Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill Contents


1.The Covert Human Intelligence Sources (Criminal Conduct) Bill was introduced in the House of Commons on 23 September 2020. The Bill grants certain public authorities the power to authorise informants, covert agents and undercover officers to commit criminal offences, granting them immunity from criminal and civil liability.

Key human rights issues

2.The Bill raises a number of human rights issues:

a)Authorised criminal offences have the clear potential to interfere with a wide range of qualified and absolute rights, including those guaranteed by the European Convention on Human Rights (ECHR) and Human Rights Act 1998 (HRA);

b)Without effective safeguards, authorising criminal conduct risks violating the procedural obligation to carry out effective investigations, capable of leading to the punishment of those responsible, into deaths that involve the State (Article 2 ECHR) and into allegations of torture or mistreatment in breach of Article 3 ECHR;1 and

c)By removing criminal and civil liability, the Bill also threatens the right of victims to an effective remedy for a breach of human rights (Article 13 ECHR).

3.Given the Committee’s significant concerns about the Bill’s ability to safeguard human rights, the Annex contains a number of suggested amendments to Bill.


4.The Covert Human Intelligence Sources (Criminal Conduct) Bill was introduced in the House of Commons on 23 September 2020. It was debated at second reading on 5 October. Committee and report stages, and third reading, all took place on 15 October. This was an unhelpfully contracted timetable for a Bill with such serious consequences for human rights and the rule of law.

5.The Bill passed to the House of Lords for first reading on 19 October 2020. Second reading in the Lords is scheduled for 11 November.

6.The Committee launched an inquiry into the Bill on 30 September 2020. Given the contracted timetable for the passage of the Bill, our inquiry has been condensed. We received eight pieces of written evidence in response to our call for evidence, for which we are grateful. We wrote to the Home Secretary outlining some of our concerns with the Bill on 12 October. A response, from the Minister of State for Security, was provided on 4 November.2

Policy background

7.The Explanatory Notes that accompanied the Bill explained that its purpose is to:

“[…] provide a statutory power for the security and intelligence agencies, law enforcement agencies and a limited number of other public authorities to authorise Covert Human Intelligence Sources (CHIS) to participate in criminal conduct where it is necessary and proportionate to do so for a limited set of specified purposes.”3

8.The Explanatory Notes also state that CHIS participation in criminal conduct “is not new activity. [The Bill] puts existing practice on a clear and consistent statutory footing.”4

9.The existence of a previously secret policy governing the authorisation of criminal conduct by the Security Service (MI5) became public in the course of litigation before the Investigatory Powers Tribunal (IPT), in a case known as the ‘Third Direction’ challenge.5 Ultimately a narrow 3–2 majority of the IPT held that the policy was lawful. The minority judgments concluded that the policy was not lawful because it had no statutory basis.6 The claim is now pending before the Court of Appeal.

10.It is against the background of the ongoing Third Direction challenge, and divided judicial views on the legal need for a clearer statutory footing for a policy on CHIS and criminal conduct, that the Bill has been brought forward on an expedited basis. However, the Bill goes further than the policy under scrutiny before the IPT, covering authorisations by numerous public authorities, rather than just the intelligence services, and providing an immunity from criminal and civil liability rather than just a factor for a prosecutor to take into account.

What is a CHIS?

11.Covert Human Intelligence Source or ‘CHIS’ is a term introduced by the Regulation of Investigatory Powers Act 2000 (RIPA).7 It covers anyone who establishes or maintains a relationship with another person in order to secretly obtain or access information. CHIS may be civilian ‘informants’ or ‘agents’, or they may be persons holding an office or position within a public authority (such as an undercover police officer). A CHIS within this latter group is referred to as a “relevant source”.8 The authorisation and deployment of CHIS is governed by Part 2 of RIPA and by a Code of Practice published by the Home Office. A revised draft of this Code of Practice was published together with the Bill.9

Role of CHIS - importance and concerns

12.The importance of CHIS in fighting serious crime and protecting national security is beyond dispute. The Explanatory Notes to the Bill describe the use of CHIS as “a key tactic in protecting national security and investigating serious crime” which has “played a crucial part in preventing and safeguarding victims from many serious crimes including terrorism, drugs and firearms offences and child sexual exploitation. This has included helping to identify and disrupt many of the terrorist plots our agencies have stopped.”10

