I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.
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I also agree with the noble Lord, Lord Kennedy, in commending the work of the trade unions, which, as he said, among other things, started by ensuring that workers had suitable pay and working conditions, unlike some of the terrible things they suffered in the past. I do not diminish the devastation that blacklisting caused, which many noble Lords mentioned. The noble Lord, Lord Kennedy, and the noble Baroness, Lady Clark of Kilwinning, asked how we can make sure that this does not happen again. It is a sad fact of life that we cannot categorically say that anything will not happen again, but noble Lords will agree that supervision by IPCO, the code of conduct and oversight by the IPC are very good safeguards that clearly were not there in the past; nor were the Human Rights Act and some public authorities’ internal processes.
To answer the noble Lord, Lord Paddick, IPCO has unfettered access to documents and information, and can pick up any issues. As I said on Tuesday and say again to the noble Lord, Lord Thomas of Gresford, I want to discuss ways to provide for closer real-time oversight with IPCO, as was suggested by the noble Lords, Lord Anderson and Lord Rosser. I am also happy to talk to the noble Lord, Lord Paddick—definitely before Report.
These amendments speak broadly to one issue, which is the need for reassurance that the Bill is not a conduit for public authorities to target legitimate and lawful activity. Amendments 28 and 29 seek to prevent a criminal conduct authorisation being granted for activities of trade unions, or legitimate political activity, on the grounds of
“the interests of the economic well-being of the United Kingdom”,
while Amendment 35 addresses blacklisting.
I understand the concerns that noble Lords have raised about criminal conduct authorisation being used to target trade union organisations and their members or legitimate political activity. It is not the intention of the Bill to target legitimate and lawful activity, and I hope that the safeguards that I outlined have provided some comfort on this, but I will offer some further reassurance on this point. That an authorisation relates to the activities of a trade union is not in itself sufficient to establish that the authorisation is necessary on the grounds on which authorisations may be granted, including the economic well-being of the UK. I point noble Lords to paragraph 3.6 of the updated CHIS code of practice, which clearly sets this out. Also, Article 11 of the European Convention on Human Rights provides the right to freedom of assembly and association, and Section 6 of the Human Rights Act makes it unlawful for public authorities to act in a way which is incompatible with a convention right.
On the point made by the noble Lord, Lord Thomas of Gresford, on subjectivity, which was also alluded to by the noble Baroness, Lady Hamwee, we cannot anticipate every context, and therefore cannot prescribe each. Authorisations must be necessary and proportionate. In assessing proportionality, consideration must be given to whether the criminal conduct is part of efforts to prevent more serious criminality. The activity must be necessary for one of the statutory purposes outlined, proportionate to the activity it seeks to prevent and compliant with the Human Rights Act. I hope that that provides reassurance to noble Lords on their concerns around targeting legitimate and lawful activity by trade unions and their members, and the illegal practice of blacklisting.
We cannot rule out a situation in which a member of a trade union or someone involved in political protests is separately engaged in illicit activities that provide legitimate grounds for investigation, as was pointed out by the noble Lord, Lord Paddick. For this reason, we cannot carve out specific groups or individuals from the statutory grounds available for authorisations. The noble Lord made a point about a circle of colleagues, all with similar skin in the game in terms of deployment and authorisation, such as a drugs sergeant handling a CHIS who is going on to do undercover drugs work. Policing colleagues have confirmed that the case that he outlined would not happen, because the police have dedicated source units that handle all agents.
On Amendment 78, the intention of this Bill is to support public authorities to keep the public safe from the harms that criminals, terrorists and other adversaries seek to inflict. A criminal conduct authorisation may be granted only after very careful consideration as to whether it is both necessary and proportionate. The authorisation can be in relation only to a legitimate
intelligence target; an individual or group would be under investigation only because of their activities and not the particular protected characteristics that they hold. If there were any evidence that this was not the case, I would expect the IPC to raise its concerns with the public authority. I hope that noble Lords recognise that we are limited on what can be disclosed publicly about the types of investigations that CHISs would be tasked to participate in to protect their identity and safety and not to jeopardise ongoing investigations. We will not be able to accept this amendment, but I both recognise and agree with the sentiment behind it.
I turn finally to Amendment 82. The Government recognise the significant concerns about the way in which undercover policing has operated in the past. For that reason, the Home Secretary established the inquiry in 2015: to get to the truth of those events and ensure that we learn lessons for the future. Amendment 82 from the noble Baroness, Lady Jones of Moulsecoomb, seeks to delay the enactment of this Bill until after the conclusion of the inquiry. I understand that this is some years off. It is clear from the timetable that the inquiry’s proceedings will last a long time, and the Government want to put the framework for the deployment of CHISs in criminal conduct beyond legal doubt. I hope that the noble Baroness understands that her amendment is neither practicable nor reasonable, at this point.
The Bill is without prejudice to the inquiry. The Government will carefully consider its conclusions and recommendations when they are published. In the meantime, the Home Office is an active participant in the inquiry and is following proceedings closely. The inquiry’s investigations are ongoing and we must be mindful not to say or do anything that might prejudice those proceedings.
Finally, I take this opportunity to reiterate that operational partners have publicly stated that it is never acceptable for an undercover operative to form an intimate sexual relationship with anyone who they are tasked to investigate or may encounter during their deployment. This conduct will never be authorised; nor must it ever be used as a tactic of a deployment. This is made clear in the code of ethics of the police service, as well as the updated law enforcement agencies’ authorised professional practice guidance for undercover operatives. With those words, I hope that the noble Lord is happy to withdraw his amendment.