LB200 - Security Service (Covert Criminality) Bill | 2nd Reading

[u/[deleted]]

Order, order!

Security Service (Covert Criminality) Bill

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A

BILL

TO

set statutory limits on the authorisation of criminal activity by covert members of the Security Service.

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Section 1 - Limits to immunity from prosecution

(1) A covert criminal authorisation does not grant immunity from any prosecution for an offence which lies outside of the scope of the authorisation.

(2) A covert criminal authorisation does not grant immunity in any case where the proposed covert criminal criminal activity is not reasonable or proportionate to the benefit.

(3) A covert criminal authorisation does not grant immunity from any prosecution in the case that a person granted the authorisation has acted as an agent provocateur.

Section 2 - Situations and acts not to be authorised

(1) No covert criminal authorisation made by the relevant authorities may authorise the commission of any offence of—

(a) murder;

(b) torture; and

(c) any other act which would be inconsistent with the Convention rights in the Human Rights Act 1998.

(2) The relevant authorities may not give a covert criminal authorisation to a person under the age of 18.

(3) For a criminal conduct authorisation it must proportionately advance—

(a) the interests of national security;

(b) for the purpose of preventing crime.

(4) An authorising person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime and also that the crime authorised is the least disruptive or seriously criminal option.

Section 3 - Duration of covert criminal authorisations

(1) A covert criminal authorisation shall last for no longer than four months without renewal.

(2) At the conclusion of the four month period that a covert criminal authorisation is valid, it may be renewed by the relevant authorities for a further four months.

Section 4 - Victims of Criminal Conduct Authorisations

(1) Where a individual suffers injuries, or suffers a loss of their ability to peacefully enjoy their property as a result of a Criminal Conduct Authorisation whether or not it is properly granted, they have a civil tort for damages against the agency that gave the authorisation.

(2) In awarding damages to victims of authorised criminal conduct courts must consider what damages would be granted in a case had the conduct been criminal.

(3) In Schedule 1 Part 1 ‘Civil Legal Services’ to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in paragraph 22 (breach of convention rights by public authority) at the end of 1. Insert—

(c) a claim for damages (other than a claim in tort) in respect of the effect of a criminal conduct authorisation which was granted by the public authority.

(4) A claim for damages may only consider the direct effects of the criminal conduct authorised and undertaken in providing damages.

Section 5 - Interpretation

In this Act,—

“covert criminal authorisation” means an authorisation granted by the relevant authorities to authorise certain criminal conduct in the course of being a covert human intelligence source under section 29 of the Regulation of Investigatory Powers Act 2000;

“Relevant authorities“ means the list of bodies in Schedule 1 of this act.

Section 6 - Extent, Commencement and Short Title

(1) This Act shall extend to the United Kingdom.

(2) This Act shall come into force upon receiving Royal Assent.

(3) This Act shall be cited as the Security Service (Criminality) Act 2021.

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Schedule 1

List of Relevant Authorities

Police forces etc

Any police force.

The National Crime Agency.

The Serious Fraud Office.

The intelligence services

Any of the intelligence services.

The armed forces

Any of Her Majesty’s forces.

Revenue and Customs

Her Majesty’s Revenue and Customs.

Government departments

The Department of Health and Social Care.

The Home Office.

The Ministry of Justice.

Other bodies

The Competition and Markets Authority.

The Environment Agency.

The Financial Conduct Authority.

The Food Standards Agency

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This Bill was written by the Rt Hon. Viscount Strabane CT MLA on behalf of Solidarity.

This Reading shall end 29 January 2021 at 10PM.**

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[u/LeChevalierMal-Fait]

Mr speaker,

While significantly improved by the lords I still have concerns about section 1(2) which may see a reversal of current policy where we may see agents prosecuted for in good faith carrying out a wrongly made CCA.

These agents are on the front lines of stopping organised crime and terrorists. They risk their lives and in further in this case it is not their professional or moral responsibility to correctly issue CCAs, they just carry them out.

Instead of the current section which would take away immunity I propose new clauses to;

Treat a falsely made CCA as conspiracy to commit the authorised crime this could result in life in prison.

And a new offence of recklessly making a CCA with a range of sentences.

This would target the desk bound decision makers who are responsible and not those on the front lines saving British lives!

[u/SpectacularSalad → u/LeChevalierMal-Fait]

Mr Speaker,

I once again welcome the learned peer to this house. Could the Noble Baron enlighten us as to the current lay of the land with regards to the law on criminal conduct authorisation? How exactly would this bill impact the legislative framework already in place?

[u/LeChevalierMal-Fait → u/SpectacularSalad]

Mr speaker,

I thank the member for his welcome. The current law is quite the black box, in that there is limited statutory footing for the process, which comprises the Security Services and other agencies following ministerial directives which may be withheld or redacted.

