Covert Human Intelligence Sources (Criminal Conduct) Bill

James Brokenshire Excerpts

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

[The Minister for Security (James Brokenshire)]

I beg to move, That the Bill be now read a Second time.

This legislation is being introduced to keep our country safe and to ensure that our operational agencies and public authorities have access to the tools and intelligence that they need to keep us safe—safe from terrorists, safe from serious organised crime groups, and safe from others who wish to cause harm to our country and our citizens. Specifically, the Bill deals with participation in criminal conduct by covert human intelligence sources—so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups.

Throughout history, those entrusted to uphold the law or safeguard national security have used covert human intelligence to support and progress their activity. From Sir Francis Walsingham’s use of informers to defend the reign of Elizabeth I from internal and external threats, to the deployments by the newly formed detective units of the Metropolitan police in the latter half of the 19th century, to the double-cross system in the second world war, covert human intelligence has always been a vital part of our national security and law enforcement framework.

More recently, though, CHIS have been critical in identifying and disrupting terrorist plots, drugs and firearms offences, child sexual exploitation and abuse, and other serious organised crime. Since March 2017, MI5 and counter-terrorism police have together thwarted some 27 terror attacks. As the director general of MI5 said when the Bill was introduced:

“Without the contribution of human agents, be in no doubt…these attacks would not have been prevented.”

I have been advised that between November 2018 and 2019 CHIS operations within the Metropolitan police area alone led to 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kg of class A drugs, and the recovery of more than £2.5 million in cash. Similarly, CHIS operations in 2019 alone enabled the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. This is an important and unique tactic; by working their way into the heart of criminal groups, CHIS are able to access intelligence that other investigatory powers may simply never detect.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

The Minister knows how seriously I take these matters and the equipping of our security services to do the job that they need to do, often in horrendous circumstances that affect the integrity of our country and its individuals, but he will also appreciate that safeguards have to be in place. What does he have to say to those who have raised serious concerns that the Bill, as it stands, does not have the safeguards in place to prevent assault, murder and torture, about which there is an absolute prohibition? He knows that we are a signatory to the convention on human rights, so what does he have to say on those matters?

[James Brokenshire]

I hope I will be able to respond to the hon. Gentleman during my speech, underlining some of the safeguards—the importance of oversight, which we attach equally to this Bill, and the operation of a criminal conduct authorisation, as contemplated by the Bill. I hope he will also have noted the specific reference to the Human Rights Act in the Bill, in order to underline some of the important points he makes about convention rights.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The Minister has reeled off an impressive number of statistics, which justify the use of CHIS operations. How many or what proportion of the operations were undertaken by the Food Standards Agency, which will also come under the ambit of this Bill?

[James Brokenshire]

The right hon. Gentleman is drawing me on to talk about some of those wider bodies. I will address that later in my speech, but I point out that the FSA is required to deal with issues associated with misrepresented food—food that may be harmful for human consumption. Therefore the issues of proportionality and necessity are bound within the frame of the Bill, and limit the activities that would be reasonable for such agencies to act upon. Perhaps I can come back to that a little later in my contribution.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

We have had discussions on the points of concern to me, and my right hon. Friend has given answers to three written questions today, which were helpful indeed. He will understand the importance of the point made by the hon. Member for Cardiff South and Penarth (Stephen Doughty): that these are significant powers for us to grant in a democratic society. I believe my right hon. Friend has made the point in the past, but will he confirm today that the Human Rights Act trumps the provisions in this Bill which the hon. Gentleman and I are most concerned about?

[James Brokenshire]

I am grateful to my right hon. Friend for his intervention. Again, I intend to draw out this point during my contribution in the House this evening. He rightly highlights the import and implication of the Human Rights Act and what that then imports in terms of the convention rights, which we are clear provide restrictions and inhibitions on how agencies are able to operate.

[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.

[Sir John Hayes]

The point surely is that as well as proportionality and necessity, the Bill is particular about specificity, so that those matters that lie outside the specific permission can be challenged in court and can indeed lead to prosecutions. That specificity is at the heart of this measure.

[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.

[Stewart Hosie (Dundee East) (SNP)]

Will the Minister give way before he moves on?

[James Brokenshire]

I would quite like to answer the previous intervention before I give way again, and I need to make some progress.

I can say to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) that the way in which agencies are required to act under the Bill means that they cannot act in a way that is inconsistent with the convention rights, hence the importation by the specific reference to the Human Rights Act on the face of the Bill to underline that. It is important to state that and be clear as to how the Bill operates and the protections. The hon. Member for Dundee East (Stewart Hosie) has tempted me, so I will give way one final time, and then I will make some progress, because I know that others want to speak.

[Stewart Hosie]

On the point that the Minister just made in relation to the Human Rights Act, proposed new section 29B(7) of the Regulation of Investigatory Powers Act 2000 in clause 1 and proposed new section 7A(6) of the Regulation of Investigatory Powers (Scotland) Act 2000 in schedule 1, say, for example, that subsection X is

“without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).”

Why is it not more explicit that there is an obligation to obey the Human Rights Act rather than simply referring to it as an example?

--- Later in debate ---

[James Brokenshire]

The hon. Gentleman makes an interesting point. Some may argue that the inclusion of those words was not of itself necessary, because those agencies are already bound by that requirement. We take the judgment, because of the very relevant points that have been made during the course of the debate, that being clear on the face of the Bill in that regard is helpful. It is reassuring. It creates the context as to how this regime is intended to operate, and that is why it is included in the way that it is.

[Bell Ribeiro-Addy (Streatham) (Lab)]

Will the Minister give way?

[James Brokenshire]

If the hon. Lady will allow me, I will make some further progress, but I will allow her to intervene on me later.

