Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Winterton of Doncaster Excerpts

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

[Lloyd Russell-Moyle]

I did apply to speak, but I was refused by the Speaker’s Office, so I have been listening to the debate in my office.

Would it not be better if we took a Canadian or even an American model, where there are some things that are excluded from the scope of actions? This idea of testing does not seem to cause problems for the Canadians or the Americans.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. The hon. Gentleman said that he had been refused permission to speak by the Speaker’s Office, but if he had submitted his name in time, he would have been on the list, so I do not quite understand. Perhaps he would like to come and see me and explain exactly what happened.

[Conor McGinn]

Sorry, Madam Deputy Speaker, I did not mean to start a discussion with the Speaker’s Office. My hon. Friend makes an important point, which is why I specifically referenced Canada and the United States in terms of the model that we would probe.

I wish to make some progress now and draw to a conclusion. We also have concerns over the potential use of these powers in relation to retrospective action. It says that approval will be sought as soon as it is practically possible. Our view is that there should be a time limit on that, and we would look to a period of around a month. I am happy to discuss this with the Minister as there does need to be some sort of a hard deadline on retrospective authority. There is nothing in the Bill to prevent retrospective action, which could see it being abused. Where there are allegations of historical injustices involving law enforcement and the security services, justice must take its course and the Bill cannot interfere with that.

We will also be carefully scrutinising the number and nature of the public agencies approved for this activity, which was a point very well made by my right hon. Friend the Member for North Durham (Mr Jones). These are serious powers—granting the ability for an individual to break the law—so there must be a clear and substantial case for the many agencies listed in the Bill. We also want assurances that the powers are not to be used to undermine the legitimate activities of trade unions, civil society groups or campaigns. Opposition Members are very clear that there can be no repeat of the historical attitudes and, frankly, the moral and legal corruptions that led to workers being blacklisted, to political interference or, indeed, to inappropriate relationships as the Spycops inquiry will examine. Similarly, it must also be the case that victims who have been wronged are not inadvertently prevented from seeking adequate forms of redress or fair compensation. On the issue of trade unions specifically, the Investigatory Powers Act 2016, which is the only legal basis for the use of powers to obtain communications, specifies that the monitoring of trade unions is not grounds for such activity, so will the Solicitor-General assure the House—if he cannot do it now, perhaps he might write to me if he would be so good—that nothing in this Bill changes that? Furthermore, the process of blacklisting trade unionists has been unlawful since 2010, with the passing of the Employment Relations Act 1999 (Blacklists) Regulations 2010, and, again, will he confirm that nothing in this Bill would affect that?

I want to turn briefly to the issue of legacy in Northern Ireland. I welcome the Minister’s assurance that this Bill in no way impinges on or affects that process. I urge the Treasury Bench to take into account the comments that were made both by the hon. Member for Belfast East (Gavin Robinson) and the hon. Member for Belfast South (Claire Hanna). Let me say this: I know Pat Finucane’s wife, Geraldine, and I know her sons John and Michael and her family. For 10 years, before I came into the House and since I have been in the House, I have steadfastly admired and supported them in their quest for justice, and that is not something that I will resile from at this Dispatch Box now. Let me also say that I do not need to be convinced about the consequences of the state exceeding its power in this arena. I do not need to read a briefing about it. I do not need to hear it in a meeting because I and the community in which I grew up lived with the consequences of it, which is why we need to get this right.



In summary, we on the Opposition side of the House understand the importance of this Bill. I have set out the areas of concern that we have, and where we would like to see the Bill strengthened, we will work with the Government constructively to try to do so robustly and effectively. This legislation puts existing practice on a clear and consistent statutory footing. It acknowledges the need for the role of covert human intelligence sources and, above all else, it must keep the public safe. I believe that security and human rights are not incompatible, but co-dependent, and that will govern the approach that I take as this Bill proceeds through the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Winterton of Doncaster 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

The Government have been making it difficult for Parliament to scrutinise this legislation properly and get the details right. However, we should not be deterred from attempting to do so, and I hope that the other place will be able to help us do so. We need strong safeguards not only in the interests of democracy and the rule of law but to better protect our national security. We know that the work these agencies do is saving lives. It has saved the lives of friends and colleagues of many of the people in this place. That is why it is so crucial, and it is because it is so crucial that it is important we get the legislation right.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I remind Members that there are a number of colleagues down to speak in the debate. There will be three Front-Bench winding-up speeches, which will have to start just before 3.20 pm, and then I suspect there will be votes. I cannot introduce a time limit, because we are in Committee, but I am sure that Members will be considerate to one another. I call Dr Julian Lewis.

