Amendment 6

Covert Human Intelligence Sources (Criminal Conduct) Bill - Report (1st Day) – in the House of Lords at 9:03 pm on 11 January 2021.

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Baroness Hamwee:

Moved by Baroness Hamwee

6: Clause 1, page 2, line 17, after “person” insert “reasonably”Member’s explanatory statementThis amendment would insert a requirement that belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be

“proportionate to what is sought to be achieved” and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.

The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.

Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.

I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.

In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,

“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]

Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

The noble and learned Lord told the Committee that new Section 29B was

“drafted to align with the existing Section 29”,

and that the amendment would

“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.] it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.

The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.

Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be

“relied upon for as short a duration as possible.”

The power should remain “operationally workable”; I think four months fulfils that.

The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.

To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.

For that first reason, it is very important to make sure that the language of the statute is clear. Nothing could be less desirable than the language of paragraph 6.4 of the code using the words “it is expected” about the person; that really is a decline in the standards, traditionally, of the common law—that edifice of England, Wales, Scotland and Northern Ireland that has been so important to our liberties.

Secondly, we really ought to make the legislation clear. We are going to put forward a detailed set of requirements in the Bill, and certainly there should be no exceptionalism by leaving out the requirement of reasonableness.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 9:15, 11 January 2021

My Lords, the request here is very modest and I am sure that the Minister will want to accept the word “reasonable” into the belief required of those authorising this criminal conduct. It must be an objective test. Let us remember that this is about the authorisation, not about a person acting in the moment subject to an authorisation. This is about the calm, rational mind that we are supposed to trust in who is authorising this on the basis that it is necessary and proportionate. It is an incredibly modest request.

In his eloquent remarks, the noble Lord, Lord Anderson of Ipswich, points out, very importantly, the distinction between a code of practice and hard, statutory law. Codes of practice have been prayed in aid, not least by the noble Lord, Lord Carlile of Berriew, who will follow me. Codes of practice are no substitute for the statute itself, particularly if they are using language such as “it is expected.” I urge the Minister to accept the word “reasonable”; it does no violence whatever to her stated policy and scheme.

The four months proposed in Amendment 18 seems very uncontroversial, too. Surely, an authorisation of this gravity should not be sitting around to be employed and activated after many months or years. I shall leave it at that.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, on the narrow point just made very clearly by the noble Baroness, Lady Chakrabarti, I would question the way in which she diminishes the importance of codes of practice, which have the force of law. One example of a code of practice that has had the most incredible effect on the fairness of trials is Code C under the Police and Criminal Evidence Act 1984, which in many ways has been the formidable weapon in the hands of the defence advocate, and sometimes in the hands of the prosecution advocate too, to ensure that justice is done.

That said, I have no objection whatever to what is intended by Amendments 6 and 36. I suspect that the Minister would want to refer to the code, at least generally, which is peppered with words such as “reasonable”, “proportionate”, et cetera, and would say that reasonableness is imported in any event. However, I agree with the view that in a Bill of this kind, adding the word “reasonable” into the statute as suggested may be comforting and safe, and will make it a better statute.

I disagree with Amendment 18, which is in this group, and a time limit of four months. Running a CHIS is often very arduous and complicated, and many CHIS are run for much, much longer than four months. The noble Lord, Lord McCrea, in an earlier part of this evening’s debate, referred to the information that was obtained concerning the Real IRA, as it was called, which led to the conviction of a number of its operatives. I do not know anything about the facts of that case, but I suspect that in an operation of that kind, many CHIS were run for long periods, and for very good reasons. As the noble Baroness, Lady Manningham-Buller, said very eloquently, those who are running the CHIS are, in any event, these days, doing an extremely good job in great difficulty, and we do not want to add to their bureaucratic burden; they and their CHIS have great difficulties to face. They do not want to be faced with the necessity of reapplying every four months; it is just far too short a period.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

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.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

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

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

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.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

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.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

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

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

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.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

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.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

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.

Ayes 282, Noes 259.

Division number 3 Covert Human Intelligence Sources (Criminal Conduct) Bill - Report (1st Day) — Amendment 6

Aye: 282 Members of the House of Lords

No: 259 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Division conducted remotely on Amendment 6

Amendment 6 agreed.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 9:45, 11 January 2021

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.