Covert Human Intelligence Sources (Criminal Conduct) Bill

Nigel Evans Excerpts

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

Second Reading

[Mr Deputy Speaker (Mr Nigel Evans)]

I inform the House that I have not selected the reasoned amendment.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Nigel Evans 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 Nigel Evans in the Chair]

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

I should explain that in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s chair during Committee stage, in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. We should be addressed as Chairs of the Committee, rather than as Deputy Speakers.

Clause 1

Authorisation of criminal conduct

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I beg to move amendment 20, page 1, line 18, at end insert—

“(3A) In section 27 (Lawful surveillance etc.), in subsection (1)—

(a) after ‘applies’ insert ‘(other than conduct authorised under section 29B)’; and

(b) after ‘Part’ insert ‘(other than conduct authorised under section 29B)’.”

This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.

[The Second Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 7, page 2, line 7, at end insert—

“(1A) The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by a judge.

(1B) An application to a judge under subsection (1A) shall be made in writing and be accompanied by an affidavit of the person granting the criminal conduct authorisation which sets out—

(a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required;

(b) the persons or classes of persons to whom the warrant is proposed to be directed;

(c) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

(d) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force; and

(e) any previous application made under subsection (1A) in relation to a person who is identified in the application for the warrant, the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.”

Amendment 25, page 2, line 7, at end insert—

“(1A) Authorisations granted under this section require approval in accordance with section 29C.”

Amendment 14, page 2, line 16, after “person” insert “reasonably”.

This amendment would raise the standard for granting a criminal conduct authorisation from believing that it is necessary and proportionate to reasonably believing that it is necessary and proportionate.

Amendment 11, page 2, line 20, at end leave out “; and” and insert “, taking into account—

(i) balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm;

(ii) explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;

(iii) whether the conduct to be authorised will have any implications for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation;

(iv) evidence, as far as reasonably practicable, of what other methods had been considered and why they were not implemented, or have been implemented unsuccessfully; and

(v) whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought; or”.

Amendment 1, page 2, line 22, at end insert—

“(d) that the authorisation does not have a disproportionate impact on people with one or more protected characteristics within the meaning of the Equality Act 2010.”

This amendment ensures that discrimination on the grounds of protected characteristics will be taken into account before the granting of a criminal conduct authorisation.

Amendment 3, page 2, line 26, leave out “or of preventing disorder”.

Amendment 23, page 2, line 27, leave out from “disorder” to end of line 29.

Amendment 4, page 2, line 28, leave out paragraph (c).

Amendment 15, page 2, line 29, after “Kingdom” insert “so far as those interests are also relevant to the interests of national security”.

This would only allow a criminal conduct authorisation to be granted on economic grounds if it is relevant to national security.

Amendment 5, page 2, line 29, at end insert—

“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source within trade unions.

(5B) In this section, ‘trade unions’ is defined as in the Trade Union and Labour Relations (Consolidation) Act 1992.”

Amendment 6, page 2, line 29, at end insert—

“(5A) A criminal conduct authorisation cannot be granted with regard to the actions of a covert human intelligence source engaged in blacklisting.”

Amendment 10, page 2, line 29, at end insert—

“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”

Amendment 13, page 2, line 36, at end insert—

“(7B) The following conduct may never be authorised by a criminal conduct authorisation—

(a) causing death or serious bodily harm to a person;

(b) obstructing, perverting or interfering with the course of justice;

(c) violating the sexual integrity of a person;

(d) torture or cruel, inhuman or degrading treatment or punishment;

(e) detention; or

(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of a person.

(7C) Subsection (7B) shall not prevent—

(a) a decision not to prosecute in the public interest; or

(b) the entry of a nolle prosequi.”

Amendment 8, page 3, line 2, at end insert—

“(8A) Nothing in this section justifies—

(a) causing, intentionally or by criminal negligence, death or bodily harm to an individual;

(b) wilfully attempting in any manner to obstruct, pervert or defeat the course of justice;

(c) violating the sexual integrity of an individual;

(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;

(e) detaining an individual; or

(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.”