[Dr Julian Lewis (New Forest East) (Ind)]

Thank you, Dame Rosie; I shall endeavour to be helpful. It is only by the good fortune, dare I say it, of there having been yet another statement on the covid crisis that many members of the Intelligence and Security Committee are able to take part in this debate at all. I have written to the Leader of the House about this, and I appeal to the Government’s business managers in future not to schedule legislation of this sort, which is directly relevant to the Intelligence and Security Committee, on the same day that it is known that the Committee has an immovable meeting. I am grateful to the right hon. Member for North Durham (Mr Jones) for being willing to leave our main meeting early, so as to be sure that new clause 3 could be covered, and I will now make some remarks about that new clause.

The Intelligence and Security Committee, as was stated on Second Reading, strongly supports the principle behind this legislation. CHIS play a vital role in identifying and disrupting terrorist plots. They save lives, often at great risk to themselves. Sometimes they must commit offences to maintain their cover, and their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. We welcome the Bill, which will place the state’s power to authorise that conduct on an explicit statutory footing.

However, concerns were raised on Second Reading that the Bill does not provide for sufficient safeguards and oversight measures. The ISC agrees. There is a clear role for the Investigatory Powers Commissioner, and it is absolutely right that the commissioner is able to use his judicial oversight powers to ensure that those powers are used only with due care and consideration by the agencies that authorise criminal conduct.

The Bill, as it stands, does not provide for any parliamentary scrutiny of the use of these authorisation powers, so the amendment that the ISC has tabled—new clause 3—proposes not to duplicate the role of the Investigatory Powers Commissioner in any way, but instead to require the Secretary of State to provide the Intelligence and Security Committee of Parliament with an annual report of information on the number of criminal conduct authorisations that have been authorised by the agencies that the Committee oversees as well as on the categories authorised. All we are looking for is a simple table saying that these are the categories of offences that have been authorised, those are the totals in each category and this is the grand total.

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[Dan Carden (Liverpool, Walton) (Lab)]

On a point of order, Dame Rosie. I understand that my hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson) has swapped places with my right hon. Friend the Member for North Durham (Mr Jones) in the list, and they are to be on either side of my speech. I was just wondering whether there was a reason for that.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I thank the hon. Gentleman for that point of order. I understand that the right hon. Member for North Durham (Mr Jones) spoke to my predecessor in the Chair because he is speaking to his new clause, so, very unusually, given that the hon. Member for Kingston upon Hull North (Dame Diana Johnson) was happy to swap places, that seemed reasonable. There is nothing sinister about it and it has not altered where the hon. Member for Liverpool, Walton (Dan Carden) comes in the call list, but for the value of the debate, it was felt to be reasonable that the person speaking to the new clause could move forward. It does not affect when the hon. Gentleman is speaking, I can assure him.

--- Later in debate ---

[Dame Diana Johnson]

I will not, because I know other Members want to speak. I need to say just two more things and then I will finish.

Amendment 12, on involving the Investigatory Powers Commissioner within seven days of any criminal conduct authorisation order, is also very welcome, as is new clause 2, on an equality impact assessment.

Finally, I want to pay tribute to the speech made by my hon. Friend the Member for Walthamstow (Stella Creasy) on children and young people. I hope very much that the Minister will address that issue in his closing comments and take up putting the guidance on the face of the Bill, as my hon. Friend suggests.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. I would like to try to get three more speakers in before 3.18 pm. I will just put that out there. As Members know, I cannot put a time limit on, but I think that would be fair.

[Gavin Robinson]

Dame Rosie, I will engage in this part of proceedings in the spirit of co-operation and collegiality, so as not to exhaust the comments others may wish to make.

It is a pleasure to follow the hon. Member for Kingston upon Hull North (Dame Diana Johnson), who I believe is now on the Intelligence and Security Committee. She is right to highlight new clause 8, tabled by the hon. Member for Walthamstow (Stella Creasy). I have to say that that is the first time appropriate consideration has been given to those issues in any of our contributions on the Bill. The Minister knows I support the general thrust of the Bill and the provisions in it. I heard him refer to the Children’s Act 2004 and some of the standards that need to be adhered to when considering children through the prism of the proposed legislation, but the hon. Lady made sincere and serious points. I hope he will reflect on them further.