In order to build the credibility and trust of those under investigations, there are occasions where, in carefully managed circumstances and subject to robust independent safeguards, CHIS may need to participate in criminality themselves. This is an inescapable and essential feature of CHIS use and has always been fundamental to this work. Although I am unable to go into the detail about the specific criminality that a CHIS may participate in, for reasons I will come to, limited examples have been discussed in the public domain. For example, a CHIS may be required to join the organisation that they are seeking to disrupt. This membership alone will sometimes be criminal but will be deemed necessary and proportionate to prevent more serious criminality from taking place. Again, without going into the specifics, the use of that tactic enabled the police and MI5 to disrupt a planned terrorist attack on No. 10 and the then Prime Minister in 2017. The necessity of CHIS participation in criminal conduct has been accepted in the UK and around the world for many years. In December 2019, the Investigatory Powers Tribunal found that MI5 has a lawful basis for this activity and recognised that CHIS participation formed an essential part of MI5’s core activities. I want to reassure the House that this Bill does not confer the power to carry out a new activity, but enables CHIS to continue to deploy the methods that they already use. Notwithstanding those powers, this Bill puts that existing practice onto a clearer statutory footing, putting the matter beyond doubt as to Parliament’s intentions. The Bill provides certainty for CHIS and their handlers and will augment our ability to recruit and retain in the future in this regard. It is important to stress that the Bill does not change the position of CHIS who have previously been properly authorised to participate in criminal activity. It has no retrospective effect.

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

Can the Minister explain one difference between the situation that has applied in the past and the situation that will apply in the future if the Bill goes through as it is? We are now legislating to make properly authorised criminal conduct lawful, rather than continuing with the current position whereby MI5 or another authorising authority is able to argue that it would not be in the public interest for prosecuting authorities to prosecute properly authorised criminal conduct, but there is no guarantee of immunity. What we are now saying is that they are not breaking the law, rather than, as in the past, that they were breaking the law, but that it was against the public interest to prosecute. Why the reason for that change?

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[James Brokenshire]

The right hon. Gentleman, the Chair of the Intelligence and Security Committee, makes an important point when he draws that distinction. I say to him that, under the current regime, the Crown Prosecution Service will consider the prosecution of a properly authorised CHIS as perverse. So in essence, the Bill will offer no practical difference in the application of the power, because obviously the conduct will have to be properly authorised, as it does now. If something has not been properly authorised, then clearly the authorisation will not have effect. Where CHIS conduct is outside that authorisation, there will be no impact on the ability to prosecute. Public authorities tightly limit the scope of CHIS criminal conduct, so this will not provide a licence to commit crime outside those stringent limits. In reality, the practical difference between providing a defence and making conduct lawful is limited. Indeed, we say that the provisions actually reflect broader provisions within the current legislative regime, governing all other aspects as well. There is a distinction, which the right hon. Gentleman makes, but in practice, we do not see that there is the fundamentals difference that perhaps some might wish to paint into it.

[Mr Steve Baker (Wycombe) (Con)]

One of the problems that the Government have today is that, for those of us who like the red meat of law enforcement and law and order, the Minister has forced us to look inside the abattoir, and of course we do not like what we see. On this point about stringent limits, will he explain why there is not more in the Bill to put those limits in place? I cannot imagine Ministers will be authorising killing or torture, so why are those things not in the Bill, so that the public can have very clear confidence that they will not be authorised?

[James Brokenshire]

I will come on to that issue—this is why, although I wanted to give way to many Members, I wanted at the same time to make progress with my speech. I will not go into the limits of what can and cannot be done because of this issue of what is known as CHIS testing—providing a list against which sources can be tested, which has practical implications to it. What I can say to my hon. Friend is that I will come on to the import of the Human Rights Act in just a second, if he will be patient.

[Bell Ribeiro-Addy]

rose—

[James Brokenshire]

I will give way to the hon. Lady, who has been very patient.

[Bell Ribeiro-Addy]

The Minister has talked about practices that are already permitted, but does he appreciate that there are many, many questions about those practices? That is why there has been the Pitchford inquiry, which has now dragged on for so long that it is about to be called something else. Are the Government not the slightest bit concerned about laying down such a piece of legislation before the inquiry has reported, given the history of agents provocateurs undermining progressive movements such as our trade unions and deceiving women in intimate relationships? All of these things have been carried out before, and people have major concerns about that. Will the Government explain why they have no concerns whatsoever about laying down a piece of legislation without having looked at what that inquiry finds?

--- Later in debate ---

[James Brokenshire]

The hon. Lady makes a serious point. First, there is no retrospective effect—it is quite important for me to state that explicitly. Therefore, actions that have occurred in the past and are subject to further inquiry, and potentially further criminal investigation, are untouched by the Bill. On the position moving forward, I have explained the different safeguards. She refers to trade union activity. Trade union activity is lawful. I recognise some of the concerns expressed, and it is important that I state that in order to provide assurance. This is tightly bound—it is about providing the oversight, the governance and the proportionality and setting out the necessity of this for criminal justice, security and other issues that I have already alluded to. I am grateful to her for intervening to allow me, I hope, to be more specific on that point.

[Chris Stephens (Glasgow South West) (SNP)]

On the previous intervention, there are real concerns about women who are seeking legal redress for sexual assaults at the hands of police officers in the spy cops inquiry. Can the Minister guarantee that if those situations were to occur again, survivors of sexual assault could seek legal redress?

[James Brokenshire]

I can certainly say that there are clearly ongoing inquiries in relation to this important and sensitive issue. I have highlighted the lack of any retrospection, and I point the hon. Gentleman to what has happened since then and what the police themselves have underlined in this regard. There is an enhanced regime of what are known as relevant sources—in other words, undercover police officers—and the criminal conduct authorisation is in addition to the regime to authorise and approve a CHIS covert source in the first place.

It has never been acceptable, as the police have said, for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target, or who they may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic in deployment. That is made clear through the code of ethics for the police as well as the updated law enforcement agency undercover operative authorised professional practice.

I hope that I have explained what the Bill does and what it does not do, and therefore how it is quite specific. On the point about what is on the face of the Bill, it is about locking in the existing regime and other safeguards on the authorisation of a source in the first place. That has to happen first, and then, if it is warranted, justified and fits within the boundaries of the Bill, there is the criminal conduct authorisation that sits alongside it, which has to be subject to the earlier authorisation.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Does the Minister agree that sexual assault and rape are clearly prohibited by article 3 of the Human Rights Act? Does he recognise that the importance of the Human Rights Act in providing a safeguard to this Bill means that it would be helpful to hear wider support for the purposes of the Act from across his Government, not just from him on the Front Bench?

