Covert Human Intelligence Sources (Criminal Conduct) Bill

After Clause 2

Criminal injuries compensation

I beg to move, That this House agrees with Lords amendment 3B.

With this it will be convenient to consider Lords amendments 4B to 4J.

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.

I turn to the amendments that are to be considered today. The Government brought forward an amendment in the other place that provides that the conduct authorised under the Bill does not affect a person’s ability to access the criminal injuries compensation scheme where appropriate. Although the Government believe that the amendment is not actually necessary, as the Bill does not in practice impact a person’s ability to access the criminal injuries compensation scheme, we have listened to the view put forward by Parliament that we could be more explicit on that point. The amendment therefore makes it clear in the Bill that, where appropriate, the criminal injuries compensation scheme remains an available route of redress.

The Government also brought forward amendments in the other place providing additional safeguards in relation to the authorisation of juveniles or vulnerable covert human intelligence sources. I pay tribute to Members on both sides of the House and in both Houses who engaged with the Government and our operational partners on this issue and helped to refine these substantive safeguards.

Let me briefly set out what the amendments do. The Government amendments make it clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that the authorisation must be compatible with that duty. That reflects article 3 of the UN convention on the rights of the child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations, and requires the Investigatory Powers Commissioner to keep those enhanced safeguards under particular review, as they relate to children and vulnerable people. In addition, the amendments also put in the Bill the requirement that a juvenile covert human intelligence source be authorised only in exceptional circumstances. Such exceptional circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile.

The amendments further clarify in the Bill that an appropriate adult must be in place in any meetings with any individual under the age of 16 years, and there is a presumption that an appropriate adult will attend meetings with 16 and 17-year-olds, with any derogation from that presumption justified in writing. The amendments also add additional safeguards for vulnerable individuals to the Bill. They require an enhanced risk assessment to be carried out, state that the source must be capable of understanding and consenting to the deployment and any associated risks, and state that consideration must be given to the best interests of the source.

These substantive amendments focus on the wellbeing and safety of the juvenile or vulnerable adult. It is right that there be additional safeguards for those authorisations, and the amendments provide them, but we have also ensured that the amendments do not create any unintended consequences that risk the safety of any individual involved in this covert activity. I am pleased that we have been able to reach positions of consensus on this Bill across both Houses and on both sides of the Chamber. I am reassured that the legal certainty that the Bill provides will soon be in place to ensure that our operational partners can continue their important work to keep us safe.

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:

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.

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.

It is a pleasure to follow the Chair of the Intelligence and Security Committee, and I join him in sending my party’s best wishes to the Minister for Security.

There is absolutely no disagreement about the need for a Bill. These are self-evidently significant, extraordinary and important powers being put on the statute book, and not before time. However, it is precisely because of the significance and importance of these powers that, although we acknowledge the need for a Bill, we could not support one that did not provide proper safeguards, oversight and limitations on these powers. Those points were made at earlier stages by my hon. Friends, including my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Gordon (Richard Thomson), and that is why we ultimately voted against the Bill on Third Reading.

As the Solicitor General set out, the latest round of ping-pong has produced additional protections in cases where authorisations are being considered for covert sources who are children or vulnerable people. It has also ensured that some access to criminal injuries compensation will continue when a person is a victim of the criminal conduct of a covert source. The Bill is certainly better with these changes. In particular, we welcome the work undertaken by Just For Kids Law, and others, in advocating for safeguards for children and vulnerable adults. They could, and probably should have been even stronger, but even speaking about authorising criminal conduct by a child operating covertly feels very troubling. Hopefully those limits will make such occurrences very rare, as they should be, and we must and will monitor risk closely.

Although the amendments improve the Bill, they do not resolve its fundamental problems or answer the serious questions asked about it. The amendments that tried to do that have been taken out. The Government continue to protest that the Human Rights Act is the answer to those questions, yet at the same time they are undertaking a review of that Act, and, significantly, their own European convention on human rights memorandum and legal submissions appear to cast serious doubt on the extent of the protections offered, and whether they cover the actions of covert agents. The memorandum anticipates that there would