My Lords, during this sitting of the Committee, I have just discovered about the passing of Lord Kerr of Tonaghmore, one of the first members of our Supreme Court and a
former Lord Chief Justice of Northern Ireland. I am sure that all noble Lords will join me in mourning him and sending our condolences to his family. He was a great judge and human being. Being a senior judge in Northern Ireland when he was created a great deal of risk for him and his family, but I will remember him for his humanity and sense of humour just as much as for his courage and intellect.
On a small preliminary manner, the Minister made a comment on the previous group. Our hybrid proceedings are amazing in so many ways, but they may create confusion on occasion. I apologise to her if I contributed to that because, when we are on Zoom from home, there is no Dispatch Box. There is a metaphorical one but not an actual one. To be clear, in the last group my noble friend Lord Rosser spoke for the Opposition and I spoke for myself. Last time, you heard from my noble and learned friend Lord Falconer of Thoroton and my noble friend Lord Rosser for the Opposition. Shortly, you will hear from my noble friend Lord Kennedy of Southwark, who will speak for the Opposition. That may be easier, because I can see him in the distance via my Zoom; he is physically in the Chamber. I apologise for that—or if the Minister was making a joke at my expense and I have just wasted your Lordships’ time for a couple of minutes.
The amendments in this group are important, not least because of the Minister’s response to the previous group, and particularly to what I will call the Paddick question. Noble Lords will remember a hypothetical put by the noble Lord, Lord Paddick, essentially about what happens when things go wrong. The noble Baroness, Lady Hamwee, has spoken of everyone’s human frailty, and legislators need to consider, despite all the expertise, brilliance and public service principles of those operating legislation, what happens when things go wrong. The noble Lord put the hypothetical of a criminal conduct authorisation that had been corruptly given, but executed by an undercover agent in good faith. What would happen then? The Bill has a three-way relationship at its heart—a triangle, if you like—between the person who authorises criminal conduct, the person who executes it and any victim of that criminality. Your Lordships are considering a crucial legal relationship.
If I am right, the Minister responded to the noble Lord, Lord Paddick, with an answer akin to saying that the person who issued the authorisation—in this example corruptly—would be liable. I think she suggested that there would still be no liability for the undercover agent, because they had acted in good faith, be it on a corrupt authorisation. They had been used, if you like, as the tool of the corrupt authoriser. They would continue to have criminal and civil immunity, but there would be an unspecified liability for the person who issued the authorisation.
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In the case of corruption that may be clear enough, because there are independent criminal offences in relation to it. One would certainly hope that the corrupt bad-faith authoriser would be liable for offences—misconduct in public office, corruption, et cetera—but what of the authoriser who is not corrupt but is just plain wrong? They may be negligent or they may just be wrong—in good faith, but wrong. They have a belief,
but it would not satisfy the European Court of Human Rights. It is not a completely inaccurate or unreasonable belief. Perhaps it would be reasonable in certain circumstances. Perhaps it was formed based on the best information before them, because there is a chain of information in fast-moving criminal operations. None the less, it will not meet the convention tests of necessity and proportionality, because the information was wrong and the criminal conduct authorisation should never have been issued.
The language of “necessity and proportionality” comes from Article 8 of the European Convention on Human Rights on privacy. But this is not just surveillance. We are now in the territory of potentially quite serious criminal offences against property and the person, and the language of privacy may not be enough. Criminal conduct may have been authorised mistakenly or incorrectly, which will never satisfy a test of necessity and proportionality, because it was just plain wrong. The conduct was serious and possibly had serious consequences for innocent members of the public. The agent of the state, who committed the crime, will now be immune from civil liability and criminal prosecution. Where is the redress for victims of crime? The Minister spoke powerfully in the debate on the importance of tackling criminals—in that case, foreign criminals—but what will be the redress for members of the public when things go wrong with criminal conduct authorisations? Where will the buck stop and the redress come from?
This is incredibly important, because Article 6 of the European Convention on Human Rights allows people access to justice and is a particularly jealous protection of rights in the context of criminal activity. Noble Lords will remember the awful case of Osman v United Kingdom, where an immunity from serious crime was found to be in violation of the convention. I look forward to the noble and learned Lord’s response, if he has time, and some detail on what the consequences will be for criminal and civil immunity when and if—let us hope it never happens, but we have to consider it—things go wrong.