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.