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UK: Calls to halt bill authorising crimes by state agents

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06 October 2020

The Covert Human Intelligence Sources (Criminal Conduct) Bill would, if approved, give explicit legal permission for certain state agents to commit crimes in the course of their duties, but does not specify which crimes are covered. There is fierce opposition to the proposed measures.

The Bill was introduced by the government following a ruling by the Investigatory Powers Tribunal (IPT) that found the so-called 'Third Direction', a secret order which allowed MI5 agents to commit unspecified crimes, was lawful - but the judges in the IPT were divided 3-2 and that ruling is now the subject of an appeal.

A briefing on the new Bill, produced by the four NGOs that brought the IPT case, notes that while the proposal "represents a belated recognition that regulating the permitted conduct of CHIS [Covert Human Intelligence Sources] must be set up by a formal legislative footing," it has numerous shortcomings:

• there is no express limit on the types of crimes that may be committed;
• the Human Rights Act is formally used as a safeguard but the government does not necessarily believe it applies to abuses committed by state agents;
• it sidelines decision-making by prosecutors (and in doing so "would roll back key forms of the Northern Ireland peace process");
• oversight arrangements are weaker than for phone tapping or police searches; and
• it prevents redress for victims by protecting those who commit authorised crimes from civil liability, forever.

These issues are examined in detail in the briefing. See: Briefing for second reading of the Covert Human Intelligence Sources (Criminal Conduct) Bill (pdf produced by Reprieve, Privacy International, Pat Finucane Centre and Committee on the Administration of Justice)

The number of authorities that would be able to apply for authorisation to commit crimes under the Bill is broad, covering:

• Any police force
• The National Crime Agency
• Any of the intelligence services
• Any of Her Majesty’s Forces (the armed forces)
• Her Majesty’s Revenue and Customs
• The Department of Health and Social Care
• The Home Office
• The Ministry of Justice
• The Competition and Markets Authority
• The Environment Agency
• The Financial Conduct Authority
• The Food Standards Agency
• The Gambling Commission
• The Serious Fraud Office

See: Covert Human Intelligence Sources (Criminal Conduct) Bill: Explanatory notes (pdf)

More information

• Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21 (parliament.uk, link)
• Documentation - the text of the Bill, memoranda, etc. (parliament.uk, link)

Coverage

• New rules for MI5 and police to authorise crimes (BBC News, link)
• Call to rein in law that lets MI5 informants commit crimes (The Times, link)