Justice Committee

Meeting date: Tuesday, December 15, 2020

Official Report 614KB pdf

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Covert Human Intelligence Sources (Criminal Conduct) Bill

Welcome back. Our next item of business is to take evidence from the Cabinet Secretary for Justice, Humza Yousaf, who joins us this morning, and his officials on the Covert Human Intelligence Sources (Criminal Conduct) Bill, which is a United Kingdom bill, in respect of which the Scottish Government has published a legislative consent memorandum.

The cabinet secretary is being joined remotely by Graeme Waugh and Douglas Kerr. As usual, cabinet secretary, we will direct questions at you but please feel free to bring in your officials when you want.

I will open by asking whether you have any opening statement and whether you could update the committee on where exactly we are with the bill and its passage through the UK Parliament. As I understand it, the bill has not quite reached the final amending stage, so it is still possible for it to be amended before the Scottish Parliament has to determine whether and—if it does—how it wants to give consent.

It is also possible for a supplementary LCM to be issued at a later date.

Thank you for the opportunity to update the committee and then take questions. The Covert Human Intelligence Sources (Criminal Conduct) Bill was introduced in the Westminster Parliament on 24 September. It aims to provide an express statutory power for certain public authorities to authorise a covert human intelligence source—CHIS—to participate in criminal conduct when it is necessary and proportionate to do so. A CHIS can, of course, be vital in gathering essential intelligence that might save lives or protect the public from serious harm, including organised crime and child sexual exploitation.

As it stands, the bill lacks sufficient safeguards. That could be mitigated if prior approval by a judicial commissioner at the Investigatory Powers Commissioner’s Office was required before a criminal conduct authorisation, or CCA, was made. As the bill has progressed, it has become clear that there is cross-party concern about the sufficiency of the safeguards and potential implications for human rights. Additional safeguards that have been called for include but are not limited to setting out in the bill certain conduct that cannot be authorised, limitations on granting CCAs for a juvenile CHIS, and the need to ensure that legitimate trade union and party-political activity is not the subject of any criminal conduct authorisations. I share those concerns, which have been articulated by a number of human rights organisations, including Reprieve and Amnesty International, and I believe that the committee has received written submissions from such organisations.

The bill amends the Regulation of Investigatory Powers Act 2000 and the Regulation of Investigatory Powers (Scotland) Act 2000. The amendments provide for a new CCA that makes conduct lawful for all purposes under that authorisation.

On the convener’s question about legislative consent, the amendments to RIPSA cover operational activity in Scotland by Police Scotland and the Scottish Administration, which means, in practice, the Scottish Prison Service. Amendments to RIPA cover operational activity in Scotland by certain UK bodies, particularly the National Crime Agency and HM Revenue and Customs when they grant an authorisation for the purposes of detecting or preventing crime, or preventing disorder. The bill also amends the related provisions in the Investigatory Powers Act 2016.

I agree that it is sensible to put matters of criminal conduct by a CHIS beyond any doubt for it to be properly regulated and subject to strong safeguards. I would prefer a consistent four-nations approach to the area, but to legislate to allow someone to break the law is a serious matter and any measure must be accompanied by appropriate and stringent safeguards. My strong preference, which I should say is consistent with the views of the Lord Advocate and the chief constable, is for there to be prior approval by a judicial commissioner at IPCO before a CCA is made. That will provide an independent judicial assessment that the authorising officer has made a decision that is necessary and proportionate to what the authorisation aims to achieve.

I have been pressing the UK Government for stronger oversight than currently exists in the bill. I accept that, in the absence of prior judicial approval, it would be acceptable for an amendment to be made requiring notification to IPCO immediately after the CCA is made, but that would be subject to the other concerns that I have mentioned being addressed. That is why I agreed for RIPSA amendments to be included in the bill on introduction.

There has been a good level of engagement with the UK Government but, despite assurances, no such amendments have been tabled. I am aware that an amendment has been proposed in the Lords requiring notification to IPCO within seven days, but that amendment has not been accepted at the time of speaking and my view is that the seven-day period is too long.

