RSI briefs House of Commons on the Covert Human Intelligence Sources (Criminal Conduct) Bill

On the 5th October 2020, members of the House of Commons will meet to discuss the Covert Human Intelligence Sources (Criminal Conduct) Bill 2020 for a second reading. The Bill would amend Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) to create a new process of ‘Criminal Conduct Authorisations’. The authorisations would constitute an express power for MI5, police forces and a range of other public authorities to authorize their agents and informants (“Covert Human Intelligence Sources” “CHIS”) to commit criminal offences.

Ahead of the reading, RSI produced a briefing for MPs jointly alongside Reprieve, the Pat Finucane Centre, Privacy International, and the Committee on the Administration of Justice. The brief outlined the following concerns with the Bill. 

Key issues with the Bill

The Bill represents a belated recognition that regulating the permitted conduct of CHIS must be set up by a formal legislative footing. Whilst we, therefore, welcome legislation in this area we have serious concerns about the content of the present Bill, in particular:

1. Unlike the US and Canada, the Bill places no express limits on the types of crimes which can be authorised. There is no express prohibition on authorising crimes that would constitute human rights violations, including murder, torture (e.g. punishment shootings), kidnap, or sexual offences, or on conduct that would interfere with the course of justice;
2. The Bill relies on the Human Rights Act as a safeguard, despite the Government making clear that it does not believe that the Human Rights Act applies to abuses committed by its agents, even torture.
3. Far from putting “existing practice on a clear and consistent statutory footing”, as is claimed in the Explanatory Notes, the Bill provides for the unprecedented ‘legalisation’ of even serious crimes by covert agents. Authorised criminal offences committed by CHIS would be rendered ‘lawful for all purposes’. This would bypass the independent decision-making of prosecutors as to whether the prosecution of a CHIS is in the ‘public interest’. This, in particular, would roll back key reforms of the Northern Ireland peace process.
4. The arrangements for authorisation oversight and post-operational accountability are weaker than those for phone tapping or searches by law enforcement, despite involving potentially far more harmful conduct.
5. The Bill also bars survivors of abuses, such as the victims of the ‘Spy Cops’ scandal, from seeking redress through the courts, by protecting those who commit authorised crimes from civil liability forever.

To read more of our briefing to MPs, please download the PDF document underneath.