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

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 (Paragraph 31) Limits on the criminal conduct that can be authorised

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.

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. (Paragraph 53) The scope of authorisations

The precise extent of what conduct can be authorised under the Bill lacks clarity. Furthermore, the Government has provided no clear explanation why there is a need to authorise criminal conduct by someone other than the CHIS him or herself. The Bill requires amendment to clarify who can be authorised to commit criminal offences. In the absence of a clear explanation of the need for a CCA to authorise more than the conduct of the CHIS, only the conduct of the CHIS and any resulting secondary liability, should be capable of authorisation.

The use of children as CHIS is likely to engage their Article 8 rights. A child acting as a CHIS in respect of serious crime is self-evidently at significant risk. Authorising a child to commit criminal offences substantially raises the risk to them and increases the likelihood of their rights being violated. We have seen no specific justification provided for authorising children to engage in criminal conduct. Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.

The Bill must be amended to exclude children or to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.

It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality. However, simply requiring the person authorising the criminal conduct to have an objectively reasonable belief could result Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill 33 in CHIS being prosecuted or subjected to civil claims unfairly. For this reason, it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process.

Extending the use of CCAs into non-criminal situations risks unjustified interferences with the activities of trade unions and other legitimate activists and campaigners and their rights under Articles 10 and 11 ECHR (the right to free expression and the right to free assembly). The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime.

Overall, the power to authorise criminal conduct contained in the Bill is far too extensive, in respect of the type of criminal conduct that can be authorised, who can be authorised to carry it out and the purposes for which they can authorise that conduct. The lack of limits on the use of CCAs risks the human rights of victims, and of CHIS, being violated. (Paragraph 74) Public authorities granted power to authorise crime

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.

The power to authorise criminal conduct should be restricted to public authorities whose core function is protecting national security and fighting serious crime. (Paragraph 82) Adequacy of oversight mechanisms

Bringing CCAs within the review function of the IPC provides some reassurance of independent scrutiny of their use after the event. However, this is insufficient protection for human rights. It is unacceptable for this Bill to propose that the authorisation of crime, and the consequential grant of civil and criminal immunity, should have fewer safeguards than the authorisation of search warrants and phone tapping.

In his annual report the IPC must provide as much detail on the use of CCAs as possible, in the interests of transparency. Bodies permitted to make CCAs must also ensure accurate records are made and shared with the IPC.

The Bill must be amended to include a mechanism for prior judicial approval of CCAs (with appropriate provision for urgent cases). It is noted that Judicial Commissioners appointed under the Investigatory Powers Act 2016 carry out a prior approval function in respect of other covert investigatory activities. This function of Judicial Commissioners could be extended to cover the grant of CCAs. (Paragraph 100) 34 Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill Immunity from criminal prosecution and civil liability

By rendering criminal conduct lawful for all purposes, the Bill goes further than the existing MI5 policy by removing prosecutorial discretion. The reason for this change in policy has not been made clear. It has significant ramifications for the rights of victims. The Government has missed an opportunity to include within the Bill provision for victims of authorised criminal conduct, both legally and practically. This is another reason why the Bill requires additional safeguards to ensure there can be no authorisation of serious criminality.

The Government must explain why the existing policy on criminal responsibility, which retained prosecutorial discretion, has been altered in the Bill to a complete immunity. Victims’ rights must be protected by amending the Bill to ensure that serious criminal offences cannot be authorised. In respect of civil liability, the Government must confirm that authorising bodies will accept legal responsibility for human rights breaches by CHIS or alter the Bill to provide that CHIS will be indemnified rather than made immune from liability. (Paragraph 113) Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill 35