It is also possible for a supplementary LCM to be issued at a later date.
Thank you for the opportunity to update the committee and then take questions. The Covert Human Intelligence Sources (Criminal Conduct) Bill was introduced in the Westminster Parliament on 24 September. It aims to provide an express statutory power for certain public authorities to authorise a covert human intelligence source—CHIS—to participate in criminal conduct when it is necessary and proportionate to do so. A CHIS can, of course, be vital in gathering essential intelligence that might save lives or protect the public from serious harm, including organised crime and child sexual exploitation.
As it stands, the bill lacks sufficient safeguards. That could be mitigated if prior approval by a judicial commissioner at the Investigatory Powers Commissioner’s Office was required before a criminal conduct authorisation, or CCA, was made. As the bill has progressed, it has become clear that there is cross-party concern about the sufficiency of the safeguards and potential implications for human rights. Additional safeguards that have been called for include but are not limited to setting out in the bill certain conduct that cannot be authorised, limitations on granting CCAs for a juvenile CHIS, and the need to ensure that legitimate trade union and party-political activity is not the subject of any criminal conduct authorisations. I share those concerns, which have been articulated by a number of human rights organisations, including Reprieve and Amnesty International, and I believe that the committee has received written submissions from such organisations.
The bill amends the Regulation of Investigatory Powers Act 2000 and the Regulation of Investigatory Powers (Scotland) Act 2000. The amendments provide for a new CCA that makes conduct lawful for all purposes under that authorisation.
On the convener’s question about legislative consent, the amendments to RIPSA cover operational activity in Scotland by Police Scotland and the Scottish Administration, which means, in practice, the Scottish Prison Service. Amendments to RIPA cover operational activity in Scotland by certain UK bodies, particularly the National Crime Agency and HM Revenue and Customs when they grant an authorisation for the purposes of detecting or preventing crime, or preventing disorder. The bill also amends the related provisions in the Investigatory Powers Act 2016.
I agree that it is sensible to put matters of criminal conduct by a CHIS beyond any doubt for it to be properly regulated and subject to strong safeguards. I would prefer a consistent four-nations approach to the area, but to legislate to allow someone to break the law is a serious matter and any measure must be accompanied by appropriate and stringent safeguards. My strong preference, which I should say is consistent with the views of the Lord Advocate and the chief constable, is for there to be prior approval by a judicial commissioner at IPCO before a CCA is made. That will provide an independent judicial assessment that the authorising officer has made a decision that is necessary and proportionate to what the authorisation aims to achieve.
I have been pressing the UK Government for stronger oversight than currently exists in the bill. I accept that, in the absence of prior judicial approval, it would be acceptable for an amendment to be made requiring notification to IPCO immediately after the CCA is made, but that would be subject to the other concerns that I have mentioned being addressed. That is why I agreed for RIPSA amendments to be included in the bill on introduction.
There has been a good level of engagement with the UK Government but, despite assurances, no such amendments have been tabled. I am aware that an amendment has been proposed in the Lords requiring notification to IPCO within seven days, but that amendment has not been accepted at the time of speaking and my view is that the seven-day period is too long.
I cannot therefore recommend that the Scottish Parliament should consent to the bill. As the bill has progressed, cross-party members have expressed significant and valid concerns in the House of Commons and the House of Lords, and those concerns are set out in the LCM. If the UK Government can make suitable amendments to the bill at the House of Lords report stage, the Government will reconsider its position and bring forward a supplementary LCM if necessary.
I have made it clear to the UK Government that the bill will need to be changed substantially, with greater independent oversight and additional safeguards in relation to the human rights concerns that have been articulated before the Scottish Government can reconsider its position and recommend that the Scottish Parliament consents to the bill.
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