Covert Human Intelligence Sources (Criminal Conduct) Bill

Jeremy Wright Excerpts

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

[Jeremy Wright (Kenilworth and Southam) (Con)]

It is a great pleasure to follow the hon. Member for Birmingham, Selly Oak (Steve McCabe) and to speak in this debate, in which there have been two significant points of consensus. The first is that it is right to provide for authority to be given to commit criminal offences in appropriate circumstances. The most obvious example of that is the infiltration of criminal organisations the membership of which is in itself an offence. The second point of consensus is that if the first is so, it is better for it to be on a clear statutory basis. For that reason, I welcome the Bill.

That is not to say, though, that there are not legitimate concerns about the Bill, and many of them have been expressed already. There is more to say about the distinction to be made between civil liability and criminal liability—doubtless we will return to that issue as the Bill progresses—but the majority of the concerns expressed so far have been about scope and safeguards, so I shall briefly say something about both those things.

On scope, it seems to me that it is absolutely right that the provisions of the Bill should be tightly circumscribed so that the criminal law is broken to the minimum degree necessary to prevent greater crime. It has been said more than once that the Bill leaves open the possibility that crimes such as murder and torture could be committed with apparent authority. I am not sure that that is so. Clause 1(5) sets out what will become section 29B of the Regulation of Investigatory Powers Act 2000. What will be subsections (6) and (7) of new section 29B require a person who may authorise criminal conduct to take into account, first, whether the same objective could be achieved without committing a crime and, secondly, other relevant matters, including the Human Rights Act. That is a somewhat diffident way to express it, but it has a significant effect. Section 6 of the Human Rights Act makes it clear that public authorities, which is what we are concerned with here, may not act in a way incompatible with a convention right, including the right to life and the right not to be tortured. For as long as the UK remains a signatory to the convention and the Human Rights Act remains in force, it must be a relevant matter in the scenarios that have been raised, so the Bill’s meaning in that respect is clear.

Frankly, my concern is with criminal conduct beneath the level of murder and torture but which still may be quite serious. Here, we rely on the wording of what will be subsections (4) and (5) of section 29B of RIPA, as set out in the Bill, to counter the risk that too wide a latitude is given to break the law than is warranted and the consequent risk that an agent takes disproportionate criminal action. The point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) about the tightening of language is important here. Under the terms of the Bill as they stand, criminal conduct authorisation may not be granted unless the person granting it believes three things set out on page 2 of the Bill. They are,

“that the authorisation is necessary on grounds falling within subsection (5)…that the authorised conduct is proportionate …and…that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.”

The first question that has to be asked is what kind of belief is needed. Is it honest belief, reasonable belief? Surely, it must be the latter. It would be helpful if that could be clarified at an early stage. It matters so much because of the weight put on new subsection (4)(b), which states

“that the authorised conduct is proportionate to what is sought to be achieved by that conduct”.

Proportionality is vital to the rationale and effect of the Bill. It is also vital, of course, to answering many of the perfectly legitimate points that have been raised about the inclusion of some other agencies—several of which have been mentioned—in the list of those that can authorise criminal conduct. It must be the case that it is not proportionate to commit a relatively serious criminal offence to prevent the commission of a relatively minor one. Proportionality is at the heart of what happens in relation not just to agencies such as MI5 but all the other agencies on that list.

Finally, I want to say a word or two about safeguards. It has not been raised particularly in the course of the debate so far, but there are those who say that we should not offer authorisation in advance but instead rely on prosecutorial discretion to deal with those cases where agents commit criminal offences. I yield to no one in my faith in prosecutorial discretion—I have exercised it myself a few times and I know that it can have a significant role to play—but I think it would be wrong to put all of the burden there, and to leave those already taking considerable risk exposed to almost equally considerable legal uncertainty, when there is another way of doing it. It would also be a step back, for those individuals who are taking those risks, from where we are now, where authority and therefore reassurance is given in advance, albeit not on the legal basis that we all seek to achieve.

I have rather more sympathy for the points that have been made about judicial oversight. If we cannot get to a place where prior judicial approval is in place—I am perfectly willing to be persuaded by my right hon. Friend the Minister that there are significant practical difficulties with that—it seems to me fundamentally important that the oversight is as proximate as possible to the action. If it cannot happen in advance, it must happen as soon as possible afterwards. That is an area in which we must all focus as the Bill moves into Committee. I certainly hope it gets there, because I believe it is a good Bill, but, as others have said, it is capable of improvement.