It is a pleasure to follow the Chair of the Intelligence and Security Committee, and I join him in sending my party’s best wishes to the Minister for Security.
There is absolutely no disagreement about the need for a Bill. These are self-evidently significant, extraordinary and important powers being put on the statute book, and not before time. However, it is precisely because of the significance and importance of these powers that, although we acknowledge the need for a Bill, we could not support one that did not provide proper safeguards, oversight and limitations on these powers. Those points were made at earlier stages by my hon. Friends, including my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Gordon (Richard Thomson), and that is why we ultimately voted against the Bill on Third Reading.
As the Solicitor General set out, the latest round of ping-pong has produced additional protections in cases where authorisations are being considered for covert sources who are children or vulnerable people. It has also ensured that some access to criminal injuries compensation will continue when a person is a victim of the criminal conduct of a covert source. The Bill is certainly better with these changes. In particular, we welcome the work undertaken by Just For Kids Law, and others, in advocating for safeguards for children and vulnerable adults. They could, and probably should have been even stronger, but even speaking about authorising criminal conduct by a child operating covertly feels very troubling. Hopefully those limits will make such occurrences very rare, as they should be, and we must and will monitor risk closely.
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Although the amendments improve the Bill, they do not resolve its fundamental problems or answer the serious questions asked about it. The amendments that tried to do that have been taken out. The Government continue to protest that the Human Rights Act is the answer to those questions, yet at the same time they are undertaking a review of that Act, and, significantly, their own European convention on human rights memorandum and legal submissions appear to cast serious doubt on the extent of the protections offered, and whether they cover the actions of covert agents. The memorandum anticipates that there would
“not be State responsibility…for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct…or where the conduct would take place in any event.”
What does that mean? What is its impact in relation to torture, for example? Is there state responsibility if covert agents commit torture? Is it, or is it not, the Government’s view that such acts could conceivably be justified if they might prevent something more serious, or if the torture would have occurred anyway? Those questions require serious answers.
A failure to provide a suitable oversight mechanism is why the Scottish Government did not recommend legislative consent for the Bill regarding devolved issues, and why the Scottish Parliament, including the Labour party, overwhelmingly agreed with that approach. The protections in the Bill are not enough—for example, the Lord Advocate and Police Scotland were clear that a system of prior authorisation was required. It is welcome that on this occasion the Government have respected the devolution settlement and taken the relevant devolved provisions out of the Bill. That they were required to come out of the Bill was unfortunate, however, because the same system of authorisation for devolved and reserved powers would have made life simpler, and there was extensive and constructive engagement between Governments in trying to make that happen.
Ultimately, but not for the first time on issues relating to intelligence and investigatory powers, I believe the UK Government are failing to get the balance right between giving agencies the powers that we all recognise they need, and giving people the human rights, freedoms and protections that they deserve. The amendments would redress that balance a little, but nowhere near enough, and it will now be for the Scottish Government and Parliament to take forward legislation that gets that balance right.