Covert Human Intelligence Sources (Criminal Conduct) Bill

John Hayes Excerpts

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

[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.

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[Sir John Hayes (South Holland and The Deepings) (Con)]

Following the hon. Member for Poplar and Limehouse (Apsana Begum) reminds me of how much we miss her predecessor, who was such a well-respected Member of the House.

Hegel concluded:

“What is reasonable is real; that which is real is reasonable.”

The reality of the means by which we counter the wicked plots and plans of those intent on maiming and murdering Britons—of all kinds and types, by the way—are made reasonable by the character of those deadly schemes. In essence, we must match the most ruthless adversaries in our diligence, determination and decisiveness. To do so is entirely reasonable.

As the Minister said, since 2017 numerous terrorist attacks have been anticipated and thwarted through the skilful efforts of the security and intelligence agencies and the police, but some have not. The death at terrorist hands of 22 innocent civilians in Manchester, including many children, haunts us all. At the heart of our democracy here in Westminster, where four individuals were executed on the bridge and PC Keith Palmer lost his own life heroically resisting the murderer sent to hell by the bullets of other heroes, we saw again what Islamist terror can mean for the innocent. Those and all other tragedies of this type haunt us, but they also harden our resolve. As we are strengthened by grief, those we mission to keep us safe from such ills each and every day need to be sure that we stand for them and by them, and that is just what the Bill does.

[Rehman Chishti]

Like my right hon. Friend, I fully support the Bill going through. He mentioned the Daesh-inspired extremism. Does he agree with me that the first duty of the state is to protect its citizens, and the legislation that has been put through this Parliament on counter-terrorism has been designed with that in mind, irrespective of creed, colour or background? What I have seen with the Prevent and Channel programmes, having sat on the Home Affairs Committee, is that there are now far more individuals from right-wing-inspired extremism than there are from Daesh-inspired extremism. The threat to our country is therefore from both kinds of extremism, and the legislation we put through this Parliament is designed with the duty to protect our citizens of all creeds, colours and background.

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[Sir John Hayes]

That is certainly true, as my hon. Friend will know that I was once responsible for overseeing the Prevent programme and indeed introduced the Prevent duty. Extremism of all kinds that leads to violence and threatens life and limb needs to be countered. The mechanisms we use to do so are common to all those who seek, in my earlier words, to maim and murder us.

When I guided the Investigatory Powers Bill through this House as the Security Minister, I learned that infiltration is a vital tool for our security and intelligence agencies to penetrate terrorist groups. Those brave enough to do so must be credible to those they need to trust them, so it is axiomatic that they must look and sound like those they live among and do as they do. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they fail to convince those they infiltrate, it is no exaggeration to say they may be killed—indeed, that is the essence of undercover agents’ work.

The Bill, as has been emphasised repeatedly, provides a clear legal basis for that long-standing, invaluable covert tactic, which enables the detection and discovery of crucial, critical intelligence that other investigative tools might never detect. We have heard, as I have said repeatedly, that 27 terrorist attacks have been averted, in part because of interception and infiltration. Preventing those atrocities has saved real lives of individuals loved and known, who live today thanks to the tireless work of our police and intelligence services.

Of course there must be accountability and scrutiny, as I recognised during the passage of the Investigatory Powers Bill, in which we introduced the double lock to which my right hon. Friend the Member for Skipton and Ripon (Julian Smith) has drawn the House’s attention. We also established the Investigatory Powers Commissioner and, indeed, the Investigatory Powers Tribunal. It is critical that we look at things in a way that reassures members of the public that powers are used only where necessary and proportionate, as the Minister emphasised. Our standards must be maintained as we struggle with threats from those who have no meaningful ethical standards.

As well as being proportionate and necessary, the security agencies’ test for all their work, as the right hon. Member for North Durham (Mr Jones) pointed out, is that the particularity of any criminal endeavour entered into must—as the Bill makes clear—be specific, limited and detailed in permission granted. Where the objective can be secured without criminal activity, it will be; criminal activity will apply only where there is no other credible alternative. It is essential that it be limited to only the activity specifically authorised in the criminal conduct authorisation granted exclusively by highly trained and experienced officers. Moreover, there will be effective scrutiny, with authorisations overseen by the independent Investigatory Powers Commissioner, the ISC kept informed of the use of CCAs, and the tribunal able to investigate any complaints against public authorities’ use of the power.

