My Lords, I begin by paying tribute to all noble Lords who have contributed to the debates on this Bill. The quality and detail of discussion have been exceptional, and even where the Government have not agreed with the remarks of noble Lords, I recognise the value they have added to the debate. I also thank those noble Lords with whom I have discussed the Bill directly to seek to reach agreement on key issues, and I thank Opposition Front-Benchers in particular for the collaborative approach they have taken. I hope that today, we are able to reach consensus on the issues raised in these amendments, and to provide the certainty and assurance that CHIS and operational partners deserve when this Bill moves on to the statute book.
I have been clear throughout these debates that the Government’s position on this Bill is driven by the need to ensure that this important tactic remains operationally workable. We cannot risk the operation of the tactic or create unintended risk of harm to CHIS, or indeed the wider public, through damaging amendments, even where the sentiment behind them is well-intentioned. However, where we have been able to provide additional reassurances about the safeguards underpinning the power in an operationally workable way, we have welcomed the opportunity to do so. I again thank the noble Lord, Lord Anderson, for his amendments on real-time notification. I hope I can demonstrate that same approach to the amendments we will discuss today.
Amendment 1 would place on the face of the Bill the requirement that an authorising officer must reasonably believe an authorisation is necessary and proportionate. As I have previously confirmed, it is indeed the case that the belief of the authorising officer should be a reasonable one. The revised code of practice confirms this, and in response to concerns raised by noble Lords, this was further amended to make that clear. However, placing this requirement on the face of the Bill risks casting doubt on whether the belief must be reasonable when that is not specified elsewhere—for example, in Section 29 of Part II of RIPA.
However, the Government are willing to be clearer still in the code of practice and specify that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
I thank the noble Lords, Lord Anderson and Lord Paddick, and the noble Baroness, Lady Hamwee, for their engagement on this point, and I hope this provides the necessary reassurance on this issue.
Amendment 2 would place express limits on the face of the Bill. We have discussed at length why this is not workable and risks CHIS testing and harm to the public by enabling the development of wider initiation tests. To be clear, it is the assessment of operational partners that to explicitly rule out rape, for example, would lead to gangs asking potential members to rape people to prove that they are not working on behalf of the state.
Let me once again confirm that the necessity and proportionality tests and the Human Rights Act provide limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful, and this is clear in the training and guidance of all public authorities. I ask all noble Lords to seriously consider, therefore, whether we should risk CHIS testing and serious harm to the public when the practical effect of Amendment 2 is not necessary. The Government will not support this amendment for these reasons, and I implore noble Lords to place weight on the advice of operational experts and do the same.
Amendment 3 relates to the criminal injuries compensation scheme. As I said earlier, the Government are listening to ways of providing additional reassurances to Parliament and the public with regard to the safeguards underpinning this legislation where that is operationally workable. Therefore, recognising the views of noble Lords on Report, we are bringing forward an amendment in lieu which makes it clear that a person can access the compensation scheme where appropriate. Therefore, I hope noble Lords are reassured on this point.
Amendment 4 relates to the authorisation of juveniles and vulnerable adults. Let me start by thanking the noble Baroness, Lady Kidron, my noble friend Lord Young of Cookham and the noble Lords, Lord Russell of Liverpool and Lord Kennedy of Southwark, for their extensive engagement on this issue. I also pay tribute to Stella Creasy MP in the other place. This is an uncomfortable area and I completely understand why many noble Lords’ starting position would be to seek to prohibit any authorisation of a juvenile. The danger of that approach is that in prohibiting their use as a CHIS you increase their use by criminal gangs, which will be reassured that a juvenile cannot be working on behalf of the state.
Amendment 4 recognises this issue, and instead places additional safeguards into the Bill. The Government agree with the sentiment of this amendment but cannot support it in its current form, as it would create operational issues that would risk unintended consequences for the young person or vulnerable adult. For example, the amendment defines exceptional circumstances as those
“where all other methods to gain information have been exhausted”.
This requirement risks the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain the
information, but these may not be the safest way to extricate the juvenile from the situation and lead to the best outcome for the juvenile involved.
Therefore, the Government have brought forward amendments in lieu. These capture the essence of this amendment and provide significant additional safeguards for the authorisations of these groups, but in an operationally workable form. The government amendments make clear that the authorising officer is under a duty to safeguard and promote the best interests of a juvenile and that the authorisation must be compatible with that duty. This reflects Article 3 of the UN Convention on the Rights of the Child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requires the IPC to keep these enhanced safeguards under particular review. The use of such authorisations will therefore be subject to close and independent scrutiny, through both the real-time notification process, regular inspections and the IPC’s annual report, which is laid before Parliament.
