4Limits on the criminal conduct that can be authorised
No express limit on type of crime that can be authorised
32.The Bill contains no express limit on the types of criminal conduct that can be authorised. Even the most serious offences such as rape, murder, sexual abuse of children or torture, which would necessarily violate a victim’s human rights, are not excluded on the face of the Bill.
33.The Home Office have argued that specifying offences that cannot be authorised would risk exposing actual and suspected informants and undercover officers to tests designed to expose their subterfuge:
“The Bill does not list specific crimes which may be authorised, or prohibited, as to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”39
Approach taken in other jurisdictions
34.Placing no express limit on the types of crimes that can be authorised is not the approach that has been taken in other jurisdictions, where the same risks of CHIS being ‘tested’ would apply.
35.In their joint written submission to the Committee, the NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International, and Big Brother Watch40 have noted that under the Canadian Security Intelligence Act there is a power to authorise criminal conduct similar to that proposed in the Bill.41 However, the Canadian legislation expressly provides that nothing in the Act justifies:
(a) causing, intentionally or by criminal negligence, death or bodily harm to an individual;
(b) wilfully attempting in any manner to obstruct, pervert or defeat the course of justice;
(c) violating the sexual integrity of an individual;
(d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;
(e) detaining an individual; or
(f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.42
36.The Committee’s attention was also drawn to the situation prevailing in the USA. There the FBI have operated since 2016 under guidelines that do not permit an informant to “participate in any act of violence except in self-defense.”43
37.In his submission to the Committee, Professor Clive Walker also referred us to Australian Federal law and specifically the Crimes Act 1914. Part 1AB of this Act contains, amongst other matters, detailed provision for “controlled operations” (i.e. law enforcement operations which may involve officers or civilian participants in criminal conduct). The Act provides protection from criminal responsibility and indemnification for civil liability44 where authority for criminal conduct has been given, but only where:
“[…] the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person.45
Power to prohibit certain conduct by order
38.It is also hard to reconcile the Government’s claim that no express limit can be placed on the types of crime that are authorised under the Bill with the fact that the Bill grants the Secretary of State power to make orders prohibiting the authorisation of any specified criminal conduct.46 It is unclear for what purpose this power has been reserved,47 but, following the Government’s argument, whatever might be prohibited by order could be used by criminals as a checklist to test CHIS against. If limits can be placed on authorised criminal conduct in publicly available secondary legislation without putting informants and undercover officers at undue risk, it is unclear why express limits cannot also be set out in primary legislation.
The HRA as an effective safeguard
39.The Government’s position is that the HRA already imposes an effective limit on the criminal conduct that could be authorised under the Bill. This point is made in the ECHR memorandum which accompanied the Bill. It states that since all public authorities are bound by the HRA, “[a]uthorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”48
40.Reliance on the HRA as providing an effective limit on the conduct that can be authorised appears inconsistent with the Government’s justification for its refusal to exclude specific offences on the face of the Bill. If a criminal gang or terrorist group was familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees and protections set out in the HRA.
41.The underlying assumption that the HRA provides sufficient protection against excessive or inappropriate authorisations is troubling. It is correct, as a matter of law, that the HRA requires all public authorities to comply with Convention rights. However, this does not make it appropriate to legislate by providing open-ended powers and relying on the HRA as a safety net. For example, it would not be reasonable to provide the police with an unconstrained statutory power to deprive someone of their liberty or to break up political demonstrations, relying only on the HRA and Article 5 (right not to be arbitrarily detained) or Article 11 ECHR (right to free assembly) to prevent that power being used in a manner that violates individual rights.
42.The Government should not introduce unclear and ambiguous laws that would, on their face, purport to authorise state-sanctioned criminality that would lead to serious human rights violations such as murder, sexual offences and serious bodily harm. The existence of the HRA does not alter this.
43.The claim that the HRA provides sufficient protection to prevent any breach of human rights under this Bill in particular also appears problematic for the following additional reasons.