[James Brokenshire]

Obviously there is the specific reference on the face of the Bill that I have alluded to, and therefore there is that requirement. As the right hon. Lady will know what the convention rights say, for operational and other reasons I will not go beyond what the convention says. There are very clear issues that I will now, I hope, come on to in that regard that will help to draw this out.

[Mrs Maria Miller (Basingstoke) (Con)]

rose—

[James Brokenshire]

I will give way one last time and then make further progress.

[Mrs Miller]

I thank the Minister; he is being very generous. He has been clear that sexual assaults on women such as the ones that have been referred to are entirely prohibited and not allowed, but they have obviously happened. In the past, those cases have been brought forward for proper review. How will they be brought forward in future under this Bill?

[James Brokenshire]

I have drawn out the separate regime that operates in relation to the authorisation of, for example, undercover officers, as well as the tight remit, the ambit and some of the additional oversight that is provided in respect of that regime. Again, that is all subject to the supervisory nature of the Investigatory Powers Commissioner and can, therefore, as with the provisions proposed through the Bill, be drawn out through that route. However, I will hopefully make some more progress and be able to get into how the Bill works and some of the further assurances. I may not be quite as generous with interventions, so that I can hopefully make progress and let other right hon. and hon. Members in.

The Bill amends the Regulation of Investigatory Powers Act 2000 by inserting a new section to provide a power for public authorities to grant a criminal conduct authorisation. Equivalent amendments are also proposed to the equivalent legislation in Scotland, subject to ongoing constructive engagement with the Scottish Government.

A CCA may be granted only where it is necessary for one of three statutory purposes: national security, the prevention or detection of crime, or in the interests of the economic wellbeing of the UK. It must also be proportionate to what it is seeking to achieve, and consideration must be given to whether the objective could be achieved by conduct that is not criminal. These authorisations will be tightly bound and granted by a highly trained and experienced authorising officer. They must also be compliant with our obligations under the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. Again, I will expand a little further shortly.

A CCA can also apply only where the deployment or engagement of the CHIS has already been authorised under the existing section 29 of RIPA, and is subject to the limits that that section provides. As such, there is a two-stage process: first, the authorisation of the use of a CHIS and, secondly, the separate authorisation of that source to carry out criminal conduct in the tightly prescribed circumstances proposed by the Bill.

It is worth highlighting that, alongside the Bill, we have published draft provisions of the CHIS code of practice, which provides further detail as to how the authorisation process will work and the factors an authorising officer must consider before granting an authorisation. To be clear, all authorisations are precise and explicit. A CHIS will never be given unlimited authority to commit any or all crimes. The effect of an authorisation is to render the authorised conduct lawful. This model is consistent with the approach we have taken for other investigatory powers. Of course, where a CHIS commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can consider this in the normal way.

Members will understand that, because of the clandestine nature of their work, there are limits to what I can say publicly about the role that CHIS play in saving lives and property, without exposing sensitive information about their methods and techniques. I know that there are concerns about the Bill somehow providing a licence to kill or to commit torture. Let me be clear that there are upper limits to the activity that can be authorised under the Bill, and those are contained in the Human Rights Act. That includes the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. It is unlawful for any public authority to act in a way that is incompatible with the European convention on human rights, and the legislation makes clear that nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act. Therefore, an act that would be incompatible with the ECHR could not lawfully be granted under this Bill.

We do not believe, however, that it is appropriate to draw up a list of specific crimes that may be authorised or prohibited. To do so would place in the hands of criminals, terrorists and hostile states a means of identifying our agents and sources, creating a potential checklist for suspected CHIS to be tested against. That would threaten the future of the CHIS capability and result in an increased threat to the public. Protecting CHIS from prosecution will have achieved little if we cannot also protect them from being identified by the terrorist and criminal groups they inform against, placing them at personal risk.

[Stephen Doughty]

I am listening very carefully to what the Minister is saying, but will he be clear? This is all predicated on our continued membership of the European convention on human rights and on the Human Rights Act staying as it is, and at the moment we have an Attorney General who has made very clear her intentions towards both those instruments. Can he make it clear that we will stay in the ECHR and that the Human Rights Act will stay as the bedrock of the guarantees on this, but also that other international conventions we are signatories to, including the convention against torture, would also apply in restricting actions that could be authorised under this Bill?

[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.

[Julian Smith (Skipton and Ripon) (Con)]

Does my right hon. Friend agree that the independent commissioner, established under the 2016 Act by this House, has, in the 2018 report of the analysis on MI5 and other agencies, written very positively about the processes, the applications for CHIS and the rigour that these organisations go through? It is important that the House realises that these processes are rigorous, detailed and already in place.

[James Brokenshire]

Yes, and I am grateful to my right hon. Friend for making that point. With his experience as a former Secretary of State for Northern Ireland, he knows the importance of these national security issues in the context of Northern Ireland. He is right, and this point about safeguards and oversight is precisely what I was about to come on to. It is about the rigorous and careful way in which the agencies operate and the focus that they attach to this, as shown in the response the commissioner provided in his 2018 report and equally by the Investigatory Powers Tribunal when it reflected on this.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

Will the Minister give way?

[James Brokenshire]

I will give way, but this is probably the last time as I am conscious of time and of getting others in.

[Liz Saville Roberts]

In the 2018 report by the Investigatory Powers Commissioner, one of the issues that raised concern was the sheer prevalence of human error. We are rolling this out to further Departments. Surely, we are also rolling out the potential for further human error.

[James Brokenshire]

The right hon. Lady makes an important point about training and about ensuring that the high standards necessary here are applied. I would say to her that, equally, such focus needs to be applied to those who operate this regime in order to get this right because of the potential criminality that sits alongside it. There are obligations to report errors to the commissioner, and equally the commissioner will report on those too. Rigorous standards are necessary to ensure that criminal conduct authorisations are made appropriately and well, and the way in which that operates now and will operate for all agencies—whether the Security Service, policing or some of the other agencies—is subject to that clear oversight, and the Bill draws that out and makes it explicit.

