Covert Human Intelligence Sources (Criminal Conduct) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 13th January 2021
(3 years, 10 months ago)
Lords ChamberCovert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Amendment Paper: HL Bill 144(Corr)-R-II(Rev) Revised second marshalled list for Report - (11 Jan 2021)
17:57 - Division conducted remotely on Amendment 15 - Ayes: 299 / Noes: 284 - Amendment 15 agreed.
18:12 - Division conducted remotely on Amendment 17 - Ayes: 259 / Noes: 283 - Amendment 17 disagreed.
18:25 - Division conducted remotely on Amendment 22 - Ayes: 331 / Noes: 240 - Amendment 22 agreed.
18:38 - Division conducted remotely on Amendment 24 - Ayes: 339 / Noes: 235 - Amendment 24 agreed.
19:41 - Division conducted remotely on Amendment 34 (to Amendment 33) - Ayes: 298 / Noes: 259 - Amendment 34 (to Amendment 33) agreed.
20:21 - Division conducted remotely on Amendment 42 - Ayes: 262 / Noes: 269 - Amendment 42 disagreed.
Lord Paddick (LD) [V]
My Lords, I thank the noble Lord, Lord Russell of Liverpool, for the leading role he has played in achieving consensus around Amendment 24. I start by reminding the House of the contribution of the noble Lord, Lord Young of Cookham, in his summary of a similar group of amendments in Committee. He used the analogy of torture, where the ends do not justify the means, in the same way that using children as informants or agents is difficult to justify under any circumstances. Regrettably, banning the use of children as covert human intelligence sources is outside the scope of the Bill. He went on to recall the contribution of the noble Baroness, Lady Chakrabarti, who suggested as an alternative to using children using people over 18 who look younger, as the acting profession often does, particularly when dealing with adult themes.
My noble friend Lady Hamwee pointed out that there is a very fine line between grooming and persuading children to act as covert human intelligence sources. My noble friend Lady Doocey quite rightly pointed out that these children are already vulnerable and exploited, particularly in the case of county lines, without the need for them to be further exploited by the police. We do not send children into war, so why do we send them into potentially more dangerous situations as CHIS, as a number of noble Lords have asked this afternoon? A very experienced police handler of informants told me that, in his experience, even adult CHIS are open to manipulation, let alone children. If you are a child, a non-documented migrant or a victim of human trafficking caught by the police committing crime, you are likely to look for any available way out. You do not need to be blackmailed in such a situation; you are likely to grab at any opportunity, including being tasked to commit crime as a participating informant, a point made by the noble Baronesses, Lady Jones of Moulsecoomb and Lady Young of Hornsey, in Committee. As the noble Baroness, Lady Kidron, said, we are talking about the power imbalance between the police and these vulnerable people, including children.
The Minister’s response in Committee was to cite a High Court judge, Mr Justice Supperstone, who was convinced by the police that it was okay to use children in this way. They appear to have been less successful in convincing the noble Lord, Lord Young of Cookham. When I was seeking promotion to the most senior ranks in the police service, on a six-month course at the national Police Staff College, we were told that we were moving from superintending ranks, where we had to operate within the existing paradigm, to ACPO ranks, where our responsibility was to change the paradigm. Despite the High Court’s decision, we need to change the paradigm. As the noble Lord, Lord Young, says, the court did not consider the active involvement of children as CHIS in crime.
The Government, in response to our deliberations in Committee, have come up with their own alternative. I am as unimpressed as the noble Lord, Lord Young, with this attempt. First, in relation to authorising the use of children, it amends secondary not primary legislation—much easier for the Government to subsequently change and impossible for us to amend. The only change to primary legislation is on post-event reporting. The government amendments, particularly Amendment 26, prohibit the use of children under 16 to commit crimes against their parent or guardian, but not 17 and 18 year-olds: this is already the case, as the noble Baroness, Lady Kidron, said. It creates the position of a “relevant person” who is responsible for the risk assessment and for ensuring that an “appropriate adult” is present if the child is under 16. This risk assessment and the presence of an appropriate adult are already required in legislation. In the case of 17 and 18 year-olds, the appropriate person has only to consider,
“whether an appropriate adult should be present”.