I encourage all noble Lords to read the 2019 annual report, published in December last year, and I can quote from IPCO here to provide further reassurance today. The 2019 report stated:
“In the very rare instances when a juvenile is authorised as a CHIS, we conduct a close examination of the case. We examine every such case at inspection and focus on the safety and welfare of the juvenile and check that the use and tasking (conduct) is not endangering the CHIS or leading the juvenile to associate with criminals and environments that they would not otherwise encounter.”
I also reiterate another important point relating to oversight of authorisations. It will never be the case that just one individual in the public authority is involved in the authorisation process. RIPA requires the handler and the authorising officer to be different people, while the code of practice mandates that no authorising officer can authorise themselves, so no single officer could ever take a decision without consulting others.
In addition, recognising the views of noble Lords on Report, the amendments also place the requirement for a juvenile CHIS to be authorised only in exceptional circumstances into the Bill and tighten the existing definition of “exceptional circumstances”. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile, as per Amendment 4.
The amendments in lieu further clarify that an appropriate adult must be in place for any meetings with an individual under the age of 16, and that there is a presumption that an appropriate adult will attend meetings with 16 and 17 year-olds, with any derogation from this position justified in writing. I hope noble Lords recognise the addition of this language to the Bill in response to concerns raised previously. I can also provide reassurance that the same principles apply to the underlying authorisation of the use and conduct of a juvenile CHIS; an appropriate adult must be in place for a meeting with a juvenile under the age of 16, and justification must be provided if one is not in place at meetings with 16 or 17-year olds.
The definition of “vulnerable adults” is deliberately broad so as to capture a wide range of people—including, for example, victims of modern slavery. The amendments recognise that children are a specific subset of vulnerable individuals, due to their age. It is appropriate for there to be consistent safeguards for all juveniles, as the reason for their vulnerability is the same. It is not possible to apply the “exceptional circumstances” requirement to all vulnerable individuals, as they will be considered to be vulnerable for a wide range of reasons and will require different levels of support. The safeguards, while still robust, recognise this distinction. The amendments add additional safeguards for vulnerable individuals, however. These require that an enhanced risk assessment must be carried out; the source must be capable of understanding and consenting to the deployment and any associated risks; and consideration must be given to the best interests of the source.
1.45 pm
These amendments provide significant additional safeguards for the authorisation of any juvenile or vulnerable adult CHIS but, crucially, ensure that there are no unintended consequences for the safety of the CHIS or the operational workability of the tactic. I pay tribute to all who have spoken on this important issue and hope that I have demonstrated the extent to which the Government have listened and, in response, sought to provide additional reassurance and safeguards.
Finally, Amendment 5 relates to real-time notification to the IPC. The Government support this amendment, but are unable to support the further amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, nor indeed the Motion from the noble Lord, Lord Paddick, which threatens the workability of the regime by giving judicial commissioners the power to unilaterally cancel an authorisation. We maintain that it is the authorising officer who is best placed to consider not only the necessity and proportionality of an authorisation but the live operational environment and safety of the CHIS. They are therefore also able to best consider comments from a judicial commissioner in the context of the safety of the CHIS. However, I reassure noble Lords that this does not mean that an authorising officer would simply ignore the comments of a judicial commissioner; they place great weight on their views and will consider any action to be taken in response to concerns. This is a collaborative process and operational partners and IPCO do, and will continue to, work closely together on issues raised by judicial commissioners.
I also reassure the noble Lord, Lord Paddick, that it is already the case that a judicial commissioner would inform a public authority if they felt an authorisation should not have been granted. They may advise the authorising officer that the activity should be reported to the relevant authority—for example, a law enforcement body or prosecutors—and it would then be for prosecutors and a court to determine whether the authorisation was lawful. While the primary responsibility for making that report rests with the public authority, judicial commissioners are also able to refer matters directly to the relevant authorities, including the prosecution services, as per the process set out in Section 232 of the Investigatory Powers Act.
I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for further discussion on this point and recognise that it would be helpful to provide clarity in the code of practice. We will therefore add language to the code which states:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken. Having consulted with a more senior officer, they must, as soon as reasonably practicable, notify the office of the Investigatory Powers Commissioner of the intended action, or where action has been taken, for example in urgent cases, of the action.”
I hope that this provides the necessary reassurance and that noble Lords will support the Government on the amendment
I hope I have sufficiently set out the Government’s position on each of these issues and demonstrated a willingness to seek agreement where possible. The Government seek to put this Bill on to the statute book as soon as possible and I therefore hope we can reach agreement on all issues today. I beg to move.