My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.
The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.
The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that
“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]
We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere
expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.
On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.
The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be
“inappropriate to create an exception to the effect of”
CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.
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Finally, with regards to children and vulnerable adults, I appreciate that a lot of people have put a lot of work in to get to this point. The House was very clear, as shown by the substantial majority in the Division, about its concern to safeguard children. Under-18s are technically juveniles, but that sounds diversionary. I admit that, then and now, I am very uneasy that we could not have achieved a complete prohibition, but we welcome the change to the Bill—though I do have some questions.
The first is on the term “exceptional circumstances”, to which the Minister has referred. We believe that any authorisation given to a child should be exceptional, but that does not seem to be quite how the clause works. Can the Minister confirm that, first, the authorising officer will consider whether there are exceptional circumstances requiring the use of a child, and that, if it is reasonably foreseeable that granting an authorisation could lead to harm to the child, it should not be granted? I believe that the same approach should apply to vulnerable adults, because each such adult and each child is an individual with individual characteristics and in individual situations.
Secondly, on the definition of “harm”, the amendment refers to physical injury or psychological distress. I asked the Minister this question privately last week, so I hope that she can help with it: does psychological distress include injury? There may be an authority in case law for that. Certainly, in everyday language “distress” does not cover the damage we know can be caused by an extreme experience. I expect we may be told that there will be a trauma-informed approach, but I would like to understand how this works for both children and vulnerable adults.
Finally, on appropriate adults and appropriate arrangements, the amendment deals with meetings to represent a child’s interests and do whatever is necessary for the child’s welfare—these are the terms used in the amendment. Is it not necessary for there to be more than a presence at meetings? I assume that an adult can intervene at a meeting, but what is the extent of the intervention permitted? Can the adult discuss the situation with the child outside the meeting, or is the term “meeting” expandable? Can the adult advise the child? Can the adult have access to discuss the matter with an authorising officer? I welcome the provision, but I am sorry that it will not apply automatically to all 16 and 17 year-olds. In the case of a child, the authorising officer must believe that the authorisation would be “compatible” with safeguarding the needs and promoting the best interests of the child. In the case of a vulnerable adult, these matters need only to be “taken into account”. The obvious question is, why the distinction? It must be that it is not required to withhold authorisation in the case of an adult if it is incompatible. I am concerned about this because we do not—and I am sure the Government do not—want to see a tick-box exercise.
We remain very uncomfortable with the thought of using any of the individuals I have referred to as spies, but I appreciate that that is not what the Bill is about. My final question to the Minister is this: will the Government consider applying these safeguards to all children used as covert sources and making that a formality, either through secondary legislation or at least through the code of practice?