Meeting of the Parliament (Hybrid) 19 January 2021
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