Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-12-01
Topic: Law and Crime
Keith Stewart (Conservative, Centre-right): My Lords, perhaps I may begin by discussing the question of the test of necessity and proportionality. That test is well recognised and understood in investigatory powers legislation. The drafting in the Bill is consistent with the existing legal framework within which it will be incorporated. I thank the noble Lord, Lord Anderson of Ipswich, for his amendment which seeks to add a requirement for the authorising officer’s belief in the necessity of proportionality for an authorisation to be a reasonable one New Section 29B, which provides for criminal conduct authorisations, has been drafted to align with the existing Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for the use and conduct of a covert human intelligence source. In setting out that a belief must be reasonable only for criminal conduct authorisations, the amendment would risk creating inconsistency and cast doubt on the test to be applied for other authorisations. I refer your Lordships to section 3.10 of the updated CHIS code of practice, which sets out that the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate Amendment 16 from the noble Lord, Lord Paddick, seeks to change the test set out in the Bill for considering whether conduct is necessary and proportionate. Again, the drafting of the Bill is in keeping with the rest of RIPA, where the test for authorisation is that the person granting it holds the belief that the activity is both necessary and proportionate. To remove the reference to "belief" risks introducing inconsistency and casting doubt as to how other provisions should be interpreted It would also be wrong if the necessity and proportionality test were not based on the belief of the authorising officer. A number of contributions have been made in the debate today, and on the previous occasion when we discussed this matter, regarding these decisions being taken in the context of live environments, affecting real people, often in dangerous situations. Decisions will need to be taken based around the particular and specific facts of a case at a particular time, and the specific environment in which covert human intelligence sources find themselves. I seek to reassure the Committee that the authorisation process is intended to be, and has been designed to be, robust—I appreciate that the adjective "robust" has come in for some scrutiny in your Lordships’ House today—and to support those involved in the decision-making process in making the right assessment Your Lordships were concerned with the level of training of CHIS handlers. They and their authorising officers are experienced and must be highly trained. I defer to the personal experience of the noble Lord, Lord Paddick. However, to anticipate what I will say shortly, it is important to bear in mind that we are taking matters forward from today, as opposed to dwelling on the failings of the past. CHIS handlers and authorising officers will have clear and detailed guidance that they must follow in deciding whether to grant an authorisation for criminal conduct. The test for necessity and proportionality is well documented and understood by authorising officers. In addition, the material setting out the rationale of the authorising officer will also be available to the Investigatory Powers Commissioner as part of his oversight function I turn to Amendment 32. The Bill sets out that, in deciding whether an authorisation is both necessary for a defined purpose and proportionate to what it seeks to achieve, the authorising officer must consider whether the intended outcome could be achieved by some other non-criminal conduct. The amendment seeks to ensure that this does not undermine the requirements of the necessity and proportionality test contained in the Bill. It does not. In fact, it enhances the rigour with which the proportionality test will be applied by specifying a factor that must be taken into consideration when proportionality is assessed.