I cannot therefore recommend that the Scottish Parliament should consent to the bill. As the bill has progressed, cross-party members have expressed significant and valid concerns in the House of Commons and the House of Lords, and those concerns are set out in the LCM. If the UK Government can make suitable amendments to the bill at the House of Lords report stage, the Government will reconsider its position and bring forward a supplementary LCM if necessary.

I have made it clear to the UK Government that the bill will need to be changed substantially, with greater independent oversight and additional safeguards in relation to the human rights concerns that have been articulated before the Scottish Government can reconsider its position and recommend that the Scottish Parliament consents to the bill.

11:30  

Thank you, cabinet secretary. I would just like to understand something about the nature of the use of covert human intelligence sources in Scotland now, so that I can understand the scope of the legislative consent that is being sought by the UK Government and which is within the responsibility of this Parliament to give or not. Most of the agencies that will be able to seek CCA under the bill are UK agencies that operate in reserved space rather than in devolved space. The striking exception to that is any police force—obviously, Police Scotland is devolved. In addition to Police Scotland, who uses covert human intelligence sources in Scotland for purposes that are within devolved competence? In our conversation about legislative consent, are we talking only about Police Scotland or are we talking about others?

You are absolutely right that, with regard to devolved purposes, it is largely Police Scotland that would be affected by the bill, and the Scottish Prison Service would potentially be affected as well. The chief constable helpfully gave a briefing to some members of the committee, in which he went into some detail about what sort of criminal activity Police Scotland has looked to disrupt in this way. It ranged from drug trafficking to human trafficking and right the way through to child sexual exploitation. We are talking about extremely serious matters.

As I referenced in my comments, the bill would also impact UK-wide bodies that were also using a CHIS in Scotland for purposes of detecting crime. The National Crime Agency might do that, as well as HMRC, for issues to do with tax or tax fraud. However, you are right that the biggest implication would be for Police Scotland.

The amendments to the bill that you indicated in your opening remarks you want to see made pertain principally—perhaps you can clarify whether they pertain principally or entirely—to authorisations.

As I understand it, in the House of Lords, where the matter has been quite extensively debated, significant concern has been voiced by, for example, David Anderson, who is the former independent reviewer of terrorism legislation, and his predecessor, Alex Carlile, about the extent to which IPCO should be involved in preauthorisation. The Scottish Government seems to be pushing for an amendment that previous independent reviewers of terrorism legislation say would be inappropriate and perhaps even dangerous. Will you explain that for me? You will know much more about that than I do.

Sure. It is worth saying that I have a lot of time and respect for Lord Anderson in particular; I do not know Lord Carlile as well, but I have met him in a previous role. I have met Lord Anderson on a number of occasions, and I do not dismiss his view in the slightest.

However, I reiterate a point that I think I made in my opening remarks. Prior judicial approval, even if it is not IPCO approval, would still be the preference. It is not just my preference and that of the Government but the preference of the chief constable and the Lord Advocate. It is important that the views of the operational partners who deal with covert human intelligence sources and the authorisation of any criminal activity when it comes to Police Scotland are listened to in that regard.

I should also say that, notwithstanding the concerns of Lord Anderson and maybe Lord Carlile—forgive me, but I have not seen Lord Carlile’s contribution on the matter—on the other side there are human rights organisations, some of which I have mentioned and some of which I think have written to the committee as well, that express a wish for a greater degree of oversight. My feeling is that, where the law is sanctioning criminal activity, which is what the bill aims to do, albeit within very narrow parameters, of course, additional oversight that is independent of the bodies that are the operational partners can only ever be a good thing.

We could have a debate about whether it should be IPCO or another body that provides important oversight, but I am convinced that there must be additional oversight, because of the gravity of what we are being asked to do in this regard. At the moment, that has not been provided for.

Your point is that you are aware of the concerns that have been raised by Lord Anderson and others, and you are relatively open minded about the detail of what the oversight might look like but, nonetheless, there needs to be some form of oversight—preferably judicial and preferably provided by IPCO—in advance of CCAs being granted.

