Covert Human Intelligence Sources (CHIS) play a unique and crucial role in gathering intelligence which helps in safeguarding the public from serious crimes including terrorism, drugs and firearms offences, and child sexual exploitation and abuse.

In performing that role, it is essential that CHIS build credibility and gain the trust of those under investigation. There are therefore occasions where - in carefully managed circumstances and subject to robust independent safeguards - they may need to participate in criminality themselves.

This is an important Bill that provides an express power for intelligence agencies, law enforcement and a limited number of other public authorities to authorise this capability. This is not a new capability; participation in criminality by CHIS has been accepted for many years. However, to date, there has been no statute law that authorises it explicitly in the UK, with each agency working under their own legal powers. This Bill remedies that by providing a clear and consistent legal basis for this longstanding tactic which remains vital for the prevention and detection of crime, as well as national security.

CHIS will never be given authority to commit any or all crime. Criminal Conduct Authorisations (CCA) must be necessary for, and proportionate to, the criminality they are seeking to prevent. The Authorising Officer must ensure the level of criminality authorised is at the lowest level of intrusion possible to achieve the aims of the operation. There are limits to the conduct which can be authorised as all public authorities are bound by the Human Rights Act 1998 to operate in a way that is compatible with the rights protected by the European Convention on Human Rights. Rights that are protected by the Convention include the right to life, and prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.

However, the Bill does not list specific crimes which may be authorised, or prohibited, as to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against. This would threaten the future of the CHIS capability and result in an increased threat to the public.

The Bill only includes those public authorities with a clear operational need for the power in order to protect the public from criminality. The list of public authorities included in this Bill is a significantly smaller list than those able to authorise the use and conduct of a CHIS more generally. The Government has published examples of where wider public authorities may need to utilise this tactic and these can be found alongside further detail on the safeguards in place at:

https://www.gov.uk/government/publications/covert-human-intelligence-sources-draft-code-of-practice

The robust safeguards in place ensure that activity is only authorised where it is deemed necessary and proportionate. All authorisations are granted by an experienced and highly trained authorising officer who will ensure that the authorisation has strict parameters, is tightly bound and is clearly communicated to the CHIS. The Bill does not prevent the prosecution authorities from considering a prosecution for any activity outside the specific authorisation granted.

All activity is then overseen by the independent Investigatory Powers Commissioner (IPC). The IPC and his Judicial Commissioners have all held high judicial office and are entirely independent of the Government. The IPC conducts inspections of public authorities and publishes an annual report on the findings from these inspections. The frequency of these inspections is decided by the IPC and inspectors must have unfettered access to documents and information to support the Commissioner’s functions. The Bill allows for the IPC to carry out rigorous inspections of all public authorities authorising CHIS criminal conduct, which may make recommendations on future deployments or authorisations.

In addition, any person or organisation can make a complaint to the Investigatory Powers Tribunal (IPT) at no financial cost, with regards to the powers legislated by this Bill. Any complaint will be independently considered by the Tribunal. The IPT operates one of the most open and transparent systems in the world. The Tribunal hears cases in open where possible and publishes detailed reports on its work and rulings.

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