Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-2021

The Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-2021 was introduced in the House of Commons on 24 September 2020. It is due to have Second Reading on 5 October.

This short Bill raises “one of the most profound issues which can face a democratic society governed by the rule of law”, in the words of the Investigatory Powers Tribunal. It would introduce a power in the Regulation of Investigatory Powers Act 2000 to authorise conduct by officials and agents of the security and intelligence services, law enforcement, and certain other public authorities, which would otherwise constitute criminality.

The Government has stressed that this is not a new capability. The lawfulness of an internal Security Service policy governing the involvement of agents in criminal conduct was upheld by the Investigatory Powers Tribunal in December 2019. The main purpose of the Bill therefore is to place such activity on a clear statutory footing.

Its principal significance is that, unlike the current policy, it would provide a limitation on both criminal and civil liability to those who engage in authorised criminal conduct.

The need for agents of the security and intelligence agencies and law enforcement to engage in criminal conduct has been tacitly accepted for some time. However, as more details of the practice have emerged, there has been concern as to the sufficiency of safeguards that constrain such activity. The Government argue that the obligation on public authorities to act compatibly with the European Convention on Human Rights is sufficient to prevent the powers contained in the Bill being used to authorise serious abuses.

Notwithstanding widespread acceptance of the operational necessity of authorising criminal conduct on the part of covert human intelligence sources, there are some controversial features of the regime that the Bill would provide for. These include:

• That it places no specific limitations on the type of criminal activity that may be authorised
• By contrast with recent legislation governing the use of other investigatory powers, authorisations are given internally, without judicial approval
• The Bill would limit redress for victims by preventing civil claims for injury or other harm

The Explanatory Notes, Human Rights Memorandum and Delegated Powers Memorandum are published on the Bill page. The Government has also produced a number of Factsheets and a revised Code of Conduct reflecting the changes the Bill would make.