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Chamber and committees

Meeting date: Tuesday, January 19, 2021

Meeting of the Parliament (Hybrid) 19 January 2021 [Draft]

Agenda: Time for Reflection, Business Motion, Topical Question Time, Covid-19, Covert Human Intelligence Sources (Criminal Conduct) Bill, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Stage 1, Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill: Stage 3, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill: Financial Resolution, Decision Time


Contents


Covert Human Intelligence Sources (Criminal Conduct) Bill

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is a debate on motion S5M-23884, in the name of Humza Yousaf, on the Covert Human Intelligence Sources (Criminal Conduct) Bill legislative consent motion. I invite members who wish to speak in the debate to press their request-to-speak buttons now.

15:25  

The Cabinet Secretary for Justice (Humza Yousaf)

I have lodged the motion in order to update the Scottish Parliament on the Scottish Government’s position on the United Kingdom Government’s Covert Human Intelligence Sources (Criminal Conduct) Bill. The bill completed its report stage in the House of Lords on 13 January, and its third reading is scheduled for later this month, on 21 January. The bill aims to provide an express statutory power for certain public authorities to authorise a covert human intelligence source—otherwise known as a CHIS—to participate in criminal conduct in cases in which that is necessary and proportionate.

The Scottish Government laid a legislative consent memorandum on 4 December 2020. In that memorandum, and during the evidence session with the Justice Committee on 15 December, I confirmed that the Scottish Government cannot recommend that the Scottish Parliament give its consent to the bill because, despite considerable debate and discussion with the UK Government, safeguards are missing that are, in my view, essential to regulating the very significant power to authorise criminal conduct that is being granted.

Neil Findlay (Lothian) (Lab)

Does the cabinet secretary consider that the greatest safeguard would be for the Scottish Government to bring forward its own legislation in that area, which would allow the issue to be debated seriously through our political system, and for members to make a decision on it?

Humza Yousaf

I agree, and I will suggest that we progress in that way. I will get to that in a little more detail very shortly.

There have been some limited improvements but, unfortunately, I remain unconvinced that sufficient safeguards and protections are built in to the bill. Throughout the bill’s passage through the Westminster process, I have continued to have dialogue with the Rt Hon James Brokenshire, who I understand has taken a period of curative leave, so I wish him a very speedy recovery.

I have been paying close attention to the debates during the passage of the bill, in the hope that a four-nations agreement would be reached. However, I am disappointed to report that, despite very candid engagement with the UK Government, it has not made amendments to the bill that would have addressed my concerns. In my view, which I know many members share, the bill remains deficient.

There has been no movement towards prior judicial approval by a judicial commissioner at the Investigatory Powers Commissioner’s Office. Prior approval has always been my preference. That is supported by the Lord Advocate, from his perspective as head of the system of prosecution, as well as by the chief constable. Having followed the debate at Westminster, I can say that my preference for prior judicial approval has become stronger.

I know that the Law Society of Scotland, which has sent a briefing to MSPs, shares that view on prior approval. By providing—before any activity takes place—independent judicial scrutiny of the decision that is reached by the authorising officer for criminal conduct authority, prior approval would, in my view, go a long way towards addressing the legitimate concerns that have been expressed in various quarters.

During the House of Lords stages of the bill, the need to address non-permitted conduct in some way in the bill has also been raised. It has also been raised by many respected human rights organisations. I acknowledge and share that concern, but I also recognise, of course, that that issue is not always straightforward, especially if it is not dealt with on a four-nations basis. Nevertheless, I am not convinced that the bill adequately covers the matter.

I know that the Conservatives have relied on the Human Rights Act 1998, but Conservative members will forgive me for saying that theirs is the party that has instructed a review of that act, so their position is somewhat disingenuous.

This is a complex area of law; I acknowledge that the forthcoming Court of Appeal judgment might require a legislative remedy. That point allows me to close in on the point that Neil Findlay made. We will not know until that judgment is known what, if any, remedial action will be required to amend the Regulation of Investigatory Powers (Scotland) Act 2000. As the Scottish ministers cannot recommend to the Parliament that it consent to the bill, there might be a need for emergency or expedited legislation to cure an immediate consequence arising from the Court of Appeal judgment, when it is known. That would, of necessity, be no more than a sticking plaster to ensure the security of police operations. If such a measure is required, it will be only a stop-gap to allow for a full assessment of the court judgment, which will, in turn, inform any subsequent measures that this Government or a future Government, post elections, has to put in place. We will do that in the fullness of time and with full parliamentary scrutiny.

I am unable to recommend to Parliament that it consent to the bill.

