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.