Covert Human Intelligence Sources (Criminal Conduct) Bill (HL Bill 144(Corrected))

A

BILL

TO

Make provision for, and in connection with, the authorisation of criminal conduct in
the course of, or otherwise in connection with, the conduct of covert human
intelligence sources.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Criminal conduct authorisations

1 Authorisation of criminal conduct

(1)Section 26 of the Regulation of Investigatory Powers Act 2000 (conduct to
5which Part 2 of that Act applies) is amended in accordance with subsections (2)
and (3).

(2)In subsection (1)—

(a)omit the “and” at the end of paragraph (b);

(b)at the end of paragraph (c) insert “; and

(d)10criminal conduct in the course of, or otherwise in
connection with, the conduct of covert human
intelligence sources”.

(3)After subsection (8) insert—

(8A)In this Part references to criminal conduct in the course of, or otherwise
15in connection with, the conduct of a covert human intelligence source
are references to any conduct that—

(a)disregarding this Part, would constitute crime, and

(b)consists of, is in the course of, or is otherwise in connection with,
the conduct of a covert human intelligence source.”

(4)20In section 29 of that Act (authorisation of covert human intelligence sources),
after subsection (6) insert—

(6ZA)An authorisation for the conduct or the use of a covert human
intelligence source does not authorise any criminal conduct in the

Covert Human Intelligence Sources (Criminal Conduct) BillPage 2

course of, or otherwise in connection with, the conduct of a covert
human intelligence source (but see section 29B for provision for the
authorisation of such conduct).”

(5)After section 29A of that Act insert—

29B 5Covert human intelligence sources: criminal conduct authorisations

(1)Subject to the following provisions of this Part, the persons designated
for the purposes of this section each have power to grant criminal
conduct authorisations.

(2)A “criminal conduct authorisation” is an authorisation for criminal
10conduct in the course of, or otherwise in connection with, the conduct
of a covert human intelligence source.

(3)A criminal conduct authorisation may only be granted in relation to a
covert human intelligence source after, or at the same time as, an
authorisation under section 29 which authorises the conduct or the use
15of the covert human intelligence source concerned.

(4)A person may not grant a criminal conduct authorisation unless the
person believes—

(a)that the authorisation is necessary on grounds falling within
subsection (5);

(b)20that the authorised conduct is proportionate to what is sought
to be achieved by that conduct; and

(c)that arrangements exist that satisfy such requirements as may
be imposed by order made by the Secretary of State.

(5)A criminal conduct authorisation is necessary on grounds falling
25within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of
preventing disorder; or

(c)in the interests of the economic well-being of the United
30Kingdom.

(6)In considering whether the requirements in subsection (4)(a) and (b) are
satisfied, the person must take into account whether what is sought to
be achieved by the authorised conduct could reasonably be achieved by
other conduct which would not constitute crime.

(7)35Subsection (6) is without prejudice to the need to take into account
other matters so far as they are relevant (for example, the requirements
of the Human Rights Act 1998).

(8)The conduct that is authorised by a criminal conduct authorisation is
any conduct that—

(a)40is comprised in any activities—

(i)which involve criminal conduct in the course of, or
otherwise in connection with, the conduct of a covert
human intelligence source, and

(ii)are specified or described in the authorisation;

(b)45consists in conduct by or in relation to the person who is so
specified or described as the covert human intelligence source
to whom the authorisation relates; and

Covert Human Intelligence Sources (Criminal Conduct) BillPage 3

(c)is carried out for the purposes of, or in connection with, the
investigation or operation so specified or described.

(9)If an authorisation under section 29, which authorises the conduct or
the use of a covert human intelligence source to whom a criminal
5conduct authorisation relates, ceases to have effect, the criminal
conduct authorisation also ceases to have effect so far as it relates to that
covert human intelligence source (but this is without prejudice to
whether the criminal conduct authorisation continues to have effect so
far as it relates to any other covert human intelligence source).

(10)10The Secretary of State may by order—

(a)prohibit the authorisation under this section of any such
conduct as may be described in the order; and

(b)impose requirements, in addition to those provided for by
subsections (3) and (4), that must be satisfied before an
15authorisation is granted under this section for any such conduct
as may be so described.”

