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

2Overview of the Bill

17.The Covert Human Intelligence Sources (Criminal Conduct) Bill amends Part 2 of the Regulation of Investigatory Powers Act 2000 and the equivalent provisions in the Regulation of Investigatory Powers (Scotland) Act 200019 to introduce a new form of authorisation which covers “criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.”20

18.Under the Bill, only a CHIS whose use or conduct has already been authorised (under s.29 RIPA) can be authorised to engage in criminal conduct. A criminal conduct authorisation (CCA) will essentially cover any criminal conduct that forms part of activities specified or described in the authorisation, as long as it is conduct “by or in relation to” the CHIS to whom the authorisation relates and as long as the conduct is carried out for the purposes of, or in connection with, a specified investigation or operation.21 Existing provisions of RIPA establish that an authorisation may extend to conduct outside the United Kingdom.22

19.The effect of the authorisation is to render all conduct carried out in accordance with the authorisation “lawful for all purposes”–effectively granting the CHIS (or the person acting “in relation to” the CHIS) an immunity from criminal prosecution and from civil liability.23 Immunity from civil liability also applies in respect of any conduct that is “incidental” to the authorised conduct.24

20.A CCA may only be made if the person making it believes:

a)That the authorisation is necessary in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom;

b)That the authorisation is proportionate to what is sought to be achieved by the criminal conduct; and

c)That any requirements imposed by order made by the Secretary of State have been met.25

21.When considering whether (a) and (b) above have been met, the person making the authorisation must “take into account” whether the same could be achieved without criminal conduct.26 They must also take into account “other matters so far as they are relevant”, with the Human Rights Act 1998 provided by way of specific example.27

22.The Bill provides the Secretary of State with the power to prohibit the authorisation of particular conduct by order, but the Bill itself contains no specific limits on the criminal conduct that can be authorised.

23.Clause 2 of the Bill provides that CCAs may be made by a wide range of public authorities: “Any police force; The National Crime Agency; The Serious Fraud Office; Any of the intelligence services;28 Any of Her Majesty’s forces; Her Majesty’s Revenue and Customs; The Department of Health and Social Care; The Home Office; The Ministry of Justice; The Competition and Markets Authority; The Environment Agency; The Financial Conduct Authority; The Food Standards Agency; and The Gambling Commission.”

24.The specific rank or office holders within these bodies who would be permitted to grant CCAs will be prescribed by secondary legislation.29 These ‘authorising officers’ are to be the same as those permitted to authorise the use or conduct of a CHIS.

25.The Bill amends the Investigatory Powers Act 2016 to provide that the exercise of the new power to authorise criminal conduct falls within the statutory oversight duties of the Investigatory Powers Commissioner.30 Under the Bill, CCAs are not subjected to any requirement for prior (or prompt) approval by the judiciary or any other body independent of the authorising organisation.

19 To avoid repetition, where the rest of this report refers to RIPA it should also be read as a reference to the equivalent provisions in the Regulation of Investigatory Powers (Scotland) Act 2000.

20 Covert Human Intelligence Sources (Criminal Conduct) Bill (CHIS Bill), Clause 1(2), which inserts a new section 26(1)(d) into RIPA

21 CHIS Bill, Clause 1(5), which inserts a new section 29B(8) to RIPA

24 Unless the incidental conduct could have, and could reasonably have been expected to have, been the subject of an authorisation - see RIPA, section 27(2)

25 CHIS Bill, Clause 1(5) which inserts a new section 29B(4) & (5) RIPA. The Memorandum from the Home Office to the Delegated Powers and Regulatory Reform Committee states that this power to make orders “can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations and/or to restrict the circumstances in which a criminal conduct authorisation may be granted.”

26 CHIS Bill, Clause 1(5) which inserts a new section 29B(6) RIPA. It is notable that the new subsection does not prohibit making an authorisation where the same result could be achieved without criminal conduct.

27 CHIS Bill, Clause 1(5) which creates a new section 29B(7) RIPA

28 “The intelligence services” is defined in the Terrorism Act 2000 and elsewhere as including the Security Service (MI5), the Secret Intelligence Service (MI6) and GCHQ

29 Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, as amended by the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 (SI 2013/2788)

30 CHIS Bill, Clause 4

Published: 10 November 2020