Amendment 22, page 3, line 2, at end insert—

“(8A) A criminal conduct authorisation may not authorise any criminal conduct—

(a) intentionally causing death or grievous bodily harm to an individual or being reckless as to whether such harm is caused;

(b) involving an attempt in any manner to obstruct or pervert the course of justice;

(c) amounting to an offence under the Sexual Offences Act 2003, the Sexual Offences (Scotland) Act 2009 or any offence listed in Schedule 3 to the Sexual Offences Act 2003;

(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of Article 3 of Part 1 of Schedule 1 to the Human Rights Act 1998; or

(e) depriving a person of their liberty, within the meaning of Article 5 of Part 1 of Schedule 1 to the Human Rights Act 1998.”

Amendment 2, page 3, line 9, at end insert—

“(9A) The Investigatory Powers Commissioner or any affected person may apply for judicial review, in relation to the conduct of a relevant public authority.

(9B) For the purposes of subsection (1), a ‘relevant public authority’ are those set out in section 2(9) of the Act.”

This amendment ensures that the granting of criminal conduct authorisations are subject to judicial review.

Amendment 18, page 3, line 16, at end insert—

“(11) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with—

(a) the Crown Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place in England & Wales;

(b) the Crown Office and Procurator Fiscal Service, in respect of a criminal conduct authorisation relating to conduct taking place in Scotland; or

(c) the Public Prosecution Service, in respect of a criminal conduct authorisation relating to conduct taking place Northern Ireland.”

This amendment will ensure that prosecutors can review crimes authorised under this Bill.

Amendment 26, page 3, line 16, at end insert—

“(11) Nothing in this section permits or authorises any criminal conduct by a covert human intelligence source in relation to investigation of any lawful activity by a member of the House of Commons, who has sworn or affirmed the oath prescribed by the Parliamentary Oaths Act 1866, or of the House of Lords, in the conduct of that member’s parliamentary or representative duties unless—

(a) the criminal conduct by the covert human intelligence source has been personally authorised by the Prime Minister and the Secretary of State, and

(b) the Prime Minister and the Secretary of State have each made a written declaration that the proposed criminal conduct by the covert human intelligence source in relation to the member of Parliament concerned is both proportionate and necessary in order to preserve national security.

(12) The Secretary of State may by regulations make parallel provision to subsection (10) in respect of members of Senedd Cymru, the Northern Ireland Assembly and the Scottish Parliament.”

Clause stand part.

Amendment 16, in clause 2, page 4, line 9, leave out from “services” to end of line 23.

This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.

Clause 2 stand part.

Clause 3 stand part.

Amendment 12, in clause 4, page 5, line 4, at end insert—

“(4ZA) Those persons who have granted criminal conduct authorisations must inform the Investigatory Powers Commissioner within seven days of the granting of the authorisation.”

Clause 4 stand part.

Clause 5 stand part.

Clause 6 stand part.

Clause 7 stand part.

New clause 1—Redress for innocent victims—

“(1) Section 65 (5) of the Regulation of Investigatory Powers Act 2000 (The Tribunal) is amended in accordance with subsection (2).

(2) At the end of subsection (5) insert—

‘(g) any conduct under Section 29B.’”

This new clause ensures that innocent victims are able to seek redress from the Investigatory Powers Tribunal.

New clause 2—Equality Impact Assessment—

“(1) The Secretary of State must prepare and publish an annual equality impact assessment on the use of criminal conduct authorisations on covert operations involving women, children and Black, Asian and minority ethnic communities.

(2) A Minister of the Crown must, not later than three months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”

New clause 3—Oversight by the Intelligence and Security Committee of Parliament—

“(1) At the end of each relevant twelve-month period the Secretary of State must make a report to the Intelligence and Security Committee of Parliament with information on the number of criminal conduct authorisations authorised by the intelligence services and the categories of conduct authorised.

(2) In subsection (1) ‘relevant twelve-month period’ means—

(a) the period of twelve months beginning with the day on which this section comes into force, and

(b) each successive period of twelve months.”

On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the ISC is kept informed of the use of criminal conduct authorisations by the intelligence services.