Again, that consideration is already required.
Saying that a child criminal conduct authorisation should be limited to four months instead of 12 is also not a real change. Child CHIS can only be authorised for a maximum of four months and a CCA cannot be granted unless the child has been authorised to be a CHIS, so a review after four months is already inevitable. Overall, I would summarise the proposed alternatives the Government are putting forward as too little, too late.
Amendment 24, proposed by the noble Baroness, Lady Kidron, has been a long time in the planning. I join with the noble Baroness in thanking Stella Creasy MP and Just for Kids Law. It covers vulnerable adults as well as children—the case for which was made strongly by my noble friend Lady Hamwee this afternoon—which the government amendment goes nowhere near. The presence of an appropriate adult would be mandatory for all children and vulnerable adults under this amendment, instead of being compulsory only for under-16s, as in the Government’s alternative. It sets out the very limited circumstances when a child could be used, where the best interests of the child must be paramount. The child or vulnerable adult is not to be put at risk of physical or psychological harm, and the Investigatory Powers Commissioner must be informed. The Minister may say that these restrictions are so limiting that it may result in children and vulnerable adults not being used at all. That is a risk we should be willing to take.
In the absence of Amendments 12 and 13, we support Amendment 24 as the best of the available options, though I agree with the noble Baroness, Lady Massey of Darwen, that it does not involve the independent prior authorisation contained in her Amendment 14. However, as I have just said, it does include informing the Investigatory Powers Commissioner as soon as possible. If anyone thinks that 16 might be an appropriate age for drawing the line, I would urge them to watch the film “County Lines”, directed by Henry Blake. It brings out the horror of the impact of county lines drug dealing on teenagers, including older teenagers, and powerfully makes the case for immediately removing children from these circumstances. Important points were made by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs, about the lifelong impact of adverse childhood experiences such as involvement in county lines. Regrettably, contrary to the assertion of the right reverend Prelate the Bishop of Durham, Amendment 12 does not prevent using a child as a CHIS; it only prohibits tasking them to commit crime. As my noble friend Lady Hamwee pointed out, some adults are at least as vulnerable as some children.
Amendment 24 is a compromise, but it is comprehensive in that covers both vulnerable adults and children, and we support it strongly for the reasons so clearly expressed by the noble and learned Lord, Lord Hope of Craighead.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I start by thanking the noble Lord, Lord Russell of Liverpool, for his kind words about my right honourable friend James Brokenshire. I inform the House that he read all the lovely comments from Monday’s debate and was very touched by them.
Also, in response to my noble friend Lord Young of Cookham, I apologise for the late arrival of the letter. I hope he has had a chance in the course of this debate to look at it.
This has been a very thoughtful debate on an incredibly important issue. I have listened very carefully to the points made by all noble Lords throughout the preceding debates on the safeguards that should apply to children. At this stage, I must say to my noble friend Lord Cormack, who bemoaned the advent of certain behaviours over the last 20 or 30 years, that I am afraid to tell him that they go back far longer than that. I also thank all noble Lords who have engaged with me on this issue directly, in particular the noble Lords, Lord Kennedy and Lord Rosser, who gave up their Saturday afternoon, together with Stella Creasy, to speak to me and my right honourable friend James Brokenshire. I must say that I think we all found that conversation very helpful.