As I have said, it is important to state that, in view of the restrictions on what can be disclosed publicly, the Government also recognise the importance of robust independent oversight. The authorisation of CHIS participation in criminal conduct is and will continue to be subject to this robust oversight of the Investigatory Powers Commissioner. The IPC—

[Mr Mitchell]

Will the Minister give way?

[James Brokenshire]

I am very conscious that I am now eating into the time of others who may wish to speak, so I will perhaps make some more progress, and we will see where we get to.

The Investigatory Powers Commissioner, and his judicial commissioners, have all held high judicial office. The current IPC, Sir Brian Leveson, was most recently president of the Queen’s bench division and is entirely independent of Government. The commissioners are supported by expert inspectors and others, such as technical experts, qualified to assist the commissioners in their work.

The IPC conducts wide-ranging inspections of public authorities and publishes an annual report on the findings from those inspections. The IPC himself sets the frequency of those inspections, and public authorities are required to provide unfettered access to documents and information. The Bill strengthens the IPC’s role by providing that the IPC must explicitly keep CCAs under review and include information on the use of them in his annual report. The most recent report from the IPC found that in all instances MI5’s authorisations of CHIS participation in criminal conduct were proportionate to the anticipated operational benefits and met a high necessity threshold.

Further, the Intelligence and Security Committee of Parliament has statutory responsibility to oversee the UK intelligence community. Hon. and right hon. Friends on the Committee have a vital role in scrutinising the work of the intelligence agencies, and I am grateful to the Committee for its support for the legislation and welcome its expertise as the House considers the Bill in detail. I also note that Select Committees will equally play an important role in scrutinising the work of law enforcement and wider public authorities.

[Yvette Cooper]

rose—

[James Brokenshire]

On that note, I give way to the Chair of the Home Affairs Committee.

[Yvette Cooper]

I am very grateful to the Minister, who has been very generous with his time. Clearly he makes the case that we need to continue with covert intelligence, particularly on extremist groups that may be proscribed. Associating with them in any way is currently a crime, so clearly he makes a strong case for legislation to ensure that such intelligence can continue in the interests of national security. I know that he recognises, though, that having safeguards is also in the interests of national security and of the intelligence agencies and the police.

The safeguards in place on the Investigatory Powers Commissioner in the Bill are still very vague. It is very broad and very much retrospective, as opposed to concurrent assessments. Will the Minister look again at the potential for amendments on authorisation and very timely oversight, and on strengthening the measures on Investigatory Powers Commissioners, so that it is possible to get the details of the legislation right?

[James Brokenshire]

Obviously, we will have continued debate during the passage of the Bill. I believe that it provides strong oversight and governance, but I will continue to reflect. Judicial approval is an important safeguard for the operation of some of our investigatory powers; however, it is not the only way to provide a robust oversight of a power. It is important to recognise the context of this: we are talking about human beings. Some challenging issues operate around this space, which is why we judge that robust retrospective oversight is the right approach, but I will keep the timeliness of that, and how it operates, under reflection so that perhaps further reassurance can be provided, specifically on the point of how soon oversight can occur after an authorisation has been made.

[Mr Mitchell]

I am grateful to my right hon. Friend, who is being generous. At what level will the original authorisation take place in the various organisations? From reading the Bill, it seems to me that the level in the police is a relatively junior police officer. In view of the seriousness that such authorisation leads to, should it not be given at chief constable level, and why can it not be given through a warrant overseen by a judge?

[James Brokenshire]

I have responded to the latter point on the judgment that we have made in relation to this regime and how we believe that deep retrospective oversight is the right approach. This is distinct from phones or cameras. The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking. There are different elements to how this operates, and the experience and highly trained nature of the authorising officer in some ways informs the relevant authorising level that is specified within the guidance. Robust retrospective oversight is provided equally by the commissioner himself, to give further assurance.

If I may, I shall turn to a separate point about specific public authorities’ ability to grant a criminal conduct authorisation. The RIPA already lists a range of public authorities that use CHIS for general investigative purposes. Far fewer public authorities will be able to grant a criminal conduct authorisation. Only those public authorities that have demonstrated a clear operational need for the tactic are able to use the power. These are the intelligence agencies, the police, the National Crime Agency, the armed forces, Her Majesty’s Revenue and Customs and 10 other public authorities. Pausing momentarily on this list, I want to highlight the role that these wider public authorities also have in investigating and preventing serious criminal activity. The Environment Agency, for example, investigates the illegal dumping of toxic waste that can permanently harm our environment. The Serious Fraud Office investigates complex fraud cases that risk costing the public millions of pounds. The Food Standards Agency investigates deliberate mislabelling and the sale of unsafe food to the public. HMRC tackles the money laundering and trafficking of illicit goods that would risk significant damage to the economy.

We expect the wider public authorities to have only limited use of this power, because a criminal conduct authorisation can be granted only where it is necessary and proportionate to the criminality it is seeking to frustrate. There will, however, be occasions where CHIS will be critical in providing the intelligence to prevent, detect and prosecute serious crimes. This is increasingly important as organised crime groups expand into areas overseen by these public authorities.

This is an important and necessary Bill—

[Mr Steve Baker]

Will the Minister allow me, before he finishes?

[James Brokenshire]

I will, for one final time, then I will wrap up.

[Mr Baker]

I am extremely grateful. He mentioned the armed forces very briskly there. Could he clarify why the armed forces might need to engage in criminal conduct? I suspect it is because they each operate their own military police, and that those police might need to have covert operations, but I would be grateful if he clarified that, because there will be suspicious souls out there worrying that there is some other motive for the armed forces being authorised to break the law.

[James Brokenshire]

My hon. Friend highlights one particular aspect of the role of the Ministry of Defence. It is difficult to go into detail, but one further example I would give is that it might be necessary to access a proscribed organisation. As I say, the reporting regime is quite specific. Indeed, the oversight that is envisaged—and the oversight in the existing legislation—draws this out quite carefully and clearly for the issues that I have highlighted, on proportionality and necessity, as well as those specific aspects in the Bill, stating that it can relate only to national security, criminality and economic wellbeing. It has to anchor to those three elements, as well as to the Human Rights Act application that we have debated at length this evening.