Yes. I have spoken to a few human rights organisations—I should not throw them into one homogeneous category, as they are not homogeneous, of course—and found that some believe in prior judicial oversight but are not sure that IPCO is the right body to provide that. Reprieve might fall into that territory.

I have spoken to Sir Brian Leveson, who leads IPCO, and I am sure that he would not mind me mentioning—indeed, would want me to state on the record—that he is adamant that, although these are policy choices for the Government to make, if IPCO were asked to facilitate a prior approval scheme, it could do so. I asked whether IPCO could facilitate such a scheme if Scotland had a different regime from that of the rest of the UK, and he said that he is confident that it could. However, he is firm and adamant that it would be a policy decision for the Government and, ultimately, the Parliament to make.

That is helpful. Annabelle Ewing will pick up the questioning from here.

The UK Government may well not accept any satisfactory changes to provide for the additional safeguards that the Scottish Government seeks. In those circumstances, what would be your plan? Would that require legislation to be introduced in Scotland? If so, what would be the timing for that, and what would happen next?

Annabelle Ewing’s questions are pertinent but, unfortunately, I will not be able to answer some of them. I will come to the reasons why in a second.

So much of what we choose to do will depend on the Court of Appeal’s judgment. I will not rehearse the background, as the committee has a briefing on it and will have seen the LCM explanatory notes that I provided. It will be up to the court, of course, but our belief is that a judgment on the case will be made towards the end of January and, at the earliest, will be published in February. A lot of what we do next will come down to the judgment.

As the committee would expect, as a responsible Government taking a prudent approach, we will base our planning on what is reasonably likely to be the worst-case scenario, which could be that the judgment affects what we do in Scotland and has an impact on what is contained in RIPSA. The worst-case scenario could be a cliff edge, whereby unless there were express statutory underpinning for the authorisation of criminal activity by a CHIS, that activity would be unlawful. For that scenario, we are preparing internally for emergency legislation. I mentioned that we have held briefings with a number of Opposition members about that.

Emergency legislation is not my preference, which would be for a matter of such complexity and sensitivity to be dealt with in normal time. However, for the worst-case scenario, which I deem to be unlikely—I can expand later on why that is, if anybody wishes—we are making preparations for emergency legislation. Any emergency legislation would have to have a sunset clause, so that we could introduce further legislation in normal time.

We want to prevent a scenario in which there is an impact on any police operation with a participating CHIS, which could be not just disrupting crime but saving lives. It is difficult to tell the committee exactly what the next steps will be, because a lot of that will depend on the Court of Appeal judgment.

I understand that. Thank you for your comprehensive answer.

Is the Scottish Government a party in the case in the Court of Appeal?

No. It is my understanding that we are not, but there is a concern that any judgment could have a read-across to RIPSA and potentially to what we do in Scotland. Any judgment could then make another challenge to the Scottish Government—the Scottish Administration, as it is technically known—more likely.

Is there no current intention to join that litigation as a third party?

No. Graeme Waugh is online and might give clarity on that point. I am clear that current cases are not targeted at the Scottish Government but are targeted at the security services and the UK Government. Is that right?

That is correct.

Thank you for that clarification.

Earlier, you set out various amendments that you want to see made. You have obviously had dialogue with the UK Government. As far as you are aware, why has the UK Government declined to accept your amendments?

I should say from the outset that I have had good engagement with the UK Government. The Minister for Security, James Brokenshire, has engaged frequently and in good spirit—I think that we are speaking again later this week. He has often listened to my concerns and I know that his officials have also spoken with the Lord Advocate.

I do not know why the UK Government has not accepted prior judicial oversight. There was no significant movement from the UK Government on the other concerns that members raised across the House of Commons, particularly around human rights, and I can only guess at the reasons for that, because I do not truthfully know. I suppose that the UK Government is in a different position from this Government, in that it has a majority and less incentive to accept amendments, but I really cannot answer for it.

It has a majority in the House of Commons but not in the House of Lords, where the bill currently is.