In fairness, given the amount of time left in the debate and the contribution I can make, it is right that the Minister has more time to respond to the issues raised and that he does so comprehensively. I think there have been fair points made throughout the debate, even on amendments that, ultimately, I may not back. On trade unionism and blacklisting, my reading of the Bill, the guidance and the authorisation process is that there is no fear around those issues. However, there is clearly an apprehension of fear among those who have proposed amendments in that regard and I hope the Minister will deal with them comprehensively.

I have indicated my assent and support for new clause 3. I think the Minister is probably minded to accept it. I hope I am not going too far in suggesting that the Minister should accept new clause 3 from the Intelligence and Security Committee, but I ask that he does.

If I could ask anything from the Minister’s response, it would be on these two issues. First, there has been discussion and consideration around the Human Rights Act. In fairness to the hon. Member for Liverpool, Walton (Dan Carden), he did say that that only allows for retrospective accountability on the part of the state. To my mind, however, it would be wholly unlawful for anybody involved in the authorisation process to authorise something that naturally falls foul of the Human Rights Act. They could not do it. They do not have the values to allow for it. In terms of torture, torture is not permissible in any circumstances. It is against our Human Rights Act and it is against international frameworks. It cannot be allowed. That is an absolute right and I think it is clear that there should be no authorisation, and cannot be any authorisation, given on that basis.

I would like the Minister to talk about sexual crime more particularly. I still believe that that should not be, and could not be, authorised. I find that some of the amendments, because they have a total list of these issues, are unhelpfully drafted. Having each and every one of the aspects contained in an amendment—I am thinking in particular of amendment 13—means that it is unsupportable. There is a world of difference between causing loss of life or serious bodily injury and murder. It is a nuanced legal difference, but there is a world of difference between the two. There are circumstances in which, regrettably, life is lost, and there are circumstances in which it is legitimate for the state to remove life. I do not say that to be controversial; that is part of our human rights framework. That is provided for in our human rights legislation. There is a distinction between the two, and amendments that group all these issues together are unhelpful. They are individually important issues, and we should have the opportunity to engage with them individually and independently of one another. I would be grateful to hear from the Minister on those issues.

I will draw my remarks to a close, but I have to say that this process, with two hours and 20 minutes of debate for Committee stage, is wholly unsatisfactory. These issues are much too important to be left to two hours and 20 minutes of debate.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Winterton of Doncaster Excerpts

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

Committee to withdraw immediately; reasons to be reported and communicated to the Lords.

[Madam Deputy Speaker (Dame Rosie Winterton)]

In order to observe social distancing, the Reasons Committee will meet in Committee Room 12.

Medicines and Medical Devices Bill (Programme) (NO.3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Medicines and Medical Devices Bill for the purpose of supplementing the Order of 2 March 2020 (Medicines and Medical Devices Bill (Programme)), as amended by the Order of 22 April 2020 (Medicines and Medical Devices Bill (Programme) (No. 2)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement.

Subsequent stages

(2) Any further Message from the Lords may be considered forthwith without any Question being put.

(3) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Rebecca Harris.)

Question agreed to.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Winterton of Doncaster 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.

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

It is a pleasure to follow the Solicitor General. Given the seriousness and sensitivity of these matters, it is right to recognise the challenging but constructive engagement that we have had with the Government throughout the passage of this Bill. I again pay tribute to colleagues in the other place. The experience and expertise that so well informs their scrutiny has, without a shadow of a doubt, strengthened this legislation and the protections and safeguards in it. I think the whole House can agree that the Bill before us is in much better shape. We welcome the Government concessions that the shadow Home Secretary and Labour Members, as well as other colleagues, have secured during the Bill’s parliamentary passage.

Turning to the amendments in lieu, Lords amendment 3B relates to the criminal injuries compensation scheme and the vital matter of redress for innocent victims. It would properly ensure that victims were protected and unimpeded in obtaining justice if harm came to them during authorised conduct. Throughout this process, we and colleagues across both Houses have stressed the importance of a viable route to redress for innocent victims if boundaries are broken, and we have tabled and supported amendments to that effect. It is an important principle in law that victims of crime can seek recompense, and these circumstances should be no exception. We therefore welcome the amendment and the Government’s change of heart on the need to make it explicit in the Bill that individuals can access criminal injuries compensation whenever appropriate. I pay tribute to colleagues on the Joint Committee on Human Rights for the work that they have carried out on this alongside Lord Anderson and his colleagues in the other place.

