My Lords, so far we have been debating the nature of the criminal offences that may or may not be authorised. Amendment 39 would clarify who can be authorised to commit criminal offences. As I made clear on earlier amendments, I am a member of the Joint Committee on Human Rights, and my contribution to the debate on this amendment stems from the report by that committee. That report has been referred to by many noble Lords and indeed has almost served as the text for some of the debates. That is a credit to the work of the committee, which I think is very positive and influential.
The committee found the Bill’s definition of what amounts to criminal conduct for the purpose of a CCA “unhelpfully obscure”. It noted, in particular, that it includes conduct in relation to a CHIS. The expression “in relation to” is one of those phrases that can mean almost anything and is capable of all sorts of interpretation, narrow and wide. My noble friend Lord Rosser used a similar phrase which was a bit vague in an earlier debate. I repeat that the expression “in relation to” can mean almost anything.
Why are the Government doing this? I will use an American expression that we all know and which I learned many years ago: mission creep. One sets out to do something but inevitably, in trying to get the powers to do that, one expands what one wants to be able to do, sometimes beyond what is reasonable or could have been envisaged at the outset. This amendment relates to what I would call mission creep on the part of those who drafted the Bill.
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It seems plausible that the purpose of authorising conduct in relation to a CHIS is to ensure that those authorising and handling a CHIS are not exposed to prosecution on the basis of secondary liability. However, that is not a justification that has been put forward by the Home Office. I should be clear that my understanding
of secondary liability is criminal liability for encouraging or soliciting another person to commit a crime. The Home Office has not said, though perhaps the Minister will tell us, what the purpose of this provision is. If the justification that I have put forward is the one that will be put forward by the Home Office, I hope the Minister will say so.
The report by the human rights committee concluded —and I should conclude with this as well—
“The Bill requires amendment to clarify who can be authorised to commit criminal offences. In the absence of a clear explanation of the need for a CCA to authorise more than the conduct of the CHIS, only the conduct of the CHIS and any resulting secondary liability, should be capable of authorisation.”
The amendment seeks to limit the definition of criminal conduct in that way. I think it is a matter of tightening it up and getting rid of material in the Bill that should not be there. I beg to move.