New Forest East



[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: 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 (Kevan 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.

Bob Stewart: It is only the number and the category; there is no detail, because that would be extremely dangerous.

Dr Lewis: That is absolutely right, and the whole point about the detail is that that is the job of the Investigatory Powers Commissioner. What we want to do is give an added layer of extra scrutiny on the scale and the categorisation, but nothing in terms of particularity of any individual case.

Gavin Robinson: I support new clause 3. I think the emphasis behind it is right, and the work that the right hon. Gentleman’s Committee does is very important. There was an interesting line in the report published by the Committee on 5 October on Northern Ireland terrorism that touches on this Bill. It said, 

“Authorisations are used sparingly”, 

and then it gave the proportion of members of the services that have had authorisations, but that number featured in the published report as 

“ *** ”. 

I only want to raise with the right hon. Gentleman the point that, while it is important that his Committee has access to that important information, the information could be made available. There is always a consideration, to various degrees, about what is contained in reports and what is not, but it does not seem to me that that is sensitive, and for the purposes of this debate, it would actually have been an incredibly helpful figure to have.

Dr Lewis: The hon. Gentleman, with whom I worked so closely on the Defence Committee, as always gets to the heart of the matter. He says that, indeed, we have made reference in the context of Northern Ireland to numbers and scale in precisely the way we are seeking to be able to do here. Whether something is then made public is always a matter for debate and negotiation between the ISC and the agency concerned, but where it cannot be made public, that is where the ISC in a sense comes into its own. We exist to be able to see things that for good reasons cannot be made public, but we can then at least give assurance to Parliament that we have seen what cannot be made public and we are reasonably satisfied with it, and that is what this is all about.

Mr Kevan Jones: The reason for not giving that figure is clearly that it would give an advantage to those we are working against – for example, in Northern Ireland – through an indication of the scale of the CHIS. Could the right hon. Gentleman clarify the situation and highlight to the Committee that we would look at the numbers, but that we have powers to look at individual cases, as we have done in the past, if we have concerns about them?

Dr Lewis: Yes. What it is important to remember and, it must be said, what has not always been remembered in recent times, are the provisions of the Justice and Security Act 2013. That Act, among other things, said that the Committee would have greater powers to “require” the agencies to give certain information. Prior to that, it could only “request” the agencies to do so. The question is: will we have the power to be assured of getting these figures, or are we going to be able only to ask for them and perhaps not get them? The right hon. Gentleman is absolutely right: if we saw something that we did not like the look of, even if we did not have the power to require that particular piece of information in order to delve further, we could at least request it. For many years, that was the only basis on which the Committee could operate anyway.

The new clause we are proposing today, new clause 3, is a simple one. As I have said, it does not seek to duplicate the role of the Investigatory Powers Commissioner, but would require the Secretary of State to provide the number and the categories, and the Committee could then decide whether further scrutiny of that data once supplied was necessary. That would give the House an additional reassurance that these powers were being used correctly by the intelligence services. There is a precedent for that, because there are similar provisions in the Investigatory Powers Act 2016 that ensure that the ISC is kept regularly updated on the use, for example, of bulk interception powers. Obviously, the new clause does not cover those organisations that the ISC does not oversee – most notably in the context of this Bill, the police.

In typically helpful fashion, my right hon. Friend the Minister for Security has been in touch with me, and we have been having certain negotiations about what assurances could be given that the ISC would get the sort of information that it needs. In particular, I understand that he is going to suggest that the CHIS code of practice could be amended to highlight the role of the ISC. There is still, however, a degree of uncertainty. He has written me a letter, and that letter will be laid before the House and put in the Library. There is just one area of concern that we are still not happy about – we are within a hair’s breadth of agreement – and it relates to current operations.

Stewart Hosie: Before the right hon. Gentleman moves on to his next subject, there is also an issue of trust. The Bill envisages giving the Government a significant degree of ability to authorise criminal activity. As someone who is happy to give this Bill a fair wind with certain conditions, I say that if the Government cannot see fit to include on the face of the Bill this very modest new clause from our Committee – it is only about numbers, not details – I think trust in the Government is rather diminished.

Dr Lewis: I am obviously hoping that the Minister will convince us in the course of this afternoon that we can indeed trust the Government on this matter. If he wishes to do so, he needs to clear up the point I am about to raise concerning current operations.

Although sometimes the Government share information voluntarily with the Committee about current operations, we cannot normally demand such information. The danger with a letter and the slight amendment to the regulations is that it could still leave a loophole whereby the Government say, “We would like to give you these statistics and these categories, but unfortunately some of them relate to operations that are still ongoing.” Perhaps there have been 15 such authorisations, and one or two of them relate to current authorisations. That could be used as an excuse not to tell the Committee about the total of 15. In reality, I do not think that would be within the spirit of the understanding of the reasons why current operations are normally excluded from the purview of the work that the Committee does.

In order for the Minister to develop the degree of trust that we wish to have in the Government’s intentions, I hope that when he comes to address the arguments that have been put forward in support of new clause 3, he will rule out any suggestion that the fact that there might be one or two current operations included in a statistic will prevent the Committee from seeing those statistics that we have urged the Government to provide by tabling the amendment. I look forward to the Minister’s comments on that later, and I earnestly hope we will be able to reach a satisfactory outcome.


The Minister for Security (James Brokenshire): ... I have written to the Committee Chair, my right hon. Friend the Member for New Forest East (Dr Lewis), to underline ways in which I believe we can provide the information that has been sought by the Committee, and I will place the letter in the Library to provide that certainty and clarity. I would say to my right hon. Friend that operational agencies will consider requests and specifics in the usual way, and I can commit to them considering that through the 2013 Act. The fact that it may relate to a live operation should not preclude that information’s being shared. I hope that that will be helpful to him in underlining the importance of the information’s being forthcoming.

Dr Lewis: I accept that assurance in good heart. In the letter, the Minister said, 

“Such information as is requested in order for the ISC to provide effective oversight of these policies relating to these authorisations shall be provided to the Committee,” 

so I take it he is saying that we will not get refused those statistics when we want them.

James Brokenshire: I take in equally good faith the way in which my right hon. Friend and the Committee have approached this, and it is firmly my intent that information will be provided. He knows the debate and discussion over live operations and being bounded in that way, but I would want to ensure that information is given to his Committee, so that they can fulfil their oversight function and also, I think, give confidence to the House. He and his Committee have raised an important point, and I recognise the contribution that they make. ...