Covert Human Intelligence Sources (Criminal Conduct) Bill

I beg to move, That this House disagrees with Lords amendment 1.

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and Government motion to disagree.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government amendment (b) thereto.

Lords amendments 6 to 14.

This Bill is an important piece of legislation that places a long-standing tactic on a clear and consistent statutory basis. It provides certainty for those who engage in important and dangerous operations on our behalf that they are able to utilise the tools needed to keep us safe and prevent crime. It also rightly provides assurance to the men and women who may find themselves in risky and dangerous situations in order to provide vital intelligence that the state will not prosecute them for activity that the state has asked them to commit.

Since March 2017, MI5 and counter-terrorism police have together thwarted 28 terror attacks, a figure that is higher than that which the Government provided on Second Reading a few months ago. As the director general of MI5 said when this Bill was first introduced:

“Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.

There is a real threat out there, and it is critical that our partners have the tools they need to stop it.

I thank the other place for its detailed and thoughtful debate on this legislation. The other place considered the Bill at length, and has brought forward several amendments to it, which I will now speak to in turn. However, I will first take the opportunity to pay tribute to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is the Bill Minister on this legislation and has taken a typically collaborative and thoughtful approach to it. I think I can say on behalf of the whole House that we wish James all the best for a speedy recovery. [Hon. Members: “Hear, hear.”]

Lords amendment 1 introduces the requirement that an authorising officer must “reasonably” believe that an authorisation is necessary and proportionate. The Government cannot support this amendment because it is both unnecessary and risks creating inconsistency, thereby casting legal doubt on the position in other legislation.

As I previously confirmed in this House to my right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), the former Attorney General, it is indeed the case that the belief of an authorising officer should be reasonable. That is, as it were, axiomatic. The revised code of practice confirms this and, in response to concerns raised in the other place, it was further amended to make that clear.

The Government therefore cannot accept this amendment, as it creates problematic inconsistency with the position in other legislation. For example, under the Regulation of Investigatory Powers Act 2000, the belief of an authorising officer that an authorisation for the general use and conduct of a covert human intelligence source is necessary and proportionate must be reasonable. Section 29 of that Act simply states that there must be a belief, but it does not use the word “reasonable”. If the word “reasonable” were to be added before the word “belief” in this Bill, it would cast into doubt whether the belief must be reasonable where it is not specified elsewhere.

However, I make it clear that the legal position is already that the belief must be reasonable, as a matter of public law. I say that clearly from the Dispatch Box, as I have done before in answer to a question from my right hon. and learned Friend the Member for Kenilworth and Southam, the former Attorney General. That is why we cannot support Lords amendment 1.

Lords amendment 2 places express limits on the conduct that can be authorised under the Bill. This House has already discussed the issue in some detail, but I will reiterate the reasons why the Government cannot support this amendment. First, the limits on what could be authorised under the Bill are provided by the requirement that any authorisation must be necessary and proportionate, and must comply with the Human Rights Act. Any authorisation that is not compliant with the Human Rights Act would be unlawful, and nothing in this Bill seeks to undermine the important protections in that Act.

However, were we to place explicit limits on the face of the Bill, it would create a risk to the operational tactics involved and, I might add, to the safety of the covert human intelligence source and the general public at large. This assessment has been put to the Government explicitly by operational partners—the people who are actually operating these tactics. The decisions we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners have experienced in the field, and that is what they are telling us.

By creating a checklist on the face of the Bill, Lords amendment 2 makes it very easy for criminal gangs and others to develop initiation tests. It will certainly be the case that some criminals, in seeking to demonstrate that they are not a covert human intelligence source, will go away and do what is asked of them, and perhaps even commit rape or another serious offence to demonstrate their loyalty to the cause and prove, as it were, that they are not a CHIS—a covert source. Those who do not will instead risk the consequences of wrongly being thought to be a source. Of course, that does not mean that if a covert human intelligence source were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act 1998 and the test of necessity and proportionality already provide limits. It is not as though there are no limits, because the Human Rights Act and the test of necessity and proportionality provide those limits; it is simply that we need to avoid presenting criminals and criminal gangs with a means to test those people they suspect are agents. The consequence of presenting such a checklist would be felt ultimately by the public, because this tactic will not be able to be deployed to the same degree, and so more successful crimes, terrorist attacks and serious crimes would be committed.

Amendment 3 seeks to confirm that a person who is, at present, able to access the criminal injuries compensation scheme will be unaffected in their ability to access it because of this Bill. As I have outlined, it is dangerous to get into a discussion of the limits of conduct of our operational sources—those that can be authorised—but I will say that, in practice, the operation of the criminal injuries compensation scheme is unaffected by the Bill, and the amendment is therefore unnecessary.

Amendment 4 deals with the safeguards in place for the rare occasions when a juvenile is authorised to participate in criminal conduct. It also deals with the authorisation of vulnerable adults. I recognise that this is an important and emotive issue. None of us likes to contemplate a juvenile being involved in criminal activity. I understand and respect the honourable motivation behind these concerns; it is, no doubt, a desire to protect young people, and Her Majesty’s Government also have that motivation. The Bill does not seek to give public authorities new powers to authorise juveniles as covert human intelligence sources; it simply creates a clear and consistent legal basis for the authorisation of a covert human intelligence source to participate in criminal conduct where that is necessary and proportionate. The Bill also introduces increased safeguards from those that existed before, such as the requirement for all authorisations to be notified to the independent Investigatory Powers Commissioner in close to real time.

On juveniles, the right hon. and learned Gentleman is correct that the Bill does not give authorisation to allow for CHIS, because it happens already under the CHIS code of practice, which is also legally enforceable under the Regulation of Investigatory Powers (Juveniles) Order 2000. Given some of the concerns that people rightly have, would it not help to put that into the Bill?

The right hon. Gentleman makes a perfectly reasonable point, as he very often does. The issue with putting the code of conduct into the Bill is, in part, that the code of conduct is, I think, hundreds of pages long. There are also issues of precedent in terms of codes of practice and codes of conduct elsewhere. However, I will give careful consideration to what he says and hope to come back to it.

Juveniles are authorised as covert human intelligence sources only in exceptional circumstances. There are significant additional safeguards in place for these authorisations, including authorisation that must be given by a more senior-level officer, an enhanced risk assessment process, and a shorter authorisation of only four months, with reviews of that authorisation having to take place at least monthly. Several safeguards will be in place, over and above, in respect of juveniles. There is also a requirement that an appropriate adult would be present in any discussions between the handlers and a young person under 16 years of age, and a rebuttable presumption that this is the case for 16 and 17-year-olds. Let me be clear on this point: the presumption is that an appropriate adult will be in place for meetings with 16 and 17-year-olds. That is the default position, if I can put it that way. If the public authority deems that it is necessary to derogate from that position, the rationale detailing the reasons why should be documented and then considered by the Investigatory Powers Commissioner. The commissioner confirmed that, in practice, juveniles are not tasked to participate in criminality that they are not already involved in.

Thank you, Madam Deputy—Mr Deputy Speaker. Forgive me—a slip of the tongue.