I hope that all noble Lords will recognise the substantial amendments that the Government have put forward to ensure that robust safeguards are in place in legislation for the very rare circumstances in which a juvenile CHIS may be tasked to participate in criminal conduct. Noble Lords have been told that the courts have found these safeguards to be inadequate. That is not the case at all. The High Court considered the safeguards for juvenile CHIS in 2019 and expressly found them to be lawful. In fact, Mr Justice Supperstone explicitly rejected the contention that the scheme is inadequate in its safeguarding of the interests and welfare of juvenile CHIS. He also set out his view that it was clear that the principal focus of the framework for juvenile CHIS is to ensure that appropriate weight is given to a child’s best interests and that the practical effect of the enhanced risk assessment is that juveniles are
“only utilised in extreme circumstances and when other potential sources of information have been exhausted.”
The noble Baroness, Lady Kidron, asked whether a child impact assessment has been conducted, and the noble Baroness, Lady Massey, suggested an independent review of authorisations of juveniles. This has happened. The independent Investigatory Powers Commissioner conducted a review of all public authorisations of juveniles and the conclusions of that review were reported in March 2019 to the JCHR. The IPC was satisfied that those who grant such authorisations do so only after very careful consideration of the inherent risks and concerns around the safeguarding of children. The public authority’s duty of care to the child is a key consideration in the authorisation process. The IPC also highlighted that juvenile CHIS are not tasked to participate in criminality that they are not already involved in and that becoming a CHIS can potentially offer a way to extricate themselves from such harm. The decisions to authorise are made only where this is the best option for breaking the cycle of crime and the danger for the individual.
In moving the government amendments today, I will not move Amendments 35, 38 and 49, which relate to devolved activity in Scotland. This is because, as I hope noble Lords have seen in the letter I issued earlier today, the Scottish Government are unable to support the Bill. Respecting the Sewel convention, the Government will not legislate without the consent of the Scottish Government. Therefore, at Third Reading I will bring forward amendments to remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters and the relevant public authorities will still be able to grant authorisations for these purposes for activity in Scotland through the powers contained within this legislation. An authorisation necessary for the purpose of preventing and detecting crime or preventing disorder is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime or preventing disorder may therefore relate to devolved matters, and it will be these matters to which the Bill will not apply.
Baroness Williams of Trafford (Con)
I think that the noble Lord knows me by now. If Amendment 24 is carried, I will of course continue to work with him. The same is true for any other amendment that is successful on Report. I think that most noble Lords come from the same standpoint: they want to protect children but recognise that, sometimes, children may have to be involved in criminal activity. I know that my noble friend Lord Young does not take that view, but I think that most noble Lords recognise it. I will continue to work with the noble Lord, Lord Kennedy, Stella Creasy and others, whatever the outcome of today’s votes.
The noble Lord, Lord Russell, asked what happens if a person retires. That lifetime duty of care would probably necessitate certain people retiring and others taking over, but that does not mean that the duty of care does not extend over the young person’s whole life. On the formal reporting mechanism, we have IPCO and I am sure that there are other such mechanisms through the person tasked with that duty of care to the CHIS. If there are any other formal reporting mechanisms, I will notify the House of them.
Lord Young of Cookham (Con)
My Lords, this Bill has generated a series of debates about the role of the state in protecting society, including where the boundaries lie and the extent to which they impinge on civil liberties. This debate has been no exception, as the noble and learned Lord, Lord Hope, said. I am grateful to all those who have spoken; I will come to some of their comments in a moment.
The argument in favour of the use of underage CHIS has basically been that, in exceptional circumstances, the end justifies the means. Permitting a child to commit a crime and take risks is justified by the prospect of catching criminals. The contrary argument is that the end does not always justify the means, as the noble Lord, Lord Paddick, said; if it did, we would allow the waterboarding of suspected criminals and terrorists to save lives—but we do not. The debate has really been over where the risk/reward ratio, if I can call it that, falls in this case.
I am grateful to all those who have spoken. The noble Baroness, Lady Massey, referred to the UN convention and the inevitability of an element of risk if we go down this road. She also offered some additional safeguards of her own—namely, prior judicial approval.
