Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Conor McGinn and Joanna Cherry

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Joanna Cherry]

I do share that concern. I really do not understand—others have eloquently made this point—why organisations indulging in lawful activity, such as trade unions and, indeed, other green activists, are required to be infiltrated by these sorts of covert human intelligence sources.

It is all very well to say that there is guidance. I listened carefully and with respect to those who are members of the Intelligence and Security Committee, because I know that they have information that the rest of us do not, but guidance is not good enough; it needs to be in the Bill. We are dealing with a Government who recently made commitments in an international agreement that they now evince the intention to break, so I will not apologise for saying that I do not have much trust in them. I want to see proper protections for civil liberties in the Bill. Without them, the Scottish National party will vote against it.

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure, as always, to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry), and to speak with you in the Chair, Dame Rosie. I rise to speak to the amendments in my name and that of my right hon. and learned Friend the Leader of the Opposition and other honourable colleagues.

As I said on Second Reading, my right hon. and learned Friend has made it clear that security is a top priority for the Labour party under his leadership. We will be robust in supporting the fight against terrorism and crime in all its forms. We consider it our first responsibility to keep this country, its citizens and our communities safe, and we are grateful to those in the police, the security services, the National Crime Agency and wider law enforcement. They put their own safety and lives at risk to protect us, and we will meet our duty to support them.

It is worth noting that, since 2017, 27 terror plots have been uncovered and attacks foiled, and last year covert human intelligence sources helped to disrupt 30 threats to life. That is the sobering context of the debate, so we acknowledge and understand the Bill’s purpose, and recognise the need to put on a statutory footing the activity of those working to disrupt some of the most vile crimes imaginable, including terrorism, the activities of violent drug gangs, serious and organised crime, and child sexual exploitation.

It cannot be right, for those we ask to undertake that work, for those who might be affected by it or indeed for society as a whole, that that work continues in the shadows, and without boundaries and safeguards. In that vein, our amendment 7 seeks to ensure that the granting of criminal conduct authorisations may not take place until a warrant has been issued by a judge. We believe that it would provide reassurance to have independent judicial oversight of that process.

Extradition (Provisional Arrest) Bill [Lords]

Debate between Conor McGinn and Joanna Cherry

Report stage & Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 8th September 2020 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I rise to give my party’s support to the amendments in the names of the right hon. Members for Chingford and Woodford Green (Sir Iain Duncan Smith) and for Haltemprice and Howden (Mr Davis). I should also say that the Scottish National party supports the official Opposition’s new clauses 1 and 2, which seem eminently sensible.

The Scottish National party fully supports reasonable measures to keep our citizens safe from those who have committed serious crimes furth of this country, and we fully support working with international frameworks to do so. Indeed, that is one of the reasons why we, and the majority of people in Scotland, were so keen on the security and justice co-operation afforded through our membership of the European Union, and why we voted for its continuance repeatedly and are so sad to see it go.

To return to the amendments, it is important to remember that, in addition to a duty to protect the safety of our citizens, this Government and this Parliament have a duty to uphold international human rights standards. We should be loth, therefore, to do anything to permit extradition to regimes that do not uphold the right to a fair trial, free speech or freedom of expression. Many of our constituents are extremely concerned about human rights abuses in China, particularly in respect of the Uyghur Muslims. These and other human rights abuses are indicative of a regime that is very far indeed from putting the same store by human rights as we do. Many of our constituents have watched with horror as the situation in Hong Kong has unfolded and as the brutal suppression of pro-democracy activists continues. The hon. Member for Strangford (Jim Shannon) referred to the footage of a 12-year-old girl being subject to a violent arrest at a pro-democracy protest—I am sure we are all very grateful to those brave enough to film that footage and get it out to the rest of us. I very much want to associate myself with the comments of those who are very keen to impress on the Minister—I am sure he is alive to this—the importance of not making it any easier for human rights-denying regimes to get their hands on their citizens who have sought refuge in these islands.

