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.