My Lords, we have both Amendments 34 and 36 in this group, the latter being the substantive amendment. I apologise that the explanatory statements as published refer to conduct “in reach” of the Human Rights Act; that should have been “in breach”—or, of course, not in breach. I can spell; it is just that my typing is not very good, though I suppose that “in reach” is what we were aiming at.
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The other amendments in the group list what is outlawed—which of course we would support—but we prefer to go back one step to the overarching reason for the outlawing and not to risk an omission. Our amendments focus on the Human Rights Act.
As the Joint Committee on Human Rights has reported, there needs to be “clear legal authority” when there is a risk of interference with human rights. It further states:
“More specifically, the European Convention on Human Rights (ECHR) … requires any power that interferes with a qualified right to be ‘prescribed by law’.”
Amendment 36 states not only that conduct incompatible with convention rights may not be authorised but that the conduct of a source—a CHIS—should be deemed to be the conduct of a public authority. As I read it, the ECHR memorandum published with the Bill by the Government is concerned with those authorising the use of a CHIS and the granting of a CCA. It tells us that training on human rights and on how public authorities approach agent participation is important. It states:
“Special training is given to those who work with CHIS on how to select, train and assess CHIS to ensure that CHIS are fully aware of the strict limitations of their authorised criminal conduct and the consequences of engaging in criminality that is not authorised. Ultimately, a CHIS stands to be prosecuted for his or her participation in crime where this goes beyond what is authorised.”
When I read that, I thought, “This is really very tough on a CHIS, who has a tough experience anyway, both as to what he is required to do and, more so, if he is wrong.” The JCHR, whose report I quote from again, says:
“The process of authorising criminal conduct will engage state responsibility. The State will be responsible … for human rights violations carried out by its agents ... The State will also be responsible if it fails to take reasonable steps to protect an individual from an anticipated breach of Article 2 (the right to life) or Article 3 (prohibition on torture) by a third party. Furthermore, ‘the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention.’ Criminal conduct
may also impose obligations on the State to investigate … violations and to provide an effective remedy to those whose rights have been abused.”
I have been confused by some comments from the Government about the applicability of the convention and how it fits with the authorisation and with how the conduct is carried out. Hence, an important limb of this amendment would require that the actions of the individual authorised were deemed to be those of a public authority.
There are a number of other amendments in this group, including Amendment 42, which extends to the issue of whether under-18s can be used for this purpose and granted such an authorisation. We have amendments later, so I shall leave comments on that until a group which more broadly deals with under-18s. I beg to move.