Let me turn now to amendments 7 to 10 in the name of the right hon. Member for Haltemprice and Howden. I share his concerns about the unbalanced extradition arrangements that we have with the United States of America. There is a lot that could be said about those today, but I will not go into it in detail because it is beyond the scope of this Bill to redress that imbalance. None the less, I am very grateful to the right hon. Gentleman for raising it, and I wish to impress on the Government as we move forward, particularly given the nature of the current President of the United States of America, that we should be looking afresh at these unbalanced extradition arrangements, particularly when we see the outcome of a number of high-profile cases at the moment.

I want to turn now to the Government amendments. I am keen to know from the Minister—I realise that we have received a letter from him in the past hour or so, but I have not had time to digest its contents properly—just exactly why Government amendment 15 is now seeking to include EEA countries in proposed new schedule A1. Is this the start of our growing and perhaps inevitable recognition that, when we leave the transition period at the end of this year, there will not be any replacement for the European arrest warrant? If that is so, it is a most regrettable state of affairs, and one that is of great concern to my colleagues in government in Edinburgh and also to the Crown Office and Procurator Fiscal Service in Scotland and to Police Scotland. An update on exactly what is going on here would be very much appreciated, particularly as the Solicitor General told us on Second Reading that this Bill was not about the European arrest warrant. If that has changed, we really deserve a full explanation of why it has changed and where we are in the negotiations in that respect.

I wish to oppose Government amendments 13 and 14. Government amendment 13 removes a provision that was inserted in the other place imposing certain conditions about a consultation assessment and requiring reports on the making of regulations under section 74B(7) of the Extradition Act 2003. I very much regret that the Government are attempting to remove these additional safeguards. I regret in particular the Government’s determination to remove the obligation to consult the devolved Governments before adding, removing or varying reference to a territory. I very much fear that this deletion is indicative of the Government’s lack of good will towards the other Governments of these islands. It will come as little surprise to viewers in Scotland that the Government will do anything they can to get out of any obligation to take account of public opinion in Scotland or the views of Scotland’s elected representatives. In that respect, I urge them to think again, because, as was said in the other place, the devolved institutions can be a source of “valuable information” relevant to changes that might be proposed in relation to individual territories. Although extradition is a reserved matter, the Scottish Government and the Scottish Parliament have responsibility for justice, policing and prisons, and their views ought to be considered. Furthermore, many members of the Scottish Government and Parliament have expertise in relation to human rights and a particular interest in human rights aspects of territories that the British Government might seek to add.

That brings me to the deletion of any obligation to consult non-governmental organisations. I have already spoken about how central human rights must be to our decision as to whether to add any territories to these provisions. NGOs will have direct experience or information in relation to the human rights position on the ground of a particular country or territory, which can only aid Government decision making and, importantly, parliamentary scrutiny.

Finally, I support what the hon. Member for City of Durham (Mary Kelly Foy) said about the unfortunate deletion of the obligation to do this territory by territory, with one statutory instrument per territory, rather than rolling up a number of them into one. As was said in the other place, by exiting the European Union, we have made ourselves as a state “vulnerable to pressures” in the context of seeking trade agreements. If we have one statutory instrument per territory, it is much more likely to be identified on the Floor of the House where such undue pressure has been brought to bear. I will leave it at that for now.

[Conor McGinn (St Helens North) (Lab)]

It is always a pleasure to see you in the Chair, Dame Rosie, and to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry), with whom I have shared many assignments on the Floor of the House and in Committee on these matters. I rise to speak to new clauses 1 and 2 and amendments 16 and 17, in my name and those of the Leader of the Opposition and the shadow Home Secretary.

There is a slight irony in the fact that we are discussing a Government Bill designed to strengthen international law just a matter of hours after we heard from the Secretary of State for Northern Ireland at the Dispatch Box that the Government intend to break international law in relation to the withdrawal agreement. I want to put on record how good it is to see the Minister for Security in his place. I thank him for the co-operative and courteous way in which he has worked with me over the last number of months since I was appointed. I would expect no less from a person of his calibre, but it is very much appreciated.