New clause 4—Trade Unions—

“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source relating to a trade union or a member or officer of a trade union acting or proposing to act in contemplation or furtherance of any issue which is or could be—

(a) the subject matter of collective bargaining within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992;

(b) the subject of a trade dispute within the meaning of section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992; or

(c) within the lawful objects of the trade union.

(2) In this section, ‘trade union’ has the same meaning as in section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992.”

This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.

New clause 5—Blacklisting—

“(1) A criminal conduct authorisation shall not be granted in respect of the actions of a covert human intelligence source in relation to another person who—

(a) is a subject of a prohibited list or is suspected of being a subject of a prohibited list where the action of the covert human intelligence source is related to that fact or suspicion;

(b) compiles, uses, sells, or supplies or proposes or attempts to compile, use, sell, or supplies a prohibited list; or

(c) supplies or proposes or attempts to supply to another information which he knows or can reasonably be expected to know will be used in the compilation or use of a prohibited list.

(2) In this section ‘prohibited list’ has the same meaning as in Regulation 3(2) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 2010/493.”

This new clause lays out that a criminal conduct authorisation could not be applied to a trade union, thereby putting a limit on where such authorisations can apply.

New clause 6—Commissioner approval for authorisations to identify or confirm journalistic sources—

“(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.

(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.

(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—

(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and

(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.

(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—

(a) the public interest in protecting a source of journalistic information, and

(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.

(5) Where, on an application under this section, the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.

(6) In this section—

‘Journalistic material’ means material created or acquired for the purposes of journalism.”

New clause 7—Approval for criminal conduct authorisations—

“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—

‘29C Approval for criminal conduct authorisations

(1) This section applies where an authorisation has been granted under section 29B.

(2) The authorisation has no effect until such time (if any) as the Judicial Commissioner has approved the grant of the authorisation.

(3) The Judicial Commissioner may give approval under this section to the granting of an authorisation under section 29B if, and only if, the Judicial Commissioner is satisfied that—

(a) at the time of the grant the person granting the authorisation had reasonable grounds to believe that the requirements of 29B(4), and any requirements imposed by virtue of section 29B(10), were satisfied in relation to the authorisation;

(b) at the time when the Judicial Commissioner is considering the matter, there remain reasonable grounds for believing that the requirements of section 29B(4), and any requirements imposed by virtue of section 29B(10), are satisfied in relation to the authorisation; and

(c) the authorisation granted does not authorise conduct that is incompatible with any Convention rights.

(4) In this section—

“Convention rights” has the meaning given in section 1(1) of the Human Rights Act 1998; and

“Judicial Commissioner” has the meaning given in section 227 of the Investigatory Powers Act 2016.’”

This new clause is consequential on Amendment 25.

New clause 8—Criminal conduct authorisations: Granting to children and vulnerable sources—

“After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1) insert—

‘29C Criminal conduct authorisations: Granting to children and vulnerable sources

(1) This section applies when the source is—

(a) under the age of 18,

(b) a vulnerable individual, as defined in subsection (5),

(c) a victim of modern slavery or trafficking, as defined in subsection (6).

(2) No criminal conduct authorisations may be granted for a source to whom subsection (1) applies unless the authorising officer believes that exceptional circumstances apply that necessitate the authorisation.

(3) Where a source is one to whom subsection (1) applies the arrangements referred to in section 29(2)(c) of this Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at all meetings between the source and a person representing any relevant investigating authority.

(4) In subsection (3) “appropriate adult” means—

(a) the parent or guardian of the source;

(b) any other person who has for the time being assumed responsibility for his welfare; or

(c) where no person falling within paragraph (a) or (b) is available, any responsible person aged eighteen or over who is neither a member of nor employed by any relevant investigating authority.

(5) A “vulnerable individual” is a person who by reason of mental disorder or vulnerability, other disability, age or illness, is or may be unable to take care of themselves, or unable to protect themselves against significant harm or exploitation.

(6) A “victim of modern slavery or trafficking” is a person who the relevant investigating authority believes is or may be a victim of trafficking as defined by section 2 of the Modern Slavery Act 2015, or exploitation as defined by section 3 of the Modern Slavery Act 2015.

