My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s
“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”
In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:
“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”
Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that
“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].
Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation
“may be granted by the authorising officer where they believe that the authorisation is necessary”.
Section 6.3 states:
“The authorising officer must also believe that the authorised criminal conduct is proportionate”.
The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.
My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?
3.45 pm