We have heard a serious tone in the debate. As a relatively new Front Bencher, it is quite daunting to follow the speeches of such distinguished and senior parliamentarians as the right hon. Members for Chingford and Woodford Green (Sir Iain Duncan Smith), for Haltemprice and Howden (Mr Davis) and for Wokingham (John Redwood). We also heard from the hon. Member for Rother Valley (Alexander Stafford) and the esteemed Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes), as well as my hon. Friend the Member for City of Durham (Mary Kelly Foy), who shows that there are still a few reds left in the red wall, thankfully. We also heard characteristically dignified words from my friend, the hon. Member for Strangford (Jim Shannon).

This Bill seeks to fill a gap—notably, the situation where UK law enforcement becomes aware of someone wanted by a non-EU territory but is unable to arrest them without first seeking a warrant. The risk that the Bill seeks to address is that a wanted person may abscond or even reoffend before they can be detained. We acknowledge the context, the arguments and the safeguards set out by the Government on Second Reading, and we have carefully considered the comments made by the Director of Public Prosecutions and others. We also believe that the scrutiny and refinement of the Bill during its passage in the other place has significantly improved and strengthened it.

We have approached the Bill in a constructive spirit, with a determination to work across the House to get important legislation right for the protection of all our citizens. It is critical to ensure that serious criminals—some of whom, let us not forget, are wanted abroad for the most heinous crimes—are arrested and swiftly brought to justice before the opportunity arises for them to reoffend or abscond. We fully accept that, in a world where criminals increasingly respect no national borders or boundaries, we must work to achieve our overriding priority to keep the British public safe in collaboration with our international partners. However, important amendments have been tabled, and I hope that the Government will listen carefully to the points raised on both sides of the House, to ensure that we build the strongest, most robust and fairest legislative framework for our extradition process.

New clause 1 would require the Secretary of State to lay a statement setting out how many individuals have been arrested under provisions in the Act, broken down by the characteristics of each person arrested as set out in section 4 of the Equality Act 2010. This would ensure that Parliament receives the information and facts to enable us to fulfil our duty in scrutinising the effectiveness and impact of this Bill, and in particular to know to whom it is being applied. First, it is important to understand how many people this is applied to, which will enable us to understand the breadth and reach of the provisions in this Act and to compare its effectiveness with current provisions, and secondly, it is equally important that we understand to whom it is being applied.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Debate between Conor McGinn and Joanna Cherry

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Joanna Cherry]

I thank the Minister for taking on board some of the points that I have made. In response to his points, first, I accept that this is only for the most serious terrorist offences. I completely accept that, and I accept that the numbers of children and young people who are so sentenced may be very small, but the important thing is that, if we have a young person or child convicted of a serious terrorist offence, and given the evidence we have heard about the opportunity to deradicalise and rehabilitate, there is all the more reason to try to make sure that that opportunity is taken.

All we are asking for is a review. If it turns out that the numbers are small, as is expected, it will not be a complex or time-consuming review. Although I am not going to push my new clause to a vote, I anticipate bringing it back to the Floor of the House. I would appreciate it if the Minister, in the spirit in which he responded, could take the evidential concerns away and consider what could be done specifically to measure the impact of this legislation on children and young offenders across these isles. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 7

Review of legislation: Northern Ireland

“(1) On an annual basis from the day of this Act being passed, a report that reviews the application of the provisions of this Act in Northern Ireland must be published and laid before both Houses of Parliament by the Secretary of State.

(2) Annual reports under subsection (1) must be produced in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive —(Conor McGinn.)

This new clause ensures that all measures in the Bill as they pertain to Northern Ireland shall be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive, and a report shall be published and laid before both Houses of Parliament.

Brought up, and read the First time.

[Conor McGinn]

I beg to move, that the clause be read a Second time.

I will not detain the Committee too long. I have much sympathy with what the Minister says about the number of reviews that have been called for, but I hope, similarly, that he might have some sympathy with those of us on the Opposition Benches. While he, in government, gets to do, all we can do at the minute is ask to review. I hope that position might change after the next election.

