Covert Human Intelligence Sources (Criminal Conduct) Bill

James Sunderland 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

[Stella Creasy]

I recognise what the Minister says. The challenge is that we already know of children and vulnerable young people who have been in this position under that legislation, but the paramount needs of the child or vulnerable person have not always been at the forefront of the minds of those involved in these investigations.

What am I talking about? I am talking, for example, about a 17-year-old girl who was in a relationship where she was sexually exploited, but she continued in that relationship because it was beneficial to the police investigating the person she was in a relationship with. She ended up witnessing a murder and being party to destroying evidence about that murder. We would be responsible for the situation that she was in.

New clause 8 does not say that there will never be a circumstance in which we might work with children, but it does say that it is right to see them as children first and to have a second pair of eyes to uphold that principle. The Minister will tell me that that is written into the guidance, but the new clause puts it in the Bill so that it is beyond doubt that somebody would take responsibility for a vulnerable person’s welfare. It also extends to vulnerable people who might have been trafficked, for example—people who may not see themselves as vulnerable but who, we would recognise, could be exploited. It is right that we have that check and balance of the appropriate adult—somebody who looks at that vulnerable person and gives an alternative perspective on what is happening to them, independent of the investigation.

The Minister may say that he cannot accept the new clause in this format, but I ask him to look seriously at this issue and to ensure that when we pass necessary legislation to formalise such powers, we take a step back and see the person we might be drawing into criminality. These people are not all James Bond and can consent freely to being involved in criminal activity and then be held accountable by RIPA. Some of them will be very vulnerable people who need us in this place to stand beside them and ensure that their interests are protected and that they have an appropriate adult to act for them.

I hope the Minister will listen to the concern that has been expressed across the House—the new clause is signed by Members from across the House—and introduce that protection into the Bill so that we put it beyond doubt. The reality is that if it is just in a code of guidance, it will not always be followed. Let us send the message that children should be children, not child spies.

[James Sunderland (Bracknell) (Con)]

I am grateful to be called so early in this key debate, having been unable to speak on Second Reading. I therefore wish, if I may, to speak in general terms.

The first duty of any Government is to protect their people from harm. It is called defence of the realm. Given that that overrides all other considerations, we need to see the Bill in the context of the many existential threats that we face on a daily basis, many of which are hidden in the shadows and may never reveal themselves until it is too late. We also need to consider those we trust to keep us safe by empowering, not inhibiting, what they do. Our security services are only ever as good as the tools that their operators are given and the legal framework in which they work. Not only is the Bill a necessary piece of legislation in its own right; it provides a further insurance policy against those who seek to destroy the freedoms and the democracy that we take for granted.

Having personally served in uniform, I am comfortable that the Government continue to do what they must to give our intelligence services what they need to do their job. By allowing criminal conduct authorisations in the pursuit of covert human intelligence sources, the Bill rightly maintains the services’ operating freedoms, allowing them to close on those who threaten us and bring them to justice. But let us be clear: these powers are to be used only in extremis, when the operational circumstances necessitate, when quick decisions are needed or when there is no other way to avoid compromise.

To think that our operators are naturally predisposed to committing murder, torture or sex crimes, or that the Bill somehow encourages them to do so, is just wrong. The need to exercise discretion and judgment lies at the heart of what we ask our services to perform. Not only are these people good at what they do, they intuitively know the difference between right and wrong, so it is right that a CCA may be granted where necessary for one of three purposes: national security, the prevention or detection of crime, and in the interests of the economic wellbeing of the UK. I am happy, too, that under clause 2 only responsible bodies, such as the police, the National Crime Agency, the Serious Fraud Office or the security services, will be entrusted to do so, albeit with further work needed beyond the scope of the Bill on appropriate operating procedures.

I also agree with my friends on the Opposition Benches that, for example, rules of engagement might be provided in each particular case, and that there is further work to do. Under clause 4, the Investigatory Powers Commissioner will exercise oversight of all authorising bodies, not least to ensure that unlimited powers to commit any crimes are never granted and to rightly prosecute where criminality occurs.

I noted on Second Reading that the Secretary of State was continually pressed on which practices might be exempt or otherwise. His stance that it would not be appropriate to draw up a list of specific crimes is right, for 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 operators to be tested against. The Chair of the Intelligence and Security Committee also recognised how easy it would be for groups to flush out agents if they were aware of human intelligence being prohibited from certain acts, calling it “ dangerously counterproductive”. Although my own knowledge of covert operations is limited, I can tell Members that the work is difficult and dangerous.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

On people trying to flush out covert agents by getting them to do things that are on this supposed list, is the hon. Member therefore saying that the Human Rights Act 1998 does not prevent people from being able to do things, or does it potentially prevent certain actions and is therefore already a list? I am confused which it is.