I move,

That the Parliament agrees not to consent to the UK Covert Human Intelligence Sources (Criminal Conduct) Bill, as it contains insufficient independent oversight and satisfactory safeguards.

The Deputy Presiding Officer

I ask for three-minute speeches from front-bench members, please.

15:31  

Liam Kerr (North East Scotland) (Con)

I thank the cabinet secretary and, especially, the relevant agencies for their engagement on the matter. In my three minutes, I will argue against the motion and ask Parliament to give legislative consent.

The cabinet secretary has said that covert human intelligence sources

“can be vital to the gathering of sometimes lifesaving intelligence that cannot be gained any other way, or to disrupting serious crime and security threats to the nation.”

He went on to say that in Scotland the activity is used to tackle organised crime groups that are

“involved in drugs and weapons running, human trafficking, child sexual abuse rings and terrorism plots”,

and he concluded that a source’s

“participation in criminal activity may at times be necessary”.

The ability to carry out that vital work currently lacks a statutory foundation. A court case that relates to covert sources has been brought against the UK, and the Court of Appeal will soon promulgate its judgment on the case. It is possible that the court will find that the current system of covert surveillance is unlawful. In that event, the UK will have no basis for undertaking covert surveillance into, for example, terrorism, cybercrime, people trafficking and drugs running.

The UK bill anticipates that and sets a statutory framework that will allow our security services and police to continue to protect us. It contains provisions to ensure that such practices can continue in Scotland—hence the request for legislative consent.

In 2019, the independent Investigatory Powers Tribunal said that the policy of authorisations that the bill enshrines

“has been exercised with scrupulous care ... so as to discharge ... essential functions in protecting national security, whilst giving proper regard to ... human rights”.

The UK Government has tried to accommodate requests from the Scottish Government, including a request for an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service.

However, the cabinet secretary is asking Parliament not to consent to the bill. If Parliament does not consent, the UK Government will remove Scotland from the bill’s provisions. The practical impact of that will be that agencies such as Police Scotland will continue to rely on existing legal bases for authorisation. The Court of Appeal will then give its ruling. Should that ruling find against the current practices, the UK approach will allow crime prevention through covert monitoring to continue in England and Wales, whereas in Scotland all such practices will have to cease immediately. Our police will not be able to conduct activity that the cabinet secretary himself has described as being

“vital ... to disrupting serious crime”.

As the cabinet secretary acknowledged, this Parliament would then be required—in the middle of the pandemic—to convene to debate and try to pass emergency legislation, in order to put the conduct on a clear and consistent statutory basis. Every day that would pass without that emergency legislation being in place would be another day on which organised crime, cybercrime and human trafficking could continue unhindered by covert monitoring.

The bill is vital and provides a clear and consistent statutory basis for activity by public authorities to keep the public safe. Failure to give consent risks leaving Scotland’s people exposed. That would be deeply irresponsible. I cannot believe that any MSP would countenance such a situation and vote to create it.

15:34  

Rhoda Grant (Highlands and Islands) (Lab)

We support the Scottish Government in rejecting the bill.

Covert human intelligence is carried out in several ways, but can mean a police officer infiltrating a criminal organisation, or police officers gaining intelligence from people who are in, or are close to, criminal gangs.

There are a number of issues with the bill. Officers infiltrating criminal gangs will be involved in criminal activities, and legislation overseeing that activity requires to be cognisant of the stresses that those officers are under. It is crucial that oversight be provided by an independent commissioner and that such oversight happens before any criminal activity takes place.

If an officer is to be placed covertly in a criminal gang, the parameters for that activity should be signed off beforehand. If those parameters need to change, that must also be signed off before immunity from prosecution can be given. The bill is not strong enough on that, and allows for a crime to be committed before it is signed off by a commissioner. That does not provide the correct balance of authority.

There are some crimes that surely cannot ever be sanctioned by the state, including murder, rape and torture. If a covert officer finds themselves in a position in which they believe that they must commit a crime that has not been sanctioned but they have no time to seek authority, that must be examined through the criminal justice system. If that officer believed that they had no choice, and that not carrying out the crime would have endangered their lives, the courts would not find against the officer because they would have acted in self-defence. If an officer believes that they can justify the action, they should have no fear of prosecution; indeed, if it were not in the public interest to do so, they would not be prosecuted at all.

If covert intelligence comes from an informant, the police cannot be responsible for that person’s behaviour and the state cannot give them immunity from prosecution, because many of those people are often involved in criminal activity.

The other issue with the bill is to do with where covert intelligence can take place. We have all heard examples in which covert intelligence has been placed within legal organisations, such as trade unions and climate-change activist groups, which are important parts of a functioning and open democracy. To infiltrate the lawful activities of such groups is an assault on all our freedoms. Operations cannot be used for political purposes and must be reserved for the most serious criminal activity only.