This is an important and necessary Bill. It is not about providing agents with an unfettered ability to break the law and commit any crime. There are strict requirements that must be satisfied, and robust and independent oversight will be in place. The Bill is really looking to achieve just one thing, which is to ensure that our intelligence agencies and law enforcement bodies with important intelligence functions are able to continue to utilise a tactic that has been, and will continue to be, critical to keeping us all safe. Accordingly, I commend the Bill to the House.

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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 my right hon. Friend the Member for Skipton and Ripon (Julian Smith), both of whom made important and powerful speeches. I agree with what both of them said, and the two are not irreconcilable.

It seems to me that the Government, having brought forward a necessary and appropriate measure—it is right to put these matters on a statutory footing—need to bear in mind the need to tighten up the language in a number of places. I support the basic thrust of the Bill, but there is nothing more profound than to authorise the agents of the state to break the criminal law. That can be done only in the most exceptional circumstances, and those circumstances are not things that can be trailed in public, so obviously we need a degree of discretion about how we do it. I will deal swiftly with just a few matters.

First, given that principle, I am concerned about how we deal with the pre or post-authorisation arrangements. Having put the matter on a statutory footing and having previously established the independent commissioner and then the tribunal, I would be worried about the exclusion of pre-authorisation save in the most exceptional circumstances. I am not saying that every type of criminal offence should be excluded at this stage, but when we come to Committee, we should examine whether we should in any circumstance contemplate setting on the face of an Act of Parliament provision for someone committing the offence of murder, for example, or something equally extreme, other than when they would probably be entitled to run the defence of self-defence anyway.

Given the ability of any High Court jurisdiction to deal immediately and swiftly with interlocutory matters, there is no reason to think that the same arrangements cannot be made in relation to the commissioner. The quality of the commissioners— Sir Adrian Fulford and now Sir Brian Leveson—is of such an extent that I would have thought that their early authorisation would be a great support to our security services in doing what they have to do. We must think about where the balance lies.

The second point I wish to deal with is the list of organisations. The obvious ones are there, and of course they must be supported. Like others, however, I question the need to list bodies such as the Food Standards Agency and, up to a point, the Financial Conduct Authority. Is this really a Bill about counteracting terrorism and life-or-death threats, or is it actually just about enabling the National Crime Agency—a worthy body in itself—to deal with economic crime? That may be a legitimate concern, but I do not think it should be put in this type of legislation, unless it is spelled out a bit more carefully.

The Minister of State and I have personal and shared casework experience relating to constituents of overreach and mission creep on the part of Her Majesty’s Customs and Excise, which frankly behaved appallingly. Ultimately, it was overridden by the courts, but I am worried that it might be thought that the imprecise definition of serious crime could be stretched to cover some of the cases we have dealt with. The Minister looks as though he thinks that is impossible, but serious crime is not defined in statute; it is a matter of fact and degree. It requires either a definition or, more likely, a more robust pre-application process.

[James Brokenshire]

I appreciate the contribution that my hon. Friend, the Chair of the Justice Committee, is making and perhaps we can continue this conversation. I point him to the issues of proportionality and necessity, the requirement to consider matters that are not criminal to the end itself and the safeguards that the Human Rights Act provides, which I set out earlier. Therefore, there is a strong framework, as well as the subsequent oversight, but I will listen carefully to what he says. I am reflective on some of the timeliness of oversight, as I indicated, and I appreciate his points.

[Sir Robert Neill]

I understand the spirit in which my right hon. Friend makes that point. I suspect that many of those fears could be set at nought if we can do this sensibly. The point is that without either having an obligation to comply with the ECHR on the face of the Bill and certain most grave offences being excluded in the Bill, or, on the other hand, greater clarity on the timeliness and the way in which that will work, there are still issues that we need to deal with.

Covert Human Intelligence Sources (Criminal Conduct) Bill

James Brokenshire 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

[The Minister for Security (James Brokenshire)]

I do not know whether this will be helpful to the right hon. Gentleman, but I just draw his attention to paragraph 3.10 of the supported guidance, which underlines that the person granting the authorisation should hold a “reasonable belief” that the authorisation is necessary and proportionate. The important point he makes is addressed through the guidance.

[Mr Carmichael]

The Minister does help me and I am grateful for his assistance, because if that reasonable belief is in the guidance, there is absolutely no reason why it should not be in the Bill. As I said to the right hon. Member for North Durham (Mr Jones), guidance can be changed without any meaningful oversight from this House. The Minister makes the point for me very well, so perhaps amendment 14, which I had thought modest, is more significant than I realised. I look forward to hearing his acceptance of it—if we could do that without a Division, it would be all the better. [Interruption.] God loves a trier.

Amendment 15 deals with the issue of economic grounds. As things stand, the Bill allows crimes to be authorised if they are necessary

“in the interests of the economic well-being of the United Kingdom.”

That conjures up all sorts of delicious prospects. If it is decided that we need a different Governor of the Bank of England, can we authorise a CHIS to wipe him out? Could we use this if we decided that a no-deal Brexit was not in the UK’s economic interests? There are at least two or three good Netflix series in this; the possibilities are almost endless. What crimes might be authorised in order to entice a foreign investor to bring their money to the UK or a car manufacturer to keep its UK plant open? There is nothing here to prevent corruption or bribery from being used in these circumstances. Amendment 15 would restrict these grounds to cases that are relevant not only in an economic sense, but to national security. There is precedent for this approach, because amendment 15 matches exactly the amendments the Government themselves made to the Counter-Terrorism and Border Security Bill last year, after my noble Friend Lord Paddick raised similar concerns about detaining people in the interests of the economic well-being of the United Kingdom. If it was good enough for that Bill, there is no reason why it should not be good enough for this one.

Amendments 18 and 19 involve oversight by prosecutors and would require criminal conduct authorisations to be shared with prosecutors before they take effect, to allow for proper independent oversight of these decisions. The amendments cover the same sort of grounds as many others have in their amendments, most notably the Mother of the House, and I believe the hon. and learned Member for Edinburgh South West (Joanna Cherry) will cover this in her contributions. They all come to the same point that there has to be independent oversight where matters are as serious as this.