In your opening statement, you talked about the balance between community safety and civil liberties. Does the bill provide that balance, or are there concerns about legal organisations, such as trade unions? Do you also have those concerns?

We do. I do not need to rehearse some of the concerns about previous undercover activity relating to peaceful and legitimate protest groups for example, because I know that Rhoda Grant knows that issue particularly well, as one of her colleagues has often commented on it.

The rebuttal from the UK Government would be that any authorisation would have to be “proportionate and necessary”. The reason for my being so adamant on judicial oversight is that that “proportionate and necessary” judgment should be made by somebody who is not part of the organisation that is involved in the operation.

The answer, in short, is yes—I have those concerns, and I would like to examine that area further if we have to introduce separate Scottish legislation. I could not say 100 per cent at the moment whether it would be within scope for this Parliament to exempt trade union activity, for example, but I would be keen to have that discussion. I should say that we are exploring the matter internally in preparation for an emergency bill.

As in previous instances, I declare that I am a member of Amnesty International, which is one of the groups that have put in a collective briefing to us.

The LCM expresses a wish to have limits placed on what can and cannot be authorised in a CCA; the cabinet secretary is aware that most people would see it as reasonable to suggest that torture, murder and sexual violence be included in those limits. The submission from Amnesty International, a group with which the cabinet secretary is familiar, says:

“Without express limits at the authorising stage, we worry that even improved oversight would leave too great a scope for abuses. Even if a requirement was introduced for Criminal Conduct Authorisations to be approved by a judge or a regulator, experience in the surveillance sector suggests that a warrantry system of this nature is wide open to abuse when conducted in secret. Notably, the Investigatory Powers Commissioner”

—whose remarks you quoted earlier—

“has himself conceded that MI5 systematically kept vital information from him to falsely justify surveillance warrants, and suggested that the agency is failing to reliably record the kinds of crime in which their agents become involved.”

Regardless of how this pans out, what is your view of such activities? I think that everyone would want to see there being judicial oversight of them.

11:45  

Conduct that might be described as non-permitted requires careful attention. I spoke to Reprieve and a number of other human rights organisations about their concerns on the bill. They often make the point—and it might also be in the briefing to which you have referred—that references to non-permitted conduct can be found in legislation in America and other parts of the world, so the suggested provision is not unique.

The counter-argument to that, which I have heard being made by the UK Government in the House of Commons, is that the Human Rights Act 1998 would allow a safeguard against such conduct. I have a couple of concerns in that regard. The first is that the same Government has instructed a review of the 1998 act, so I would be concerned about the intentions behind its review and the strength of that safeguard. The second is that certain forms of conduct that the bill regards as non-permitted—for example, murder, torture and sexual violence—could be used by criminal organisations to test a CHIS to see whether they were an undercover informant.

We would therefore have to consider such issues carefully. However, if it can be done in other countries without particular issues arising there, I have to say that I am attracted to it and sympathise greatly with those who ask us to consider whether, in the event of our having separate Scottish legislation, it should cover non-permitted conduct.

Of course, the same UK Government is seeking to sanction crimes committed by the UK military abroad. Also, according to a parliamentary publication, it does not believe that the Human Rights Act 1998 applies to abuses committed by its agents.

One of the signatories to the briefing to which I have referred is the Pat Finucane Centre. As you will know, Mr Finucane was a human rights lawyer who was murdered by the UK state. The de Silva review confirmed that, and Prime Minister David Cameron graciously apologised for it. We know that there will not now be an inquiry into it, however. Members of the public still harbour grave concerns about the untimely deaths of others such as Hilda Murrell and William McRae. I would like to know from you, cabinet secretary, what is acceptable. You have alluded to previous instances and we know about actions such as taking the identity of a dead baby, the collusion associated with that, and what is sometimes referred to as state-sanctioned rape. How can we be assured that, for all the Scottish Government’s understandable willingness to try to have co-operation on the issue, it will not inadvertently sanction any such matters?

