(Mar. 31, 2021) The United Kingdom enacted the Covert Human Intelligence Sources Act (the CHIS Act) on March 1, 2021. The CHIS Act provides a framework to provide a criminal conduct authorization (CCA) that enables covert human intelligence sources (CHIS) to participate in actions during the course of their work that would otherwise constitute a criminal offense. This type of action was described by the Investigatory Powers Tribunal as “one of the most profound issues which can face a democratic society governed by the rule of law.” The government noted that this is not a new aspect of intelligence operations. In December 2019, the Investigatory Powers Tribunal upheld the lawfulness of an internal Security Service policy that provided CHIS with the ability to engage in criminal conduct.
The CHIS Act was introduced quickly amid concern that further legal challenges to the existing rules could go against the government, resulting in CHIS being withdrawn and potentially leaving large gaps in intelligence. The CHIS Act serves to place a longstanding tactic on a clear legal basis, according to the government, which stated that these actions are “an essential and inescapable feature of CHIS use.”
The CHIS Act amends the Regulation of Investigatory Powers Act 2000 and provides that specified public bodies that are authorized to use a CHIS, defined as a person who establishes or maintains a personal or other type of relationship with an individual for the covert purpose of obtaining or disclosing information, or obtaining access to information or another person, may be granted a CCA for three purposes:
- in the interests of national security,
- to prevent or detect crime or prevent disorder, or
- in the interests of the economic well-being of the U.K.
A CCA authorizes conduct that
(a) is comprised in any activities—
(i) which involve criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source, and
(ii) are specified or described in the authorisation;
(b) consists in conduct by or in relation to the person who is so specified or described as the covert human intelligence source to whom the authorisation relates; and
(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.
Thus, a CCA enables a CHIS to engage in criminal conduct that is specified in the authorization for the purposes of the investigation in which the CHIS is involved.
Public bodies able to grant a CCA include, but are not limited to, the police, intelligence services, National Crime Agency, Serious Fraud Office, Her Majesty’s Armed Forces, Ministry of Justice, Home Office, Her Majesty’s Revenue and Customs, and the Environment Agency. This list of public bodies was criticized by Parliament’s Joint Committee on Human Rights (JCHR) as being “excessively broad.”
A CCA must be necessary and proportionate with the activity it is seeking to stop and must also be compatible with the European Convention on Human Rights. When considering whether or not to grant a CCA, the authorizing official must consider whether the results sought by the CCA can be achieved through other conduct that would not constitute a criminal offense. The government stated that, when considering whether a CCA is a proportionate response, it must consider whether the conduct is part of an effort to prevent more serious criminality and whether there are “ no other reasonable or practicable means by which the outcome could be achieved.”
The CCA only permits criminal conduct that is specified in the authorization and is overseen by the Investigatory Powers Commissioner’s (IPC’s) Office. The IPC is required to review the use of this power and must include information on these authorizations in annual reports.
In contrast with several other countries that provide for similar authorizations, there are no limits on the type of criminal activity a CHIS may be authorized to undertake, although the CHIS Act does allow an order placing limits on the type of criminal conduct the CCA may authorize, and the government has stated that the Human Rights Act, which implements the European Convention on Human Rights into the national law of the U.K., effectively limits the scope of the criminal conduct that may be the subject of a CCA. The government stated further that checks and balances exist because
Robust independent oversight of the capability is provided by the Investigatory Powers Commissioner. All authorisations must be notified to his office within seven days of being granted, providing him with real-time oversight of all criminal conduct authorisations.
The government has also produced a draft code of practice that details guidance and procedure for the use of CCAs.
A judicial commissioner must be notified as soon as practicable that a CCA has been granted or canceled. The lack of judicial oversight before the issuance of a CCA was criticized by the JCHR as the bill progressed through Parliament, but no steps to provide such oversight were included in the final act, and the government maintains that the requirements contained in the 2021 Act for CCAs, specifically, the constraints provided by the Human Rights Act and oversight by the IPC, are sufficient.
The rationale behind the CHIS Act is that
Participation in criminal conduct is an essential and inescapable feature of CHIS use, otherwise they will not be credible or gain the trust of those under investigation. This enables them to work their way into the heart of groups that would cause us harm, finding information and intelligence which other investigative measures may never detect.
The government stated that covert human intelligence sources have been invaluable in both the identification and disruption of criminal offenses. It noted that CHIS have disrupted numerous terrorist plots and led to the arrest of dangerous organized criminals. Her Majesty’s Revenue and Customs have also used this type of intelligence to prevent the loss, in hundreds of millions of dollars, of tax revenue. The government further noted that “[t]his longstanding critical capability supports the work of undercover agents in preventing and safeguarding victims from serious crimes, including terrorism, by ensuring they can gain the trust of those under investigation.”