Covert Human Intelligence Sources (Criminal Conduct) Bill

Lloyd Russell-Moyle Excerpts

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

[Liz Saville Roberts]

That is a very fair point, which we have discussed to a considerable degree. None the less, there is a public revulsion at the prospect of sexual violence, murder and crimes of that nature, which warrant being mentioned in the Bill for that very reason.

Equally profound and disturbing at first appearance is the power to grant authorisations, which will be given to organisations to decide for themselves internally, without judicial oversight and with limited redress for victims. It is quite extraordinary that there is no provision for how innocent victims of authorised criminal conduct might be compensated, which is surely to be expected in the Bill. I also believe—this point has already been well expressed, but I want to add my voice to it—that trade unions have legitimate concerns, given that covert surveillance has been undertaken in the past against entirely legitimate trade union activity in conjunction with criminal blacklisting.

While quick to quote the book of human rights, the Government have failed to quote chapter and verse of what is permissible and what is beyond the pale. Would the use of sensory overload or stress positions by agents constitute torture and be a violation of human rights? Would they then be criminally culpable? What guarantee can the Minister give that a future UK Government, or even this one, might not seek to legislate for derogations from the European convention on human rights? Given the horizon-spanning nature of the criminal conduct covered by the Bill, where is the threshold for authorising acts, such as phone tapping, that rightly concern the public? What does “proportionate” actually mean? If we do not define it, who does? By what algorithm do we assess the range of proportionality? Where is the shift and the mission creep there?

The Government have also empowered a range of organisations with this new authorisation of criminality, from the Environment Agency to England’s Department of Health and Social Care, but how do the Government intend to prevent creep by Government Departments and the erosion of law? What safeguards will the Government put in place within those Departments? Does the Investigatory Powers Commissioner have sufficient measures and capacity to deal in a timely fashion with the incremental increase in his workload?

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

Does the right hon. Member agree that it is all well and good having oversight after the effect, but there is a real danger that the authority providing authorisation before the effect is the same authority that is doing the investigation? We all have systems of tunnel vision when we are in the middle of something and are unable to see the wider aspect, and independence at the pre-authorisation stage is really important.

[Liz Saville Roberts]

Professional intent, although very laudable in certain circumstances, in this instance could well lead to unpredicted circumstances, and possibly most undesirable ones.

The Bill at present is ill defined and explained, with a focus trained on selected specific issues, and it risks undermining the trust upon which the public agencies tasked with our defence depends. Many, including the Front Benchers of Her Majesty’s Opposition, have said that that will be discussed on Report and in Committee. It is very important, and will evidently be significant when we are able to table amendments and discuss the Bill in detail. However, consideration is down for Thursday week. There will be a Thursday afternoon for Committee and all remaining stages. That is insufficient for the level of scrutiny that a Bill of this seriousness warrants. I beg the Government to consider whether, in all honesty, that is the impression that they wish to leave on the international stage, on which we hope to lead in the rules-based dimension in the future.

[Mrs Maria Miller (Basingstoke) (Con)]

It is a great pleasure to follow the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). She is absolutely right that public confidence is a critical issue with regard to a Bill of this nature. I am sure that those on the Government Front Bench will have been listening very carefully to her remarks, and indeed those of everybody today. I sense that one or two Members’ contributions, perhaps including that of the hon. Member for Poplar and Limehouse (Apsana Begum), were not thought to have been much in alignment with everybody else’s. Well, I say all power to her for voicing her views, because it is important that the Government hear everybody’s views, whether or not they are consistent with what might be felt elsewhere.

Having listened very carefully to the debate, I think that, by and large, there is cross-party support for the proposed legislation, notwithstanding the specific issues that have been raised by hon. and right hon. Members throughout, particularly on issues of safeguards and oversight. That support stems from a clear understanding of the role of covert human intelligence sources in helping to keep safe us every day of the week—safe from those who scheme every day to take the lives of innocent British citizens in terrorist attacks like the one that we saw here in Parliament not so long ago.

This very narrowly focused Bill seeks to put on a statutory footing activities that frankly most of us would like never to know about—courageous work done by people who may never have the value of their work recognised publicly because of the security issues involved. The Bill gives those agents a more legally certain environment within which to operate and give more protection, through the safeguards, to those in broader society. In the past, activities that have involved breaches of the law, including belonging to a proscribed organisation, were undertaken on the basis of what appears to have been an implied power. The right hon. Member for Dwyfor Meirionnydd talked about murky proceedings. I do not know whether that is the correct term, but it seemed to fit. The Bill removes any ambiguity and, in doing so, ensures that already strong procedures and oversight are more transparent and perhaps, hopefully, more understandable to everybody concerned.