The fact that I have not recommended that consent be given to the LCM should provide assurance. I hope that it goes some way towards demonstrating that I have concerns about the issue, which, as I said, can be put into three broad categories. One is prior judicial oversight. The second category is the Lord Advocate’s concerns on interference with his role as the independent head of the criminal prosecution system. The third category is precisely as Mr Finnie articulated—the human rights concerns, which themselves can probably be put into three brackets. The first of those concerns non-permitted conduct, which Mr Finnie mentioned. The second is about safeguards on juvenile CHIS. We must remember that, very rarely, young people can be used as CHIS, so there should be appropriate safeguards around that. The third covers legitimate political protest or trade union activity, which Rhoda Grant mentioned.

I give you an absolute assurance that the Government takes those human rights concerns very seriously. However, I should also say that the Scottish Government absolutely understands that there will be some instances where a CHIS will have to conduct criminal activity—that might be unavoidable. Police Scotland gave an example, which it was comfortable with me using, of a situation where an undercover operative infiltrated a paedophile network, which culminated in the arrest of a man who had planned to pay to rape a five-year-old boy and a six-year-old girl. When he was arrested, further evidence of his offending was identified from his computer. The male pleaded guilty and received an eight-year prison sentence. Without going into operational detail, in order for that undercover operative to infiltrate that paedophile network, they had to infiltrate networks that it would otherwise be criminal to infiltrate. We all have to accept—as I am sure that John Finnie does, given his background and knowledge of policing—that there will be times when a CHIS has to carry out criminal activity. As a Government and a Parliament, we have to ensure that any state sanctioning of that is within the narrowest parameters and that the appropriate safeguards are in place.

Of course, we would accept such a situation, just as we would accept an undercover operative in pursuit of a drugs gang being in possession of illegal drugs.

On the potential for outsourcing and the question of rendition, airports such as Inverness and Wick in my region, as well as Prestwick, have been mentioned. Some people believe that it is appropriate to have some poor, unfortunate individual trussed up in the back of a plane, shackled to the floor and hooded, in the name of so-called national security. Has there been any progress on that? Can that be used as an example of something that we do not want? It is unfortunate that the UK Government has declined to assist the Lord Advocate in his inquiries into that.

John Finnie knows the Scottish Government’s and my position on that, which has not changed. Extraordinary rendition is absolutely unacceptable, and I share his frustration and disappointment that the UK Government has not approached the United States Administration to get the unredacted Senate report. There might be a willingness to do that now, given that there will be a new Administration in charge. I will pick that conversation back up with the UK Government. I should probably not say much more, because there continues to be a live investigation into these matters.

You mentioned Her Majesty’s Revenue and Customs and the National Crime Agency. There is also the British Transport Police, over which there is no direct political oversight. Could it also be covered by the bill, as it works on a cross-border basis?

Forgive me, but I would have to look at the bill documents to check all the organisations that are affected by it. My assumption is that the British Transport Police would be covered by the bill, but I will double-check that with my officials, who are online.

I am afraid that I would also have to check the legislation, but I would be very surprised if BTP was not included.

Cabinet secretary, I am a bit confused now about exactly what you are seeking from the UK Government by way of amendment to the bill. I will try to pin it down with more precision. If there were an amendment that imposed a requirement for prior judicial authorisation, would that meet the Scottish Government’s concerns about giving legislative consent, or would you want further safeguards in the bill to address some of the issues that you have just explored with Mr Finnie?

Forgive me if there is a lack of clarity, but we have three concerns, one of which is about judicial oversight. Yes, if the UK Government accepted a requirement for prior judicial oversight, that would go a long, long way towards addressing my concerns. Having that independence, prior to any authorisation being given, would go a long way to doing that, although I would have to discuss that with others, including Opposition members.

However, I am not the only one who has concerns about the matter. The Lord Advocate’s concerns would also have to be addressed. He can speak for himself, but I spoke to him recently and heard that his concerns have not been addressed as yet. The third lot of concerns are about human rights. However, a lot of those concerns could be addressed if there is prior, additional judicial oversight.

