Covert Human Intelligence Sources (Criminal Conduct) Bill

Yvette Cooper Excerpts

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

[James Brokenshire]

I can certainly say that there are clearly ongoing inquiries in relation to this important and sensitive issue. I have highlighted the lack of any retrospection, and I point the hon. Gentleman to what has happened since then and what the police themselves have underlined in this regard. There is an enhanced regime of what are known as relevant sources—in other words, undercover police officers—and the criminal conduct authorisation is in addition to the regime to authorise and approve a CHIS covert source in the first place.

It has never been acceptable, as the police have said, for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target, or who they may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic in deployment. That is made clear through the code of ethics for the police as well as the updated law enforcement agency undercover operative authorised professional practice.

I hope that I have explained what the Bill does and what it does not do, and therefore how it is quite specific. On the point about what is on the face of the Bill, it is about locking in the existing regime and other safeguards on the authorisation of a source in the first place. That has to happen first, and then, if it is warranted, justified and fits within the boundaries of the Bill, there is the criminal conduct authorisation that sits alongside it, which has to be subject to the earlier authorisation.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Does the Minister agree that sexual assault and rape are clearly prohibited by article 3 of the Human Rights Act? Does he recognise that the importance of the Human Rights Act in providing a safeguard to this Bill means that it would be helpful to hear wider support for the purposes of the Act from across his Government, not just from him on the Front Bench?

[James Brokenshire]

Obviously there is the specific reference on the face of the Bill that I have alluded to, and therefore there is that requirement. As the right hon. Lady will know what the convention rights say, for operational and other reasons I will not go beyond what the convention says. There are very clear issues that I will now, I hope, come on to in that regard that will help to draw this out.

--- Later in debate ---

[James Brokenshire]

I am very conscious that I am now eating into the time of others who may wish to speak, so I will perhaps make some more progress, and we will see where we get to.

The Investigatory Powers Commissioner, and his judicial commissioners, have all held high judicial office. The current IPC, Sir Brian Leveson, was most recently president of the Queen’s bench division and is entirely independent of Government. The commissioners are supported by expert inspectors and others, such as technical experts, qualified to assist the commissioners in their work.

The IPC conducts wide-ranging inspections of public authorities and publishes an annual report on the findings from those inspections. The IPC himself sets the frequency of those inspections, and public authorities are required to provide unfettered access to documents and information. The Bill strengthens the IPC’s role by providing that the IPC must explicitly keep CCAs under review and include information on the use of them in his annual report. The most recent report from the IPC found that in all instances MI5’s authorisations of CHIS participation in criminal conduct were proportionate to the anticipated operational benefits and met a high necessity threshold.

Further, the Intelligence and Security Committee of Parliament has statutory responsibility to oversee the UK intelligence community. Hon. and right hon. Friends on the Committee have a vital role in scrutinising the work of the intelligence agencies, and I am grateful to the Committee for its support for the legislation and welcome its expertise as the House considers the Bill in detail. I also note that Select Committees will equally play an important role in scrutinising the work of law enforcement and wider public authorities.

[Yvette Cooper]

rose—

[James Brokenshire]

On that note, I give way to the Chair of the Home Affairs Committee.

[Yvette Cooper]

I am very grateful to the Minister, who has been very generous with his time. Clearly he makes the case that we need to continue with covert intelligence, particularly on extremist groups that may be proscribed. Associating with them in any way is currently a crime, so clearly he makes a strong case for legislation to ensure that such intelligence can continue in the interests of national security. I know that he recognises, though, that having safeguards is also in the interests of national security and of the intelligence agencies and the police.

The safeguards in place on the Investigatory Powers Commissioner in the Bill are still very vague. It is very broad and very much retrospective, as opposed to concurrent assessments. Will the Minister look again at the potential for amendments on authorisation and very timely oversight, and on strengthening the measures on Investigatory Powers Commissioners, so that it is possible to get the details of the legislation right?

[James Brokenshire]

Obviously, we will have continued debate during the passage of the Bill. I believe that it provides strong oversight and governance, but I will continue to reflect. Judicial approval is an important safeguard for the operation of some of our investigatory powers; however, it is not the only way to provide a robust oversight of a power. It is important to recognise the context of this: we are talking about human beings. Some challenging issues operate around this space, which is why we judge that robust retrospective oversight is the right approach, but I will keep the timeliness of that, and how it operates, under reflection so that perhaps further reassurance can be provided, specifically on the point of how soon oversight can occur after an authorisation has been made.