We have heard some very learned analysis of the way that the Bill works from some very learned Members, particularly my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright). I do not intend to compete with their many years of expertise, but I do want to look at some of the issues that are presented by the safeguards in the Bill.

It was important that my right hon. Friend the Minister put on the record some of the actions that have been undertaken by covert human intelligence sources in the past—actions that could never be sanctioned or authorised either in the past or, indeed, under this new legislation. Understandably, the debate has focused on safeguards to ensure that further such unauthorised behaviour is eliminated. The Bill and the code of practice set out very clear safeguards that, as other hon. Members have pointed out, are for the most part already in place and operational. However, the Bill puts in place a protocol and safeguards to put them on a statutory basis, be that authorisation from a trained and experienced officer, oversight by the Investigatory Powers Commissioner or accountability to the Intelligence and Security Committee under my right hon. Friend the Member for New Forest East (Dr Lewis), with the Investigatory Powers Tribunal to investigate and determine complaints and grievances independent of Government and any Government organisations.

However, if these procedures are already in place, then I am concerned to hear from the Minister how we are going to make sure that they work better in future, because a number of issues raised in the debate require some further thought and response from the Government. Many are rightly concerned that in the past women have been sexually abused and even raped as part of covert operations. The Minister has been clear that these actions would never be sanctioned, either in the past or now, but regardless of the rules, reports of widespread involvement by officers in these sorts of very serious sexual assaults are concerning and have emerged. What will be done differently under this Bill to stop such blatant abuses happening in future?

[Lloyd Russell-Moyle]

I wonder whether the right hon. Lady agrees that the Bill is partly about enabling self-restraint, and therefore putting certain things that cannot be done into the Bill provides an understanding for officers so that it is clear, whereas a more general human rights approach could create the danger of it being less clear, just as in Canada or America.

[Mrs Miller]

The hon. Gentleman could argue that point from completely the opposite side, because by in some way bringing into question whether this piece of legislation will be treated like all other pieces of legislation—in other words, that a Minister will authorise it only if it is compliant, under the Human Rights Act, with sections of the European convention on human rights—I think he actually brings the whole thing into question; probably unintentionally, of course.

Going back to the point that I was making, what will be done differently? First, the Bill briefing note provides some detail on what might be done differently, but there is room for perhaps a little more, perhaps in Committee or beyond. The Bill provides detail on training for authorising officers about the way this new legislation would work, but absolutely no mention is made of training for the agents themselves. Given the problems of the past, can the Minister outline more fully what training agents receive on awareness, knowledge and expertise in the application of the Human Rights Act? I think many Members could do with some training on that at certain stages, because it is incredibly complex, and compliance with the European convention on human rights adds even more complexity.

Secondly, in 2016 the College of Policing published “Undercover policing: Authorised Professional Practice”, which is national guidance for officers. It would be helpful if the Minister updated the House on the status of that guidance, and whether any further operational guidance is envisaged for agents who will be under this new legislation. Covert human intelligence has an impact on many vulnerable people in society, and particularly women who may have had intimate sexual relations with undercover officers. Is the Minister reviewing the effectiveness of the way that policy impact is assessed to ensure that these sorts of blatant breaches are caught more quickly and, drawing on what my right hon. and learned Friend the Member for Kenilworth and Southam said, caught right away, rather than at a point in the future? The 70-page code of practice that accompanies the Bill is welcome, but perhaps a little unwieldy. How will the intent behind this Bill be turned into practice for agents on the ground?

Finally, if errors are made or agents do not follow the rules, there needs to be a clear and transparent pathway of redress for victims. What is that pathway for victims: what path would they follow under this legislation, and how is it different from what went before? All legislation we pass in this place is authorised by Ministers on the proviso that it accords with the provisions in the Human Rights Act and the European convention on human rights—this goes to the point made by the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle)—but mention has been made of the defence used by the Government previously in apparently carving out the actions of agents as being separate from the rules applying to public authorities. We have heard an explanation of that already in the debate today, but I think more clarity on that would be helpful when we think about building confidence both within the Chamber and beyond.

