Covert Human Intelligence Sources (Criminal Conduct) Bill

Michael Ellis Excerpts

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

[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.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Michael Ellis Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

[The Solicitor General (Michael Ellis)]

I beg to move, That this House disagrees with Lords amendment 1.

[Mr Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and Government motion to disagree.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government amendment (b) thereto.

Lords amendments 6 to 14.

[The Solicitor General]

This Bill is an important piece of legislation that places a long-standing tactic on a clear and consistent statutory basis. It provides certainty for those who engage in important and dangerous operations on our behalf that they are able to utilise the tools needed to keep us safe and prevent crime. It also rightly provides assurance to the men and women who may find themselves in risky and dangerous situations in order to provide vital intelligence that the state will not prosecute them for activity that the state has asked them to commit.

Since March 2017, MI5 and counter-terrorism police have together thwarted 28 terror attacks, a figure that is higher than that which the Government provided on Second Reading a few months ago. As the director general of MI5 said when this Bill was first introduced:

“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.

There is a real threat out there, and it is critical that our partners have the tools they need to stop it.

I thank the other place for its detailed and thoughtful debate on this legislation. The other place considered the Bill at length, and has brought forward several amendments to it, which I will now speak to in turn. However, I will first take the opportunity to pay tribute to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is the Bill Minister on this legislation and has taken a typically collaborative and thoughtful approach to it. I think I can say on behalf of the whole House that we wish James all the best for a speedy recovery. [Hon. Members: “Hear, hear.”]

Lords amendment 1 introduces the requirement that an authorising officer must “reasonably” believe that an authorisation is necessary and proportionate. The Government cannot support this amendment because it is both unnecessary and risks creating inconsistency, thereby casting legal doubt on the position in other legislation.

--- Later in debate ---

[Mr Kevan Jones (North Durham) (Lab)]

On juveniles, the right hon. and learned Gentleman is correct that the Bill does not give authorisation to allow for CHIS, because it happens already under the CHIS code of practice, which is also legally enforceable under the Regulation of Investigatory Powers (Juveniles) Order 2000. Given some of the concerns that people rightly have, would it not help to put that into the Bill?

[The Solicitor General]

The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.

Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.

[Bob Stewart (Beckenham) (Con)]

Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.

[Bob Stewart]

Forgive me—I am on my knees.

Having done this sort of thing, albeit in a relatively minor way, I want to clarify one thing. Often, information was given to people who were doing this kind of work in the field by juveniles. That does not make the juvenile a source. That information can still obviously be passed on, but clearly there are restrictions on using that juvenile in future. However, the information given by juveniles certainly must not be stopped.

[The Solicitor General]

Not for the first time, my hon. Friend makes a very powerful point by dint of his experience in these matters, and in a moment I will give an example that he might find interesting on that exact point. As I said, the Investigatory Powers Commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in. The commissioner also noted that decisions to authorise were only made when that was the best option for breaking the cycle of crime and danger for the young person involved.

To demonstrate how authorisations for juvenile covert human intelligence sources are managed in reality by the police, let me give an example that can also be found in the IPC’s most recent annual report:

“In one…case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group”—

a gang. The juvenile owed money to the gang. He or she

“approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”

That is a particularly instructive example of the sort of circumstances in which that can apply.

Lords amendment 4 seeks to add further safeguards for the authorisation of juveniles and vulnerable adults when they are granted a criminal conduct authorisation. While the Government recognise the spirit of these amendments, Lords amendment 4 as drafted creates operational issues. For example, the amendment defines exceptional circumstances as

“where all other methods to gain information have been exhausted”.

That requirement has a tendency to risk the workability of the power and, crucially, the safety of the juvenile because there may be occasions, in the cut and thrust of these things, where there are other ways to gain the information, but those other ways may not be the safest way to extricate the juvenile from the situation that he or she finds themselves in and to lead to the best outcome for the juvenile involved. The words in the amendment are too prescriptive and creative operational and workability issues.

--- Later in debate ---

[Mr Kevan Jones]

I welcome what the Minister has said, but would that information be contained in the annual report of the Investigatory Powers Commissioner?

[The Solicitor General]

That is a perfectly reasonable question, but I cannot speak to what might feature in the report of the Commissioner. However, there has been a clear indication from looking at previous reports that he has been as full and frank in his reports as one might expect in the circumstances. I think that is all I can say about what might feature in his reports.

