The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (CHIS Act) provided a statutory footing for the authorisation of CHIS to take part in criminal activity. The Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 makes consequential changes to various pieces of secondary legislation to reflect some of the amendments made by the act. These include changes to who can authorise a covert asset to take part in criminal conduct; record keeping of that conduct; and safeguards for CHIS use to obtain matters subject to legal privilege. The order was laid before Parliament on 25 May 2021. The instrument was subject to the made negative procedure, and became law as neither House objected within the set time period. It came into force on 10 August 2021.
Baroness D’Souza (Crossbench) has tabled a motion to regret the instrument. On 12 October 2021, the House of Lords will debate the motion:
Baroness D’Souza to move that this House regrets that the Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (SI 2021/601) does not provide adequate safeguards on the actions of covert agents, as the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 failed to include express limits on the crimes covert agents can commit; and calls on Her Majesty’s Government to amend the act to provide proper limits on, and oversight of, crimes committed by covert agents.
What provisions did the CHIS Act 2021 introduce?
The CHIS Act 2021 amended the Regulation of Investigatory Powers Act 2000 (RIPA) to provide a statutory power for the security and intelligence agencies, law enforcement bodies and certain other public authorities to authorise a CHIS to participate in criminal activity where “necessary and proportionate” for a limited set of purposes. These authorisations are known as criminal conduct authorisations (CCA). The effect of a valid CCA is that authorised conduct that would otherwise be criminal is rendered lawful.
The Government has stated that CHIS are a “core part” of security, intelligence and policing work. It has said that the use of CHIS is a “key tactic” in protecting national security and investigating serious crime. A CHIS may be a police officer, an individual holding a position in a public authority who is acting undercover, or a member of the public recruited by a public authority.
The explanatory notes to the CHIS Act state that the conduct that may be authorised under the act is not new activity: it is a continuation of existing activity that had been authorised using a variety of legal bases. The Government introduced the CHIS Act to provide an “express power for the authorisation of criminal conduct, providing certainty to public authorities utilising this critical tool”.
In January 2021, the Government published a draft revised code of practice to reflect the changes that would be made by the new legislation.
Further information on the legislative framework for the use of CHIS prior to the CHIS Act, and policy background to the act’s provisions, can be found in the following briefings:
- House of Commons Library, Covert Human Intelligence Sources (Criminal Conduct) Bill 2019–2021, 2 October 2021
- House of Lords Library, Covert Human Intelligence Sources (Criminal Conduct) Bill HL Bill 144 of 2019–21, 22 October 2020
Both briefings also describe legal challenges to the use of CHIS prior to the introduction of the new legislation.
Granting criminal conduct authorisations
The CHIS Act inserted a new section into RIPA, setting out conditions for the granting of a CCA. Under the new provisions, the person granting a CCA must believe:
- That it is necessary on the grounds of national security; for the purposes of detecting crime or preventing disorder; or in the interests of the economic well-being of the United Kingdom.
- That it is proportionate.
- That arrangements are in place to satisfy any further requirements imposed by the secretary of state through secondary legislation.
The person granting the authorisation must consider whether the same result could be achieved without criminal conduct. They would also be required to “take into account other matters so far as they are relevant”, such as the Human Rights Act 1998 (HRA). Explanatory notes to the Covert Human Intelligence Sources (Criminal Conduct) Bill, as introduced in the House of Lords, stated that the decision would be subject to the requirements of the HRA. Section 6 of the HRA requires public authorities to act in a way that is compatible with the European Convention on Human Rights.
A CCA can only be granted if the use and conduct of a CHIS has been authorised under RIPA.
Further information on the provisions governing the granting of CHIS status and authorising CCAs can be found in the House of Commons Library briefing: ‘Covert Human Intelligence Sources (Criminal Conduct) Bill 2019–2021’ (2 October 2020).
Oversight of the new powers and redress
The Investigatory Powers Commissioner’s Office (IPCO) provides independent oversight of the public authorities that use the new powers granted under the CHIS Act. Notice of all authorisations made or cancelled under the act must be given to judicial commissioners at the IPCO’s office within seven days. The IPCO carries out regular inspections of all public authorities using the power. The outcome of these inspections, including any recommendations, are included in the IPCO’s annual report which is laid before Parliament. Any person can make a complaint to the Investigatory Powers Tribunal about any investigatory powers. Complaints are independently investigated by the tribunal.
Intelligence agencies are accountable to Parliament through the Intelligence and Security Committee of Parliament (ISC).
The CHIS Act does not prevent prosecution for any activity that falls outside the parameters of an authorisation. The act also contains provisions for people to access the criminal injuries compensation scheme “where appropriate”.