Authorising authorities

2 Authorities to be capable of authorising criminal conduct

(1)Section 30 of the Regulation of Investigatory Powers Act 2000 (persons entitled
20to grant authorisations under sections 28 and 29 of that Act) is amended in
accordance with subsections (2) to (8).

(2)In the heading, for “and 29” substitute “, 29 and 29B”.

(3)In subsection (1), for “and 29” substitute “, 29 and 29B”.

(4)In subsection (2)(a), for “or 29” substitute “, 29 or 29B”.

(5)25In subsection (3)(a), for “and 29” substitute “, 29 and 29B”.

(6)In subsection (4)—

(a)in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b)omit the “and” at the end of paragraph (a);

(c)in paragraph (b), for “I” substitute “A1 or 1”;

(d)30at the end of paragraph (b) insert “; and

(c)in relation to section 29B if it is specified in Part A1 of
that Schedule”.

(7)In subsection (5)—

(a)in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b)35in paragraph (c), for “the other” substitute “another”.

(8)In subsection (7)—

(a)in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b)in paragraph (b), for the words from “from” to the end of that
paragraph substitute “from—

(i)40Part 1 or 2 to Part A1 of that Schedule, or

(ii)Part 2 to Part 1 of that Schedule,”.

(9)In Schedule 1 to that Act (relevant public authorities for the purposes of Part 2
of that Act), before Part 1 (relevant authorities for the purposes of sections 28

Covert Human Intelligence Sources (Criminal Conduct) BillPage 4

and 29 of that Act) insert—

“Part A1 Relevant authorities for the purposes of ss. 28, 29 and 29B

Police forces etc

A15Any police force.

B1The National Crime Agency.

C1The Serious Fraud Office.

The intelligence services

D1Any of the intelligence services.

10

The armed forces

E1Any of Her Majesty’s forces.

Revenue and Customs

F1Her Majesty’s Revenue and Customs.

Government departments

G115The Department of Health and Social Care.

H1The Home Office.

I1The Ministry of Justice.

Other bodies

J1The Competition and Markets Authority.

K120The Environment Agency.

L1The Financial Conduct Authority.

M1The Food Standards Agency.

N1The Gambling Commission.”

Scotland

3 25Corresponding provision for Scotland

Schedule 1 contains amendments to the Regulation of Investigatory Powers
(Scotland) Act 2000 (asp 11) which correspond to those made by this Act to the
Regulation of Investigatory Powers Act 2000.

Covert Human Intelligence Sources (Criminal Conduct) BillPage 5

Oversight by the Investigatory Powers Commissioner

4 Oversight by the Investigatory Powers Commissioner

(1)The Investigatory Powers Act 2016 is amended as follows.

(2)In section 229 (main oversight functions), after subsection (4), insert—

(4A)5In keeping matters under review in accordance with subsection (3)(e)
or (g), the Investigatory Powers Commissioner must, in particular,
keep under review the exercise of the power to grant authorisations
under section 29B of the Regulation of Investigatory Powers Act 2000
or (as the case may be) section 7A of the Regulation of Investigatory
10Powers (Scotland) Act 2000 (criminal conduct authorisations).”

(3)In section 234 (annual and other reports of the Investigatory Powers
Commissioner), in subsection (2), after paragraph (b) insert—

(ba)information about the use of the power to grant authorisations
under section 29B of the Regulation of Investigatory Powers Act
152000 or section 7A of the Regulation of Investigatory Powers
(Scotland) Act 2000 (criminal conduct authorisations),”.

General and final provision

5 Consequential provision

Schedule 2 contains consequential amendments.

6 20Commencement and transitional provision

(1)This section and section 7 come into force on the day on which this Act is
passed.

(2)The other provisions of this Act come into force on such day as the Secretary of
State may by regulations appoint; and different days may be appointed for
25different purposes or areas.

(3)The Secretary of State may by regulations make transitional or saving
provision in connection with the coming into force of any provision of this Act.

(4)The power to make regulations under subsection (3) includes power to make
different provision for different purposes or areas.

