I will speak to Amendments 12 and 61 in my name and that of the noble Baroness, Lady Kennedy of The Shaws. I am grateful to the Law Society of Scotland for its briefing. I am not particularly well qualified to speak on these issues, as many who have already spoken have direct experience in this regard, but I believe in due process and natural justice. I am concerned that we are reversing activity that was criminal and making it legal.
As the Law Society of Scotland has pointed out, scrutiny of the exercise of these powers lies with the Investigatory Powers Commissioner, who is required to produce an annual report. However, this is scrutiny after the event. It will be limited and may not provide us in Parliament with the robustness that the exercise of these powers commands. Therefore, given the nature of the policy, there should be checks and balances to ensure the effective operation of these organisations to ensure that there is public confidence in the use of these powers by providing limits on their use and adequate scrutiny.
I am attracted to Amendments 12 and 61, which the noble Baroness, Lady Jones of Moulsecoomb, referred to, as well as to Amendments 46 and 73 in the name of the noble Lord, Lord Anderson of Ipswich, which have many elements that commend themselves. Amendments 12 and 61 ensure that criminal conduct authorisations receive prior approval from a judicial commissioner. In the debate last week—which seems a long time ago— there was a great coalition of views around whether approval should be given by a judge, a judicial commissioner or a member of the Investigatory Powers Commissioner’s Office. I would be guided by those with much greater experience than I have in that regard.
However, it is important for there to be greater scrutiny before criminal conduct authorisation is granted, rather than after the event. In terms of due process, it should not be for the organisations, in the words of the noble Baroness, Lady Kennedy of the Shaws, to mark their own homework. The issue should not be simply for a senior official in the departments—I am particularly concerned about the Food Standards Agency and the Environment Agency—and we will come on to explore those in greater detail. In the words of the Law Society of Scotland,
“The Bill authorises persons within the relevant organisations to act with impunity where authorised by indicating that the criminal law will not apply to them in undertaking acts which would otherwise result in prosecution and conviction. In most circumstances, what will happen is that justification of the criminal conduct will be sought after the event”.
I put it to the House this afternoon that that is unacceptable, and authorisation should be granted—preferably judicial authorisation, in the best format possible—before the act that would otherwise deemed to be criminal actually takes place.