The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes – there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations.
I have signed Amendment 77 which addresses the specific issue of protecting journalism and journalistic sources. We need that in the Bill. We have put it into other Bills, such as counterintelligence or counterterrorism Bills, and it would easily go into this one as well. It would make sure that we have a clear commitment to journalism. I realise that this is not particularly comfortable for this Government, which have criticised a lot of lefty journalists – as well as lawyers – but it is incredibly important.
This group of amendments generally shows broad support across your Lordships’ House for the principle that judicial authorisation must be built into the Bill. It must not be arbitrary or a rubber-stamping exercise; it has to be the real stuff. In many ways, comparing it with search warrants issued by a magistrates’ court is much too weak a comparison. High-level crimes can be authorised in the Bill, with deep and lasting consequences. There must be high-tier judicial oversight and approval to match.
The question is whether we can build consensus around a way forward. Amendment 61 in the name of the noble Baroness, Lady Kennedy of The Shaws, is perhaps the easiest solution to this problem. It sets up the judicial commissioner as the proper overseer and sets out the legal test that must be met to grant an authorisation. In particular, it tests the reasonableness of granting authorisation and explicitly protects against breaches of human rights, which we will come to later. Overall, the Government are being offered a selection of solutions to a problem. I hope that they take one of them.
The legal tests in this Bill are absolutely inadequate. I had the pleasure of being on the Metropolitan Police Authority for 12 years when I was a member of the London Assembly. In that time, I met a large number of police officers – some of whom spied on me – so I can understand the sort of people who become police officers. They are incredibly hard-working and very brave, but they are human and make mistakes. They certainly made a mistake when they decided to report on my activities, which were all on Twitter – my own Twitter. In any case, I have no experience of the security services – that I know of – yet but I imagine that they, too, are human. We are all prone to error.
The big problem with this Bill is that the legal tests are too wishy-washy. They give the authorising bodies free rein. If we do not contract those processes in some way, there will be mistakes – there are bound to be. It will become very difficult to challenge even the most obviously wrong authorisations. The crimes will have been committed, the damage will have been done and harm will have been caused – possibly to entirely innocent people, as has happened in the past. The reasonableness test should be included in the Bill; the Government will struggle to argue against that.
We should, however, go beyond reasonableness. That is why I have signed Amendment 19 in the name of the noble Lord, Lord Rosser. The decision-maker should consider, and show evidence, that they have thought about the alternatives to authorising criminal conduct. Where criminality can be avoided, it should be. I took the point that the noble Lord, Lord Paddick, made about the fact that, as an inspector aged 24, he was not what I would consider a necessarily appropriate person to authorise immunity from criminal conduct. I am sure that the noble Lord was an incredibly competent police officer but, even so, that is an incredibly young age to understand the impact of what you are doing.
The decision-maker should also demonstrate that they are not using this legislation to bypass other, more appropriate, legal routes to achieving their objectives. They should not be able to authorise criminal conduct where a legal route exists. For example, the legislation must not create loopholes and back doors for the authorities to conduct black ops. They must not be able to recruit a burglar where they should have used a search warrant, or a hacker where they should have obtained a RIPA authorisation. It is not sufficient for such critical issues to be left to the code of practice. It must go in the Bill. I really hope that the Government listen to the noble Lords who understand these processes and accept that we are all human and make mistakes.
There are a lot of things in this Bill that I absolutely loathe. In fact, I probably loathe it in its entirety and I wish the Government had never brought it forward. However, my Amendment 19A is about changing the rules for criminal conduct authorisation by statutory instruments. What we have seen again and again with this Government is little power grabs – little bits of erosion of our democracy – through various statutory instruments that they have consistently brought over the past few months. Their majority of 80-plus in the Commons has simply gone to their heads and they feel that they can run the country without your Lordships’ House, which is absolutely ridiculous.
My own amendment is quite simple – just that the Government should not be able to change the rules without proper parliamentary scrutiny; and let us face it, statutory instruments are not proper scrutiny. We are talking here about the state being able to authorise people, quite possibly criminals, to commit crimes. Even I will accept that that sometimes has legitimate applications, such as taking down terrorist cells or breaking up organised crime. But let us face it, that will not be all that this is about. It creates a set of extreme ethical, moral and legal dilemmas, so much so that it must be Parliament—not the Government, whom I do not trust anyway – that makes the decisions on when and why this is allowed.
I think that proposed new clause 29B(4)(c) in Clause 1(5) is a tacit admission by the Government that there are insufficient safeguards built into the Bill and that they want to backfill that with secondary legislation and a code of practice. That just is not good enough for something of this magnitude. I want a clear confirmation from the Minister that that is not what is intended and that the Government will in some way accept that and make it clear.
When speaking to an earlier group of amendments, the Minister talked about not dwelling on the failures of the past. That is all well and good, but if you do not dwell a little on the failures of the past you are doomed to repeat them. That is exactly what I have been saying all through our consideration. We have seen repetitions of failures and somehow the police, the Government and the security services do not learn fast enough. I am hoping for a very positive response from the Minister, please. I beg to move my amendment.
I felt that Lord Rosser, made an extremely good point in asking why there should not be greater detail in the Bill now.
The Minister made a very nice and emollient response, but there is always the problem, not in distrusting the Ministers we have here, in your Lordships’ House -we trust them to have good will and be ethical – but in distrusting the Government, as many of us do. I imagine that possibly a majority in the country distrust the Government at the moment. So I do not feel completely reassured, and will think about bringing this back on Report. In the meantime, I beg leave to withdraw the amendment.
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