[James Sunderland]

My key point is that the Human Rights Act does provide those protections, but in the context of operational service at the point at which decisions have to be taken I believe that those protections are needed.

Unlike most of our conventional forces, operators often work isolated and alone, making snap decisions that allow them to maintain trust and avoid detection. Rather than isolate them further—this goes back to my previous point—they need to know that their decisions and actions, when made in good faith and often under extreme stress, will be supported when the time comes. It is that discretion that lies at the heart of what they do, and more fool us in this place should we choose to undermine them or hang them out to dry from the sanctity of our courtrooms.

The recent evidence on why the Bill is necessary speaks for itself. Since March 2017, MI5 and counter-terrorism police have thwarted at least 27 terror attacks on home soil. In 2017, covert operations infiltrated a criminal organisation to stop a planned attack on Downing Street. In 2018, the National Crime Agency disrupted more than 30 threats to life, seized over 3,000 kg of class A drugs, safeguarded more than 200 people, and removed almost 100 firearms and 4,000 rounds of ammunition off the streets. Between 2017 and 2019, Her Majesty’s Revenue and Customs has prevented hundreds of millions of pounds of tax loss, with one case alone estimated to have saved the Treasury over £100 million. Such is the wider utility and benefit of our intelligence sources across a range of authorised bodies, what else do we not know?

I am sympathetic to new clause 3 about oversight of the ISC, but I am not convinced that the equality impact assessment cited in new clause 2 or the blacklisting cited in amendment 6 and new clause 5 would be feasible. I am sympathetic to new clause 8 in respect of CCAs being granted to under-18s and vulnerable people, but I think it would be difficult to implement in the field.

It is not always ours to reason why from the privilege of this place, nor to cast judgment on those who face more danger on a daily basis than we can imagine. I cannot agree with those who insist via amendment 7 that a criminal conduct authorisation should only be provided once a warrant has been issued by a judge or that a time limit be given. Similarly, for those who seek to balance the size and scope of the proposed activity against the gravity or the extent of the perceived crime, I regret that our operators will rarely have the luxury of doing so when danger is upon them. Given that our primary responsibility in this place is to keep our people safe and to allow those entrusted to do so to operate as they must, I will vote today for the passage of this Bill.

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

I welcome the remarks of the hon. Member for Bracknell (James Sunderland) about the important work that our security and intelligence agencies do.

We now have just a few short hours for the Committee stage of this Bill today. We will end up, in effect, with no Report stage. It is only 10 days since Second Reading. Third Reading is likely to be squeezed by how long it takes us to vote at the moment. I say to the Minister that this is an irresponsible way to deal with legislation that is so important. He will know that I say that as someone who strongly supports the vital work of our security and intelligence agencies, and our senior police, who deal with serious and organised crime, terror threats, and child abuse. They work with great bravery to keep us safe, and we owe them our thanks.

The Minister will also know that I have long supported much of the counter-terror work that the Home Office does, as well as its work with the police and intelligence agencies. I agree with the core purpose behind this Bill, which is to provide a legal framework for the difficult work that our Security Service, counter-terror police and National Crime Agency need to be able to do in order to keep us safe. But that is why we should take care to get the details of the legislation right. That is important because it is not only about the rule of law and safeguards for our democracy, but about the interests of the Security Service and the police. It in their interests to have the proper safeguards in place for the vital work they do. It protects them and it also protects individual officers, who have to take very difficult decisions under pressure with great integrity.

I find it difficult to believe that the court timetable has necessitated this condensed timetable. The Investigatory Powers Tribunal reported in December last year. Preparations were under way at that time for legislation, in case it might be needed. We could have had more consideration of this. We could have continued with it for a further couple of weeks in this House and then accelerated the timetable had it proved necessary at the last minute, given the court timetable and the potential for an imminent court decision.

We will therefore have an accelerated discussion of a whole range of different, important and very sensible amendments that have been put forward, such as those on pinning down the safeguards for human rights considerations and putting them more explicitly into the Bill. I strongly support the words of my hon. Friend the Member for Walthamstow (Stella Creasy) about the need to ensure that there is proper protection for children. There are measures to protect children in the use of covert human intelligence, but there should be additional safeguards in case there are ever circumstances in which children are being asked to break the law. Such safeguarding is important and does need to be seriously responded to. I also support the reinforcement of existing protections against things such as blacklisting and interference in trade union activity—protections that have been secured by work by Labour MPs on previous legislation.

