The Covert Human Intelligence Sources (Criminal Conduct) Bill was introduced on 24 September 2020, with its Second Reading scheduled for 5 October 2020. The Bill will amend existing legislation to create a new process of ‘Criminal Conduct Authorisations’, which will allow MI5, police forces, and a range of other public authorities to authorise their agents and informants (Covert Human Intelligence Sources or CHIS) to commit criminal offences.
CAJ, Reprieve, the Pat Finucane Centre, Privacy International, and Rights and Security International have jointly produced a briefing paper on the bill.
While it is a positive step to see the permitted conduct of CHIS being given a formal legislative footing, our briefing paper highlights a number of serious concerns about the content of the present Bill, in particular:
- 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;
- 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.
- 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.
- 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.
- 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.
The full briefing can be read here.