Parliamentary scrutiny of the CHIS Act
The Covert Human Intelligence Sources (Criminal Conduct) Bill 2019–21 was introduced in the House of Commons on 24 September 2020. During the bill’s second reading debate in the House of Commons, the Labour party stated that it would not oppose its passage. Instead, it would seek to “improve” the bill. The official opposition raised concerns about:
- The conduct that could be authorised under a CCA. Labour said it would need reassurance from the Government that the “most heinous of crimes” would not be carried out by a CHIS. It would push for safeguards on crimes such as murder, rape, and sexual violence.
- The oversight powers of the IPCO. It said the bill, as introduced, allowed “self-authorisation”, and that Labour would seek prior judicial oversight.
- The rights for people to seek redress. The Investigatory Powers Tribunal had the jurisdiction to determine complaints against public authorities’ use of investigatory powers, which Labour said was “not the same” as a civil claim.
- The framework for the authorisation of a CCA included the interests of the economic well-being of the United Kingdom. Labour raised concerns that trade unions could be targeted.
The bill was not changed during its passage in the House of Commons. A summary of the bill’s passage in the House of Commons can be found in the House of Lords Library briefing: ‘Covert Human Intelligence Sources (Criminal Conduct) Bill: HL Bill 144 of 2019–21’ (22 October 2020).
The bill was introduced in the House of Lords on 19 October 2020. The House of Lords made several amendments to the bill. They included:
- Limiting the type of activity that could be authorised. Serious offences such as murder, rape, torture and perverting the course of justice would not have been authorised.
- Introducing additional safeguards for authorisations that involved children and vulnerable sources.
- A requirement to notify a judicial commissioner from the IPCO within seven days of an authorisation being granted or cancelled, and a provision which would have required all activities under a CCA to cease if a commissioner found that it should not have been granted.
- Ensuring victims of authorised conduct are not prevented from claiming criminal injuries compensation.
During ping pong, when both Houses may consider each other’s amendments, the following amendments were agreed:
- Individuals would have access to the criminal injuries compensation scheme where appropriate.
- Additional “operational workable” safeguards for children and vulnerable adults when included in CCAs.
- Notification of CCAs to judicial commissioners within seven days of an authorisation being granted or cancelled. However, the requirement for activities to cease should a judicial commissioner find that the CCA should not have been granted was removed.
Lords amendments requiring belief in the need and proportionality of the CCA to be “reasonable”, and preventing authorisations for serious offences, were not agreed. The Government argued that to specifically exclude certain offences would make it easier for criminal gangs to identify a CHIS. However, it later made a commitment to include a requirement that the belief be reasonable in the code of conduct.
Further information about ping pong and the amendments debated can be found in the House of Commons briefing: ‘Covert Human Intelligence Sources (Criminal Conduct) Bill 2019–21: Lords Amendments’ (19 February 2021).
The Joint Committee on Human Rights (JCHR) and the House of Lords Constitution Committee reported on the bill in November 2020. Both committees welcomed the fact that the provisions made the system for authorising criminal activity by CHIS more transparent. However, both called for CCAs to be subject to prior judicial approval. The JCHR also recommended that amendments should be made to prohibit the authorisation of serious criminal offences.
What provisions did the secondary legislation introduce?
The Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 made consequential amendments to various orders and regulations made under RIPA. These amendments were necessary to reflect changes made by the CHIS Act 2021. It amended:
- The Regulation of Investigatory Powers (Source Records) Regulations 2000 to add a requirement for certain information to be recorded when a CCA has been granted. For example, the parameters to the authorised criminal conduct, and confirmation that those limitations have been explained to, and understood by, the CHIS.
- The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 to extend the existing safeguards in that order for CHIS use for obtaining matters subject to legal privilege, to CCAs made under the CHIS Act. Before an authorisation to which this order applies is granted or renewed, approval must be given by the relevant “approving officer”. The relevant approving officer will be the secretary of state for intelligence services, the Ministry of Defence, Her Majesty’s Prison and Probation Service or the Northern Ireland Prison Service. In all other cases, the relevant approving officer will be a judicial commissioner.
- The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 to designate the rank of the person able to grant an authorisation within a public authority and the statutory grounds upon which an authorisation can be granted by that public authority. The level of seniority will be the same as for general CHIS authorisations.
- The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 to update the job titles of those able to grant authorisations for surveillance within some public authorities. These changes are not directly related to the act but reflect organisational changes. These changes are being made for the Police Service of Northern Ireland; the Food Standards Agency; the Environment Agency; and the Ministry of Justice.
The House of Lords Secondary Legislation Scrutiny Committee (SLSC) noted the order as an instrument of interest. The Joint Committee on Statutory Instruments (JCSI) did not report the order.
Baroness D’Souza has tabled a motion to regret the order in the House of Lords. The House of Lords will debate the motion on 12 October 2021.
Cover image by Rene Böhmer on Unsplash.