Amendments 16 and 17 deal with the number of different bodies that can be authorised under the Bill as it currently stands. At present, it extends well beyond the obvious candidates and includes: MI5, the police, the security services, the Food Standards Agency, the Gambling Commission, and the Department of Health and Social Care. With these amendments, we seek to reduce the list to the National Crime Agency, the Serious Fraud Office and the intelligence services.

Mr Evans, you and I have visited an abattoir in the past and we know that there is plenty of blood in an abattoir already without actually adding to it by empowering meat inspectors to be authorised to spill even more of it. We all know, as we complete our tax returns every year, that taxation can be a tortuous business, but I do not think that we should be giving the taxman the power to apply the thumbscrews.

The need for these extra bodies to be given authorisation under these provisions has never been properly explained from the Treasury Bench. Their inclusion demeans the seriousness of those acts, especially by the security services, the police and the Serious Fraud Office that could well be required to use them in very difficult circumstances. It looks to me, almost certainly, as if these provisions have been put in the Bill with a view to giving up the fight when the Bill gets to the other place, which, I suggest, demonstrates a lack of respect not just for them, but for this House as well.

Finally, I wish to touch on other amendments that have been moved by other right hon. Members. I have added my name to the one from the Mother of the House covering the approval of the judicial commissioner and the one removing economic interest grounds and I support their inclusion in the Bill. Amendment 13 in the name of the right hon. Member for Haltemprice and Howden (Mr Davis), which removes murder, torture and others, would be one of the most obvious amendments that could be made to this Bill to render it genuinely fit for purpose. It is the purpose of this Bill that commands unity; it is the detail of it that requires still so much improvement.

--- Later in debate ---

[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.

[James Brokenshire]

I will respond to the hon. Lady formally in my winding-up speech, but I would like to stress that all public authorities that task juvenile CHIS must have regard to their safety, welfare and wellbeing, as required under sections 10 and 11 of the Children Act 2004 and the United Nations convention on the rights of the child. It is important that I state that. The hon. Lady is making some important points, which I am listening to intently, but I think it is right that I put that on the record.

--- Later in debate ---

[Conor McGinn]

I always take seriously the advice of a senior and distinguished Member of the House. I am confident that, given the amendments that we have tabled today, as the Bill makes further progress through the House, our colleagues in the other place will be cognisant and take note of that. That is why we are asking the Government to listen carefully to what we propose in our amendments.

In that vein, I give my strong support to new clause 5, tabled by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy). It seeks to ensure that a CCA cannot be applied to a trade union and, specifically, to blacklisted workers. Of course, it was the previous Labour Government who made blacklisting illegal in 2010.

On the issue of oversight and accountability, I wish briefly to mention new clause 3, which was tabled by the right hon. Member for New Forest East (Dr Lewis) and members of the Intelligence and Security Committee. With the additional scrutiny, oversight and accountability that are at the heart of the right hon. Gentleman’s sensible proposal, the Secretary of State would be compelled, at the end of each relevant 12-month period, to make a report to the ISC that contains key information on both the number of CCAs authorised and the categories of the conduct authorised. That seems to me to be an eminently reasonable and sensible proposal.

On new clause 2, given the nature of some of the networks that the Bill looks to disrupt, there are clear concerns about its impact on communities and vulnerable individuals throughout our country. One important example is the gendered impact of actions taken by covert human intelligence sources. The Minister must commit, today, that the Government will seek to uphold the highest possible standards on gender impact.

New clause 8 was tabled by my hon. Friend the Member for Walthamstow (Stella Creasy). I have some experience of campaigning with her and know how formidable she can be on these issues. Her new clause raises another crucial point, which is the need to safeguard the welfare of children, vulnerable individuals and victims of modern slavery and trafficking. It would achieve that by ensuring that a CCA is authorised for a child or vulnerable adult only in certain exceptional circumstances, and by ensuring that an appropriate adult is present at meetings between the source and those representing the investigating authority.

As outlined in new clause 2, we propose to compel the Secretary of State to prepare and publish an annual equality impact assessment on the use of criminal conduct authorisations in covert operations involving women, children and black, Asian and minority ethnic communities. A motion should then be put to the House within three months of the assessment being published.

In conclusion, the Opposition are committed to working in the national interest to keep people, their families, our communities and the country safe. I entirely understand that some colleagues on both sides of the Chamber have an interpretation of what the Bill does that is different from mine and have arrived at a different view. I think they are wrong, but that does not mean that I do not respect the arguments they put forward. That is particularly the case in relation to my hon. Friend—and my actual friend—the Member for Liverpool, Walton (Dan Carden). He will know that I once resigned on a point of principle. I hold him and his family in high esteem. The decision he took today to make the points he made was a difficult one. He has my respect, continuing friendship and affection.

This is uncomfortable territory for the whole House. Many of the issues raised by the Bill are felt deeply personally. All I would say, gently, is that those who oppose the Bill in its entirety do not have the monopoly on principles, nor are they the sole moral arbiters when it comes to forming a view on the measures in the Bill. The position reached by the Leader of the Opposition—who literally wrote the book on human rights—and me is a principled one and comes after careful consideration and detailed discussion of the Bill.

It is also our view that we have a duty, as legislators, to meet our responsibility and acknowledge that it is not just the Government who have to make difficult decisions. We want to be in government so we have to take difficult decisions, too. When we are in government, we will return to the Bill based on the principles that I have outlined. That is why we have taken the approach that we have taken: to acknowledge the importance of putting CHIS activities on a statutory footing; to robustly and responsibly scrutinise the way in which that is done; and to place national security, human rights and support for victims at the centre of our attempts to improve the safeguards in the Bill. We will continue to do that as it progresses through Parliament and are confident that the other place will assist us in that task if our amendments are not made today.

[James Brokenshire]

This has been a very informed, considered and thoughtful debate on the various amendments to the Bill that have been tabled for consideration. As right hon. and hon. Members will know, covert human intelligence sources play a crucial part in preventing, and safeguarding the public from, many very serious crimes, including terrorism, drugs and firearms offences, and child sexual exploitation and abuse. In performing that role, it is essential that they can build credibility and gain the trust of those under investigation. At times, that may mean they have to commit criminality in order to maintain that cover.

