My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson. I do not have their legal expertise but even I, a civilian, can understand that the legal tests in this Bill are absolutely inadequate.
I had the pleasure of being on the Metropolitan Police Authority for 12 years when I was a member of the London Assembly. In that time, I met a large number of police officers—some of whom spied on me—so I can understand the sort of people who become police officers. They are incredibly hard-working and very brave, but they are human and make mistakes. They certainly made a mistake when they decided to report on my activities, which were all on Twitter—my own Twitter. In any case, I have no experience of the security services—that I know of—yet but I imagine that they, too, are human. We are all prone to error.
The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes—there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations. The crimes will have been committed, the damage will have been done and harm will have been caused—possibly to entirely innocent people, as has happened in the past. The reasonableness test should be included in the Bill; the Government will struggle to argue against that.
We should, however, go beyond reasonableness. That is why I have signed Amendment 19 in the name of the noble Lord, Lord Rosser. The decision-maker should consider, and show evidence, that they have thought about the alternatives to authorising criminal conduct. Where criminality can be avoided, it should be. I took the point that the noble Lord, Lord Paddick, made about the fact that, as an inspector aged 24, he was not what I would consider a necessarily appropriate person to authorise immunity from criminal conduct. I am sure that the noble Lord was an incredibly competent police officer but, even so, that is an incredibly young age to understand the impact of what you are doing.
The decision-maker should also demonstrate that they are not using this legislation to bypass other, more appropriate, legal routes to achieving their objectives. They should not be able to authorise criminal conduct where a legal route exists. For example, the legislation must not create loopholes and back doors for the authorities to conduct black ops. They must not be able to recruit a burglar where they should have used a search warrant, or a hacker where they should have obtained a RIPA authorisation. It is not sufficient for such critical issues to be left to the code of practice. It must go in the Bill. I really hope that the Government listen to the noble Lords who understand these processes and accept that we are all human and make mistakes.