In conclusion, I fully support the Bill before us today, and there is a great deal of merit in what the Government are attempting to do. I again pay tribute to all those in our security services who work to help keep us safe. This legislation will put on a firmer footing the protocols within which they work and the safeguards that are there to ensure those provisions work as we intend them to do, which is to bring criminals to justice. Governance, security and oversight will not diminish this Bill; they will strengthen it to give it the full confidence of this House and the people we represent.

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[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.

[Lloyd Russell-Moyle]

Will my hon. Friend give way?

[Conor McGinn]

My hon. Friend is doing very well. He has been in the Chamber for only 20 minutes and this is his third intervention, but I will, of course, give way to him.

--- Later in debate ---

[Lloyd Russell-Moyle]

I did apply to speak, but I was refused by the Speaker’s Office, so I have been listening to the debate in my office.

Would it not be better if we took a Canadian or even an American model, where there are some things that are excluded from the scope of actions? This idea of testing does not seem to cause problems for the Canadians or the Americans.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. The hon. Gentleman said that he had been refused permission to speak by the Speaker’s Office, but if he had submitted his name in time, he would have been on the list, so I do not quite understand. Perhaps he would like to come and see me and explain exactly what happened.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lloyd Russell-Moyle 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

[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.

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

It is a pleasure, as always, to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry), and to speak with you in the Chair, Dame Rosie. I rise to speak to the amendments in my name and that of my right hon. and learned Friend the Leader of the Opposition and other honourable colleagues.

As I said on Second Reading, my right hon. and learned Friend has made it clear that security is a top priority for the Labour party under his leadership. We will be 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, and we are grateful to those in the police, the security services, the National Crime Agency and wider law enforcement. They put their own safety and lives at risk to protect us, and we will meet our duty to support them.

It is worth noting that, since 2017, 27 terror plots have been uncovered and attacks foiled, and last year covert human intelligence sources helped to disrupt 30 threats to life. That is the sobering context of the debate, so we acknowledge and understand the Bill’s purpose, and recognise the need 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.

It cannot be right, for those we ask to undertake that work, for those who might be affected by it or indeed for society as a whole, that that work continues in the shadows, and without boundaries and safeguards. In that vein, our amendment 7 seeks to ensure that the granting of criminal conduct authorisations may not take place until a warrant has been issued by a judge. We believe that it would provide reassurance to have independent judicial oversight of that process.

[Lloyd Russell-Moyle]

Whatever we think of the progress later on of the Bill, we have to agree that judicial oversight is really important. When a Labour Government get in, we will hopefully move towards that, but does my hon. Friend agree that the cases that he has just outlined are serious and severe, so these powers should be for agencies that are investigating them, not every Tom, Dick and Harry of the Food Safety Agency?

[Conor McGinn]

I am sorry that, having been present for the whole debate, my hon. Friend did not get to make a full speech, so I am happy to take his intervention. I hope that the Minister will reply to the valid and valuable point that he makes.

We understand that in a fast-changing intelligence landscape, a degree of operational flexibility is right and necessary, but I urge the Minister to provide some clarity and assurances that the requirements for certification will not simply become catch-all terms, and that there are clear and robust limits to their applicability.

The Bill already states that authorisation may not be granted unless the person believes that the conduct is proportionate to what is sought, but our amendment 11 intends to create a proper framework for that assessment. It ensures that the person must take into account several important questions before being granted any criminal conduct authorisation and provides rigorous assessment to ensure that such decisions are not taken lightly. Similarly, our amendment 10 is specifically about ensuring that the circumstances in which a criminal conduct authorisation is necessary must not include the activities of trade unions.

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[James Brokenshire]

I will give way to the hon. Member for Brighton, Kemptown, just to be fair.

[Lloyd Russell-Moyle]

Is the Minister saying that criminals will not be able to read the Human Rights Act 1998 to realise that these crimes are not permitted to be authorised, or is he saying that actually those serious crimes will be permitted to be authorised? I am confused about this contradiction that he presents us with.

[James Brokenshire]

I reiterate again that a covert human intelligence source is not able to commit any and all criminality. I made that point on Second Reading. There are limits to the activity that can be authorised under the Bill and they are contained within the Human Rights Act 1998. The covert human intelligence sources code of practice also sits under this legislation and provides additional guidance and safeguards that apply to the authorisation of such activity.