David Davis is a former Secretary of State for Exiting the European Union, and is MP for Haltemprice and Howden.
Today, MPs will be asked to vote on a hugely consequential piece of legislation granting the intelligence agencies, police and other government bodies the power to both authorise children as undercover agents, and to allow all agents to commit the most serious of crimes.
If passed in its original form, the Covert Human Intelligence Sources (Criminal Conduct) Bill would continue the practice of children being sent into dangerous situations with minimal safeguards in place. It would also open the prospect of state-sanctioned murder, torture or rape. This is a grave mistake.
I was one of the Ministers who took the Intelligence Services Act through the Commons in 1994. I worked closely with our intelligence services to safeguard Britain from foreign adversaries and terrorist plots, so I know the value of information derived from undercover sources.
I also know that they sometimes need to infiltrate gangs and even commit crime in order to protect us. No-one is suggesting that they should do so with one hand tied behind their backs.
However, adults doing this work is one thing. Children is an entirely different matter.
As it stands, the Code of Practice governing the use of children in these circumstances is not backed by statute, and falls far short of providing adequate protection for the most vulnerable.
The use of child spies can result in children being put in incredibly dangerous positions. It is a morally repugnant policy, with minimal safeguards in place.
It has already been confirmed by the Investigatory Powers Commissioner that these child spies can often themselves be the victims, whether that is because they are part of violent gangs or victims of child sexual abuse.
These are precisely the people we should be helping. When their involvement in crime comes to light, we should be doing everything possible to remove them from that situation, not sending them back into harm’s way.
Not only does the Bill run the risk of putting children in dangerous situations without appropriate safeguards, but it also raises the possibility of 16 and 17-year-olds being authorised by any of dozens of different state agencies to spy on their parents.
These agencies include police forces and the intelligence services, but also extends to the Food Standards Agency and the Gambling Commission. Do we really want to give such arbitrary and unfettered powers to such agencies?
To address these concerns, the House of Lords passed an amendment which drastically improves the Bill. The amendment limits the deployment of child spies to only “exceptional circumstances”, where all other methods to gain the information have failed and only if there is no risk of “any reasonably foreseeable harm”.
This goes someway towards correcting the currently inadequate policy.
However, the use of child spies is not the only area in which the Bill falls down.
It also authorises agents to commit a broad range of crimes. So, if we are to permit the use of child spies in exceptional circumstances, we also need hard limits on the types of crime they – and intelligence sources more generally – can become involved with.
There can never be justification for agents of the British state being authorised to commit murder and torture. Yet that is precisely what this Bill will allow, if left unamended.
Our ‘Five Eyes’ security partners recognise the need for limits: nowadays the US, Australia and Canada all have common-sense limits on what their covert agents can do.
If the CHIS Bill becomes law without these limits, it is almost certain to be challenged in the courts and may eventually be overturned. We have been here before. The last time a security bill was rammed through Parliament in such haste, I took the government to court over the resulting Data Retention and Investigatory Powers Act. It was found to be unlawful within a year.
The Government has claimed that if we specify that agents of the state may never be authorised to commit murder or torture, criminal gangs will weed out undercover operatives by challenging them to commit acts of extreme violence to prove they are not working for the state.
This is nonsense. This is a scenario from Reservoir Dogs or 24, not a sound basis on which to pass legislation – a point made well by the former Director of Public Prosecutions, Ken MacDonald, who encouraged Ministers to “peel their eyes away from The Sopranos and acknowledge that public confidence in official lawbreaking is a fragile thing that requires the reassurance of boundaries.”
We need only look to the example of America’s FBI, which runs thousands of informants within terrorist and mafia groups – all under clear limits on what they allow their operatives to do. Is the Government seriously suggesting that we can’t learn from their example? This is the FBI – not some leftie human rights organisation.
The Intelligence Services Act, which I took through Parliament in 1994, allowed MI6 to commit crimes overseas. At the time, we thought this was a licence for MI6 agents to bribe, burgle, blackmail, and bug, not to kill or to torture.
Nevertheless, within a decade, it was being used to authorise rendition and torture. We must not make the same mistake again.
Only last month, the intelligence watchdog uncovered serious concerns over the very practices the Government is seeking to put into statute. The Investigatory Powers Commissioner uncovered a case in 2019 in which an MI6 agent broke informal “red lines” set by the agency against very serious criminality. But instead of stopping their work with this criminal or telling a Minister, they sought to have him reauthorised regardless.
Again, the Lords have recognised these issues and, earlier this month, peers handed the Government a defeat by voting in favour of an amendment preventing murder, torture or sexual violence from being authorised.
The amendment was backed by a list of peers with deep experience of working with the security services to keep Britain safe, including the former Independent Reviewer of Terrorism Legislation, Lord Anderson, and several former heads of the Home Office, Foreign Office, and Cabinet Office, such as Lord Wilson of Dinton and Lord Jay of Ewelme, as well as the former National Security Adviser, Lord Ricketts and the former Director of Public Prosecutions, Lord Macdonald.
The breadth of this coalition, and the combined experience it brings to bear, should give the Government pause.
I urge my colleagues in the Commons to support these two common-sense amendments backed by peers which would curtail the use of child spies and establish hard and sensible limits on the crimes agents can be authorised to commit.
Retaining these amendments would ensure that this vital legislation is fit for purpose and not wide open to abuse.