(7) The “exceptional circumstances” in subsection (2) include—

(a) where authorisation of the criminal conduct authorisation is necessary to protect life and limb, including in relation to the CHIS; and

(b) where authorisation of the criminal conduct authorisation is necessary on the grounds of national security.’”

Amendment 21, in schedule 1, page 6, line 22, at end insert—

“(3A) In section 5 (Lawful surveillance etc.), in subsection (1)—

(a) after ‘applies’ insert ‘(other than conduct authorised under section 7A)’; and

(b) after ‘Part’ insert ‘(other than conduct authorised under section 7A)’.”

This amendment will ensure that victims of crimes authorised under this Bill can seek civil redress.

Amendment 19, page 7, line 49, at end insert—

“(10) A criminal conduct authorisation will not have effect unless and until the authorisation has been shared with the Crown Office and Procurator Fiscal Service.”

This amendment will ensure that prosecutors can review crimes authorised under this Bill.

That schedule 1 be the First schedule to the Bill.

Amendment 17, in schedule 2, page 10, line 19, leave out from “it” to end of line 30.

This amendment is consequential on amendment 16.

That schedule 2 be the Second schedule to the Bill.

[Mr Carmichael]

I wish to speak also to amendments 14 to 19, which were tabled in my name and the names of other right hon. and hon. Members.

It is worth reminding ourselves at the start why we are debating the Bill and why it is being proceeded with in all the dispatch that is apparent, what with Second Reading having been just on Monday of last week. As we know, the Government had a bit of a narrow squeak—a legal term—in the Investigatory Powers Tribunal, and that case is now going off to the Appeal Court. We are now getting what many of us, including those in Reprieve who brought the case to the IPT, have long asked for, and that is a regulatory statutory footing on which the very difficult decisions undertaken by the police, special branch, the security services and others should be done. That is something on which there is broad consensus, which was reflected in the attitude of the House, for the most part, on Second Reading. However, as was apparent from the debate on Second Reading, many of us in different parts of the House have serious concerns about the way in which these matters are being put on to this regulatory statutory footing.

Essentially, it seems to me that the Government have been brought to this point somewhat grudgingly. They have said, “Yes, we will put these things on to a statutory footing, but we will do it in such a broad and general way that, in fact, we will be able to continue to do whatever we have done in the past.” They are seen to embrace change in a way that allows them to continue to behave in the way they have always done. I suggest that that is not, in fact, sensible for any number of reasons. It defeats the purpose of putting these things on to a statutory footing, but I am pretty certain that, sooner or later, it means we will be back here looking at a future Bill because this one is not fit for the purpose the Government claim for it.

The point made repeatedly on Second Reading is that many of the concerns that I and others have, which are reflected in the amendments, are in fact covered by the Human Rights Act 1998. One of the difficulties I have with that is that, throughout their pleadings in front of the IPT, the Government said that the Human Rights Act does not, in fact, apply to the actions of those responsible for covert human intelligence. When we eventually hear from the Minister, could he address a couple of points? First, will this new attitude towards the Human Rights Act, in its applicability to the activities of covert human intelligence sources, be reflected in the pleadings of the Government when it comes to the Appeal Court?

Secondly, can the Minister confirm that the Bill will allow these sources to operate overseas? That being the case, what view do the Government take of the application of the Human Rights Act to the activities of these sources overseas? The position of the Government hitherto has always been that the application extraterritorially—overseas—of the Human Rights Act would not cover these instances, so it is difficult to see if there would be any protection at all in relation to activities overseas.

--- Later in debate ---

[Mr Carmichael]

The Minister does help me and I am grateful for his assistance, because if that reasonable belief is in the guidance, there is absolutely no reason why it should not be in the Bill. As I said to the right hon. Member for North Durham (Mr Jones), guidance can be changed without any meaningful oversight from this House. The Minister makes the point for me very well, so perhaps amendment 14, which I had thought modest, is more significant than I realised. I look forward to hearing his acceptance of it—if we could do that without a Division, it would be all the better. [Interruption.] God loves a trier.