44.Firstly, the HRA has not prevented previous human rights violations connected with undercover investigations or CHIS. For example, the HRA was in force for much of the period when undercover police officers of the National Public Order Intelligence Unit were engaging in intimate relationships with women involved in the groups they had infiltrated.49
45.Secondly, there are likely to be legal disagreements as to the extent to which the HRA applies to the conduct of CHIS (particularly those who are not office holders or employees of public authorities). For example, in the ECHR memorandum to the Bill the Home Office states that:
“It is to be expected that there would not be State responsibility under the Convention for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct, rather than acquiesce in or otherwise give official approval for such conduct, and/or where the conduct would take place in any event.”50
46.In their submission to the Committee, Reprieve et al noted that “[i]f this analysis is correct, an informant could be authorised to actively participate in, for example, a punishment beating or shooting, on grounds that the perpetrator intended to disrupt crime or that the shooting ‘would take place in any event’.”51
47.The position taken by the Home Office in the ECHR memorandum is concerning. In respect of criminal conduct that violates absolute rights, such as the right to life and the prohibition on torture, the intention behind that conduct cannot justify the violation. That is the nature of an absolute right. Furthermore, as Dr Paul F. Scott, Senior Lecturer in Law at the University of Glasgow, commented in his submission to the Committee “to suggest the state bears no responsibility because the conduct may have taken place even without an authorisation is wholly unconvincing.”52
48.In any event, the position taken by the Home Office in the ECHR memorandum shows that the Government does not accept that the HRA applies to authorised criminal conduct by CHIS in every circumstance. This suggests that, even from the Government’s perspective, there are gaps in the protection the HRA provides against abuse of the authorisation of criminal conduct under the Bill.
49.There is even less clarity in respect of the protection provided by the HRA where criminal conduct by CHIS occurs overseas.53 The extra-territorial effect of the HRA and ECHR is far from straightforward, depending as it does on establishing the exercise of effective control over a person or area. Its precise scope has been fiercely disputed by the Government in a number of legal challenges.54 It is therefore questionable whether public authorities authorising CHIS overseas would accept that they are bound by the requirements of the HRA.
50.Thirdly, the future of the HRA is far from certain. In its manifesto for the 2019 general election the Conservative Party pledged to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.55 In a recent letter to the Chair of the JCHR, the Justice Secretary confirmed that the Government will “announce further details on an independent review into the operation of the HRA in due course.”56 Uncertainty over the future of the HRA undermines its role as an effective long term protector against abuses of the power contained in this Bill.
51.Fourthly, there is very little scope for human rights violations to be brought to light when they result from CCAs that go further than the HRA would permit. This is because the fact that criminal conduct has been authorised will be secret, and thus highly unlikely to be discovered by any victim who might draw attention to that fact. In the rare event that a victim is aware that the crime committed against them has been authorised by the State, the CCA provides the criminal with immunity in both criminal and civil law. While the Bill does provide an oversight mechanism, it is incapable of picking up on every unnecessary or disproportionate authorisation (see Chapter 7 below).
52.There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation. The protections provided by the HRA are important. However, reliance on the HRA to make up for the lack of any specific constraint on the type of criminal conduct that can be authorised is inadequate. A power as exceptional as that provided by the Bill requires careful and specific constraints.
53.The Bill requires amendment to include a prohibition on the authorisation of serious criminal offences, in similar terms to that appearing in the Canadian Security Intelligence Service Act.
39 Home Office, Guidance: Limits of Authorised Conduct, 1 October 2020
40 For the sake of brevity, these NGOs will be referred to as “Reprieve et al” for the rest of this report.
42 Canadian Security Intelligence Service Act at section 20(18)
44 It is noteworthy that this Act provides for indemnification rather than the removal of civil liability, thus protecting the victim’s ability to obtain redress.
47 The Memorandum from the Home Office to the Delegated Powers and Regulatory Reform Committee states that this power “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.” It offers by way of example a similar power (contained in s29 RIPA) which has been used to impose “specific requirements that must be met in relation to the authorisation of CHIS in connection with material that is subject to legal professional privilege.”
48 Home Office, ECHR memorandum
49 For example, PC Mark Kennedy of the National Public Order Intelligence Unit, whose undisclosed undercover involvement led a trial of environmental protesters to collapse. His intimate relationships with women involved in the groups he had infiltrated took place after the HRA came into force in 2000. See the Home Affairs Committee, Thirteenth Report of Session 2012–13, Undercover Policing: Interim Report, HC 837
50 Home Office, ECHR memorandum, para 16
53 See RIPA section 27(3), which states that conduct that can be authorised under Part 2 includes conduct occurring outside the UK
54 For example, Al-Skeini v United Kingdom , 7 July 2007 (App.No. 55721/07)
55 Proposals to review or reform the HRA are not unique to the present government. Similar proposals have been mooted under previous Labour and Conservative governments. See, for example, the Conservative Party’s 2017 manifesto: “ We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.” and leaked proposals made by the then Prime Minister Tony Blair in 2006 - see “Blair ‘to amend human rights law’”, BBC News, 14 May 2006.
56 Letter from Rt Hon Robert Buckland MP, Secretary of State for Justice, regarding Human Rights Proposals, dated 1 October 2020
Published: 10 November 2020