I hear very clearly the points that have been made about needing to see those powers put on an express legal basis. Indeed, that is the essence of what this Bill is all about. It puts that on a clear statutory footing, putting beyond doubt Parliament’s intentions on the matter. From the contributions we have heard on all sides of the House, I think that that point is recognised—the seriousness of that and its implications for our own security in ensuring that the capability is maintained in order to keep us safe in the future, as it has done in the past, but also recognising the need for confidence in and assurance about how those agencies that act to protect us do so in an appropriate way.

Let me deal with the various amendments, because I do want to make as much progress on that as possible, and where I can I will give way to right hon. and hon. Members in doing so. First, in that context, there is the issue of oversight. The Government’s priority is to provide these public authorities with the powers they need to keep the public safe, while also ensuring that there are appropriate safeguards. This is the balance that the Bill seeks to provide. We do not believe that prior judicial approval, as proposed in amendment 7 and new clause 7, strikes that balance, as it risks the effective operation of the capability. This is a point we discussed at length on Second Reading. There are ways in which we can provide that safeguard and assurance, and prior judicial approval is not the only way to provide effective oversight of investigatory powers.

Members may find it helpful if I set out in more detail why this capability is different from other powers, such as interception or equipment interference. Put simply, human beings are more complex. Any decision on how to use a CHIS has immediate real-world consequences for that covert human intelligence source and the people around them. This requires deep expertise and close consideration of the personal strengths and weaknesses of the individual, which then enables very precise and safe tasking. These are not decisions that have the luxury of being remade. It is even more critical than for other powers that these decisions are right and are made at the right time.

[Sir John Hayes]

Is not the plain truth of the matter that if we define the role and method of those whose mission is to keep us safe who are covertly operating on our behalf, we will, among those they have infiltrated, make known what they are doing and possibly who they are, putting their lives at risk? Is not the principal power and the pivotal power of Government to protect their people? Indeed, it is the defining power of the state.

[James Brokenshire]

My right hon. Friend makes a very powerful and important point about the issues at stake here. That is why we judge that there is, of course, a need for robust oversight to give confidence and to ensure that the powers available here are done in the right way, and we judge that the proposals in the amendments do not achieve that and actually have an impact on the operational effectiveness of what is needed.

[Barry Gardiner]

The Minister will know that many of us are concerned about new section 29B(5)(b) and (c) in clause 1(5). He has rightly stressed the importance of clarity, but it seems to many of us that the clarity around the words “preventing disorder” and around what constitutes “the economic well-being of the United Kingdom”, such that a criminal conduct authorisation can be given, is very vague indeed. He rightly insists on clarity, so could we have it here, please?

[James Brokenshire]

The language that is used in what would become new subsection 5 of section 29B is reflective of existing provisions within the Investigatory Powers Act. I will go into more detail on the hon. Gentleman’s point about disorder and economic wellbeing.

[Joanna Cherry]

The point made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) was dealt with very ably earlier in the debate by the right hon. Member for Haltemprice and Howden (Mr Davis) under reference to the letter from the previous DPP, when he said that this was a bit of a Sopranos argument. Our Five Eyes partners manage to delineate the crimes that a CHIS can commit without having these worries, so isn’t this really a false worry?

--- Later in debate ---

[James Brokenshire]

I know that the hon. and learned Lady was unable to partake in the Second Reading debate, but I will repeat what I said there. We are not suggesting that there is routine testing of suspected CHIS in all criminal gangs, but there is evidence that it does occur more than infrequently, so this is not a fanciful argument. This is a matter that we take very seriously and one that I think is relevant. I would just pick up on the constructive discussions that we have had with the Scottish Government and I can say to her that it still remains my firm intention that we should reach a position where a legislative consent motion can be achieved. I can certainly assure her and her colleagues in the Scottish Government that we will continue with our discussions in order to reach that conclusion.

[Colum Eastwood (Foyle) (SDLP)]

I know that the Minister has a lot of faith in the security services, but some of us know too much about them to have any faith in them. If this Government have so much faith in the behaviour of the security services, why will they not announce a full public inquiry into the murder of Pat Finucane?

[James Brokenshire]

I appreciate the seriousness of the point that the hon. Gentleman has made, and he will know more than anyone in this Chamber about the huge issues involved and, equally, about the statements that have been made by the Government in relation to that appalling murder. I am sure there will be other opportunities to debate that matter further, but I hear the point that he makes. Obviously, this has been considered at length before, but that does not in any way cut across the statements that the Government have made in condemning, underlining and apologising for what happened.

The use of the CHIS—the covert human intelligence source—does, as I say, underline the need for this oversight to be provided by an experienced and highly trained authorising officer, but it is about more than that. It is about the Investigatory Powers Commissioner, who already has wide-ranging powers to support him to carry out his oversight functions, and about the real role that he has. This is why we judge that deep and retrospective oversight is the most appropriate way to provide oversight of this power. This includes regular and thorough inspections of all public authorities that use the power, to ensure that they are complying with the law and following good practice. The frequency of these inspections is decided by the commissioner, and inspectors must have unfettered access to documents and information to support those functions.

Amendment 12 from the Opposition would require a judicial commissioner to be notified of an authorisation within seven days of its being granted. I have underlined the role of the commissioner, which means that we will not support the amendment today. We also believe that amendment 7 and new clause 6 would impact on the operability of the regime. However, I can say to all hon. and right hon. Members that I am giving careful consideration to how this retrospective oversight could be strengthened further, and to how this might be addressed in the Bill’s passage in the other place.

Amendments 18 and 19 relate to oversight by prosecutors. A correctly granted authorisation will render conduct lawful for all purposes, so no crime will have been committed. There is therefore no need to introduce a requirement for prosecuting authorities to play a role in the authorisation process. However, the IPC, supported by judicial commissioners and inspectors, ensures public authorities’ compliance with the law through inspections and investigations. That could lead to information being passed to prosecutors if they felt that that was necessary. I would also highlight that where a CHIS commits criminality outside the tight parameters granted by the authorisation, prosecutors can consider a prosecution in the normal way.

[Mr Carmichael]

Will the Minister be addressing the point that I put to him about operations overseas and the application of the Human Rights Act? That is important.

