Covert Human Intelligence Sources (Criminal Conduct) Bill

Mark Pritchard Excerpts

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

[Mark Pritchard (The Wrekin) (Con)]

I would like to put on record my thanks to all those who serve in our security agencies—they keep us all safe every day of every week—and to add my support for this important Bill.

Covert human intelligence sources, or agents, provide invaluable information to the UK’s intelligence agencies and those tasked with fighting serious and organised crime. These sources provide vital information—often time-sensitive—in saving lives. Even as I speak, they are probably saving lives—lives not in the abstract, but real lives; the lives and futures of men, women and children. We know that terrorists are no respecters of age, gender, faith, nationality or community. They seek to kill and to maim, to divide, to terrorise and to spread misery and fear.

Covert sources disrupt plots, secure prosecutions and give our intelligence agencies a critical human intelligence edge. Let me be clear: this type of human intelligence work is unique and cannot, as we have heard from the distinguished Chairman of the Intelligence and Security Committee, be replicated through regulated signals intelligence or communication intercepts. Covert sources save lives. As the head of the Security Service recently said, without covert human intelligence sources many of the attacks planned over recent years would not have been foiled. Covert human intelligence sources deny terrorists success.

I think there has been some misunderstanding about some parts of this Bill. It seeks to put existing powers on an explicit statutory basis and existing practice on a clear and consistent statutory footing, and surely that should be welcomed by the House. I am very pleased that the Minister has been explicit today about safeguards. They are needed, necessary and very welcome.

For the record, I would not be supporting the Bill if those robust safeguards and those meaningful checks and balances were not in place. Clause 4 should offer reassurance to any colleague who still has concerns about oversight. In it, colleagues will find a reference to significant oversight measures, with the Investigatory Powers Commissioner having significant powers of scrutiny and oversight.

I referred to my right hon. Friend the Member for Skipton and Ripon (Julian Smith), who rightly referenced improvements of oversight over recent years. However, it would provide further reassurance to colleagues from all parts of the House if those oversight measures were strengthened further to include an annual report to the Intelligence and Security Committee on the use of those authorisations, broken down by each organisation the Committee oversees and by the category of the conduct authorised. The Committee will be looking potentially to table an amendment to the Bill as it progresses through the House, although the Government are at liberty to listen to some of the comments that are being made today. I hope that amendment will reassure those on the Opposition Front Bench, as well.

I am also reassured that all authorisations will be compliant with the European convention on human rights, and rightly so. Indeed, I encourage all right hon. Members and hon. Members to read the Government’s ECHR memorandum, which accompanies the Bill.

Covert human intelligence sources are vital in the fight against terrorism, as well as against serious and organised crime. They are a critical operational element for the security of the whole of the United Kingdom and the whole of the Union. Given the improved oversight and scrutiny, the important application of the test of proportionality, the legislation’s compliance with the Human Rights Act and the European convention on human rights, and with further amendments to it, I support the Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Mark Pritchard 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

[Mr David Davis]

I will pay attention to your encouragement to be brief, Mr Evans. Although I support the intent of the amendments in the name of the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the right hon. Member for Orkney and Shetland (Mr Carmichael), and the hon. Members for Streatham (Bell Ribeiro-Addy) and for Walthamstow (Stella Creasy), I will focus solely on amendment 13.

There is no doubt that there is a need for a Bill like this. Infiltrating terrorist gangs and going under cover as an informant is dangerous and risky work which often requires breaking the law, and the Bill enables authorisation of those breaches of the law. However, amendment 13, in my name and in those of others, explicitly exempts the most serious crimes of murder, torture, rape and others from powers in the Bill. The Government argue that that is not necessary because the Human Rights Act already limits their actions. The question before the House today is this: do we believe that? Do we think that that is sufficient?

Back in the early 1990s, I was one of the Ministers who took the Intelligence Services Act 1994 through the House. Section 7 of the Act enabled MI6 officers abroad to commit crimes in the interests of the state. Inevitably, in the tabloid press, it became known as the James Bond clause, but that is precisely what it was not. It was not a licence to kill. It was a licence to bribe, burgle, blackmail and bug, but it was not a licence to kill. Nevertheless, within a decade, section 7 was being used to authorise rendition, torture and the mass invasion of innocent people’s privacy—crimes that were never countenanced when the Act was put in place. I know that, because I did all the work behind it. It should be understood that the authorisation of those crimes, often within the United Kingdom, occurred after the Human Rights Act had been passed—indeed, while the ink was still wet on its pages in some cases—and it provided precisely zero protection. Likewise, the European convention on human rights, the international convention on torture and the 1949 Geneva convention, to all of which we are signatories and some of which are absolutely binding in law, provided no protection whatever.