We have all heard of cases in which covert officers formed relationships and even had children while undercover, having deceived women into believing that they were someone they were not. That is rape. A person cannot give consent if the person to whom they are giving consent does not exist. If required, the Scottish Government must introduce its own legislation with the right checks and balances.

Scottish Labour cannot support the legislative consent motion and therefore supports the Scottish Government’s motion.

15:38  

John Finnie (Highlands and Islands) (Green)

I do not dispute that there is a need for covert work, and I acknowledge that that may involve some lawbreaking. I am referring to dangerous work such as that which colleagues have outlined. Scottish Greens would welcome legislation in the area—just not this legislation—that, as other members have said, aimed to provide an express statutory power to authorise a covert human intelligence source to participate in criminal conduct when it was necessary and proportionate to do so. However, most people would not see it as reasonable, necessary or proportionate for torture, murder and sexual violence to be included in any such authority.

This is about the express limits of legislation. Amnesty International, of which I declare I am a member, says:

“Without express limits”—

good grief, even the United States has express limits on what can be authorised—

“at the authorising stage, we worry that even improved oversight would leave too great a scope for abuses.”

There was also talk of oversight by commissioners. According to Amnesty, the Investigatory Powers Commissioner has said 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.”

As others have said, the Covert Human Intelligence Sources (Criminal Conduct) Bill relies on the Human Rights Act 1998 as a safeguard, but the UK Government, which is seeking to sanction crimes committed by armed military abroad, does not believe that the act applies to abuses committed by its agents.

Mr Pat Finucane, a human rights lawyer in the north of Ireland, was murdered by the UK state; the UK Government’s inquiry, led by Sir Desmond de Silva QC, confirmed that and the UK Prime Minister at the time, David Cameron, apologised for it. We know that members of the public still have grave concerns about the untimely deaths of others such as Hilda Murrell and Willie McCrae. We know that UK state agents have stolen the identities of dead babies and have formed intimate relationships that have rightly been referred to as state-sanctioned rape. We also know about complicity in rendition—the use of Highlands and Islands airports for abduction and torture.

Judicial oversight, prior or otherwise, would not be enough to secure Scottish Green Party support for the legislative consent memorandum, simply because we do not trust the UK’s state agents. Greens do not want potential human rights abuses including murder, torture, punishment shootings, kidnap and sexual offences or conduct that would interfere with the course of justice being

“rendered lawful for all purposes”.

For all those reasons and more, we oppose the granting of consent and will support the Scottish Government’s motion.

15:41  

Liam McArthur (Orkney Islands) (LD)

As others have said, the existence of and need for undercover agents is widely accepted. That circumstances may arise as part of such work that force the individual to act outwith the law is a natural, if uncomfortable, extension of that concept. Having such an option available to our law enforcement agencies is in the interests of our national security. For example, the intelligence gleaned from infiltrating a terrorist group intent on committing atrocities could save lives. Indeed, it already has. Stepping outwith the law may be necessary to do that effectively. However, it is also right that the authorisation of criminal conduct by covert human intelligence sources is set within a robust legislative framework. In that regard, the bill is overdue, but it is also deficient.

Unfortunately, the proposals that have been put forward by the UK Conservative Government overstep the mark. My Liberal Democrat colleagues at Westminster, working with other parties, have sought to make changes that would deliver a more proportionate but effective set of legal safeguards. Although there have been successes, too often, UK Conservative ministers have refused to budge, so we have a bill that places no limits on the type of crime, including rape, torture and even murder, that could be authorised and no requirement for prior judicial approval of authorisations. All of that leaves open the prospect—the risk—of anything being licensed

“in the interests of the economic well-being of the United Kingdom”

or for the purpose of “preventing disorder”. That is not the way to build public trust and confidence, nor is it the best way to protect public safety.

The powers that we are debating today are necessary but must be drawn proportionately and with human rights very much in mind. Unfortunately, despite the best endeavours of Liberal Democrats and other parliamentarians at Westminster, as well as the efforts of the cabinet secretary and his officials, such proportionality has not yet been achieved.

This is genuinely not a position any of us would have wished to find ourselves in. Legal certainty is needed, not least by those we ask to carry out these highly sensitive, difficult and often dangerous roles on our behalf. Scottish Liberal Democrats will continue to work constructively with colleagues across the chamber to make sure that that is secured—if necessary, through urgent legislation—but we cannot support the provisions that are set out in the bill.

The Deputy Presiding Officer

I call Neil Findlay for a brief open-debate contribution.

15:44  

Neil Findlay (Lothian) (Lab)

Is it two minutes, Presiding Officer? Thank you for calling me.