The noble Baroness, Lady Kidron, along with others, paid tribute to the work of Stella Creasy. I do so as well. She has been heroic in liaising with your Lordships in taking this agenda forward. As the noble Baroness said, the Bill formalises the ability of the state to harm a child. She made the very valid point that a guardian is required if someone underage is charged with shoplifting but that there is no such protection if they become a CHIS. She also analysed the difference between Amendment 24 and government Amendment 26.
My noble friend Lord Cormack came up with a different limit—namely, under 16—but said that he would be tolerably satisfied with Amendment 24, which may indeed be where we end up.
The noble Baroness, Lady Hamwee, again made the important point about how you distinguish between grooming on one hand, which we do not approve of, and using a child as a CHIS, which we, on occasion, do. I think she said that her party’s preference was for Amendment 24 rather than Amendment 12.
I am grateful to the noble Baroness, Lady Chakrabarti, for her kind words. She pointed out that having exceptional circumstances always allows a degree of flexibility and subjectivity which one cannot get away from. She pointed out that, even if the amendment was carried, we still cannot ban the use of underage CHIS. Again, she made the useful point, which I think picks up on a point the Minister made, that many people look younger than they are—they are over 18 but look younger. Could not more use be made of them to avoid the dilemma that some of us find ourselves in?
The right reverend Prelate the Bishop of Durham emphasised the moral imperative of safeguarding a child. I think he said that, while his first choice would be Amendment 12 and then Amendment 14, Amendment 24 ended up as his third choice.
The noble Baroness, Lady Jones, rightly pointed out that people are unaware at the moment of what is going on. She referred to them as “child spies”. Again, if push came to shove, the noble Baroness would support Amendment 24. She seemed amazed that an aristocrat—if I can call myself one of those—should bring forward social reform, but if she looks at the whole history of the 19th century, she will find that a lot of social reform was indeed pioneered by aristocrats.
The noble Lord, Lord Dubs, was the swing voter in the last debate. He remains pro-Amendment 12, and I am grateful for that. Amendment 24 was his third preference. He referred to the long-lasting impact on the mental health of a child and cast doubt on whether they could give informed consent.
My noble friend Lady McIntosh also referred to UNCRC and came down, on balance, in favour of allowing CHIS in the most exceptional circumstances. But she needed convincing that Amendment 26, the government amendment, was better than Amendment 24.
The noble Lord, Lord Kennedy, was in favour of Amendment 24 and felt that Amendment 26 did not go far enough. He was in favour of using CHIS in exceptional circumstances and made it clear that he cannot support Amendment 12. I am disappointed by that, and I will come back to that in a moment.
The noble Lord, Lord Judd, spoke in favour of Amendments 25 and 19, and was against the use of CHIS.
The noble and learned Lord, Lord Hope, favoured the more nuanced approach of Amendment 24, rather than the absolute approach of Amendments 12 and 14.
My noble friend Lord Naseby agreed with the arguments that the vulnerable should be exempted, but he had some doubts about modern slavery.
The noble Baroness, Lady Bull, remains pro-Amendments 12 and 13, and I am grateful for that and for her support. She has not been persuaded by the argument. She made the point that parents who did what the Bill allows the police to do would find that their child would be taken into care. She also made the point that teenagers quite often act on emotion rather than reason.
I blushed when my noble friend Lord Holmes said his kind words about me. The high esteem in which he currently holds me may be lowered by what I have to say in a few moments.
The noble Lord, Lord Russell, has played a key role behind the scenes in trying to find a way through, and I pay tribute to that. He also mentioned James Brokenshire, somebody with whom I served in government for many years; I join those who wish him well and a speedy recovery. The noble Lord made four suggestions as to how we could build on what the Government have proposed, with a view to finding a solution.
The noble Lord, Lord Paddick, was unimpressed by the government amendments and ended up pro-Amendment 24.