The two key issues that I wanted to focus on—and the amendments that reflect those—are first around independent checks and secondly around the scope of the legislation. The Bill as it stands does not include sufficient independent checks. There is no independent check in advance and the independent checks in retrospect are very limited; all we have is the retrospective oversight of the Investigatory Powers Commissioner. Those are permissive provisions rather than clear requirements on the commissioner, which means that we will have no idea in the House, in retrospect, whether the IPC has been forensic, looking at every individual case, or whether it has had to focus on other issues that year as part of its report.

Covert Human Intelligence Sources (Criminal Conduct) Bill

James Sunderland Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

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

First, on behalf of my party, I welcome the amendments that have come from the other place that the Government are accepting. These are important concessions, which certainly improve the Bill. It has be said, however, that the Bill as a whole remains inadequate in the protections that it puts in place, and it bears the hallmarks of its history. Let us not forget that the Government did not bring in this Bill because they had a sudden damascene conversion to the need for scrutiny of this particular area of security and intelligence. They brought it in because they thought that they were at risk of losing a case in the Court of Appeal, having had a very close judgment in the Investigatory Powers Tribunal.

Essentially, in bringing in the Bill in this way, the Government have tried to recreate in statute the very loose and uncontrolled system that they have had prior to this. I suggest to the House that that will not stand the test of time. The right hon. Member for Haltemprice and Howden (Mr Davis) is absolutely right when he says that we need to hear from the Solicitor General at the Dispatch Box tonight clear undertakings in regard to the operation of the Human Rights Act as it applies to this Bill—soon to be an Act, no doubt.

The ambiguity is not just inherent in the Bill, as the right hon. Member for Haltemprice and Howden correctly said. Actually, that ambiguity can be seen between the way in which the Government have sought to argue their case in the Investigatory Powers Tribunal and the way in which they have presented their case in relation to this Bill. The Government have sought to claim that acts of torture by covert agents could be justified

“where the intention is to disrupt and prevent that conduct, or more serious conduct…or where the conduct would take place in any event.”

That, in itself, is not consistent with the Human Rights Act. It is clearly wrong and has been described as such by the Joint Committee on Human Rights in its report on the Bill. The Committee found that covert agents could not be authorised to get involved in abuses such as torture and that

“the intention behind that conduct cannot justify the violation.”

It has also been said, I think by the Intelligence and Security Committee, that the Bill is effectively about the Government outsourcing decisions that they could not take for themselves. That approach should provide us with concern and does worry us, because we know that these provisions will not then stand the test of time, and we will be back in the same territory that we have seen in recent years with other legislation, where the Government have to come back with legislation that is retrospective or seeks to amend the law to catch up with the courts.

I fear that we have a Bill that is not the last word on this matter. The Houses have made significant improvements to it, but it remains some distance from what the country needs and what those who do this very dangerous work on our behalf deserve to have.

[James Sunderland (Bracknell) (Con)]

This Bill is vital and goes to the heart of keeping communities safe from those seeking to do us harm. Covert human intelligence has been essential in disrupting many of the terrorist plots stopped by our agencies, and I was happy to vote the Bill through on Second Reading, the simple reason being that defence of the realm is the primary objective of any Government.

As we know, a criminal conduct authorisation may be granted where it is necessary for one of three purposes: national security, the prevention or detection of crime, or the interests of the economic wellbeing of the UK. From the relative comfort of this place, it is perhaps not for us to reason why, nor should we dare to understand the pressures that our security services are under, but it is for us to give them the tools that they need to do their job and to allow them the freedom of action that they need to keep us safe. There is a clear distinction, for clipping the wings of the Bill could be, and will be, counter- productive.

Lords amendment 3 allows anyone who has been the victim of a crime under a CCA to remain able to claim compensation under the criminal injuries compensation scheme or Northern Ireland’s CICS. That is fine, but as the Minister has outlined, the Government are listening to ways of providing additional resources to Parliament and the public on what safeguards may be possible and operationally workable. That would be achieved by an amendment in lieu that makes it clear that a person can access the compensation scheme where appropriate, so I am sympathetic to Lords amendment 3B on criminal justice compensation and urge the Government to consider it as a concession, as they now are.