75.We accept that the authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary to allow those agencies to carry out their vital functions. Where criminal conduct is necessary, interferences with qualified rights will be capable of being justified provided they are proportionate. However, the Bill proposes granting the power to make CCAs not only to the security and intelligence services and the police but to a substantially wider range of public authorities, including, for example the Department of Health and Social Care; the Environment Agency; the Gambling Commission; and the Food Standards Agency. This provision of the Bill, coupled with the ability to authorise criminal conduct in the interests of preventing disorder and preserving economic well-being (see paragraphs 67–71 above), extends the power to authorise criminal conduct well beyond the core area of national security and serious crime.
76.Considering this aspect of the Bill from a human rights perspective, the first key question is whether the exceptional power to authorise crimes to be committed without redress is truly necessary for each and every one of these public authorities. The second key question is whether the benefit of granting that power would be proportionate to the human rights interferences that are likely to result.
77.Answering these questions is difficult because the Government has provided limited and insufficient specific justification for the authorisation of criminal conduct by bodies such as those listed above. The Home Office has published brief guidance on this issue as well as a series of “Operational Case Studies”. These provide examples of the authorisation of criminal conduct by CHIS by the Medicines and Healthcare products Regulatory Agency (MHRA) and Her Majesty’s Revenue and Customs. They also provide hypothetical examples of where CAAs might be used by the Environment Agency and the Food Standards Agency. In his letter to the Chair of the Committee, the Minister of State for Security went further and explained that the Environment Agency is responsible for “investigating and prosecuting offences which create serious risks of harm to people and the environment, such as illegal landfills, misdescription of hazardous waste and illegal waste exports” while the Food Standards Agency has a specialist Food Crime Unit - “a law enforcement capability within the Agency.” Yet even these limited examples do not answer a crucial question: why would the police, or another body whose function is expressly focused on the prevention of crime, not take responsibility for any need to authorise criminal conduct in the course of undercover work that falls within the purview of these organisations? It is assumed such bodies have greater experience and expertise in the deployment and handling of CHIS.
78.To assess whether the power provided by the Bill is truly needed, it is important to establish whether the authorisation of criminal conduct by each of these bodies has previously been considered necessary. The Explanatory Memorandum states that the Bill represents “a continuation of existing practice that is currently authorised using a variety of legal bases”. However, it is unclear from the Home Office publications referred to above whether all the public authorities named in the Bill have in fact previously authorised criminal conduct. Furthermore, other than in respect of the security service, and the policy considered in the Third Direction challenge, it has not been made clear on what basis those public authorities are currently permitted to authorise criminal conduct. In his written evidence to the Committee, Dr Paul F. Scott commented that:
“If the government believes it is necessary for each of these bodies to have the power to grant authorisations it should be explicit about whether those bodies already possess non-binding ‘powers’ to authorise the commission of crimes and provide more detail as to how, and how often, those powers are used. In the absence of such an account, there is no reason to accept that all of those bodies require the powers the Bill would give them.”
79.In the absence of this kind of detail from the Government, it is hard to be confident that the authorisation of a criminal offence by agencies whose primary function is not to combat serious crime or protect national security could genuinely be necessary and proportionate.
80.The Committee notes that under s.30(5) RIPA the Secretary of State will have the power to make an order adding other public authorities to the list of those permitted to authorise criminal conduct. While the power to extend RIPA powers to other public authorities has been used sparingly in the past, it remains of concern that additional authorities with little or no relation to national security or fighting serious crime could be added to the list of those permitted to make CCAs, with limited Parliamentary oversight.
81.The authorisation of criminal conduct by the security and intelligence services and the police may on occasion be necessary to allow those agencies to carry out their vital functions. However, in the absence of satisfactory explanation from Government, it is hard to see any justification for extending the use of CCAs to bodies whose central function is not protecting national security or fighting serious crime.
71 Home Office Guidance: “” and the Home Office, Covert Human Intelligence Sources (Criminal Conduct) Bill, , September 2020
72 Letter from Rt Hon James Brokenshire MP, Minister of State for Security, , dated 4 November
73 to the Covert Human Intelligence Sources (Criminal Conduct) Bill, prepared by the Home Office in place of an Impact Assessment
74 Dr Paul F Scott ()
Published: 10 November 2020