Amendment 15 deals with the issue of economic grounds. As things stand, the Bill allows crimes to be authorised if they are necessary

“in the interests of the economic well-being of the United Kingdom.”

That conjures up all sorts of delicious prospects. If it is decided that we need a different Governor of the Bank of England, can we authorise a CHIS to wipe him out? Could we use this if we decided that a no-deal Brexit was not in the UK’s economic interests? There are at least two or three good Netflix series in this; the possibilities are almost endless. What crimes might be authorised in order to entice a foreign investor to bring their money to the UK or a car manufacturer to keep its UK plant open? There is nothing here to prevent corruption or bribery from being used in these circumstances. Amendment 15 would restrict these grounds to cases that are relevant not only in an economic sense, but to national security. There is precedent for this approach, because amendment 15 matches exactly the amendments the Government themselves made to the Counter-Terrorism and Border Security Bill last year, after my noble Friend Lord Paddick raised similar concerns about detaining people in the interests of the economic well-being of the United Kingdom. If it was good enough for that Bill, there is no reason why it should not be good enough for this one.

Amendments 18 and 19 involve oversight by prosecutors and would require criminal conduct authorisations to be shared with prosecutors before they take effect, to allow for proper independent oversight of these decisions. The amendments cover the same sort of grounds as many others have in their amendments, most notably the Mother of the House, and I believe the hon. and learned Member for Edinburgh South West (Joanna Cherry) will cover this in her contributions. They all come to the same point that there has to be independent oversight where matters are as serious as this.

Amendments 16 and 17 deal with the number of different bodies that can be authorised under the Bill as it currently stands. At present, it extends well beyond the obvious candidates and includes: MI5, the police, the security services, the Food Standards Agency, the Gambling Commission, and the Department of Health and Social Care. With these amendments, we seek to reduce the list to the National Crime Agency, the Serious Fraud Office and the intelligence services.

Mr Evans, you and I have visited an abattoir in the past and we know that there is plenty of blood in an abattoir already without actually adding to it by empowering meat inspectors to be authorised to spill even more of it. We all know, as we complete our tax returns every year, that taxation can be a tortuous business, but I do not think that we should be giving the taxman the power to apply the thumbscrews.

The need for these extra bodies to be given authorisation under these provisions has never been properly explained from the Treasury Bench. Their inclusion demeans the seriousness of those acts, especially by the security services, the police and the Serious Fraud Office that could well be required to use them in very difficult circumstances. It looks to me, almost certainly, as if these provisions have been put in the Bill with a view to giving up the fight when the Bill gets to the other place, which, I suggest, demonstrates a lack of respect not just for them, but for this House as well.

Finally, I wish to touch on other amendments that have been moved by other right hon. Members. I have added my name to the one from the Mother of the House covering the approval of the judicial commissioner and the one removing economic interest grounds and I support their inclusion in the Bill. Amendment 13 in the name of the right hon. Member for Haltemprice and Howden (Mr Davis), which removes murder, torture and others, would be one of the most obvious amendments that could be made to this Bill to render it genuinely fit for purpose. It is the purpose of this Bill that commands unity; it is the detail of it that requires still so much improvement.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

There are 22 Members—because a couple have withdrawn—on the call list. It would be really useful if Members could focus their attention on self-limiting their speeches so that we can get in as many as we possibly can.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and I very much agree with a great deal of what he has said. I hope the Minister will be able to prove to us why it is not necessary to pursue some of these amendments, but I think the right hon. Gentleman put his case very well and very moderately. I appeal to the Minister, who is himself a moderate and considered man, to think about whether it is not appropriate to look at some of the detail of the Bill rather than the thrust of the objective, which we all absolutely support.