[James Brokenshire]

The UK will comply with obligations under the Human Rights Act, including when they arise extraterritorially. The UK is also bound by obligations under international human rights law.

I wanted to speak to the new clause tabled by the Intelligence and Security Committee and I thank its members for their support for the Bill. I think that underlines the role for the ISC in the scrutiny that they apply. Indeed, as the Minister who took the Justice and Security Act 2013 through Parliament, I recognised, in the creation of that Committee, its role in providing that rightful scrutiny and confidence in relation to this matter. I welcome the spirit with which new clause 3 has been tabled to emphasise the important role of the Committee, which I respect and appreciate.

I have written to the Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), to underline ways in which I believe we can provide the information that has been sought by the Committee, and I will place the letter in the Library to provide that certainty and clarity. I would say to my right hon. Friend that operational agencies will consider requests and specifics in the usual way, and I can commit to them considering that through the 2013 Act. The fact that it may relate to a live operation should not preclude that information’s being shared. I hope that that will be helpful to him in underlining the importance of the information’s being forthcoming.

[Dr Lewis]

I accept that assurance in good heart. In the letter, the Minister said, “Such information as is requested in order for the ISC to provide effective oversight of these policies relating to these authorisations shall be provided to the Committee,” so I take it he is saying that we will not get refused those statistics when we want them.

[James Brokenshire]

I take in equally good faith the way in which my right hon. Friend and the Committee have approached this, and it is firmly my intent that information will be provided. He knows the debate and discussion over live operations and being bounded in that way, but I would want to ensure that information is given to his Committee, so that they can fulfil their oversight function and also, I think, give confidence to the House. He and his Committee have raised an important point, and I recognise the contribution that they make.

I turn to the issues of redress in relation to the amendments tabled by the hon. Member for Streatham (Bell Ribeiro-Addy), in amendment 2, the Leader of the Opposition, in new clause 1, and the right hon. Member for Orkney and Shetland in amendments 20 and 21. Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.

I shall now discuss the amendments that seek to place further limits on what can be authorised. The limits that other countries have chosen to place on the face of their legislation have featured prominently in this debate, as they did at Second Reading. Further to the Second Reading debate we have continued, for example, to engage with our Canadian friends with regard to their limits on the conduct of their covert human intelligence sources. The Solicitor General and I agree that it is correct to say that limits are found on the face of their legislation, but it is not straightforward to make comparisons between what we are proposing here and what might exist for other countries. We have our own legal systems; our operational partners each have their own practices and functions; and—perhaps most importantly—we have a very different threat picture.

For example, our friends and partners, such as Canada and the US, are not signatories to the European convention on human rights. We are the only members of Five Eyes that are bound by the convention and the obligations that it comes with. Again, I reference clause 1(7)—it has been focused on quite a lot during today’s debate—which makes specific reference to the requirements of the Human Rights Act 1998 being taken into consideration. Placing explicit limits on the face of the Bill risks creating a specific list of prohibited activity that would place into the hands of criminals, terrorists and hostile states a means of creating a checklist, as I have explained and as I think my hon. Friend the Member for Bracknell (James Sunderland) set out so clearly in his contribution. Therefore we cannot accept amendments 8, 13 or 22.

[Several hon. Members rose—]

[James Brokenshire]

I will give way to the hon. Member for Brighton, Kemptown, just to be fair.

[Lloyd Russell-Moyle]

Is the Minister saying that criminals will not be able to read the Human Rights Act 1998 to realise that these crimes are not permitted to be authorised, or is he saying that actually those serious crimes will be permitted to be authorised? I am confused about this contradiction that he presents us with.

[James Brokenshire]

I reiterate again that a covert human intelligence source is not able to commit any and all criminality. I made that point on Second Reading. There are limits to the activity that can be authorised under the Bill and they are contained within the Human Rights Act 1998. The covert human intelligence sources code of practice also sits under this legislation and provides additional guidance and safeguards that apply to the authorisation of such activity.

[Joanna Cherry]

Will the Minister give way?

[James Brokenshire]

I have two minutes left and I still have a few more amendments I would like to discuss.

On the issue of the economic wellbeing of the United Kingdom, it is an established statutory purpose for investigatory powers. It recognises that threats to the economic wellbeing of the UK could be immensely damaging. It might include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government. Similarly, preventing disorder is an important and legitimate law enforcement function found in all investigatory powers legislation. Where illegal activity takes place, public authorities listed on the Bill have responsibility to take action that is necessary and proportionate.

Turning to new clause 8, I do not underestimate the concerns expressed about the use of juvenile or vulnerable individuals as covert human intelligence sources. There are provisions contained within the code and the guidance, as the hon. Member for Walthamstow (Stella Creasy) knows, and I have sought to discuss those issues with her outside of this place. The provisions also highlight the role of an appropriate adult, but I will continue discussions, because I recognise that there are concerns across the House. In good faith I would be pleased to continue those discussions to see whether there are other issues there.

On the issue of undercover officers and the authorisation of sexual relations, I will reiterate what police leaders have already said publicly: it is never acceptable for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of deployment.

Equally, we discussed trade unions on Second Reading, and I re-emphasise that the Bill does not prevent legitimate and lawful activity, which is precisely what trade unionism is all about. That is why the code of practice is explicit on that. Indeed, section 20 of the Investigatory Powers Act 2016 in another context also highlights that.

We must not forget the human element of this capability. We are not talking about machines and equipment, which is why the Bill is framed in this way. They are real people who are making significant personal sacrifices, and they must be able to continue living their lives safely and securely. That is what this Bill is about. Through the information they provide, lives are saved, which is why the measures in this Bill matter so much.

[Mr Carmichael]

The House has had a debate this afternoon that has been both good and frustrating at the same time: good because of the quality of speeches and the thoughtfulness of those who have made them; frustrating because it needed so much more time. As the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the Chairman of the Home Affairs Committee and the right hon. Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee said, this is really no way to go about this sort of business. The difficulty for the Minister is that it is counterproductive, because all he has done in railroading our proceedings today is give a green light to those at the other end of the building, who lack our democratic mandate, to crawl all over this and fillet his Bill, which they most assuredly will do. I will seek to divide the Committee and test its opinion on amendment 16, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.