I have campaigned on this issue for a decade, because the spy cops scandal was one of the great policing scandals of our time. More than 1,000 social justice groups such as the Stephen Lawrence campaign, involving MPs, trade unions and environmental activists, were infiltrated by agents of the state, some using the identity of dead children and some having intimate relationships with women who bore their children while they were living under an assumed identity.

The bill seeks to introduce a power to provide officers and agents with advance, prospective immunity from prosecution for criminal acts up to and including murder, with no limit on that power. Such immunity from prosecution goes to the very heart of our legal system—no longer will every citizen be equal before the law. We know the scandals that have emerged under the current system, in which there is no immunity from prosecution. Imagine the sort of abuses that would happen if there was full immunity from prosecution. That would be a departure from legal norms and another human rights scandal waiting to happen.

Scotland has its own legal system, and, if the Scottish Government and the Parliament want to legislate on the subject, we should debate and scrutinise such legislation. Let us not accept the proposal that Priti Patel or any other Home Secretary could authorise an order under the bill to give MI5, MI6, police officers, the Gambling Commission, the Food Standards Agency or the officers of many other bodies carte blanche immunity from prosecution for crimes committed in the name of the state.

No one argues that undercover police officers’ work is not important in dealing with terrorism, organised crime or drugs, but the bill is not the way to address the matter. Liam Kerr seems to want people to be given immunity for actions up to murder, which would be regarded as lawful. That would be extraordinary. As a campaigner on the issue, I ask anyone to read the testimonies of victims who have come before the undercover policing inquiry and then ask themselves whether they are doing the right thing in rejecting the LCM and supporting the bill.

Prior approval of immunity would not be a safeguard. We should introduce not total criminal and civil immunity but a public interest defence that can be considered before any court proceedings—that is the way to go. Let us reject the bill, which is an affront to our democracy, to our legal system and to the Parliament, and introduce legislation that we can debate and discuss.

15:46  

Humza Yousaf

I am conscious of the time, so I will aim most of my remarks at addressing the issues that Liam Kerr raised. I appreciate his acknowledgement of the engagement that I have had with Opposition members, and I know that Police Scotland also spoke to them when they required additional briefing.

I am certain that Liam Kerr acknowledges that the Scottish Government understands that, in some cases, covert sources must break the law, whether that is the Misuse of Drugs Act 1971 or other legislation, to safeguard themselves and ensure that their position and important operations—which might involve drugs, human trafficking or child sexual exploitation—are not compromised. I hope that it is understood that the Scottish Government comprehends entirely that CHIS must break the law in some cases.

I will respond to Liam Kerr’s remarks. He asks the Scottish Government and the Parliament to agree to a bill that sanctions covert sources breaking the law without any prior independent judicial oversight, which reputable and respected human rights organisations have raised huge human rights concerns about. The bill does not make it clear that conduct such as murder, torture or sexual violence is not permitted, and Liam Kerr asks us to agree to that because it might be the easier of the two options that we have. It might be the easier option, but it is not the morally correct or most principled route for us to take.

Liam Kerr talked about a hard cliff edge. I recognise that there is a remote possibility of it, but an immediate hard cliff edge is unlikely. Given all the operational challenges that he mentioned, the Court of Appeal is unlikely to make a determination that creates such operational difficulties for law enforcement agencies and the security services. However, I accept his point that that could happen. In the unlikely scenario of it happening, the Parliament might have to reconvene to approve emergency legislation. If we introduced such legislation, it would be a sticking plaster and a stopgap to preserve police operations, but—I hope that this addresses some of Neil Findlay’s points—I give the absolute assurance that any Scottish emergency legislation would guarantee prior judicial oversight.

I also guarantee—I can make this guarantee only on behalf of the SNP Government—that if, after digesting the Court of Appeal judgment, we determined that a bill was required, the SNP Government, if re-elected, would introduce such a bill, to be discussed with Opposition colleagues. We would do that with full parliamentary scrutiny. I know that Neil Findlay is standing down, but we would speak to other Opposition members about the approach that such a bill should take in relation to a public interest test or any other red lines or important principles that they thought should be included.

The bill’s third reading will take place in the House of Lords on 21 January. The UK Government has confirmed that it will table amendments removing the bill’s provisions relating to RIPSA and the amendments to the Regulation of Investigatory Powers Act 2000—RIPA—for devolved purposes. We await the Court of Appeal judgment to discover the extent of its impact—if there is any—on law enforcement operations in Scotland, and I will then carefully consider what further action is required.

The Deputy Presiding Officer

That concludes the debate. I remind members to observe social distancing requirements, including when leaving and accessing their seats in the chamber.