The convener is right to allude to the fact that prior judicial oversight would be the most significant safeguard that could be introduced. If the Government is satisfied, a supplementary LCM could be lodged, as I mentioned in my opening remarks. However, at this stage, I cannot recommend that the Parliament gives consent.

I understand that at this stage you are not recommending that the Parliament gives consent, but I am just trying to understand on the basis of paragraph 24 of the legislative consent memorandum what exactly you are asking for in order for that position to be changed. However, you have helped with the—

Sorry to interject, but I should say that the UK Government is in no doubt about the amendments that the Scottish Government would like to see. The conversation has happened over a number of months and the view about prior judicial oversight has not changed. If significant amendments were to be made to address human rights concerns, we could potentially look at whether those would relate to prior judicial oversight or notification straight after a CCA is made. However, that would be dependent on other human rights concerns. There is a balance, which is why I am careful to say that having prior judicial oversight would go a long way to addressing my concerns, but we would have to look at the detail of any amendment.

Your official, Douglas Kerr, has indicated that he wants to come in.

I confirm that BTP would be included. You would need to compare the lists that are in the bill with the organisations that are listed in section 46(3) of the Regulation of Investigatory Powers Act 2000. That will clarify which bodies are in scope.

Thank you.

I have a final question to help my understanding.

As I understand it, the concern is that the Court of Appeal ruling would leave a lacuna—a cliff edge—of no statutory underpinning for a CHIS. At its core, I presume that the UK bill seeks to plug that lacuna. You have concerns that that bill does not cover all the bases, but I presume that you concede that it covers some of them, and that with further safeguards, especially around judicial oversight, the bill might become okay.

Why would the Scottish Parliament not consent to the LCM and, ultimately, the bill to give a baseline statutory underpinning and then work to nuance the motion from there, rather than risking the cliff edge that you fear?

If we recommended and accepted the LCM and the bill passed in Westminster, it would be extraordinarily difficult, if not nigh on impossible, to make changes to it. Therefore, the committee would be asking us to recommend to the Parliament to accept a bill that has—as I would describe them—some fairly fundamental flaws. I will not rehearse those flaws, as the committee understands my concerns, as well as those of trade unions, many members of the Opposition, human rights organisations and so on. However, if we get to the reasonable worst-case scenario of the cliff edge—which I hope is unlikely—we have a plan in place to deal with it that does not compromise some important human rights concerns. I think that that is the most sensible approach.

Liam Kerr is correct that if we accepted the LCM and the bill covered the whole of the UK, and a Court of Appeal judgment ruled that express statutory underpinning was needed, that would be there. However, the simple fact that the potential gap could be plugged in that hypothetical scenario does not mean that it is the right route to take because of the serious underlying human rights concerns.

You said that the reasonable worst-case scenario is unlikely in your view. Why do you think that it is unlikely?

12:00  

We should never second-guess a court judgment but, from all the conversations that I have had, including with some of the claimants in the case and some of the organisations that have already been mentioned, I know that they also feel that it is unlikely. In the original judgment of the case in the investigatory powers tribunal, the decision was split 3:2, and the three judicial members found in favour of the UK Government. Again, we do not want to make a presumption about which way the Court of Appeal judgment would go.

The second point is that, without pre-empting anything, it is unlikely that members of the judiciary would create an operational cliff edge for operational partners, because they know the issues around and the importance of CHIS. I cannot say definitely and definitively that it will not happen—and, if it does, we have a plan in place—but I hope that it is unlikely. That is not just my view; it is the view of some of the claimants in the case, to whom I have spoken.

Therefore, even if the appeal is successful, the appeal court might be crafting a judicial remedy that is capable of achieving the result without creating a cliff edge.

Yes, and any Court of Appeal judgment might be so narrowly confined to the Security Service Act 1989 that it would not affect the legislative framework that we have under RIPSA. There are a lot of unknowns but, as I said, the hard cliff edge scenario is unlikely.

Since no other member has indicated that they wish to ask you further questions on that, I thank you for your time and consideration of that matter.