I have had a bit of time to read the Minister’s letter. In her wind-up speech, she made the point that Amendment 24 would be unworkable because of the difficulty of finding appropriate adults. But appropriate adults are already there; they have to be there for under-16s and for those who are vulnerable between the ages of 16 and 18. One could draw on the same cohort to meet the requirements of having an appropriate adult for others. I listened to her example, but in it the child is extricated only after the information has been procured. The argument many of us have put forward is that the child should be extricated at the earliest possible opportunity, rather than after they have done their bidding.
In a former life, I was a Chief Whip, and one of the qualities needed in a Whip is the ability to count. I have looked at the fate of amendments to this Bill where the Opposition has withheld support, and they have gone down by three-figure majorities. I also note the reservation of several on the Cross Benches whose views I respect, such as the noble and learned Lord, Lord Hope. I do not believe that dividing the House is a useful use of its time, particularly given the position of the Opposition. Against that background, I will not test the opinion of the House, but I hope that all those who spoke in favour of Amendment 12 will back Amendment 24. I beg leave to withdraw my amendment.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. Although the line was not particularly good, the House will have found valuable the operational experience of the noble Viscount, Lord Brookeborough. If I heard him correctly, he said that during the Troubles he thought that 90% of terrorist operations failed because of CHIS activity, clearly making the UK a far safer place.
The limits on what could be authorised under the Bill are provided by the requirement for any authorisation to be necessary and proportionate, and for an authorisation to be compliant with the Human Rights Act. Any authorisation that is not so compliant would be unlawful—for example, if, on the particular facts, an authorisation would amount to a breach of, say, Article 3, the prohibition against torture. The HRA also places protective obligations on the state, as the noble and learned Lord, Lord Hope of Craighead, pointed out. Where the state knows of the existence of a real and immediate threat to a person, it must take reasonable measures to avoid that risk. That protective obligation is at the heart of CHIS authorisations. I have made the point before but I say again that nothing in the Bill seeks to undermine the important protections in the Human Rights Act. Public authorities will not and cannot act in breach of their legal obligations under the Act. All criminal conduct authorisations will comply with the Human Rights Act as well as with relevant domestic and international law.
The aim of a CHIS authorisation is to disrupt the activities of terrorist and criminal organisations. The authorisation is focused on enabling the CHIS to provide intelligence to do just that. The activities and conduct of those against whom the CHIS operates must not be confused with the CHIS’s conduct.
I highlight again to noble Lords the risks that we create by putting explicit limits in the Bill. These are not just risks that the Government have identified; we are being led by the advice and expertise of operational partners. The decisions that we have made throughout this Bill, particularly on this issue, are based entirely on the reality that our operational partners experience in the field—not on the views of myself or any other noble Lord but entirely on the reality that operational partners have told us about, from all parts of the UK. We have heard some very powerful examples from the noble Viscount, Lord Brookeborough.
We must not seek to make amendments to this very important Bill that have unintended consequences both for the CHIS themselves and the wider public. If we create a checklist in the Bill, we make it very easy for criminal gangs to write themselves a list of offences that amount to initiation tests. We have no doubt that some of those criminals seeking to demonstrate that they are not a CHIS will go away and do exactly what is asked of them, perhaps committing rape, in order to demonstrate their loyalty to the cause. Some of those who do not will suffer the consequences of wrongly being thought to be a CHIS, which is a point worth digesting.
This does not mean that, if a CHIS were asked to commit any crime as part of an initiation process, they could do so, not least because the Human Rights Act and necessity and proportionality tests already provide limits. It is simply that we need to avoid a refusal to conduct these awful actions being a strong indication to senior terrorists and criminals that a person is a CHIS. The consequences of presenting such a checklist would ultimately be felt by the public: because CHIS cannot be kept in play, there will be more successful terrorist attacks and more children will suffer sexual abuse.
