Covert Human Intelligence Sources (Criminal Conduct) Bill — Clause 1 — Authorisation of Criminal Conduct — 15 Oct 2020 at 16:00

The majority of MPs voted not to require judicial authorisation of criminal conduct by undercover police officers, other public officials working undercover, or members of the public recruited by public bodies as covert sources.

MPs were considering the Covert Human Intelligence Sources (Criminal Conduct) Bill^[1][2].

The Bill provided for authorisation, by individuals within public bodies, of criminal conduct by undercover officers and covert sources.

The explanatory notes to the bill stated it: "provides statutory power for the security and intelligence agencies, law enforcement agencies and a limited number of other public authorities to authorise Covert Human Intelligence Sources (CHIS) to participate in criminal conduct where it is necessary and proportionate to do so for a limited set of specified purposes"^[3].

Clause 1 of the Bill provided for amendments to Section 26 of the Regulation of Investigatory Powers Act 2000, which already provided for the regulation of "the conduct and use of covert human intelligence sources", extending it to apply to: "criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources".

Under the Bill^[2] provision was made for criminal conduct to be authorised by a range of bodies including the police, National Crime Agency, Serious Fraud Office, the intelligence services, the armed forces, 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 and The Gambling Commission.

The Bill provided that regulations under the Regulation of Investigatory Powers Act 2000 may be made to set out the ranks of individuals within those bodies empowered to make an authorisation. [Such regulations were made in May 2021^[4], well after this vote took place. Those empowered to authorise criminal conduct include police superintendents (inspectors in urgent cases), those at Grade 6 or equivalent in The Secret Intelligence Service and senior managers in The Gambling Commission.]

Provision for a Secretary of State or Scottish Minister to prohibit certain conduct, or impose additional requirements to be satisfied prior to the imposition of an order were included in the Bill^[1][2].

The amendment^[5] rejected in this vote was:

• Amendment 7, in clause 1, page 2, line 7, at end insert—
• ‘(1A) The granting of criminal conduct authorisations under subsection (1) may not take place until a warrant has been issued by a judge.
• (1B) An application to a judge under subsection (1A) shall be made in writing and be accompanied by an affidavit of the person granting the criminal conduct authorisation which sets out—
• (a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required;
• (b) the persons or classes of persons to whom the warrant is proposed to be directed;
• (c) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;
• (d) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force; and
• (e) any previous application made under subsection (1A) in relation to a person who is identified in the application for the warrant, the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.”

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• [1] Parliament's web page on the Covert Human Intelligence Sources (Criminal Conduct) Bill, Parliament.uk
• [2] Covert Human Intelligence Sources (Criminal Conduct) Bill as introduced. 23 September 2020, Parliament.uk
• [3] Explanatory notes to the Covert Human Intelligence Sources (Criminal Conduct) Bill as introduced. 23 September 2020, Parliament.uk
• [4] Paragraph 8 of Article 4 of the The Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (which amends The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010), Legislation.gov.uk
• [5] Notices of Amendments to the Covert Human Intelligence Sources (Criminal Conduct) Bill. 13 October 2020, Parliament.uk

Debate in Parliament |