Covert Human Intelligence Sources (Criminal Conduct) Bill

Julian Smith Excerpts

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

[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.

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[Nick Thomas-Symonds]

The right hon. Gentleman is absolutely right. If the Bill does not have those safeguards on its face as it should, it will simply be successfully challenged in our courts. It is in nobody’s interests for that position to pertain, which is why I am making this point, on which I hope we can work on a cross-party basis.

[Julian Smith]

In its legal adjudication on the third direction earlier this year, a majority on the Investigatory Powers Tribunal—the special tribunal overseeing the intelligence services—found that the oversight powers currently given to the Investigatory Powers Commissioner provided

“adequate safeguards against the risk of abuse of discretionary power”.

It is important in our debate on the Bill to recognise those comments in that judgment, which is partly the reason that the Government have introduced the Bill.

[Nick Thomas-Symonds]

The right hon. Gentleman refers to the Investigatory Powers Commissioner, an issue to which I will return in a moment, but what he is actually referring to is one of the instances where the Government have tried to argue that the Human Rights Act did not apply. It is precisely for that reason, and because such arguments were raised in the past, that I am raising the point that I am.

--- Later in debate ---

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

I support the Bill, and I congratulate the Security Minister on bringing his practical knowledge from many years to guiding the Bill through the House. I want to make four brief points on the security services.

This Bill makes the ongoing function explicitly clear in law, but it is really important that we fully understand that there are already very clear processes in place regarding agent handling and how they interact with criminal acts. As the third direction hearing and adjudication by the Investigatory Powers Tribunal showed, no further powers were required. It was just a win—it was 3-2—but the IPT said that it was lawful. The 2018 Investigatory Powers Commissioner report, which is well worth reading, confirms that there is adequate guidance in place within MI5 regarding agent handling and that the then Prime Minister directed the commissioner to ensure that that guidance was being enforced. The report also points to the quality of applications by MI5 for the use of CHIS, noting that there are strong controls already in place.

The second point is that this Bill builds on an already rigorous oversight regime for our intelligence services. This stringent control environment has developed over many years, but the Investigatory Powers Act 2016 established a new single oversight body. The Investigatory Powers Commissioner has had a transformative impact on the level of oversight on all aspects of intelligence gathering. As IPCO’s annual reports show, the double lock on warrantry applications, for example, involves detailed interaction between the authorising Secretary of State and their officials, and IPCO and its judicial commissioners. Anybody who has been involved in the process will know that it is a very strong double lock. The Investigatory Powers Tribunal, which is independent of Government, provides a further independent appeal route, which is available to all at no cost.

The third point, with regard to CHIS, agents and criminality, is that this is an area of intelligence-gathering activity that is invariably difficult to manage in the same way as other intelligence gathering—for example, warrantry —is. We cannot hope to micromanage such activity from this House. The House and colleagues have to take comfort from the initiatives of the Intelligence and Security Committee, the application of the European convention on human rights to CHIS activity, and the role of independent commissioners to provide rigorous oversight. The Bill is clear that these powers do not give carte blanche to agents. The Crown Prosecution Service can still consider prosecutions for activities that fall outside those that have been authorised.

Finally, it is vital to note, as my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), the former Secretary of State for Northern Ireland, has just stated, that the Bill is not retrospective and will not impact on any historical investigation.

The women and men in our intelligence agencies, and those who supervise and work with them, work behind the scenes, are never publicly recognised. They are civil servants of the highest quality and integrity, and I believe the Bill will further strengthen their ability to do their work.