The remaining amendments are either consequential on those discussed or they carve out devolved activity in Scotland. The Government have engaged extensively with the Scottish Government on this legislation, and we are disappointed that we have had to bring forward these amendments, but we do so in respect of the Sewel convention. The Scottish Government were unwilling to recommend legislative consent, despite movement from the UK Government on several issues, as they are requiring express limits on the face of the Bill. As I have mentioned, the Government’s approach to this is driven solely by the advice that we are getting from our operational partners—the people at the coalface, the brave men and women who are doing the job—and I note that operational partners from all parts of this kingdom have advised of the risks to covert human intelligence sources and to the general public of this approach. So it will now be for the Scottish Government to bring forward their own legislation if they wish to place devolved activity on an express statutory basis. I hope and expect that, like the Government, they will strongly follow the advice of their operational partners to ensure that all parts of the United Kingdom retain access to a workable form of this vital tactic.

[Mr Kevan Jones]

I agree with the Minister on this point, but can he clarify whether the non-adoption of this in Scotland will affect the operational impact on, for example, MI5? I understand that that is a national jurisdiction, and not controlled by Scotland.

[The Solicitor General]

What I can say is that the Scottish Government will need to bring forward their own legislation if they wish to place devolved activity on an express statutory basis.

I hope I have outlined in some detail the issues and amendments that the House needs to consider today. The Government have shown a willingness to compromise on the Bill where that helps to reassure Parliament, but only where it does not threaten the operation of this critical tool that prevents crime and saves lives.

[Mr Deputy Speaker (Mr Nigel Evans)]

Initially, I will not be putting a time limit on Back-Bench contributions, but if Members could be concise, that would be welcome.

--- Later in debate ---

[The Solicitor General]

With your leave, Madam Deputy Speaker, I would now like to make some closing remarks. I thank colleagues from across the House for the thoughtful and considered contributions made this afternoon.

First, I shall address remarks about limits and the conduct that can be authorised under the Bill. I make the point again, because it is important: the limits on what could be authorised under this legislation are provided by the requirement for all authorisations to be necessary, proportionate and compliant with the Human Rights Act. There are limits, and they are defined in that way. Nothing in the Bill seeks to undermine the important protections in the Human Rights Act; the Government have been consistently clear on that. Public authorities will not and cannot act in a way that breaches their legal obligations under the Human Rights Act. I say this clearly on the record, from the Dispatch Box: any authorisation that was not compliant with the Human Rights Act would be unlawful.

Let me take this opportunity to thank my right hon. Friend the Member for New Forest East (Dr Lewis) for the important oversight role that his important Committee plays and in particular for his remarks about the difficulties concomitant on placing, or seeking to place, limits in a Bill such as this—he articulated those with typical clarity. Those points were also well made by the right hon. Member for North Durham (Mr Jones), as is usually the case. As we know, both right hon. Members contribute insight from their roles on the Intelligence and Security Committee.

The hon. Member for St Helens North (Conor McGinn) asked me to set out why we cannot have limits in this legislation similar to those in the legislation of some of our partners, such as our great ally Canada. I do not think it particularly useful or helpful to compare UK legislation with legislation in other countries because each country has its own unique laws, public authorities and current threat picture.

We know that covert human intelligence source testing takes place in the United Kingdom, particularly in relation to the unique challenges that we face in Northern Ireland. It is important that we legislate for the particular circumstances in which we need our operational partners to operate, to keep the public safe. Our advice on this issue is based solely on the advice of our operational partners. I hope that all Members place the weight that the Government have placed on their assessment of this issue.

I greatly respect the vast experience of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) in these areas. He is not in his place at the moment, but he raised information presented in argument to the Court of Appeal today. The House will understand that my position as Solicitor General means that I cannot comment on ongoing legal proceedings, but I can confirm that MI5 did not say what my right hon. Friend articulated it had said.

Let me respond now to the points raised by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on this issue of putting reasonable belief into the Bill.

I will, if I may, confirm again that the Government do not dispute that the test for these authorisations should be one of reasonable belief. We do not support the amendment simply because we need to ensure that legislation is consistent across the board. We cannot have some Acts of Parliament using one form of words, and other Acts of Parliament using another form of words, because then others might interpret those Acts of Parliament to mean different things.

My hon. Friend also asked about civil redress. The Bill does not prevent those who have been impacted by a criminal conduct authorisation from seeking redress where that is appropriate. Any person or organisation can make a complaint, for example, to the Investigatory Powers Tribunal, which is a judicial body that operates totally independently of the Government and provides a right of redress for anyone who believes that they have been a victim of unlawful action by a public authority that has been using covert intelligence or investigative techniques. With regards to the criminal injuries compensation scheme, let me confirm that, in practice, access to that scheme is unaffected by this Bill.