I will again address remarks pointing to an apparent contradiction in the Government saying that we cannot provide limits because sophisticated groups will conduct CHIS testing—and that the Human Rights Act provides limits that these groups cannot identify. The people who are the subject of CHIS operations are many and varied; some are very sophisticated and capable organisations that will invest real effort to understand and frustrate our covert capabilities. These groups, which will include hostile states, will go to lengths to try to convert the HRA obligations into specific offences that they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep CHIS working safely and effectively.
Let us go to the other end of the spectrum of our opponents: individuals and small groups that are no less committed to their crimes but are unsophisticated. Their effectiveness might often lie in their willingness to act quickly and violently. This kind of group will not have a sound understanding of the Human Rights Act or, indeed, any other deep legal analysis. If we simply presented them with a list of offences, we are certain that many of them would just use it as a means to try to identify CHIS. Of course, the reality is that they get it wrong very often, meaning that negative consequences would fall on people wrongly suspected of being CHIS as well as on the CHIS themselves. Let us do our best to avoid handing over a ready-made checklist to criminals and terrorists to carry out these checks.
Before I finish, I will respond to the noble Lord, Lord Bruce of Bennachie, who talked about the problem with Scotland and the LCM. Conversations are ongoing, but he is absolutely right that prior judicial authorisation seems to be a sticking point, and we will do our best to resolve it. With those words, I hope that noble Lords will take great care when they consider whether to vote for these amendments.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, I have received a request to speak after the Minister from the noble and learned Lord, Lord Mackay of Clashfern.
The Deputy Speaker (Lord Alderdice) (LD)
Would the noble Baroness, Lady Williams of Trafford, like to move Amendment 26 formally?
Baroness Williams of Trafford (Con)
I will not move Amendment 26. Given the strength of the House on Amendment 24, I think it is probably best to go away and, as discussed earlier, have some more discussions on both the government amendment and Amendment 24.
Lord Kennedy of Southwark (Lab Co-op)
I thank the noble Baroness and the Government very much for that. I am sure we can get an agreement and all come together. Thank you so much.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I find myself agreeing with a lot of the comments of the noble Lord, Lord King of Bridgwater.
I absolutely recognise the concerns of Members about the range of organisations listed in the Bill. It is right that we probe, question and justify to ourselves as a House which organisations are listed here—as we have heard, that is now a reduced number—but it is also important that, as this Bill passes through the House, we empower a number of organisations to have the ability, in limited circumstances, to employ a covert human intelligence source.
If you look at the organisations here and think about the potential crimes that could be under their remit—HM Revenue & Customs in terms of tax fraud, the Food Standards Agency in terms of passing off out-of-date meat, the Environment Agency in terms of discharging all sorts of stuff into our rivers or the Competition and Markets Authority in terms of many activities which are illegal and very detrimental to our country—it is right that we have this range.
It is fair to say that some organisations listed here would potentially use the power much more than others. That is fair. I am clear that the Investigatory Powers Commissioner has some oversight here, but it would be useful if the noble Baroness could be clear in responding that an organisation that used this power very infrequently would have the ability to go to the Investigatory Powers Commissioner for advice and guidance, and maybe also to other agencies that are more used to using this power.
I absolutely see the point that we need to have organisations in certain areas empowered to do this work. These are potentially very dangerous situations. This is about keeping our country safe and protected in these difficult times. Although I understand the concerns raised by noble Lords in the amendments in this group, we on these Benches would not support any votes on them.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. Like the noble Lord, Lord Kennedy, I found the contribution from my noble friend Lord King very compelling. I hope that all noble Lords have received and read the business cases for the wider public authorities that I sent to all Peers last week. On the basis of those, I hope that noble Lords will appreciate the requirement that these public authorities have for the use of this power. I can again offer reassurance that they will be low users of the power but that it nevertheless remains an important tactic in detecting and preventing crimes that have a significant impact on the lives of the public.
Regarding why the police cannot just authorise for these wider public authorities, the police have a range of priorities and we have given various organisations specific law enforcement responsibilities. That is why these public authorities have their own investigative functions, and they therefore need the tools to fulfil those functions.