I will, if I may, touch on some of the amendments. The broad principle that I have, again rather like the right hon. Gentleman, is that, of course, there will be certain circumstances when it is necessary in the national interest for the brave operatives of our security services to have the power to take actions that might not otherwise be countenanced in the ordinary run of life. I accept that, sometimes, there are people who have put their lives on the line for the country’s sake and that there are circumstances in which they are entitled to protections. I do not have any problem with that, but it is the broad breadth nature of the Bill that is a concern to many of us. Those of us who have served in Government have come across those tempting occasions when submissions come along, and civil servants say, “It will be useful to draw on this widely, Minister, because x, y or z circumstance may occur at some point in the future, so it is better to have this in reserve—in the back pocket.” When one is dealing with things that touch on the exceptional circumstance of the state or its agents being permitted to break the criminal law, or potentially do harm of one kind or another—perhaps out of necessity, but none the less do harm to others—we should be pretty tight in circumscribing those instances as far as we can. We should ensure that, at the very least, there is proper oversight either beforehand when it is appropriate or thereafter by way of proper parliamentary scrutiny—I will come back to that in a moment.

That is why I do not take the line of the official Opposition’s amendment that there should always be pre-authorisation, but I do think, as a basic principle, that there ought to be pre-authorisation at the appropriate level, be that by the judicial commissioner, a prosecutor or another appropriate authority, wherever possible. That ought to be the starting point unless there is some ground, such as a matter of emergency, perhaps literally of life or death, or of the highest importance, where it is not possible to do that. I would like reassurance from the Minister on the test that will be applied as to when these powers will be used, prior to authorisation by a responsible, vetted and highly dependable individual of the kind that we are talking about. That is the first point on which I would like the Minister’s reassurance, and the point about guidance is well made, as far as that is concerned.

My second point, on amendment 20, which has been referred to, is on the position of the exclusion of civil liability. Again, there may be certain circumstances where it is appropriate for agents of the Government to act in a way that may cause some harm to others. A lot of people might not have too much concern if the target of the operation is an organised criminal or a terrorist, or someone who is a threat to us all, but I am concerned that the way in which that particular clause is drawn would also prevent the innocent victim of what might have been an otherwise necessary action—a person who is the collateral damage—from seeking civil redress. I am talking about somebody who was not the target of the steps that were taken but was caught up, literally, in the incident that occurred. Is it really fair or just to say, “Well, that’s just hard luck,” and exclude them from any liability?

The number of cases that this might engage are probably very limited, but the principle is important—someone who has done no harm to the state should not be the victim by happenstance of something that might necessarily and properly have been done in the state’s interests. If we give the state and its agents that power—perhaps reasonably enough—it is not unfair to say that there should be some safeguard for those who, through no fault of their own, might be damaged by it in some way. I hope that the Minister will reflect on that carefully.

There is also the point in the amendments that touches on the authorisation of certain very grave crimes. I appreciate what the Minister said about the intention that our adherence to the Human Rights Act—which I was glad to see the Lord Chancellor restate the other day—is protected, but if that is the case, and given the importance of the subject, why not put that on the face of the Bill? What is lost by that? Should at any time any future Government—I hope not this one—ever derogate in any way from the Human Rights Act, it would be better to have the protection there. My next point is about the scope of the agencies. As the right hon. Member for Orkney and Shetland said, it is pretty difficult think of what types of extreme violence might be authorised in the national interest by the Food Standards Agency? Some greater particularity around that would not be a bad idea either.

I will touch on the point that arises from amendment 13, which is in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and others. It is important because, if we are attempting to adopt a similar approach to our important security partners, why not adopt the same approach that is appropriate in the United States or, I would say, perhaps even more persuasively, Canada? It is a Commonwealth and common law jurisdiction country, which has had no difficulty operating a security regime like our own, with operational efficiency but equal concern for protection against abuse. It has found it perfectly possible to work within a statutory parameter of the kind that is suggested. I would like to understand from the Minister a little better why he thinks that that is not appropriate and why that might not be a safeguard to brave operatives under certain circumstances against the bringing of an unjustified complaint or litigation against them.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Nigel Evans 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.

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[Bob Stewart (Beckenham) (Con)]

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

[Mr Deputy Speaker (Mr Nigel Evans)]

As always.

[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.

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[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.

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

It is a pleasure to follow the Solicitor General, but I am sure he will understand when I say that I would much prefer to have been following the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire). We wish him well, and I want to thank him for his engagement with me and the shadow Home Secretary, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), on the progress of the Bill throughout its passage. I am grateful to colleagues in the other place who have shown their customary high standards of diligence and ensured that the Bill contains some robust and vital checks. It returns to us in substantially better shape than when it left us.