Let me turn now to the important issue of juveniles, which many colleagues have raised, and respond to the points raised on the authorisation of juvenile CHIS. This Bill is not providing a new power for juveniles to be authorised as CHIS. What it does is seek to place on an explicit statutory basis the framework and safeguards for the very rare occasions where a juvenile may participate in criminal conduct in their role as a covert human intelligence source. There are also additional safeguards in place for the authorisation of juvenile CHIS and any authorisation of a juvenile as a source requires additional safeguards, as set out in the Regulation of Investigatory Powers (Juveniles) Order 2000 and considered by Parliament in 2018. That authorisation is required before a criminal conduct authorisation can be granted. Equally, the Investigatory Powers Commissioner will consider every authorisation of a juvenile.

I note that the High Court of Justice considered the safeguards for juvenile CHIS in 2019, as noted by the hon. Member for Walthamstow (Stella Creasy) in her virtual contribution. I also note that the court expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS.

The High Court also set out its view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are utilised only in extreme circumstances and when other potential sources of information have been exhausted. The IPC has concluded similarly.

Let me say specifically that police CHIS handlers are separate from their operational teams and they have a duty to safeguard and promote the best interests of the child as a primary consideration, and the aim of an authorisation is to remove them from the harm that they are already in, not to put them in greater harm.

[Conor McGinn]

I appreciate the Solicitor General giving way and I am reassured by much of what he says, but having just said that the Government would not accept amendment 1 because of the need to be consistent across the law, will he comment on the fact that it is still an anomaly that 16 and 17-year-olds who commit a crime of their own volition are entitled to different protections from 16 and 17-year-olds who commit a crime as a result of a criminal conduct authorisation?

[The Solicitor General]

The reality, of course, is that the safeguards that I have adumbrated in regard to CHIS are very relevant here and, as I have mentioned, there are considerable safeguards that form the protections that we can say with confidence mean that those 16 and 17-year-olds will have very good protection.

I will now turn specifically to the point raised by the requirement for an appropriate adult to be placed for sources aged 16 or 17, which I would like to explore a little bit more. The Regulation of Investigatory Powers (Juveniles) Order sets out a requirement for an appropriate adult to be in attendance at all meetings between a public authority and a source below the age of 16. It must be considered on a case-by-case basis for sources aged 16 or 17, and this is the case for any general authorisation of the CHIS and any specific additional authorisation for participation in criminal conduct, which is what we are debating in this Bill.

Let me be clear, though, that when each case is being considered carefully, there is a presumption that there will be an appropriate adult in place—that is the default position, unless there is a justification for not having an appropriate adult in place. An example of such a justification might be that doing so would not be in the best interests of the child. The best interests of the child are always at the heart of the decision making. If the authorising officer believes that an appropriate adult should not be in place, that justification must be documented, and can be considered by the IPC.

I would caution the House against using examples, whether real or hypothetical—it does tend to be risky to do so, and puts young people at risk—but criminal gangs will seek to apply the scenario that has been set out to their own experience, which could result in them wrongly identifying and putting at risk of harm anyone suspected of being a CHIS. As such, the example suggested by the hon. Member for Walthamstow and by my right hon. Friend the Member for Haltemprice and Howden does not fit with the framework of safeguards that is in place for juvenile CHIS. This could not happen, and we do not recognise the example given.

However, as I said in my earlier remarks, the Government are listening. We will continue to listen, and will do so by means through which we can provide further reassurance about these authorisations. I hope these conversations can continue, and that we can find a means of providing additional reassurance while not risking the safety of a juvenile CHIS. While it is not appropriate to put all 74 pages of the code of practice into the Bill—I think I said “hundreds” earlier, but it is actually only 74 pages— I agree with the right hon. Member for North Durham that it may be appropriate to include some of those safeguards, including confirmation that a juvenile could only be authorised in exceptional circumstances. Not all of the code of practice applies to this Bill, but some parts may, so the right hon. Gentleman makes a perfectly good point.

Turning briefly to Lords amendment 5, I think there is consensus that the additional oversight provided by the requirement to notify a judicial commissioner is reassuring. The commissioner will see all authorisations of juvenile CHIS, and likewise will be able to confirm that all authorisations are compliant with the Human Rights Act.

In response to the question posed by my hon. Friend the Member for Bromley and Chislehurst, let me offer reassurance about what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag any concerns to the authorising officer, and they would work collaboratively to address such concerns. If an authorisation has been granted but the activity not yet started, the judicial commissioner and authorising officer will work together to address those concerns. If the activity has started, the authorising officer must take into account any concerns that have been raised, and will continue to discuss these with the judicial commissioner. It would not be the case that a public authority would simply ignore feedback from the IPCO: it is a collaborative process, and the views of the commissioners carry serious weight. However, ultimately, it would be a matter for the court to determine.