Lords amendments 4B to 4J relate to safeguards for juveniles and vulnerable adults. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), the right hon. Member for Haltemprice and Howden (Mr Davis), noble lords in the other place and many civic society groups, charities and experts who have worked tirelessly on this issue. We maintain that the protections could go further, but none the less welcome movement on this issue. It was very important to Labour Members and colleagues across the House that the heightened protections for children and vulnerable adults outlined in these amendments should make it clear that criminal conduct authorisations can be granted to minors only in exceptional circumstances, and should take into account any potential physical or psychological harm and wider safeguarding issues, as well as the results of an appropriate risk assessment. The amendments also provide that an appropriate adult must be present at meetings with individuals under 16 years old; most 16 and 17-year-olds will have this right, too. I echo Lord Rosser, who said:

“On this issue, we have not achieved everything that was asked for”,—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 201.]

but we are pleased to see the Government have listened to our and others’ concerns, and gone beyond prior commitments.

Labour Members will continue to monitor these matters and work to assess their impact. In addition, following the Bill’s passage, we will keep a close eye on the upcoming consultation on the CHIS code of practice to ensure and, if necessary, enhance safeguards in this arena and make them as effective as possible.

As I have said in this House previously, this is not the Bill that we would have proposed or passed. It is far from perfect, but it has been vastly improved during its passage. The amendments in lieu being considered—and, I hope, accepted—today are proof of that. I reiterate that Labour Members recognise the importance and significance of putting CHIS activities on a statutory footing for the first time through this Bill, while ensuring vital safeguards, accountability and protections.

We are eternally grateful to those in the police, the security services, the National Crime Agency and wider law enforcement who put their safety and life at risk to protect ours—as indeed do covert human intelligence sources. Through this Bill, we have sought to meet our duty to support them. The resolute focus on national security, on tackling serious and organised crime, on human rights and on supporting victims that has guided us throughout this Bill’s passage will continue to be a central tenet of our approach as we seek to keep this country, its citizens and our communities safe.

[Madam Deputy Speaker (Dame Rosie Winterton)]

We have until 6.56 pm to conclude proceedings on the Bill, so if Back-Bench contributions were less than five minutes long, that would enable us to get as many Members in as possible. I do not want to impose a time limit, but I hope that colleagues will be considerate of one another. I call Dr Julian Lewis, Chair of the Intelligence and Security Committee.

[Dr Julian Lewis (New Forest East) (Con)]

Right from the outset, the Intelligence and Security Committee has supported the principle behind the Bill, although we have also welcomed attempts by Members in both Houses to improve it. It is a very important Bill. Covert human intelligence sources or agents provide vital information to assist the security and intelligence agencies in their investigations. They save lives. As the head of MI5 recently said, without them, many of the attacks foiled in recent years

“would not have been prevented.”

In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information that the authorities need. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so, in certain circumstances and subject to specific safeguards. The Bill places the powers that certain organisations have to authorise such activity on an explicit statutory basis—something that we should all welcome.

The Bill before us has been improved since it was introduced in September, and that is a measure of the effective scrutiny of national security legislation by Parliament, including by the ISC. These are very serious powers for the state to exercise, and it is right that they be properly scrutinised. In particular, the ISC welcomes the provisions brought forward in the other place by Lord Anderson, the former independent reviewer of terrorism legislation, requiring all criminal conduct authorisations to be notified to judicial commissioners as soon as possible and within seven days. Judicial oversight is a vital safeguard, and this measure should give the public confidence that these powers will be used only when proportionate, necessary, and in accordance with the law.

The final amendments to the Bill that the House is being asked to approve today are sensible provisions that the House should welcome. The additional safeguards for children and vulnerable people are particularly welcome, and it is clear that the Government have listened to the strength of feeling in both Houses on this matter. Many of the changes made to the Bill will be reflected in an updated CHIS code of conduct, which I understand will be drafted over the coming months. This revised code of conduct will include new language emphasising the important oversight role of the Intelligence and Security Committee in relation to the use of these powers by the intelligence agencies. The Committee welcomes that, and I can assure the House that the ISC fully intends to exercise its oversight powers to ensure that criminal conduct authorisations are used appropriately.

I thank Ministers and those who support them for the constructive way in which they have engaged with the Committee on the Bill. I pay particular tribute to my right hon. Friend the Minister for Security, who unfortunately cannot be with us today. I wish him the very best for his recovery, and I look forward to working with him in future. Finally, I pay tribute to the men and women of our security and intelligence agencies and, most importantly on this occasion, to their covert human intelligence sources—individuals whom few of us will ever know, but whose bravery saves lives. We all owe them a great debt of gratitude for their courageous service.

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[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.