Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Garden of Frognal Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, we now come to the group beginning with Amendment 6 and I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment or anything else in this group to a Division must make that clear in debate.

Amendment 6

Moved by

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I have little to add to what has gone before. I often wonder whether the Government are concerned about judicial review when they resist placing the test of a decision on a reasonable basis in any legislation. If the test in any case is simply the subjective belief of the official—the government agent involved—it might be hoped that a trip to the divisional court and an application for judicial review would be avoided. The noble Lord, Lord Anderson, did indeed refer to public law tests. The Wednesbury test of reasonableness is now more than 70 years old and it is sometimes forgotten that it was the local picture house that took the town’s corporation to court because the licence it gave prevented children under 15 attending the cinema on a Sunday, whether accompanied by an adult or not—one’s mind flips back to the dim and distant past. That was the factual basis of a very important principle of law.

When considering reasonableness in this context, there are two limbs. In the context the House is discussing, the question would be whether the authoriser had taken into account all the wider implications of the authorisation, including its effect on prospective victims of the crime being committed. He would obviously have to follow the code, which, as the noble Lord, Lord Carlile, has just said, is peppered with instructions, having the force of law, to act reasonably. If the authorisers get beyond the first limb of the test, the second limb is whether the decision they have taken is so outrageous and irrational that, as Lord Diplock put it in a later case, it is

“so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

Needless to say, cases challenging a decision tend to succeed on the first limb, but I do not see why we have to go to that position. I have been trying to check Hansard, but I think that the Minister referred, in reply to the first group of amendments today, to the decision being reasonable. I cannot see any reason why it would not be reasonable to put “reasonable” on the face of the Bill. I support these amendments.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady McIntosh of Pickering, has withdrawn. I call the noble Lord, Lord Rosser.

[Lord Rosser (Lab) [V]]

Before I comment on these amendments, I am told that there was a tweet earlier today from the Commons Minister on this Bill, James Brokenshire, saying that he has had a recurrence of a tumour in part of his lung and that he is taking leave for curative surgery. I am sure that I am not alone in wanting to extend best wishes to him for a full recovery.

I will be brief, because everything that needs to be said on Amendment 6 has already been said. It requires a person authorising a criminal conduct authorisation to reasonably believe that the tests for authorisation are met and are necessary and proportionate. In Committee, the noble Lord, Lord Anderson of Ipswich, referred to what the Solicitor-General had said at Second Reading in the Commons, to the effect that the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate. As we have heard, there is wording in part of the code of practice that is not—let us say—quite as strong as the words of the Solicitor-General in the Commons.

Crucially, once again, as the noble Lord, Lord Anderson of Ipswich, said in Committee, the notion of reasonableness is completely absent from the Bill, which the courts would treat as the authoritative source. Like others, I see no reason why the Government are not prepared to put the word “reasonable” in the Bill. We certainly support Amendment 6.

[Baroness Williams of Trafford (Con)]

My Lords, I echo the words of the noble Lord, Lord Rosser. I heard earlier today that my right honourable friend James Brokenshire had to go in for some more surgery; I pay tribute to him. He is one of the most decent people in politics and an extraordinarily capable Minister. He has never been far from my mind this afternoon, as not only has he mentored me but we discussed and worked closely on every aspect of the Bill. I wish him a very speedy recovery.

The noble Baroness, Lady Hamwee, seeks to add an explicit requirement for an authorising officer’s belief that the conduct is both necessary and proportionate to be a reasonable one. I have already explained why the Government cannot support this proposal. In fact, the noble Lord, Lord Anderson, almost spelled out the reasons I was going to give, which are a bit of a repetition and with which I am not sure he will be entirely satisfied. However, since Committee I have updated the CHIS code of practice to make it clearer that it is expected that the belief should be a reasonable one.

I caution against an amendment seeking to include this wording in the Bill, as it would cast doubt on the test that is expected to apply to other authorisations. In particular, it could have unintended consequences for a Section 29 use and conduct authorisation under the Regulation of Investigatory Powers Act. Including the need for a reasonable belief here, creating an inconsistency in the legislation, would create uncertainty over whether the same requirement exists for the underlying Section 29 authorisation. As I mentioned earlier, as a matter of public law, a decision made subject to a discretionary power must be reasonable; that is, the decision must be rationally open to a reasonable decision-maker in possession of the facts in the case.

