My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one.
New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.
Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to “belief” risks introducing inconsistency and casting doubt as to how other provisions should be interpreted.
It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective “robust” has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment.
Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed
guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function.
I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.
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Amendment 33 seeks to amend the necessity and proportionality test so that an authorising officer must consider all alternative non-criminal options that are available to achieve the same outcome, even if those options are not reasonable. Suggesting that the authorising officer cannot grant a criminal conduct authorisation because an unreasonable non-criminal option is available does not seem practical or feasible. We must ensure that these judgments are based on fact and actualities, not unrealistic possibilities. Of course, an authorising officer will need to consider alternatives, and the Bill is clear on that, but I submit that those alternatives need to be feasible and should not cause unintended consequences elsewhere.
In response to Amendment 19 from the noble Lord, Lord Rosser, the Bill is clear on the need for any criminal conduct authorisation to be both necessary and proportionate. The code of practice sits under this legislation and, as we were reminded previously, has legal force. It provides greater detail and guidance on the considerations that authorising officers need to take into account when granting a criminal conduct authorisation.
I listened with care to submissions from your Lordships about the value of placing matters on the face of the Bill. However, I am reminded that that can sometimes be difficult in that, as I think the noble Baroness, Lady Hamwee, acknowledged, the mere act of making a list means that something is often left out. The tighter the legislator tries to grasp the matters to be taken into account, the greater the possibility that something will slip through the fingers, like trying to grasp sea-water as tightly as one can.
As I said, the presence of the code of practice sitting underneath the legislation provides the greater detail and guidance that I hope will be a security and offer reassurance to your Lordships. We have included in the updated code additional wording on the proportionality test, but we think it appropriate that that remains within the code of practice rather than being embodied in the Bill,
I re-emphasise the need to ensure that the Bill is consistent with the existing statutory framework within which it will sit. To include here detail that is not
present for powers in legislation elsewhere risks casting doubt on the application of, in this case, the test that needs to be applied when considering proportionality.
The noble Baroness, Lady Jones of Moulsecoomb, referred to the undeniable fact that human beings make mistakes and that persons acting as handlers or granting criminal conduct authorisations will inevitably make mistakes. It is not so much a matter of arguing with the noble Baroness as accepting the point that she makes and seeking to defend the protections that the Bill seeks to offer, building on those that already exist and advancing them to your Lordships’ House as sufficient and proper.
There was discussion from my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Thomas of Gresford, about the authorities that will obtain CCAs and their varying backgrounds. They will indeed have varying backgrounds in relation to the matters that they seek to police, reflecting the very different circumstances in which they might be called upon to act. There will also inevitably be varying degrees and types of training for CHIS handlers and those giving authorisations, which, again, will be specific to the work of the authority in question. The noble Lord, Lord Thomas of Gresford, also spoke about the practice of applying CHIS operations in different contexts.
The noble Lord, Lord Mann, spoke as powerfully on this occasion as he did previously about the competence of directing finite resources and skills towards matters that, ultimately, are of little moment. He also spoke powerfully about the role of trade unions in combating extremism and working together as part of society as a whole—something that I wholeheartedly endorse. I am sure that my noble friend Lord McLoughlin will have followed his words and will nod along when he reads them in Hansard.
The noble Lord, Lord Mann, spoke of the abhorrent practice of blacklisting, to which he was subject. This, again, called to mind the personal accounts of others in the House, including the noble Lord, Lord Hain, who spoke not only of his experience of granting authorisations of this sort but of being the subject of authorisations himself. We on this side acknowledge, as I am sure the whole House does, that the actions of the past were occasionally imperfect and caused a great deal of suffering. However, to acknowledge the failings of the past is not of itself to call into question the tests and oversight regime that the Government seek to place over such operations in the Bill.
My noble friend Lord Naseby spoke about competence and the practicalities of such operations. I urge your Lordships to bear in mind once again what has been touched on at other times in the debate concerning the dynamic quality of the environment against which decisions such as these are taken.
The noble Baroness, Lady Chakrabarti, began by informing your Lordships of the death of Lord Kerr of Tonaghmore. Although I never had the pleasure either of meeting him in a personal capacity or of appearing before him in court, I am sure that I speak for the whole House in endorsing the warm tribute that the noble Baroness paid to his memory.
The noble Baroness also discussed what happens when things go wrong—a point that she introduced as the “Paddick question”. The noble Lord, Lord Kennedy, on the Bench opposite, picked up that point. I am not altogether sure that I am able to address the broad matter of redress, and I therefore propose to write to noble Lords about it. It seems to me that to address it from the Dispatch Box now would be to presume on your Lordships’ patience, because it would be necessary to take into account a series of matters and to present, and provide answers to, a series of hypotheticals.
In response to the noble Lord, Lord Kennedy, on his discussion of Amendment 19, as I said earlier, the position which on reflection we have adopted and urge on the Committee is that placing matters contained in the code of practice on the face of the Bill is not an efficient way of going about things. They are better left where they are.
Finally, and in conclusion, I note that the noble Lord opposite also endorsed the views of the noble Lord, Lord Mann, on the nonsense of infiltrating fringe groups that pose no harm to society. The question of how different people and bodies in society can reach quite opposite views about some matters, such as the economic well-being of the country, was raised on a previous occasion in relation to strike activity. That question is a profound and important one. In answer to that, we lay before the House the presence of this independent oversight regime, under the Investigatory Powers Commissioner.
I am grateful to all noble Lords for their contributions.