Covert Human Intelligence Sources (Criminal Conduct) Bill

Richard Thomson Excerpts

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

[Richard Thomson (Gordon) (SNP)]

Allow me to begin by placing on the record my party’s gratitude to the agencies covered by the Bill for the work they do to keep all of us safe, and expressing our understanding and appreciation that in carrying out that work, there are circumstances where the use of a covert human intelligence source may be necessary. We accept that it can be legitimate to perpetuate a harm in order to prevent a greater harm down the line, and while naturally attention is drawn to the police, the armed forces and the security services in this Bill, the inclusion of the other agencies listed requires equal attention if we are to protect people’s rights.

I think it is a matter of fundamental principle, when we are dealing with the coercive powers of the state, that we are right to proceed with the greatest of care. Although we accept that the Bill seeks to put on a legal footing many activities that we know have always taken place, even if we have not known that they were taking place, we know that often they have taken place to our great discredit. Putting that on a legal footing, where everyone knows the rules of engagement and the legal parameters within which those activities take place, is a positive.

The Bill must do that in a way which ensures proper safeguards to protect rights, and which commands the support not just of Parliament but of the public at large. Scottish National party Members consider that the Bill still has some distance to go in that regard. Although there are principles inherent to the Bill that we can support, there are outstanding concerns that mean that, while we will not be able to support Second Reading, we look forward to working with the Government to improve the Bill as it progresses. I will use the time available to me to outline those concerns.

First, as the Minister well knows from his dialogue with the Scottish Government, the Lord Advocate in Scotland retains concerns about how aspects of this Bill might progress. I know there has been constructive dialogue between the Scottish Government and the UK Government; we welcome that, and we hope and expect that it will continue. We hope those outstanding concerns can be addressed, allowing the legislative competence motion to be laid at Holyrood.

I come on to the principles we can support. Subject to qualifications regarding potential entrapment, no usage beyond that which is reasonable and proportionate, and any viable alternatives being absent, it can, in certain circumstances, be reasonable to allow the law to be broken in order to prevent a more serious harm from taking place. But our questions today relate to what is and is not reasonable, and how to ensure that the safeguards of governance and scrutiny on that are adequate. As has been said by a few Members, the first of those concerns relates to authorisation. The Bill, as it stands, would allow the authorisation of a CHIS by a senior and experienced officer within the organisation authorising it. I hope hon. Members can see the potential conflict of interest there straightaway, no matter how senior and experienced that authorising officer might be. As far as we are concerned, that is inappropriate. If there were to be a form of external authorisation, that would overcome that concern. We are willing to work with the UK Government to find a way that would permit that authorisation in a way that is reasonable, proportionate, appropriate and with suitable independence.

Our second question relates to the reporting of the authorisations and the planned use of a CHIS. An annual report to Parliament seems to us to be a wholly inadequate way of going about that. Reporting each instance to the Investigatory Powers Commissioner’s Office can fulfil that role, as long as the reports happen either in real time or as close to that as is operationally possible. We would very much welcome the Minister’s observations on that.

Our third question relates to the scope of the illegality being authorised or rendered lawful for all purposes. The Law Society of Scotland has observed that potentially there are no limits on the types of criminal conduct that could be permitted under this authorisation, which raises the obvious concerns about the potential use of murder, torture and sexual violence. I understand the argument the Minister advanced about the prohibitions that would be placed upon any such activities by compliance with the ECHR or the Human Rights Act, which could act as backstops, but we on these Benches remain unpersuaded on that. Given that there is some doubt as to the long-term commitment of supporters of the Government to those human rights backstops, it would be better to see those actions that are to be prohibited enshrined in the Bill.

We have heard about the possibility of a purity test being used, and I can understand those concerns, but that does not seem to an issue in either Canada or the United States of America, where just such legal prohibitions are already in place. Without that, there are real concerns that the Bill could open the way to legitimising the subcontracting of activities that should not be carried out either by or on behalf of the state. I suggest to the Minister that if the provisions of the ECHR and HRA are deemed sufficient, it would be beneficial to see that written more explicitly in the Bill, as that might provide further assurance.

By authorising law-breaking that is lawful for all purposes, we run the risk of creating an upper limit of illegality, in that it sets out the actions that are permitted without there necessarily being any restraint then on whether or not the actions taken within that parameter of legality remain legitimate, proportionate and appropriate. We would therefore welcome further clarity from the Minister on how Parliament might be assured that any illegal actions authorised for this purpose can be taken and still remain within those parameters, while also being reasonable and appropriate, without going beyond what is needed for that, even if it does not cross that threshold that has already been permitted.

Fourthly, if we are committing a harm to prevent a greater harm, that raises a fundamental question of legal liability. At the margins, the use of these powers could lead to adverse life-changing consequences for the innocent. If individual CHIS operatives are to be exonerated from what in other circumstances would be illegal actions, that might be understandable. What is less understandable is the manner in which the state may ultimately also be able to escape any liability for that, and that is hugely problematic for us.

[Sarah Owen (Luton North) (Lab)]

I thank we all understand and agree that keeping the public safe often means difficult decisions, but the Bill in its current form is weak where it needs to be strong—strong particularly on safeguards around sexual violence, torture and the creep into anti-trade union practices such as blacklisting.

[Richard Thomson]

I thank the hon. Lady for that intervention. She makes a number of important points, and we will need assurances on those going forward.

The situation is hugely problematic as it stands, and we do not believe that the Government should attempt to escape their vicarious liability on this issue.

[Mr David Davis]

I am following with interest what the hon. Gentleman has to say, and, unusually, though he is an SNP Member I have a great deal of agreement with him. However, in terms of civil liability, perhaps the simplest test is to look at one of the worst cases in recent times, which is the Finucane murder. Whatever we think of Mr Finucane—I would have different politics from him—he was an innocent party, but even more so were his three children and his wife, who were there when a state-supported group—almost—murdered him with 14 bullets over his Sunday lunch. That is a good demonstration of the point that, if this civil exclusion applies, those innocent parties—the wife and children of Finucane—would have no recourse. That surely cannot be right.

[Richard Thomson]

I thank the right hon. Gentleman for that intervention, and he makes the point very elegantly. If individuals are to be exonerated for actions that have been authorised, where is the redress for the innocent whose lives are impacted? It is right to look at the extremities in terms of where that might lead us.

In giving the state the ability to uphold rights, we accept that we must also give it the ability to have limited powers of coercion to uphold those rights. However, those powers must never be in conflict with the fundamental rights of individuals. In terms of the Bill, the only way we can ensure that is through good governance, effective scrutiny, limited scope and clarity on the limitations; ensuring that there is accountability for the use of the powers; and limiting opportunities for their misuse. I believe those are legitimate concerns, which many will share, both inside and outside this place, and we hope to see them addressed as the Bill continues its passage.