My Lords, I thank noble Lords for their very thoughtful contributions to a discussion of the upper limit of what can be authorised by a criminal conduct authorisation.
I will first address comments—because they have been the most numerous—that propose to replicate on the face of the Bill the limits that the Canadians have set in the legislation governing their security service, and Amendment 42, from my noble friend Lord Cormack, which prohibits murder, torture or rape. I totally recognise why noble Lords want to ensure that this Bill does not provide authority for an undercover agent to commit any and all crime. It does not. I reiterate once more: there are already clear limits on the criminal activity that can be authorised and they can be found within the Human Rights Act—which, by the way, was not in place when some of the activities that noble Lords have described were carried out.
Nothing in this Bill undermines the need to comply with that Act, as is made clear by new Section 29B(7). Further limits are placed on the regime by the need for the authorising officer in all public authorities to confirm that there is a demonstrable need to authorise
a CHIS by making a clear case for its necessity and proportionality. I understand questions about why we cannot place explicit limits in the Bill, as they do in other countries, notably including—as noble Lords have said—Canada, and I will explain our reasoning.
We think that placing express limits on the face of the Bill is not necessary. The Human Rights Act already provides these limits and the amendments that replicate the limits in Canadian legislation do not prohibit any criminal conduct which is not already prohibited by the ECHR and HRA, as encompassed by the Bill. The noble Lord, Lord Anderson, made a point about undercover police who have sexual relationships: if gangs knew that that was unlawful, would they then test against it? I would say that although that behaviour would be unlawful in that context, it is very distinct from rape. I have been trying to talk to my noble friend who is a QC and perhaps I will set my answer out in more detail in writing.
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Next, however, I will address the point made by the noble Lord, Lord Rosser, who is worried that the Government are not committed to human rights legislation. As we set out in the 2019 manifesto, the Government will
“look at the broader aspects of our constitution”,
including the
“balance between the rights of individuals … and effective government.”
As part of this manifesto commitment, we pledged to update the Human Rights Act, which is now 20 years old. This does not change the fact that the UK is committed to human rights and will continue to champion them at home and abroad. Furthermore, let me be clear: the UK is committed to the European Convention on Human Rights.
Some noble Lords will still call for us to be more explicit on the limits of conduct which can be authorised. To do so would be to risk CHIS testing, by spelling out for our adversaries exactly what crimes a CHIS will never be authorised to undertake under any circumstances—knowledge that is then used as a checklist to test for suspected undercover operatives. This is a particular risk in the UK, where operational partners see testing attempted by groups in Northern Ireland in particular.
We all have a responsibility to ensure the safety and security of our undercover operatives, who are tasked by the state to gather information and intelligence in order to safeguard the public from terrorism and crime. We must also accept the regrettable truth that in providing an explicit list of limits for CHIS we run the risk of handing criminal and terrorist groups a means of initiating new recruits into their ranks. We must not be so naive as to think that certain organised crime groups, in seeking to ensure that their ranks are not infiltrated by undercover operatives posing as prospective new members, will not insist that new recruits undertake heinous crimes that they know a undercover operative could never undertake.
We should also question what happens when a criminal or terrorist group asks someone suspected of being an undercover operative, who in fact is not one, to undertake a proscribed crime in order to test them.
In a bid to protect themselves, could a person falsely accused of being a CHIS be more likely to undertake a crime that they might otherwise not commit?
I will also address what might appear a contradiction: saying on the one hand that these are sophisticated groups that could test for CHIS were there to be explicit limits on the face of the Bill, and on the other that activity contrary to the Human Rights Act is prohibited. The people and groups who are the subject of CHIS operations are many and varied. Some are very sophisticated and capable organisations that will invest real effort in understanding and frustrating our covert capabilities. Those groups, which include hostile states, will go to lengths to try to convert the Human Rights Act obligations into specific offences which they can then test against. They may feel that they have reached clear conclusions on some offences but will not know for certain in every case that their analysis is sound. This margin of uncertainty can be enough to keep our CHIS working safely and effectively.
At the other end of the spectrum of our opponents are individuals and small groups that are no less committed to their crimes, but are unsophisticated. Their effectiveness may often lie in their willingness to act quickly and violently. Such a group will not have a sound understanding of the Human Rights Act, or any other deep legal analysis. If, however, we simply presented them with a list of offences, we are certain that many of them would use that as a means to try to identify the undercover operative. They would often get that wrong, meaning that negative consequences would fall on people wrongly suspected of being a CHIS, as well as on the CHIS themselves.
I know that those are all uncomfortable scenarios but they are ones that we must consider very seriously. We must put public safety first.
I now turn to Amendments 34 and 36. Even without specific reference to the Human Rights Act in the Bill, the obligations under the Act would still apply to the authorisation of criminal conduct. On the introduction of the Bill to this House, I signed a statement confirming compliance with the ECHR, while Section 6 of the Human Rights Act sets out that it is unlawful for a public authority to act in a way which is incompatible with a convention right. The use of the wording “for example” when naming the Human Rights Act in the Bill is intended to demonstrate that this is just one of a number of considerations that the authorising officer must take into account before granting a criminal conduct authorisation.
Amendment 36 also seeks to confirm that conduct in breach of the Human Rights Act cannot be authorised. There is no need for this amendment because authorising officers must already comply with the Human Rights Act, and the Bill does not do anything to undermine the protections in the Act. All criminal conduct authorisations must meet strict necessity and proportionality parameters before being signed off by an authorising officer. If the required parameters were met and an authorisation was properly granted, the public authority would of course stand by this authorisation, as it would with any other tasking of a CHIS.
My noble friend asked whether activity can be authorised for a CHIS and one removed. The actions of each individual CHIS must be explicitly authorised
and lawful. He also asked me about ETJ effects. Any deployment will comply with the Human Rights Act, even if it is extraterritorially applied. Of course, we are also bound by international human rights law.
Finally, the noble Baroness, Lady Massey of Darwen, asked about the JCHR report. We will respond to it in due course and will address the points made in the report. Noble Lords will of course have an opportunity to consider the response.
With that, I ask the noble Baroness to withdraw her amendment.