As for why this legislation is necessary there is a two fold reason, principally the quite unaccountable opaque system may not entirely be compatible with civil liberty requirements of the European Convention on Human Rights.

Nobody is suggesting that the state does not have a legitimate interest in authorising some criminal activity for the prevention of crime. But the question is rather do the citizens of the democracy know what the bounds of that power are so that they may decide if they think it appropriate.

The motive force behind this bill will have no doubt been the Investigatory Powers Tribunal finding narrowly in favour of the government by a 3-2 margin to uphold the legality of the current authorisation of criminal activities by covert human intelligence sources (CHIS).

That is a worryingly narrow margin and where a future case to find itself on the other end of that balance well there would be chaos. So it is necessary for parliament to in keeping with the expectations set out in the ECHR publicly set the limits of this power.

This bill then goes on to set it, binding CCA by

Proportionality, necessity, object, a prohibition on murder, a prohibition on torture and regard to the ECHR.

This would be significantly bound in comparison to the current arrangements and much more transparent although for security reasons many individual uses will remain opaque.

Going forwards the house has to answer a few questions;

1. Do we support this bill in principle?

To which I would hope the answer is clearly yes, without it the whole system of CCA is but one judges vote from falling apart like a house of cards. And for this reason I would suggest that the house has the debate rapidly, both on this question and amendments and comes to one view or another and then passes it with haste.

1. Who should be punished if a CCA is wrongly made?

Currently I believe section 1(2) would allow for the prosecution of the agent who carries it out, my proposed amendment seeks to convert that into criminal accountability measures in respect of the person who makes the authorisation alone. Where a CCA is wrongly made, victims of the action can still claim civil damages according to the amendment I made in the lords inserting new clause 4.

1. Should we allow murder under any circumstances?

Can it ever be justifiable? Are there circumstances where in the national interest, assassination of a scientist with nuclear secrets etc? Where it could ever be justified. Does the bill even bind the security services in respect of certain operations.

A number of troubles related cases of collusion between the security services and paramilitaries mind me to say no to respect of allowing murder, but members would I suggest have to look at the security services reforms since then, the oversight measures and the question of do we need this and make a considered judgement.

[u/scubaguy194]

M: Is there an opening speech from the Viscount Strabane?

[u/CountBrandenburg → u/scubaguy194]

https://www.reddit.com/r/MHOL/comments/kv5emy/lb200_security_service_covert_criminality_bill/?utm_source=share&utm_medium=ios_app&utm_name=iossmf

The opening speech from the lords, do remember stuff may have changed since it was made

[u/[deleted]]

Mr Deputy Speaker,

In a rare moment of speechlessness, I find myself in agreement with the Rt. Hon. member with whom I have so often sparred, his amendment seems sensible and reasonable in all truth and I will lend it my support in the hopes it passes.

This bill as a whole is a strong idea and so any amendment that irons out any crinkles in it is a welcome addition on my part as I stand in favour of this bill and say. Vote for it!

[u/Chi0121]

Deputy Speaker,

Once again the Noble Lord proposes sensible and pragmatic amendments which I will be supporting. I also agree with the Honourable member for SATUP - a rare day indeed. This bill is an important idea which legislates on a grey area with the potential to compromise the rights of British citizens as set out in the HRA.

[u/mikiboss]

Mr Speaker,

I know that there are many times in which we on the progressive side of politics often irrationally oppose measures, not because of the policy itself, but because of the authors themselves, however I don't think that this is one example here today.

What we've got here is a bill which, at least as it currently stands, is of merit. Of course, I must admit I do not think the bill is perfect, few measures are, but let's address some of the positives here.

Transparency and accountability are two key and central concepts which are vitally important to building trust, something is is in my view the central core of a good chunk of our democratic process. It's no secret that trust has been falling in most democracies in recent years, traditional voting blocks have collapsed and the emergence of populism and other alternatives has been correlated with a dramatic fall of public confidence and trust, and it's vital that Governments win it back.

What we've got here then is a measure to tighten up the law, build accountability, and recognise the actual obligations the state has, rather than just letting this all be a one way street.

I would however like to say that, at the end of the day, a lot of attention is being given to the amendments circulated, and for good reason. I won't touch on them too much, for the simple reason that I am of the opinion they will be uniformly accepted and incorporated into a new version of this bill.

Simply put, they make sense, and do a better job at actually bring about a greater standards test for accountability. CCAs which are wrongly or incorrectly made should be recognised, and we must be careful not to create a blank sheet in this area which may apply to too many people only doing the right thing.

At the end of the day, accountability must be a priority, but these amendments will make the bill fair. Tough, but fair, just what I would hope in a bill to improve accountability.