Finally, in response to the right hon. Member for North Durham, who asked whether any concerns raised by the IPC will feature in the annual report, I can confirm that the IPC must include statistics on the use of this power, including any errors and areas where improvement has been recommended.

I hope that I have been able to provide additional clarity and reassurance on these issues, and that the House will vote to reject these amendments.

Question put, That this House disagrees with Lords amendment 1.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Michael Ellis Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[The Solicitor General (Michael Ellis)]

I beg to move, That this House agrees with Lords amendment 3B.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider Lords amendments 4B to 4J.

[The Solicitor General]

I am very pleased to be here today for the final debate on this important Bill before it receives Royal Assent and becomes law.

The Government introduced the Bill in order to provide a clear and consistent legal basis for the rare occasions when, in the course of their important work keeping us safe, it is necessary and proportionate for undercover agents to themselves participate in criminal conduct. That is a long-standing practice that has proved critical, frankly, in identifying and disrupting terrorist plots, drugs and firearms offences, and child sexual exploitation and abuse. For the first time, the Bill places that covert human intelligence source activity on an expressly statutory basis, providing our operational partners with the certainty that they can continue to utilise this tactic as we continue to respond to the evolving threat picture we face as a nation.

The Bill also resolves the tension that has previously existed where the state is asking an individual to engage in the difficult and dangerous work of frustrating crime without providing those self-same individuals with protection from prosecution for doing so. It will therefore benefit our ability henceforth to recruit and retain covert human intelligence sources.

I want to take this opportunity to thank all colleagues, in this House and in the other place, who have contributed to the thoughtful and detailed debates that we have had on the Bill. It is right that the important issues that it raises are subject to scrutiny, and I hope that Her Majesty’s Government have demonstrated a willingness to engage and provide reassurance where possible, including through private briefings with operational partners such as MI5 and others.

I believe that we have a good piece of legislation, which will now move on to the statute book. It strikes an important balance by providing for clear safeguards and independent oversight without jeopardising the operational workability of the regime.

--- Later in debate ---

[Mr David Davis (Haltemprice and Howden) (Con)]

I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.

I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.

I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.

The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.

That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides

“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]

However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, said that

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.

That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.

[The Solicitor General]

I will do it at the end.

[Mr Davis]

That is fine. I will say one last thing with respect to that. If the Government do not make it clear and that still hangs as an ambiguity around the Bill, then the Bill, along with the Overseas Operations (Service Personnel and Veterans) Bill, could well end up with this country being in the International Criminal Court for reasons that the House did not intend. It is that important that the Minister makes that clear.

--- Later in debate ---

[The Solicitor General]

I thank Members for their contributions to this debate this afternoon. I will be brief in my response, as there has been extensive discussion on these issues during the Bill’s passage. First, in response to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I am happy to confirm that an authorisation of conduct that would breach the Human Rights Act would always be unlawful. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all the authorised activity of undercover agents, alongside the state itself.

The Government have taken a collaborative approach to the passage of the Bill, as the House knows, recognising the seriousness of national security issues, and I thank Her Majesty’s Opposition for their similar approach. Where we have been able to provide greater reassurance in response to concerns raised by Parliament—for example, on oversight—we have done so, either through briefings, amendments to the code of practice or amendments to the Bill itself.

The Bill provides for a substantive oversight role for the Investigatory Powers Commissioner, who is independent, giving him real-time sight of every authorisation. It sets out detailed additional safeguards for the authorisation of juveniles or vulnerable adults, which will all be subject to oversight by the Investigatory Powers Commissioner. The code of practice that underpins the legislation, which will be subject to debate and vote by Parliament, then sets out the detailed processes that support the Bill and this activity.

Our approach to the Bill has been led by the advice and expertise of our operational partners, who will now implement it. We have sought to ensure that, in seeking to provide greater clarity and reassurance on the safeguards and processes, the Bill is both operationally workable and avoids any unintended consequences for the safety of a covert human intelligence source or, indeed, the wider public. I believe, and operational partners agree, that the Bill does that, and it will now move to Royal Assent.

I close by sending my best wishes to the Minister for Security, as many in the House have done, and expressing my gratitude and abiding respect for our security services and covert human intelligence sources in their work to protect the safety of this realm.

Lords amendment 3B agreed to.

Lords amendments 4B to 4J agreed to.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I will suspend the House for two minutes, to enable arrangements to be made for the next business.