Reasonableness is defined by the bitter reality of our continuing struggle against the individuals and groups whose defining purpose is to do us harm. It is my estimation that as terrorists become more adaptable and flexible and as terrorism itself metamorphoses, we will need to look again at the power, resources and legal means by which those whom we wish to keep us safe do their work. Historically, major pieces of legislation have gone through this House perhaps every decade or a little more, but I suspect that we will legislate more often as terrorism changes, particularly as a result of the changing nature of communications and other technology.

We must resource and equip the brave men and women who put themselves at great risk in our interest to keep us safe and to safeguard our way of life. To legislate to give them the much-needed powers provided by the Bill is both timely and, most of all, it is reasonable.

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[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to close the debate on behalf of the Opposition. The serious and sombre tone of the debate, which is appropriate given the measures we are discussing, was set by the Security Minister and the shadow Home Secretary. The debate has been well informed and enhanced by the contribution of former Cabinet Ministers, particularly Secretaries of State for Northern Ireland, who have a working knowledge of these matters, and also the former Attorney General and the Chairs of the Intelligence and Security Committee and Justice Committee.

As the Leader of the Opposition has made clear, security is a top priority for the Labour party under his leadership. As I have said before from this Dispatch Box, we will be forceful and robust in supporting the fight against terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our communities safe. We will meet our duty to support those who put their own safety and lives at risk to protect us. We acknowledge and understand the purpose of this Bill, which seeks to put on a statutory footing the activity of those working to disrupt some of the most vile crimes imaginable, including terrorism, the activities of violent drug gangs, serious and organised crime, and child sexual exploitation.

We know that the threat from criminal and terrorist activity is very real and that the ability to gather intelligence is a vital tool in disrupting this activity, preventing further crime and bringing those responsible for it to justice. Since March 2017, the security services and counter-terror police have thwarted 27 terror attacks. In 2018, covert human intelligence sources helped to disrupt over 30 threats to life, leading to the arrest of numerous serious organised criminals and the seizure of more than 3,000 kilograms of class A drugs, and taking more than 50 firearms off the street.

During the course of those operations, it is inevitable that agents will at times transgress existing laws in a limited way. This activity has been happening for a long time. It is not always comfortable for us in this House to think about what we need people to do to protect us and prevent harm coming to us, but real life is not a film. There is no Superman, it is not a fairy tale and there is not always a happy ending. That is why it is a step forward that this activity will now be properly covered by statute and open to greater transparency, accountability, regulation and safeguarding in a way that it has not been before.

We are told that under this legislation covert human intelligence sources will not be given carte blanche—the Minister made that very clear. It is therefore absolutely vital that during the passage of the Bill we get those safeguards and the processes and structures for accountability and proportionality absolutely right, both for the maintenance of our country’s hard-won civil liberties and human rights and for the protection of those who undertake such activity, as my hon. Friends the Members for Birmingham, Selly Oak (Steve McCabe) and for Kingston upon Hull North (Dame Diana Johnson) outlined so eloquently.

The Bill is certified as compliant with the Human Rights Act, as the Minister set out. All public authorities are bound by it to act in a way that is compatible with the rights protected by the European convention on human rights, including the right to life, the prohibition of torture or subjecting someone to inhuman or degrading treatment. The Human Rights Act is specifically mentioned in the Bill, providing important and necessary protection. However, it is right that during the Bill’s progress we will be pressing the Government on safeguards as to what acts can be carried out. I therefore take this opportunity to let the Government know, as the hon. Member for Gordon (Richard Thomson) and the right hon. Member for Orkney and Shetland (Mr Carmichael) have, about those areas where we believe the Bill requires scrutiny and can be strengthened on its journey.

We need to explore in greater detail how we might get closer to the specifics of what offences can be allowed, as has been done in, for example, Canada and indeed the United States. There is nothing in the Bill to limit or specify the kinds of offences covered, only that they are to be necessary and proportionate. Despite the fact that the Human Rights Act is applicable in all circumstances, we will be pressing the Minister for an understanding as to why offences such as murder, torture and sexual violence are not explicitly ruled out in this legislation.

Moreover, the Bill certifies that an authorisation may be given only if it is deemed necessary

“in the interests of national security…for the purpose of preventing or detecting crime or of preventing disorder; or…in the interests of the economic well-being of the United Kingdom.”

