CONSERVATIVE
New Forest East

COVERT HUMAN INTELLIGENCE SOURCES (CRIMINAL CONDUCT) BILL - 05 October 2020

COVERT HUMAN INTELLIGENCE SOURCES (CRIMINAL CONDUCT) BILL - 05 October 2020

[Madam Deputy Speaker (Dame Eleanor Laing): I am going to start with a time limit of nine minutes, which is advisory. I put on a time limit of nine minutes so that no individual Member is encouraged to take dozens of interventions and therefore take 20 minutes. I hope that that will be roughly about right to ensure that everybody gets a decent chance to speak on this extremely important issue.]

Dr Julian Lewis: Thank you, Madam Deputy Speaker. I shall endeavour to set a good example.

Both Front Benchers have begun this debate in a solemn, sober and thoroughly non-partisan way. That is greatly to be welcomed. The Opposition Front Bench spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), referred briefly to the oversight role of the Intelligence and Security Committee. I can give advance warning, as it were, that other members of the Committee will be referring – in particular, I believe, my hon. Friend the Member for The Wrekin (Mark Pritchard) – to at least one amendment the ISC will probably put forward, relating to accountability and oversight by the ISC, at a later stage in these proceedings.

The work of the United Kingdom’s domestic and overseas intelligence agencies would be considerably less complicated and decidedly less dangerous if we could rely solely on the technical triumphs which achieved so much in Room 40 in the first world war, and via the Ultra organisation in the second. Sadly, that has never been the case and, as long as spying has existed, spies in human form have proven indispensable. Covert agents operate under extremely hazardous conditions inside hostile organisations, or cells of organisations, where discovery of their true identity and purpose could prove fatal. The explanatory notes accompanying the Bill describe the use of covert human intelligence sources as

“a key tactic in protecting national security and investigating serious crime”,

and the operation of such agents as

“a core part of security, intelligence and policing work”.

It is hard to disagree with that evaluation. If it were known that CHIS agents could never engage in criminal activity in concert with the groups they are infiltrating, it would be simplicity itself for ruthless organisations to devise techniques to flush them out and eliminate them.

Until now, the security service has had an implied power, derived from the Security Service Act 1989, to authorise CHIS agents to take part in criminality. As we have heard, last December the investigatory powers tribunal ruled in favour of MI5 in a case which challenged such authorisations. However, that ruling was by just a 3-2 majority, thus illustrating the point well known to the Intelligence and Security Committee that the switch of a single vote can dramatically change even a carefully pre-planned outcome. [Laughter.] The ISC welcomes the principle behind the Bill to put existing powers to authorise criminal conduct, in certain circumstances, on to an explicit statutory basis.

One of our predecessor Committees was told in 2016 by the then director general of MI5 that CHIS agents are

“the intelligence collection asset that we could not operate without. They give you insight that technical intelligence cannot give”.

Despite necessary redactions, the 2017-19 ISC’s own report on Northern Ireland-related terrorism, presented to Parliament today, although it was drafted before I rejoined the Committee, convincingly concludes at paragraph 39 that:

“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only where necessary and proportionate, and subject to proper scrutiny.”

Like its predecessor, the current ISC believes that these authorisations are essential if innocent lives are to be saved. Indeed, we have seen real examples where precisely that has happened—and where lives would definitely have been lost if a courageous agent had been banned from participating in any criminal activity.

Naturally, this power must be properly circumscribed and must be used, as repeatedly stated, only where necessary and proportionate. At later stages, consideration of the Bill will surely focus on how to apply necessity and proportionality, but I urge colleagues in all parts of the House not to seek too much specificity regarding what criminality meets those standards. Preventing agents inside a criminal enterprise from engaging in a specified checklist of possible crimes would make their unmasking and potential execution very much more likely. It would be dangerously counterproductive to compile such a checklist. We need to remember that there is more than one way for society to have blood on its hands.