(5)30Regulations under this section are to be made by statutory instrument.

7 Extent and short title

(1)Subject to subsection (2), this Act extends to England and Wales, Scotland and
Northern Ireland.

(2)Any provision of this Act which amends or repeals an enactment has the same
35extent as the enactment amended or repealed.

(3)In subsection (2), “enactment” includes an Act of the Scottish Parliament.

(4)This Act may be cited as the Covert Human Intelligence Sources (Criminal
Conduct) Act 2020.

Covert Human Intelligence Sources (Criminal Conduct) BillPage 6

SCHEDULES

Section 3

Schedule 1 Corresponding amendments to the Regulation of Investigatory Powers
(Scotland) Act 2000

5Introductory

1The Regulation of Investigatory Powers (Scotland) Act 2000 (asp 11) is
amended as follows.

Authorisation of criminal conduct

2(1)Section 1 (conduct to which that Act applies) is amended as follows.

(2)10In subsection (1)—

(a)omit the “and” at the end of paragraph (b);

(b)at the end of paragraph (c) insert “; and

(d)criminal conduct in the course of, or otherwise in
connection with, the conduct of covert human
15intelligence sources”.

(3)After subsection (7) insert—

(7A)In this Act references to criminal conduct in the course of, or
otherwise in connection with, the conduct of a covert human
intelligence source are references to any conduct that—

(a)20disregarding this Act, would constitute crime, and

(b)consists of, is in the course of, or is otherwise in connection
with, the conduct of a covert human intelligence source.”

3In section 7 (authorisation of covert human intelligence sources), after
subsection (5) insert—

(5A)25An authorisation for the conduct or the use of a covert human
intelligence source does not authorise any criminal conduct in the
course of, or otherwise in connection with, the conduct of a covert
human intelligence source (but see section 7A for provision for the
authorisation of such conduct).”

430After section 7 insert—

7A Covert human intelligence sources: criminal conduct authorisations

(1)Subject to the following provisions of this Act, the persons
designated for the purposes of this section each have power to grant
criminal conduct authorisations.

Covert Human Intelligence Sources (Criminal Conduct) BillPage 7

(2)A “criminal conduct authorisation” is an authorisation for criminal
conduct in the course of, or otherwise in connection with, the
conduct of a covert human intelligence source.

(3)A criminal conduct authorisation may only be granted in relation to
5a covert human intelligence source after, or at the same time as, an
authorisation under section 7 which authorises the conduct or the
use of the covert human intelligence source concerned.

(4)A person may not grant a criminal conduct authorisation unless that
person is satisfied—

(a)10that the authorisation is necessary for the purpose of
preventing or detecting crime or of preventing disorder;

(b)that the authorised conduct is proportionate to what is
sought to be achieved by that conduct; and

(c)that arrangements exist that satisfy such requirements as
15may be imposed by order made by the Scottish Ministers.

(5)In considering whether the requirements in subsection (4)(a) and (b)
are satisfied, the person must take into account whether what is
sought to be achieved by the authorised conduct could reasonably be
achieved by other conduct which would not constitute crime.

(6)20Subsection (5) is without prejudice to the need to take into account
other matters so far as they are relevant (for example, the
requirements of the Human Rights Act 1998).

(7)The conduct that is authorised by a criminal conduct authorisation is
any conduct that—

(a)25is comprised in any activities—

(i)which involve criminal conduct in the course of, or
otherwise in connection with, the conduct of a covert
human intelligence source, and

(ii)are specified or described in the authorisation;

(b)30consists in conduct by or in relation to the person who is so
specified or described as the covert human intelligence
source to whom the authorisation relates; and

(c)is carried out for the purposes of, or in connection with, the
investigation or operation so specified or described.

(8)35If an authorisation under section 7, which authorises the conduct or
the use of a covert human intelligence source to whom a criminal
conduct authorisation relates, ceases to have effect, the criminal
conduct authorisation also ceases to have effect so far as it relates to
that covert human intelligence source (but this is without prejudice
40to whether the criminal conduct authorisation continues to have
effect so far as it relates to any other covert human intelligence
source).