These are broad statements that could have wide-ranging interpretations, particularly the last of the three, by a large list of agencies. We want to explore some of that and will press for assurances.

We also want to look at levels of accountability and sign-off for authorisation. As the Bill stands, the use of such powers will be overseen by the independent Investigatory Powers Commissioner, who can report on an annual basis. We believe the Bill needs to go further and that each and every authorisation should be notified to the commissioner in real time, so that scrutiny can be robust and ongoing. I also welcome indications from the members of the Intelligence and Security Committee that they too will seek to bring forward safeguards in that respect through amendments.

[Sir John Hayes]

I appreciate the hon. Gentleman’s comments and, indeed, the tone of his contribution, but he must surely acknowledge that being very specific about what covert agents can and cannot do would expose them to great risk, for those they infiltrate would know what their parameters of activity are likely to be.

[Conor McGinn]

The right hon Gentleman makes a very fair point. I completely appreciate that and have taken into account the comments that have been made by Ministers and those with experience of this, but I just seek simply to see whether there is a way that we can add more reassurance for people around some of the specificity of these matters without exposing people to the dangers that have been rightly outlined.

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[The Solicitor General (Michael Ellis)]

Let me start by thanking colleagues across the House for the constructive way in which Members have approached today’s debate. I think we all agree that national security and preventing serious crime is an area in which we want to ensure that operational agencies are best equipped to protect us and keep us safe, and this Bill does just that. It is in that spirit that we have engaged many Members in advance of this debate, and I can assure Members that we will look to continue to work together as the Bill passes through Parliament.

If I may, I will respond briefly to some of the points made during the debate. My right hon. Friend the Security Minister has already responded to a number of interventions, but turning first to safeguards and oversight, I agree with those colleagues who have emphasised the importance of ensuring that there is robust oversight of the use of criminal conduct authorisations, or CCAs. That is why we have a world-leading investigatory powers regime, and it is why there is significant, independent oversight of the use of those powers; few other countries in the world, if any, have such a regime. With regards to safeguards within the public authority, all authorising officers are highly trained. My right hon. Friend the Member for Basingstoke (Mrs Miller) spoke about training a few moments ago, and I can say that these officers are experienced and have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct.

In response to the point raised by my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), let me confirm that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. All authorising officers must be appropriately trained, and the independent Investigatory Powers Commissioner can identify if any public body is failing to train their officers or assess them to a sufficiently high standard. To respond specifically to the point raised by the hon. Member for Belfast East (Gavin Robinson), I can confirm that an authorisation must be granted before activity commences. The Bill does not seek to enable the retrospective granting of a criminal conduct authorisation; this is not a retrospective Bill.

I turn now to independent oversight. The Investigatory Powers Commissioner is entirely independent of Her Majesty’s Government and has wide-ranging powers to support his crucial oversight functions, which include the ability to inspect all the public authorities able to grant a criminal conduct authorisation at a frequency of his choosing. Public authorities are required to provide unfettered access to all of their documents and information, and the results of those inspections are published within his annual report. A public authority must then take steps to implement any recommendations made by the IPC. This Bill looks to provide robust independent oversight, while ensuring that such oversight does not result in a loss of operational effectiveness. Authorisations may need to be granted at short notice, and here I want to emphasise the human element of CHIS, unlike other investigatory powers. That human element means that these decisions cannot really be retaken; they impact directly on the safety and welfare of covert human intelligence sources.

[Sir John Hayes]

While dealing with safeguards and scrutiny, can my right hon. and learned Friend confirm that the tribunal has the ability to deal with any complaints about inappropriate use of these powers? Furthermore, will he do as I did when I took the Act through the House and give an absolute assurance that this will not be applied to civil society organisations, including trade unions?

[The Solicitor General]

Yes I can, and I will come to that point in a moment.

          I have been listening to the views expressed in the debate by the Chair of the Home Affairs Committee, my right hon. and learned Friend the Member for Kenilworth and Southam and the hon. Member for Torfaen (Nick Thomas-Symonds) that providing the Investigatory Powers Commissioner with more real-time oversight would strengthen that oversight. We have always been clear that we are willing to engage with workable proposals; I understand the spirit in which these remarks were made and I am listening carefully.