If noble Lords support Amendment 33, in the name of the noble Lord, Lord Anderson, as the Government will, IPCO will have close to real-time oversight of every single criminal conduct authorisation granted by each public authority. This will be another important safeguard to ensure that the power is being used properly and appropriately. IPCO will almost definitely flag where this is not the case, or if there are training requirements.
I can confirm that my noble friend Lord King is absolutely right: there were originally 34 authorities. There are now 14, so, far from expanding that list, we are contracting it. In response to my noble friend Lady McIntosh of Pickering, I can confirm that the IPC will consider the authorisation of wider public authorities in his annual report, which will be public.
I would like to give a very topical example of how this power might be used by one of our wider public authorities, the Medicines and Healthcare products Regulatory Agency, which comes under the umbrella of the Department of Health and Social Care in the Bill. The MHRA has responsibility for protecting public health through the regulation of medicinal products, medical devices and blood and blood products in the UK. These products are not ordinary consumer goods and have the ability to cure, prevent and diagnose disease and enhance life. However, they can also cause serious harm. In particular, prescription medicines are, by their very nature, potent and are prescribed to patients by a healthcare professional based on clinical judgment and a patient’s history.
In the UK, strict legal controls govern these products and breaches of these regulations are criminal. Crime involving medicines and medical devices is increasing; they are profitable commodities and unscrupulous individuals and organised crime gangs, which put financial gain before human health, face less risk and less severe penalties compared to trading in, for example, narcotic drugs. The MHRA relies on powers under RIPA, including the power to authorise the use and conduct of CHIS, to investigate and disrupt criminal activity in this area.
Lord Rosser (Lab) [V]
As has been said, Amendment 42, moved so succinctly by my noble friend Baroness Whitaker, requires a judicial commissioner to give approval for authorisations that would identify or confirm journalistic sources. It also requires the commissioner to have regard to both the public interest in protecting a source of journalistic information and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source.
As others have commented, the Investigatory Powers Act 2016 introduced a requirement for prior authorisation from a judicial commissioner when any application is made to identify confidential journalistic sources. The concern is that this Bill creates a means to access confidential journalistic material and sources without any prior judicial oversight. Statutory provisions in a Bill such as this on criminal conduct authorisations which might allow a way round the existing legal protection of journalistic sources would deter those sources from coming forward in future, at the potential expense of journalists being able to expose illegal, corrupt, exploitative or anti-social activity—a vital role in a democratic society.
The current Secretary of State for Justice has previously said that the ability of sources to provide anonymous information to journalists needs to be protected and preserved. That will not happen if those sources are liable to be exposed by the activities of covert human intelligence agents authorised to commit criminal conduct with no prior judicial oversight.
We need to ensure that the current protections for whistleblowers and journalists are maintained and cannot be weakened or compromised by this Bill. This amendment, requiring prior judicial approval for authorisations relating to journalistic sources, would achieve that objective. We support Amendment 42.
Baroness Williams of Trafford (Con)
My Lords, the amendment from the noble Baroness, Lady Clark, outlined by her noble friend Lady Whitaker, would require prior judicial approval for a criminal conduct authorisation seeking to identify or confirm a source of journalistic material. I set out earlier in the debate why the Government do not consider prior judicial approval to be a workable option for any CHIS authorisation, so I shall not repeat those arguments. However, I will say again that where an authorisation is likely to result in the acquisition of confidential journalistic material there are already greater safeguards in place which are set out in the CHIS code of practice.
There will also now be notification of every single authorisation to IPCO soon after they have been granted. That will of course include any authorisations that are likely to result in the acquisition of confidential journalistic material. Judicial commissioners will therefore be able to consider the necessity and proportionality of an authorisation and check that the proper safeguards have been followed. I hope that provides the noble Baroness with the necessary reassurance and that she can withdraw the amendment.
The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.