***”. I only want to raise with the right hon. Gentleman the point that, while it is important that his Committee has access to that important information, the information could be made available. There is always a consideration, to various degrees, about what is contained in reports and what is not, but it does not seem to me that that is sensitive, and for the purposes of this debate, it would actually have been an incredibly helpful figure to have.

[Dr Lewis]

The hon. Gentleman, with whom I worked so closely on the Defence Committee, as always gets to the heart of the matter. He says that, indeed, we have made reference in the context of Northern Ireland to numbers and scale in precisely the way we are seeking to be able to do here. Whether something is then made public is always a matter for debate and negotiation between the ISC and the agency concerned, but where it cannot be made public, that is where the ISC in a sense comes into its own. We exist to be able to see things that for good reasons cannot be made public, but we can then at least give assurance to Parliament that we have seen what cannot be made public and we are reasonably satisfied with it, and that is what this is all about.

--- Later in debate ---

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. I would like to try to get three more speakers in before 3.18 pm. I will just put that out there. As Members know, I cannot put a time limit on, but I think that would be fair.

[Gavin Robinson]

Dame Rosie, I will engage in this part of proceedings in the spirit of co-operation and collegiality, so as not to exhaust the comments others may wish to make.

It is a pleasure to follow the hon. Member for Kingston upon Hull North (Dame Diana Johnson), who I believe is now on the Intelligence and Security Committee. She is right to highlight new clause 8, tabled by the hon. Member for Walthamstow (Stella Creasy). I have to say that that is the first time appropriate consideration has been given to those issues in any of our contributions on the Bill. The Minister knows I support the general thrust of the Bill and the provisions in it. I heard him refer to the Children’s Act 2004 and some of the standards that need to be adhered to when considering children through the prism of the proposed legislation, but the hon. Lady made sincere and serious points. I hope he will reflect on them further.

In fairness, given the amount of time left in the debate and the contribution I can make, it is right that the Minister has more time to respond to the issues raised and that he does so comprehensively. I think there have been fair points made throughout the debate, even on amendments that, ultimately, I may not back. On trade unionism and blacklisting, my reading of the Bill, the guidance and the authorisation process is that there is no fear around those issues. However, there is clearly an apprehension of fear among those who have proposed amendments in that regard and I hope the Minister will deal with them comprehensively.

I have indicated my assent and support for new clause 3. I think the Minister is probably minded to accept it. I hope I am not going too far in suggesting that the Minister should accept new clause 3 from the Intelligence and Security Committee, but I ask that he does.

If I could ask anything from the Minister’s response, it would be on these two issues. First, there has been discussion and consideration around the Human Rights Act. In fairness to the hon. Member for Liverpool, Walton (Dan Carden), he did say that that only allows for retrospective accountability on the part of the state. To my mind, however, it would be wholly unlawful for anybody involved in the authorisation process to authorise something that naturally falls foul of the Human Rights Act. They could not do it. They do not have the values to allow for it. In terms of torture, torture is not permissible in any circumstances. It is against our Human Rights Act and it is against international frameworks. It cannot be allowed. That is an absolute right and I think it is clear that there should be no authorisation, and cannot be any authorisation, given on that basis.

I would like the Minister to talk about sexual crime more particularly. I still believe that that should not be, and could not be, authorised. I find that some of the amendments, because they have a total list of these issues, are unhelpfully drafted. Having each and every one of the aspects contained in an amendment—I am thinking in particular of amendment 13—means that it is unsupportable. There is a world of difference between causing loss of life or serious bodily injury and murder. It is a nuanced legal difference, but there is a world of difference between the two. There are circumstances in which, regrettably, life is lost, and there are circumstances in which it is legitimate for the state to remove life. I do not say that to be controversial; that is part of our human rights framework. That is provided for in our human rights legislation. There is a distinction between the two, and amendments that group all these issues together are unhelpful. They are individually important issues, and we should have the opportunity to engage with them individually and independently of one another. I would be grateful to hear from the Minister on those issues.

I will draw my remarks to a close, but I have to say that this process, with two hours and 20 minutes of debate for Committee stage, is wholly unsatisfactory. These issues are much too important to be left to two hours and 20 minutes of debate.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Time is short, so I will move on rapidly. Tackling terrorism and ensuring that all our citizens are protected from terrorism is at the core of my being. I was brought up in a family where every day my mum or dad would check under our car for suspect devices and I was prevented from getting in the car until that had happened. I have been the top target on the Fascist website Redwatch, which published my former home address and that of my workplace. Although there were never any physical attacks on me, I was threatened, even in the local newspaper.

More recently, my constituents lost their lives in the Manchester Arena bombing. Intelligence on Salman Abedi came into MI5 for six years, and he was a subject of interest right up to the months before he blew himself up and took so many lives. My constituents’ families and I do not know everything about Abedi; some of the exact detail could not be made public at the inquiry and was heard only by the chair. The security services could have placed an individual in a position to stop that attack. Of course, I would have supported that, as I am sure would everyone here.

The Bill puts the pre-authorisation of covert surveillance on a statutory footing, and that aspect must be welcome. The measures in the Bill are limited, but it is vital that its scope is fit for purpose. We must ensure that that statutory footing is limited to those organisations involved in normal policing and intelligence gathering. The scope of the criminality that is allowed for pre-authorisation must also be more tightly legislated for than in the Bill in its current form. The bar for such contentious work must surely be very high, reaching a level where the work is only to protect human life. There is the possibility, as has happened in the past, of the crimes committed by undercover agents far exceeding any danger posed by the group they are infiltrating.

The Government point to the Human Rights Act to say that actions such as torture and murder cannot be committed, but the duty to adhere to that Act applies only to Government bodies. In the Investigatory Powers Tribunal, the Government argued that covert agents were not actually part of the Government. In a 56-page judgment, the IPT declared that the guidelines do not breach human rights, in which case human rights law would not apply.

Without serious amendments to the Bill, we are looking at a toxic combination of a state licence to commit human rights abuses and the shutdown of any recourse to justice through civil or criminal courts. That leaves a complete absence of justice for victims and a drastic reduction in the ability to hold the state to account. That is why the Bill needs to specify what criminal conduct is permitted by arm’s length agents.

Some of the safeguards on activity lie in the “economic wellbeing of the UK” provision in the Investigatory Powers Act 2016. However, that is open to interpretation, which leads to perverse authorisations, such as for undercover work against peaceful environmental protests against fossil fuel sites, which in fact are against the long-term economic wellbeing of the planet.

The Minister needs to amend the Bill, as we need a regulatory footing but with a tighter regulatory scope and safeguards. He should do that today by supporting the many great amendments we have heard about, including those tabled by Labour Front Benchers, my hon. Friends the Members for Walthamstow (Stella Creasy), for Streatham (Bell Ribeiro-Addy) and others. If the Minister uses the Government’s majority to push the Bill through, however, perhaps he will listen to their lordships in the other place, as these amendments will surely come back.

How to vote on Third Reading is a marginal decision for me. With the correct safeguards, this Bill could be something that the whole House would support. Its passage in such a contentious fashion is entirely the responsibility of the Government. We all abhor terrorism and take seriously our responsibility to protect the public; at the same time, we live in a democracy and must ensure that there are protections for legitimate protest movements.