The noble Baroness, Lady Hamwee, has also called for the length of authorisations to be reduced from 12 months to four months, with a formal requirement for a monthly review of the authorisation. As I have said, the current authorisation period of 12 months is consistent with the authorisation for the use and conduct of CHIS, which will need to be in place before criminal conduct can be authorised. Keeping the Bill consistent with the powers laid out in Section 29 will ensure that this power remains operationally workable for the public authorities using it.

While the code of practice is clear that an authorisation must be relied on for as short a duration as possible, and in many cases an authorisation will not last longer than four months, reducing the maximum length risks unintended consequences; for example, a shorter duration could mean that activity is rushed through in a shorter period of time, to avoid renewal or to demonstrate the value of a deployment to support a renewal. This clearly may not be the most effective or safest way of carrying out that conduct. I therefore hope that the noble Baroness is sufficiently reassured to withdraw her amendment.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I gather that the noble and learned Lord, Lord Mackay of Clashfern, would like to speak after the Minister.

[Lord Mackay of Clashfern (Con) [V]]

I think there is a question of consistency; if in one statute you have the word “reasonable”, while in other statutes of similar import you do not, that tends to create a difficulty. The statement the Minister made, that it is part of being a statement of this kind in an Act that the belief must be reasonable, is a reasonable explanation for not having it here.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

Does the Minister wish to reply?

[Baroness Williams of Trafford (Con)]

I will use the opportunity because the noble Lord, Lord Carlile, talked about the codes of practice, as he has done consistently; I would just like to raise those again.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

I now call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, I am sorry to hear the news about James Brokenshire, whom I have known for a very long time. If the Minister is able, I hope she will pass on our best wishes to him.

She said that we would cause uncertainty about Section 29 and referred to a rational basis for decisions. That seems to suggest that we would never need to use the word “reasonable”, but it is used both in codes of practice and in statutes. I am grateful to the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas. The House is very lucky to have their expertise, and their clear explanations of the importance of what looks like a small amendment but is actually rather significant, based on how these things are applied by the courts.

The statutory code of practice—I accept that it is statutory—is indeed peppered with the term “reasonable”. It is also peppered with the terms “necessary” and “proportionate”, and of course they will be in the Act when the Bill becomes one. However, to say that something is expected—that it is expected that there should be a reasonable belief—reduces the value of what is in the code of practice.

On Amendment 18, briefly, the four months are extendable; it is late, however, and I do not want to go much further with that. However, I do want to come back to Amendment 6. We have not heard an adequate explanation of the Government’s resistance to this, if I may put it that way. I would like to test the opinion of the House.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, we now come to the group beginning with Amendment 7. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.

Amendment 7

Moved by

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Ritchie of Downpatrick, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

It is a pleasure to follow the noble Baroness, Lady Chakrabarti. She mentioned complacency in the speeches of a few noble Lords, and it seems that people are missing the point of the measures in this Bill. The Government make a great play of “This is all to catch paedophiles and terrorists”, whom obviously we all want to catch, but they ignore the human rights legislation that will inevitably be transgressed. We know the long history of abuses by undercover police, and the thought that humans can change is absolutely ludicrous, in the sense that human nature will always involve a group of people who think that they can get away with doing things that the rest of us should not. I am afraid that in the past officers have been allowed unlawfully by senior officers to do things, and this does not mean that they will not do it again: they will do it again. For example, the undercover inquiry has taken years to reach a point at which there is a judge in control—one who, I would argue, is not doing a very good job. The progress is incredibly slow and survivors of this sort of abuse should not have to wait so long for justice.

This group contains important amendments on two issues: ensuring that these powers are used only against serious offending and ensuring that they are not used to encourage offending. I have signed only one amendment in this group, but they are all sound. I wish that I could trust the Government and the authorities enough to make Amendment 11 an absurdity, but history shows that this state can and does misuse power in order to undermine and stifle dissent and opposition. The face of the Bill should make clear beyond any doubt that agent provocateur conduct is illegal and can never be authorised, otherwise we can be sure that sooner or later this power will be used for that purpose.