I thank the members of the Intelligence and Security Committee for their support for the Bill and recognise the important role they play in providing oversight of our intelligence agencies. The Committee’s oversight role is complemented by the work of the Investigatory Powers Commissioner, who is tasked with providing information on public authorities’ use of the power.

The shadow Home Secretary made a specific point regarding the disproportionate impact on women or members of the BME community. Those under investigation are targeted because of their criminal or terrorist activities, not on the basis of such characteristics. If there are any specific concerns, I am of course happy to discuss them further, but I can confirm that that is the case.

Regarding limits, I understand the concerns expressed by colleagues around the House, but let me be clear: covert human intelligence sources will never be provided with unlimited authority to commit all or any crime. They will never be provided with an authorisation that is contrary to our obligations under the Human Rights Act. The Bill makes that specifically clear. This is not a “licence to kill” Bill. An authorisation is tightly bound: it must be necessary, and it must be proportionate to the activity it seeks to prevent.

As my right hon. Friend the Member for New Forest East (Dr Lewis) and others set out, creating a specific list of prohibited activity, were we to do that, would place into the hands of criminals, terrorists and hostile states the means to create a checklist against which suspected covert human intelligence sources could be tested. That would threaten the future of CHIS capability and consequently increase the threat to the public. The Investigatory Powers Commissioner has wide-ranging powers to ensure that the requirements of the legislation, which have been clearly set out in the House today, are adhered to.

Let me deal with some international comparisons. Different countries have different legal systems, threat pictures and operational practices; simply comparing legislation, therefore, gives only a partial picture. However, with regard specifically to Canada—our strong ally, which has been mentioned a number of times this evening—our understanding is that the parts of the Canadian Security Intelligence Service Act to which Members have referred do not actually relate to covert human intelligence sources. The specifics of what a CHIS may be tasked by the agency to do in Canada—the information some say is contained in the Canadian Act—is not on the face of their legislation. That is our understanding.

Regarding the point made about trade unions, economic wellbeing is of course one of the established statutory purposes for which the covert investigatory powers may be deployed by public authorities. That is to recognise the threats to the economic wellbeing of the United Kingdom and that they could be immensely damaging and fundamental in their effect. For example, such threats may include the possibility of a hostile cyber-attack against our critical infrastructure, our financial institutions or the Government itself. However, it is not the intention in the Bill to prevent legitimate and lawful activity, including activity by trade union organisations. Preventing such activity would not be necessary for the purpose of economic wellbeing. Trade unions have historically been a bastion of rights in this country and they are, of course, a lawful authority.

In response to concerns about the Bill’s impact on potential victims’ ability to seek compensation, it is not the intention of the Bill to affect any individual’s ability to pursue a claim for compensation where appropriate. It is not the case that any or all conduct by a CHIS could be exempted from civil liability under the Bill regime.

Finally, I have heard several Members, including the right hon. Member for Orkney and Shetland (Mr Carmichael) and the right hon. Member for North Durham (Mr Jones), question the need for wider public authorities to have the power. These public authorities have important investigative and enforcement responsibilities. It is right that they are given the necessary powers to undertake these functions themselves. Very briefly, I could perhaps give an example to do with the Food Standards Agency, which has been mentioned a number of times.

The Food Standards Agency is tasked with protecting consumers and the food industry from food crime within food supply chains. Examples of food crime include the use of stolen food in the supply chain, the unlawful slaughter of animals, the diversion of unsafe food not fit for human consumption, adulteration of foodstuffs, substitution or misrepresentation of foodstuffs, and document fraud. The continuing presence of an individual within a workplace may necessitate them actively participating in presenting, packaging and relabelling produce in order to misrepresent its quality and fitness for consumption, which would be criminal offences. As I say, all public authorities will be subject to the same robust safeguards and oversight and it is right that we equip them all with the powers they need to protect us.

In closing, we should not underestimate the immense contribution that covert human intelligence sources have made, and continue to make, to protecting the public and this country. We can never publicly set out the exact details of what they do on our behalf, but let me assure hon. and right hon. Members that without them lives would have been lost. They are exceptional people, courageous and devoted, and we are all grateful to them. It is right that covert human intelligence sources, their handlers and the public authorities to whom the Bill relates have the certainty and clarity to continue to use this tactic. It is also right, however, that this is subject to robust safeguards and independent oversight. This legislation will achieve both those things and ensure we can continue to bring to justice those who want to do us harm.

Question put, That the Bill be now read a Second time.