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

3Human rights implications of the Bill

26.The essential purpose of this Bill, providing a statutory basis for a necessary element of undercover work that has hitherto been authorised by secret policies, is positive and to be welcomed. Conduct that risks interference with human rights should not be carried out without clear legal authority. More specifically, the European Convention on Human Rights (ECHR), incorporated into domestic law through the Human Rights Act 1998 (HRA), requires any power that interferes with a qualified right to be “prescribed by law”.31 This means that it must have a basis in domestic law and that this law must: (a) be adequately accessible to the public; (b) be formulated with sufficient precision to allow the public to foresee the circumstances in which and the conditions on which the power may be exercised; and (c) contain legal safeguards against abuse.32

27.While a move away from secret internal policies on the authorisation of criminal conduct by CHIS to an Act of Parliament is to be welcomed, submissions to the Committee have raised serious questions as to whether the Bill provides adequate safeguards for a power that poses severe risks to human rights. In his submission, Professor Clive Walker, Professor Emeritus at the University of Leeds and Senior Special Advisor to the Independent Reviewer of Terrorism Legislation, states that there is “a need for a far more comprehensive and considered response to the problems inevitably engendered by CHIS” and that “there is a chasm between the Covert Human Intelligence Sources (Criminal Conduct) Bill and the extent of reform now required.”33 Concerns of this kind emphasise why it is regrettable that the Bill has received such a rushed passage through the House of Commons.

Engagement of human rights

28.The ECHR memorandum provided with the Bill states that “[i]t would be impossible to seek to identify which if any of the Convention rights may or may not be engaged by any particular authorisation of criminal conduct.”34 Regardless of whether that is indeed the case, what is obvious is that authorising criminal conduct has clear potential to engage ECHR rights.35 For example, authorising a CHIS to use violence or otherwise act in a way that results in a person’s death would violate Article 2 ECHR (the right to life); authorising a CHIS to engage in non-fatal physical violence is likely to violate the victim’s rights under Article 8 ECHR (the right to respect for private life, which includes respect for bodily integrity) or Article 3 ECHR (the prohibition on torture and inhuman or degrading treatment or punishment);36 authorising a CHIS to steal or handle stolen property will likely violate a victim’s rights under Article 1 of Protocol 1 ECHR (the right to peaceful enjoyment of possessions); and authorising a CHIS to detain someone against their will is likely to violate their rights under Article 5 ECHR (the right not to be unlawfully deprived of your liberty). Conversely, there will be some circumstances in which criminal conduct will not engage Convention rights. For example, authorising a CHIS to profess membership of a proscribed organisation will be criminal but will not, in of itself, infringe human rights.

29.The process of authorising criminal conduct will engage state responsibility. The State will be responsible under the ECHR for human rights violations carried out by its agents in the performance of their duties. The State will also be responsible if it fails to take reasonable steps to protect an individual from an anticipated breach of Article 2 (the right to life) or Article 3 (prohibition on torture) by a third party. Furthermore, “the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention.”37 Criminal conduct may also impose obligations on the State to investigate human rights violations and to provide an effective remedy to those whose rights have been abused.38

30.While it may be lawful to interfere with qualified human rights such as the right to respect for private life (Article 8) or the right to peaceful enjoyment of possessions (Article 1 of Protocol 1) where it is deemed necessary and proportionate, the law must still contain adequate safeguards against abuse. Furthermore, other rights under the ECHR are absolute and unqualified. For example, there is no situation in which it would be lawful for a public authority to authorise conduct that amounts to torture or inhuman or degrading treatment or punishment. Similarly, authorising a CHIS to kill (other than in self-defence or defence of another) would inevitably violate Article 2 (the right to life).

31.Removing the authorisation of criminal conduct by CHIS from secretive policies and placing it on a statutory footing is welcome. However, the obvious potential for authorised criminal conduct to interfere with human rights means that the Bill must contain effective protections against human rights violations, including stringent safeguards against unnecessary or abusive authorisations.

31 This is the language used in Article 5, Article 10 and Article 11 ECHR. Article 8 ECHR uses the alternative phrase “in accordance with the law” but this has essentially the same meaning (see, for example, Gillan and Quinton v Commissioner of Police of the Metropolis [2006] UKHL 12 at [31])

32 Even in the context of secret surveillance - see Malone v United Kingdom (1985) 7 EHRR 14 at [66]-[68] See also Gillan and Quinton v Commissioner of Police of the Metropolis at [34]. “The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.”

33 Emeritus Professor Clive Walker (CHIS0007)

34 Home Office, ECHR memorandum

35 That is, the rights of the ECHR included in schedule 1 to the Human Rights Act 1998

36 Article 3 ECHR does not contain a specific definition of torture. Torture is defined in Article 1(1) of the UN Convention on Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (emphasis added).

37 Ilascu v Moldova (App. No. 48787/99) at [318]

38 See further Chapter 8 below

Published: 10 November 2020