[Mark Pritchard (The Wrekin) (Con)]

My right hon. Friend has huge experience in this area, both legislatively and professionally. He is an expert. If a checklist, as he suggests, is put in the Bill, is that not also a checklist for terrorist gang leaders to prove a rite of passage and loyalty to somebody who might be working covertly on behalf of our national security interests?

[Mr Davis]

I will say a couple of things on that. First, if the gangster is smart enough to read the Act, he is smart enough to read the Human Rights Act. Secondly, I put a specific reference in amendment 13 to the Director of Public Prosecutions, so that if my hon. Friend is in such a circumstance and he has to do something violent to prevent himself being killed, that is an exoneration for the DPP. So it specifically allows that clouding, if you like, of the judgment. I draw his attention to the intervention in The Times last week—I was going to mention it later, but I will mention it now—by one of the best DPPs of modern times, Lord Ken Macdonald. He is not of my politics, but he is very, very experienced and he knows all about these things. He described this as Soprano-watching judgments and Soprano-watching logic. I am afraid that I agree with him, and I will come back and illustrate why in a second.

Officers in the intelligence and policing agencies can face huge pressure to authorise improper criminal activity, particularly when the demands on the agencies themselves become enormous. We saw that after 9/11, when after the dodgy dossier we had all the rendition issues. I always said in those days that we should not prosecute the individuals, because they were trying to prevent a 9/11 happening in Canary Wharf, but it was still wrong. Those morally indefensible actions by the state and their agents occur at the darkest times in our history, and we must remember that. We must write our laws to cope with the darkest times in our history, which is what we are trying to do here today.

--- Later in debate ---

[Mr Davis]

My hon. Friend is absolutely right. Sir Desmond did something else in his report: he quoted Lord Atkin, who, in a landmark case during world war two, said that

“amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

I am afraid that the Bill, necessary as it is, does not meet that test, and that is the problem.

[Mark Pritchard]

Will my right hon. Friend give way?

[Mr Davis]

You will kill me, Mr Chairman, but I will give way.

[Mark Pritchard]

My right hon. Friend rightly mentions the Pat Finucane case which David Cameron, as Prime Minister, correctly apologised for, but does my right hon. Friend recognise that since then the security services have more judicial oversight than ever before? We did not then have the Investigatory Powers Commissioner, and even the powers of this House for more oversight of the security services have increased. There has been a marked difference. Times have changed.

[Mr Davis]

Well, they have changed a bit. One of the things that the Intelligence Services Act 1994 created was the Intelligence and Security Committee. The Committee tried to look into rendition and torture just recently, under its previous Chairman, and it was refused access to 15 cases, so I am now suing the Government on exactly this matter, to force them to have to have a proper judge-led tribunal. So even now, it is not good enough; after 20 years, it is still not good enough.

The trouble is that others do it better. America and Canada learned the hard way about the need to include specific limits on the crimes that agents can commit. In those countries, informers and their handlers were involved in carrying out numerous cases of racketeering and murder, and they were found out. Since then, both countries have set clear limits. Just as an aside on the overall public interest, we all want our agencies to be able to work, but the FBI investigation found that the lack of limits and the wooliness of the controls led to more crimes, not fewer, so the so-called Soprano effect worked in reverse in terms of protecting the public interest.

The Bill puts no express limits on the crimes that the agencies can authorise—not on murder, not on torture and not on rape—and it claims that the Human Rights Act provides a safeguard. However, their own submissions in court, which have already been referred to by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the right hon. Member for Orkney and Shetland, showed that their own lawyers do not believe that. If Members have a bit of quiet time travelling back to their constituencies, they should read the Investigatory Powers Tribunal’s findings on the behaviour of the agencies. It is almost a James Bond novel in its own right. The scathing descriptions of the operations are worth reading.

Amendment 13, tabled in my name, addresses the most egregious elements of the Bill. It puts hard limits on the extent of criminal conduct that can be authorised by officers, and it specifically prohibits murder, torture, serious bodily harm, sexual assault and other heinous crimes. Crucially, it explicitly permits prosecutors to drop a case in a situation where an agent is truly forced to participate in a serious crime and where a decision not to prosecute is in the public interest. There is a real need for legislation in this area, but the Bill as it stands carries real risks of serious injustice. My amendments would give the intelligence services the protections they need, but stop short of giving them carte blanche authorisation to carry out the heinous crimes in the name of the state that have happened too often in the past.