As I have said throughout the Bill’s passage, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has made it clear that security is a top priority for the Labour party. Under his leadership and that of the shadow Home Secretary, we will support a robust policy in fighting terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our community safe. We are, of course, grateful to those in the police, the security services and wider law enforcement who put their own safety and lives at risk to protect us, and we will meet our duty to support them.

It is the responsibility of Members of Parliament to ensure that there is a system in place that allows our law enforcement to uncover, disrupt and ultimately bring to justice illegal and dangerous activity that threatens the safety and security of the British people. The Solicitor General reminded us of the sobering context of this debate, given the number of terror plots that have been disrupted. The latest figures show that in the last year alone covert human intelligence sources foiled 30 threats to life. It is therefore right that, finally, we should put on a statutory footing the activity of those who work to disrupt some of the vilest crimes imaginable. It is vital that through this process, in creating a statutory framework for the operation of the CHIS, we seek to make sure that there are formal checks, balances and safeguards that ensure that the Bill is fair and protects those who work under its jurisdiction, as well as innocent parties who may be affected by their activity.

Lords amendment 1 was proposed by Cross-Bench peers, and it seeks to ensure a fair and reasonable frame- work for those making an authorisation. It adds the word, “reasonably” so that, with an order to grant an authorisation, the person authorising would need reasonably to believe that it was necessary and proportionate. Without confusing the House with the use of too many “reasonables”, that would seem eminently reasonable. When dealing with sensitive matters of this nature, that places trust in those authorising the activity required, but ensures that their judgment is guided by the parameters of what is deemed appropriate or reasonable.

Lords amendment 2 progresses an amendment that we tabled in the Commons on Report, and which has received support in both Houses. It adds so-called Canada-style limitations to the Bill, including on death, grievous bodily harm, perverting the course of justice, sexual offences, torture and the deprivation of liberty. The Solicitor General has sought to assure us that the Bill is explicit about the fact that the Human Rights Act is applicable in all circumstances, but there is merit at least in exploring the setting-out of specific limitations on the Bill for the sake of clarity and reassurance. Like him, I do not want to see circumstances in which these horrendous offences are set as a test for the CHIS in the field—I know that that view is shared by my right hon. Friend the Member for North Durham (Mr Jones)—but if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.

Lords amendment 3 builds on amendments that we introduced in the Commons, and ensures that victims of violent crime in particular are not ineligible for criminal injuries compensation by virtue of the fact that the crime was the subject of a criminal conduct authorisation. We heard many powerful arguments for the amendment during the passage of the Bill. It is vital that, as well as clarifying permissible action for agents working to keep us safe, the Bill ensures that victims are properly protected and can seek redress and compensation if those boundaries are broken. The amendment would ensure that victims can seek adequate redress from the criminal injuries compensation scheme. All victims deserve an unimpeded pass to attaining justice. Despite the unique and rare circumstances of what we are discussing, the provision none the less protects victims of any criminal acts with proper and due process.

Lords amendment 4 makes a change to the Bill that would ensure an authorisation involving children and vulnerable people could be authorised only in exceptional circumstances. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), as the Solicitor General has done, for her strong campaigning, along with the right hon. Member for Haltemprice and Howden (Mr Davis), other Government Members and the shadow Home Secretary, my hon. Friend the Member for Torfaen, who has taken part in intensive discussions and lobbied on these incredibly important matters.

The amendment has also been supported by the Children’s Commissioner, because it provides the necessary safeguards. The Children’s Society urged the Government to look at the complex interrelationships between different forms of exploitation and abuse, and suggested that they need to be properly considered in policy, policing and child protection. The anomaly that would see 16 and 17-year-olds treated differently if they commit a criminal offence of their own volition, rather than one they are instructed to commit as CHIS, needs to be addressed. I hope the Government listen to the concerns of Parliament, as the Solicitor General outlined, and to those of experts, children’s advocates and wider civil society on this issue.