2021-03-04
Back in December we reported that the Covert Human Intelligence Sources (Criminal Conduct) Bill 2019/21 was wending its way through Parliament.
Today we report that it has received the Royal Assent and is now law.
View it here, download it here.
"An Act to make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.
[1st March 2021]"
“An authorisation for the conduct or the use of a covert human intelligence source does not authorise any criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source (but see section 29B for provision for the authorisation of such conduct)”
"29B Covert human intelligence sources: criminal conduct authorisations
(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section each have power to grant criminal conduct authorisations.
(2) A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.
(3) A criminal conduct authorisation may only be granted in relation to a covert human intelligence source after, or at the same time as, an authorisation under section 29 which authorises the conduct or the use of the covert human intelligence source concerned.
(4) A person may not grant a criminal conduct authorisation unless the person believes—
(a) that the authorisation is necessary on grounds falling within subsection (5);
(b) that the authorised conduct is proportionate to what is sought to be achieved by that conduct; and
(c) that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.
(5) A criminal conduct authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder; or
(c) in the interests of the economic well-being of the United Kingdom.
(6) In considering whether the requirements in subsection (4)(a) and (b) are satisfied, the person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.
(7) Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).
(8) The conduct that is authorised by a criminal conduct authorisation is any 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.
(9) If an authorisation under section 29, which authorises the conduct or the use of a covert human intelligence source to whom a criminal conduct authorisation relates, ceases to have effect, the criminal conduct authorisation also ceases to have effect so far as it relates to that covert human intelligence source (but this is without prejudice to whether the criminal conduct authorisation continues to have effect so far as it relates to any other covert human intelligence source).
(10) The Secretary of State may by order—
(a) prohibit the authorisation under this section of any such conduct as may be described in the order; and
(b) impose requirements, in addition to those provided for by subsections (3) and (4) and sections 29C and 29D, that must be satisfied before an authorisation is granted under this section for any such conduct as may be so described"
"RELEVANT AUTHORITIES FOR THE PURPOSES OF SS . 28, 29 AND 29B
Police forces etc
A1 Any police force.
B1 The National Crime Agency.
C1 The Serious Fraud Office.
The intelligence services
D1 Any of the intelligence services.
The armed forces
E1 Any of Her Majesty’s forces.
Revenue and Customs
F1 Her Majesty’s Revenue and Customs.
Government departments
G1 The Department of Health and Social Care.
H1 The Home Office.
I1 The Ministry of Justice. [my highlight]
Other bodies
J1 The Competition and Markets Authority
K1 The Environment Agency.
L1 The Financial Conduct Authority.
M1 The Food Standards Agency.
N1 The Gambling Commission"
See our December report for the expanded duties of the Investigatory Powers Commissioner and the Investigatory Powers Tribunal who have the nominal task of reporting on the usage of these draconian powers and keeping the relevant authorities in check.
Well, that's it.
Our government is now a fully formed self-authorising self-policing covert criminal enterprise, operating above the law, arguably without effective safeguards, more or less as and when it pleases.
What could possibly go wrong?
What has become of our "democracy"?
What has become of our "rule of law"?
What has become of "be ye never so high, the law is above you"?
In passing this Bill, Parliament has attempted to set certain agencies above the law.
It has placed UK law in direct conflict with the United Nations:
"For the United Nations (UN) system, the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency"
If a person of protected characteristics is disadvantaged by covert action then such covert operations under this Act may be inconsistent with the Equality Act 2010.
Similarly any such covert operation may disrespect the Human Rights Act 1998 as persons involved may suffer discrimination:
"Article 14 declares that the enjoyment of all the rights declared in the Convention shall be secured ‘without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. This is not a general principle of non-discrimination, since it applies only to discrimination in respect of rights declared in the Convention, but it is nevertheless important. Protocol 12 to the Convention includes substantive and broader protection against discrimination, but it does not bind a member state unless that state ratifies it"
How much of this will stand up in court is really beside the point.
The real point is that there is neither effective transparency nor effective accountability.
For the vast majority, matters arising from covert operations can never get to court.