(9)The Scottish Ministers may by order—

(a)prohibit the authorisation under this section of any such
45conduct as may be described in the order; and

(b)impose requirements, in addition to those provided for by
subsections (3) and (4), that must be satisfied before an
authorisation is granted under this section for any such
conduct as may be so described.”

Covert Human Intelligence Sources (Criminal Conduct) BillPage 8

Authorising authorities

5(1)Section 8 (persons entitled to grant authorisations under sections 6 and 7 of
that Act) is amended as follows.

(2)In the heading, for “and 7” substitute “to 7A”.

(3)5In subsection (1), for “and 7” substitute “to 7A”.

(4)In subsection (2)(a), for “and 7” substitute “to 7A”.

(5)After subsection (3) insert—

(3A)A public authority is a relevant public authority for the purposes of
this section in relation to section 7A above if it is—

(a)10the Police Service; or

(b)the Scottish Administration.”

(6)In subsection (4)—

(a)after “subsection (3)” insert “or (3A)”;

(b)in paragraph (a) for “that subsection” substitute “the subsection
15concerned”.

Police authorisations

6In section 11 (rules for grant of authorisations), in subsection (1), for “or 7”
substitute “, 7 or 7A”.

General rules about grant, renewal, duration and cancellation

7(1)20Section 19 (general rules about grant, renewal and duration) is amended as
follows.

(2)In subsection (3)(b), after “source” insert “or is an authorisation under
section 7A”.

(3)In subsection (6), after “source” insert “or an authorisation under section
257A”.

8(1)Section 20 (cancellation of authorisations) is amended as follows.

(2)In subsection (1)—

(a)in paragraph (a), after “7(2)(a) and (b)” insert “, 7A(4)(a) and (b)”;

(b)omit the “or” at the end of that paragraph;

(c)30at the end of paragraph (b) insert “; or

(c)in the case of an authorisation under section 7A, if
satisfied that any arrangements for the source’s case
required to satisfy any requirements mentioned in
subsection (4)(c) of that section no longer exist”.

(3)35In subsection (2), for “either” substitute “any”.

(4)In subsection (2A), for “either” substitute “any”.

(5)In subsection (2B), for “either” substitute “any”.

Covert Human Intelligence Sources (Criminal Conduct) BillPage 9

Section 5

Schedule 2 Consequential amendments

Part 1 Regulation of Investigatory Powers Act 2000

5Introductory

1The Regulation of Investigatory Powers Act 2000 is amended as follows.

Orders under section 30 for Northern Ireland

2In section 31 (orders under section 30 for Northern Ireland), in subsection
(1), after “authorisations” insert “under section 28 or 29”.

10Police and Revenue and Customs authorisations

3(1)Section 33 (rules for grant of authorisations) is amended as follows.

(2)In subsection (1), for “or 29” substitute “, 29 or 29B”.

(3)In subsection (1ZB), for “or 29” substitute “, 29 or 29B”.

(4)In subsection (1ZC)(b), for “or 29” substitute “, 29 or 29B”.

(5)15In subsection (1A), for “or 29” substitute “, 29 or 29B”.

(6)In subsection (2), for “or 29” substitute “, 29 or 29B”.

4(1)Section 33A (further provision about granting authorisations in cases where
the National Crime Agency is party to a collaboration agreement) is
amended as follows.

(2)20In subsection (2), for “or 29” substitute “, 29 or 29B”.

(3)In subsection (3), for “or 29” substitute “, 29 or 29B”.

(4)In subsection (4), for “or 29” substitute “, 29 or 29B”.

General rules about grant, renewal, duration and cancellation

5(1)Section 43 (general rules about grant, renewal and duration) is amended as
25follows.

(2)In subsection (3)(b), after “source” insert “or is an authorisation under
section 29B”.

(3)In subsection (6), after “source” insert “or an authorisation under section
29B”.

6(1)30Section 45 (cancellation of authorisations) is amended as follows.

(2)In subsection (1)—

(a)in paragraph (a), after “29(2)(a) and (b)” insert “, 29B(4)(a) and (b)”;

(b)omit the “or” at the end of that paragraph;