On Second Reading, a number of hon. Members from Northern Ireland raised the critically important point that this legislation is clearly of great significance to that region. I think we would all wish to acknowledge that so many people there have lived and continue to live with the devastating consequences of violence in their communities. It is only following concerted efforts for peace and reconciliation, which remain so vital that, we see some of those scars starting to heal.

The Minister rightly said that the Bill was designed to deal with terrorism in all its forms and was a UK-wide Bill. However, given the unique and long-standing circumstances in Northern Ireland and the hard work done to build the Good Friday and subsequent agreements and the Northern Ireland Executive, it is important that we do not risk any unintended consequences from measures in the Bill, which could have an effect in Northern Ireland and could have damaging consequences.

To that end, on behalf of the official Opposition, I am tabling new clause 7 to ensure that all measures in the Bill, as they pertain in Northern Ireland, will be renewed annually with the Northern Ireland Justice Minister and the Northern Ireland Executive and that a report is published and laid before both Houses of Parliament. The Minister will know that the Justice Minister in Northern Ireland, with whom he and I have had extensive discussions, has herself expressed some concerns about the extension of provisions in the Bill to Northern Ireland, and has raised some potential inadvertent and unintended consequences that would be undesirable.

It is vital to the success of the legislation in performing and fulfilling a UK-wide function that we seek the benefit of her expertise—or that of whoever holds that post—and continue to monitor the legislation’s implications in Northern Ireland. The structure of sentences in Northern Ireland, for example, differs from that in the rest of the UK, and there are special and unique circumstances there that mean that we ought to ensure we legislate specifically and responsibly. For example, post-sentencing regimes work in prisons for paramilitary prisoners and those in prison for reasons related to terrorist offending, and in terms of an approach to deradicalisation and the points made by the hon. and learned Member for Edinburgh South West about young people. Just as the polygraph section of the Bill has been crafted to be permissible but not mandatory in Northern Ireland, so it is right that all aspects of the Bill should be subject to review through the unique prism of Northern Ireland.

As we heard in the evidence sessions, the Northern Ireland Human Rights Commission set out a number of concerns about the legislation, including the retrospective nature of some provisions, both in terms of sentencing and release, the polygraph test, as has been mentioned, and the impact of provisions on those under the age of 18. I will not revise all those arguments here—they are known to members of the Committee—but it does seem obvious to me that it would be more advisable for the Government to work constructively with the Minister for Justice, rather than to risk legal or human rights challenges down the line. We spoke about that earlier in the Committee.

Counter-Terrorism and Sentencing Bill (Seventh sitting)

Debate between Conor McGinn and Joanna Cherry

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Conor McGinn]

I accept what the hon. Gentleman says and the evidence given by the assistant chief constable. However, the assistant chief constable acknowledged that all of those circumstances currently exist, and that there has been no case where an application for a TPIM has not been granted. I think he was saying that shifting from the balance of probabilities to reasonable suspicion would inevitably make it easier, but he had not experienced, nor did he envisage, any circumstances where that practically had happened or would happen.

As I said at the outset, we come to this wanting to assist and support the Government, but we need to hear a little more justification for this measure in terms of its effectiveness and the reason for it. We will not seek to divide the Committee on the amendment. I tabled it to raise our concerns and those of groups in society, to give the Minister the opportunity to address some of those concerns, and to explain why we not only in principle but now clearly in practice support much of what the Government are trying to do.

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Robertson, and to follow the hon. Member for St Helens North. Before I speak to the specifics of amendment 58, which I do not intend to press to a vote—it is very much a probing amendment—I will reiterate the position of the Scottish National party on the Bill.

We recognise that it is the duty of any Government to keep their citizens safe and secure, and all who serve in Parliament have an obligation to assist in that endeavour. We have already given the Government our assurance that we will attempt to be as constructive as possible, to ensure that the challenge of terrorism is met and that we keep people in all communities across these islands as safe as is reasonably possible. However, we are also mindful of our duties as parliamentarians to uphold the highest standards of human rights protections.

