Draft Investigatory Powers Commissioner (Oversight Functions) Regulations 2022 Draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022

Holly Lynch Excerpts

Wednesday 23rd November 2022 General Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship this morning, Sir Robert. I thank the Minister for his opening contribution.

On the draft Investigatory Powers Commissioner (Oversight Functions) Regulations 2022, as the Minister has said the new regulations stipulate that the oversight functions of the commissioner include keeping under review, by way of audit, inspection and investigation the exercise of GCHQ processes relating to determining whether information about vulnerabilities in technology should be disclosed. Furthermore, the statutory instrument provides the commissioner with oversight of compliance by members and civilian staff of the Metropolitan police force in relation to counter-terrorism legislation and officers of the National Crime Agency with the guidance referred to as “The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”.

We interrogated those principles for the purposes of the National Security Bill. It is worth being clear and on the record that the principles are explicit that:

“The UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment (“CIDT”), or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT.”

As the Minister knows, we are always very supportive of independent commissioners and reviewers of legislation. I thank Sir Brian Leveson and his team for the valuable work that they do in ensuring that our security services are as accountable and transparent as they are able to be. I am also grateful to the Investigatory Powers Commissioner’s Office for its feedback when I approached the office about these provisions. On that basis, we welcome this further extension of the oversight powers allocated to the commissioner to consider the conduct of these additional agencies.

We sought a legal opinion on some of the provisions. One thing that was not clear in relation to the oversight of GCHQ and the disclosure of technological vulnerabilities is whether the commissioner will only have powers to consider GCHQ’s decision-making processes on whether to disclose such vulnerabilities or not disclose, or if he will have the power to intervene and compel a disclosure should he warrant that necessary.

The second statutory instrument will bring into force the revised code of practice prepared under section 71 of the Regulation of Investigatory Powers Act 2000, providing guidance on the authorisation for the conduct or use of covert human intelligence sources by public authorities. Under section 72 of that Act, a person must, in so far as applicable, have regard to a code of practice when exercising any powers or duties to which the code relates.

Labour recognises the fundamental importance of covert intelligence and the role it plays in keeping our country safe. As an example, in 2018 alone, covert human intelligence sources helped to disrupt more than 30 threats to life, leading to the arrest of numerous serious organised criminals and the seizure of more than 3,000 kg of class A drugs, while taking more than 50 firearms off the street. Given the inherent nature of what covert intelligence entails, it is vital that proper safeguards and the processes for accountability and proportionality are introduced and used exhaustively.

We welcome that this statutory instrument will update the code of practice following the Government consultation that ran for eight weeks, from December 2021 to February of this year. I note however that at least one organisation who made a submission to the consultation felt that eight weeks over the Christmas period and at the height of the prevalence of the omicron variant put a strain on stakeholders to respond.

Colleagues led on the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 during its passage. We agreed it was a marked improvement on the status quo, but Labour raised concerns around the number of public agencies approved. The powers granted by that Bill are incredibly serious and must only be conferred to public agencies where the use of such powers is vital for their work. We pushed for more real-time involvement of the Investigatory Powers Commissioner, and we argued extensively for the most comprehensive protection of children and vulnerable adults in this space.

I note that most of the consultation responses had a focus on protecting children and vulnerable adults, and I can see that the Government have reflected on those submissions. While we remain and will always be very uncomfortable about those with vulnerabilities, be they age-related or otherwise, being involved in this line of work, the updated guidance is an improvement on the guidance that predates it, and it benefits from the consultation submissions. The standardisation of the use of the word “child” or “children” rather than “juvenile” is welcome, and we hold the Government to their statement in the response to the consultation that

“Children are only authorised as CHIS in exceptional circumstances and the duty of care that is owed to children in this context is taken extremely seriously.”

I look to the Minister for assurances that, in these circumstances, every other possible means of gathering intelligence is explored and exhausted first.

The Minister will be aware of the distressing case earlier this year of a person acting as a CHIS for our intelligence services who had used that status to abuse his former partner. I cannot see that the code reflects the potential for abuse of the status by a CHIS, and I hope the Minister can provide assurances to the Committee that that situation is being investigated and that processes are being revised accordingly, so that we close down opportunities for anyone acting as a CHIS to use the status to abuse others.

I note that the explanatory memorandum states:

“A person must have regard to the Code when exercising powers and any function to which this Code relates.”

However, it goes on to say:

“Failure to comply with the Code does not render that person liable in any criminal or civil proceedings.”

It says that

“the Code is admissible in evidence in criminal and civil proceedings”,

but given the seriousness of these powers and the fact that we all want and need to see the guidance adhered to in the strictest sense, what assurances can the Minister provide that there will be consequences of a failure to comply with the code?

We will continue to follow closely the work of the Investigatory Powers Commissioner in his ongoing assessment under these statutory instruments, and we renew our commitment to always engage with Government constructively, to find the right balance between keeping people safe and upholding the personal freedoms we hold dear.