13.It is also clear that, in certain circumstances, it may be necessary for CHIS to engage in conduct that is against the criminal law. At second reading, the Minister for Security gave the example of a CHIS being:

“[…] required to join the organisation that they are seeking to disrupt. This membership alone will sometimes be criminal but will be deemed necessary and proportionate to prevent more serious criminality from taking place. Again, without going into the specifics, the use of that tactic enabled the police and MI5 to disrupt a planned terrorist attack on No. 10 and the then Prime Minister in 2017.”11

14.In addition to its successes, however, the use of undercover agents or CHIS has also given rise to serious abuses of power and human rights violations. The Undercover Policing Inquiry was set up in 201512 in response to independent reviews by Mark Ellison QC, which found “appalling practices in undercover policing”.13 The work of the Undercover Policing Inquiry is wide-ranging and ongoing. The inquiry began hearing evidence on 2 November 2020 and these hearings are expected to last at least three years.14

15.Submissions to the Committee focused on the need for the Bill to contain effective safeguards against abuse and drew our attention to examples of human rights violations involving CHIS, including:

a)Undercover police officers entering into long-term intimate relationships with female members of protest groups. In one relationship a child was fathered by an undercover officer without the mother or child being aware of his true identity. The Minister for Security confirmed during the second reading debate on the Bill that:

“It has never been acceptable, as the police have said, for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target, or who they may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic in deployment.”15

b)The deployment of an undercover police officer into one of the groups seeking to influence the family of the murdered teenager, Stephen Lawrence, during the Macpherson Inquiry. This officer was described by Mark Ellison QC, in his Home Office commissioned investigation into allegations of police corruption, as “an MPS spy in the Lawrence family camp during the course of judicial proceedings in which the family was the primary party in opposition to the MPS”.16

c)The 1989 murder of Belfast lawyer, Pat Finucane, by a loyalist group that had been infiltrated by undercover agents. The Government accepted the findings of Sir Desmond de Silva in his 2012 review into the murder “that a series of positive actions by employees of the State actively furthered and facilitated [Patrick Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”17 In his statement to the House of Commons on 12 December 2012, Mr David Cameron, then Prime Minister, said:

“The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agencies in murder, is totally unacceptable. We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise. Collusion should never, ever happen.”18

16.These are examples of abuses that have happened in the past. They serve to remind us that without carefully considered safeguards and effective oversight, the use of informants and undercover agents can lead to appalling human rights violations.

1 The UK is under a procedural obligation under Article 2 ECHR (right to life) to conduct effective investigations into deaths and a very similar obligation under Article 3 ECHR (prohibition on torture and inhuman and degrading treatment) to conduct effective investigations into allegations of treatment that violates that Article. This is an obligation of means not ends, but it has been interpreted as requiring the investigation to be capable of identifying the perpetrator and imposing an appropriate punishment.

2 Letter from Rt Hon James Brokenshire MP, Minister of State for Security, regarding the Covert Human Intelligence Sources (Criminal Conduct) Bill, dated 4 November 2020

5 Privacy International and Others v Secretary of State for Foreign and Commonwealth Affairs and Others [2019] UKIPTrib IPT_17_186_CH

6 This is the first time a public judgment of the IPT has included a dissent

7 Regulation of Investigatory Powers Act 2000 (RIPA), section 26(8). Essentially the same definition appears in the Regulation of Investigatory Powers (Scotland) Act 2000, section 1(7)

8 Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 (SI 2013/2788)

11 HC Deb, 5 October 2020, col 652

13 HC Deb, 6 March 2016, col 1061

14 In May 2018 Sir John Mitting, Chairman of the Undercover Policing Inquiry, published a strategic review which included “an ambitious timeline”. This timeline proposed delivering the Final Report to the Home Secretary in December 2023, but it was based on hearings commencing in the summer of 2019.

15 HC Deb, 5 October 2020, col 657

16 Mark Ellison QC, The Stephen Lawrence Independent Review: Possible corruption and the role of undercover policing in the Stephen Lawrence case: Summary of Findings, HC 1084, March 2014, p 23

17 The Rt Hon Sir Desmond de Silva QC, The Report of the Patrick Finucane Review, HC 802-I, December 2012, para 115

18 HC Deb, 12 December 2012, col 295

Published: 10 November 2020