Thank you for contacting me about the Covert Human Intelligence Sources (Criminal Conduct) Act.
This is a very sensitive and important area of the law. As you will be aware, the Act provides an express legal power for the intelligence agencies, police and a small number of other public authorities to continue to utilise an important tactic for national security and the prevention of serious crime.
Covert Human Intelligence Sources (CHIS) are agents, or undercover officers who may work in the company of criminals or terrorists. CHIS help to secure prosecutions and disruptions by infiltrating these groups. Participation in criminal conduct can be a part of CHIS use. However, this conduct takes place in carefully managed circumstances.
This is vital legislation and goes to heart of efforts to keep communities safe from those who seek to do us all harm. The work of CHIS has been critical in disrupting many of the terrorist plots our agencies have stopped. Indeed, in 2018 alone, CHIS led operations allowed the National Crime Agency to disrupt over 30 threats to life, effect numerous arrests of serious organised criminals, seize over 3 tonnes of Class A drugs, safeguard over 200 people, and take almost 60 firearms and 4,000 rounds of ammunition off the street.
I understand you have concerns about safeguards. I would like to be clear that all authorisations are precise and explicit. A CHIS will never be given unlimited authority to commit any or all crimes. Indeed, where a CHIS commits any criminality outside the tight parameters of the authorisation, the prosecuting authorities can consider this in the normal way.
You outline that you believe the Act provides sweeping powers. I strongly disagree with this statement. The Government has been clear that there are upper limits to the activity that can be authorised under the Act. These are contained in the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.
It is unlawful for any public authority to act in a way that is incompatible with the European Convention on Human Rights (ECHR), and the legislation makes clear that nothing in the Act detracts from a public authority’s obligations under the Human Rights Act. Therefore, an act that would be incompatible with the ECHR could not lawfully be granted under this Act.
‘Child Spies”: I understand your concerns regarding this issue. The Government has put forward substantial amendments to the Act to ensure robust safeguards are in place in legislation for the very rare circumstances when a juvenile CHIS may be tasked to participate in criminal conduct. The Government amendments are clear that the authorising officer is under a duty to safeguard and promote the best interests of the juvenile, and that this must be a primary consideration whenever they are considering an authorisation of a juvenile CHIS to participate in criminal conduct.
I found the following example, taken from the Investigatory Powers Commissioner’s most recent annual report, to be a useful explanation of how authorisations for juvenile CHIS are managed in reality by the police.
“In one such case, a juvenile was carrying out activity on behalf of a ‘county line’ drug supply group. The juvenile owed money to the group and approached the police wishing to provide information. A referral under the Modern Slavery Act was made by the police and a care plan was drawn up with Children’s Services, including relocating the juvenile and finding them a training course. Once this had been done, as an authorised CHIS, the juvenile was able to provide intelligence to the police regarding the ‘county line’ crime group.”
‘State Rape’: I can assure you that it is not acceptable for an undercover operative to form an intimate sexual relationship with those they are employed to infiltrate and target or those they may encounter during a deployment. The Government has stated clearly that this conduct will never be authorised, nor must it ever be used as a tactic in deployment. This is also made clear through the code of ethics for the police as well as the updated law enforcement agency undercover operative authorised professional practice.
List of Crimes: I am aware of the suggestion that listing specific crimes permitted or prohibited would be a way of offering extra safeguards. I do not believe this would be appropriate. This approach would place in the hands of criminals, terrorists and hostile states a means of identifying agents and sources, creating a potential checklist for suspected CHIS to be tested against. This would place CHIS at personal risk and therefore not something I can support.
Wider public authorities: I understand your concerns regarding the bodies authorised to grant a criminal conduct authorisation. Wider public authorities also have a role in investigating and preventing serious criminal activity. The Environment Agency investigates the illegal dumping of toxic waste that can permanently harm our environment. The Serious Fraud Office investigates complex fraud cases that risk costing the public millions of pounds. The Food Standards Agency investigates deliberate mislabelling and the sale of unsafe food to the public. HMRC tackles the money laundering and trafficking of illicit goods that would risk significant damage to the economy. As I am sure you will agree, these are serious crimes and need to be tackled.
Trade Unions: On the point you raise regarding the impact of this legislation on Trade Unions. It is correct that that economic wellbeing is one of the established statutory purposes for which the covert investigatory powers may be deployed by public authorities. However, let me be clear, it is not the intention in the Act to prevent legitimate and lawful activity, including activity by trade union organisations. Ministers have said that preventing such activity would not be necessary for the purpose of economic wellbeing.
Thank you again for taking the time to contact me.
Craig Whittaker MP