--- Later in debate ---

[Conor McGinn]

I beg to move amendment 61, in clause 38, page 34, line 31, at end insert—

“(za) for subsection (3)(a), substitute—

‘(a) may be extended under subsection (2) only if—

(i) the Secretary of State believes on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity;

(ii) conditions C and D are met.’”

This amendment requires the standard of proof for renewing a TPIM notice beyond two years to be “on the balance of probabilities”, where no new terrorism-related activity can be demonstrated.

Thank you, Mr Robertson, for your gentle guidance in navigating our way through the numerous amendments. Although they are linked, it is important that we examine them on their own merits. At its core, amendment 61, like the amendment we have just discussed, is about securing strong and robust safeguards, which, as I said, we should use the Bill as an opportunity to promote rather than jettison. We should show confidence in the process and procedures that we are introducing to keep the public safe.

The prospect of a TPIM notice enduring for a prolonged or even indefinite period deserves scrutiny. It is important to remember what a TPIM can involve: overnight residence requirements, relocation to another part of the country, police reporting, an electronic monitoring tag, exclusion from specific places, limits on association, limits on the use of financial services, limits on the use of telephones and computers, and a ban on holding travel documents. Even in the dying part of the Labour party that is the traditional old right, I balk a little at some of that. I accept that it is necessary to monitor very dangerous individuals and keep the public safe, but these are some pretty fundamental liberties that we are talking about denying people. There is a responsibility on all of us to acknowledge that, and to make sure that we give it proper scrutiny. These are, rightly, robust measures, and to reiterate: we do not believe there should be impediments in cases where a longer TPIM notice that would genuinely be in the interests of keeping the public safe and secure, which is of course our first priority, should be extended. It is also important to say that these sanctions, effectively, are imposed on people who have not been convicted of any crime, and that they are being taken in addition to the lowering of the standard of proof and the extension of the period without, it appears, due oversight needs to be properly looked at.

The other point is that TPIMs are resource-intensive instruments. Assistant Chief Constable Jacques clearly said that additional resources would need to be provided. It would be good to hear a commitment from the Minister that that would the case and that, whatever law enforcement would need, and notwithstanding that a spike in TPIMs is not envisaged, the extension thereof and any addition to the current number will be properly and fully resourced.

As the hon. and learned Member for Edinburgh South West said earlier, there is testimony not just from the current reviewer of terrorism legislation, but also from previous ones. Someone as respected as Lord Carlile, for example, said that a differentiated standard of proof, effectively, would be created for extending a TPIM beyond the two-year point. That would add another layer to the complexity of what proof is required at what point, and to what extent. Jonathan Hall also noted on 5 June that that would be the case.

As I said previously, not a single TPIM measure has been rejected to date based on insufficient evidence of the higher standard of proof, so the safeguard would not operationally hinder the TPIM regime, which we agree needs to be strong and flexible. We need to ensure that those TPIMs extended for prolonged periods are subject to an extra level of scrutiny and oversight and that they are applied in reasonable and proportionate terms, fundamentally in keeping with the thrust of what they are designed to do, which is to keep the public safe.

[Joanna Cherry]

I am grateful for the opportunity to speak in support of amendment 61, and to remind hon. Members of what the current Independent Reviewer of Terrorism Legislation said in his evidence to us. I will look in particular at his response to my question 33, when he said that the combination of clause 37 and clause 38 is a “double whammy”,

“not just lowering the standard of proof but also allowing TPIMs to endure forever.”—[Official Report, Counter-terrorism and Sentencing Bill Committee, 25 June 2020; Q33, c.15.]

Indeed, he suggested the very safeguards set out in amendment 60 and 61. I support to amendment 61 for that reason. I take hon. Members back to what he said in response to my question 33. I said:

“What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.”

He answered:

“As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor”—

he meant Lord Anderson, as the hon. Member for St Helens North said—is that

“if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.”

He went on:

“Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject.”

Again, in fairness, he also said:

“I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q33, cc. 15-16.]