CHIS Bill: a necessary measure to fight crime or legislating the abuse of power?

The controversial Bill has been the subject of much criticism, with two Labour frontbenchers resigning over the party’s failure to oppose the Bill. Resigning from his position as shadow financial secretary, Dan Carden, expressed his fear that the Bill “sets dangerous new precedents on the rule of law and civil liberties in this country.”

The Liverpool MP issued a stark warning over the danger posed by the lack of regulation of state powers, claiming that he shared the “deep concerns” about the legislation “from across the labour movement, human rights organisations, and so many who have suffered the abuse of state power, from blacklisted workers to the Hillsborough families and survivors.” On the face of it, it may seem alarmist, after all in what conceivable situation would the Food Standards Agency, the Gambling Commission and the Environment Agency have cause to murder, torture or rape in the pursuit of intelligence?

However, to dismiss these scenarios as ludicrous is to detract from the real issue. We should not be focused on whether these agencies would carry out such actions, but rather that under the legislation proposed, they could. The introduction of such radical legislation is just one more push towards the erosion of the legislative boundaries which safeguard citizens from unreasonable interference by the state.

Legislating good faith

The CHIS or ‘Spycops’ bill, amends the Regulation of Investigatory Powers Act 2000 (RIPA) and seeks to authorise agents to participate in criminal conduct where such engagement is necessary for protecting national security, preventing or detecting crime or disorder, or protecting the economic wellbeing of the UK. It is suggested that in allowing agents to gain the trust of those they are investigating by their participation in criminal activities, they will be able to access information and intelligence which other investigative measures would not elicit. Whilst the CHIS Bill makes sense within the context of the most serious crimes, those which involve life or death situations such as the investigation of terrorist groups, the reality is that the scope of the proposed legislation is not limited to such circumstances.

Under the Bill, authorisation can be given granting permission for covert human intelligence sources to participate in criminal conduct where such conduct is proportionate to what is sought and it is for ‘the purpose of preventing or detecting crime or disorder.’ The wording here is deliberately broad. There is nothing within the wording which prevents an authority from authorising criminal conduct in the investigation of more trivial crimes. The reason given by the Home Office for this broad-stroke approach is two-fold. Firstly, it is feared that - should the law specify that certain crimes cannot be committed by covert human intelligence sources (CHIS) - then the criminals subject to surveillance may test CHIS by asking them to commit these crimes. Secondly, the Home Office asserts that any agency authorising criminal activity remains bound by s.6 of the Human Rights Act (HRA) and so cannot act in a way that is incompatible with the rights contained within it. On the face of it, these arguments may seem logical.

However, the purpose of legislation is to set out in writing the nature and limits of the law clearly and explicitly. Courts interpreting statute frequently comment that the wording of the legislation precludes a certain interpretation. Is it, then, enough to simply say that s.6 of the HRA overarches the CHIS Bill and that certain criminal acts are prohibited by implication? Should the application of the HRA not be made explicit, as in its absence we are surely relying upon the good faith of regulatory agencies to do what is right and not what is enshrined in the legislation. It should be noted that similar legislation in Canada states that CHIS are not authorised to commit certain crimes, including murder, torture and sexual offences. This leads us to question why the CHIS Bill is so resistant to clearly setting out its limits and application.

The problem of proportionality

Whilst the Bill states that the criminal conduct must be ‘proportionate’ to what is sought, this is no guarantee that these powers will not be used incorrectly, particularly because the wording of the Bill fails to limit the scope of the sorts of crimes these powers can be used in relation to. What is ‘proportionate’ is often viewed subjectively. One only has to consider the many cases where the existing powers under RIPA 2000 have been called into question to understand where differing interpretations of what is proportionate can lead.

There should be no question that the use of such intrusive surveillance powers ought to be confined to the investigation of crimes which are more than trivial, yet there have been numerous incidents of local authorities having been granted authorisation to spy on people walking their dogs or feeding pigeons. The explanatory note accompanying the CHIS Bill explains that the grant of authorisation will be overseen by the Investigatory Powers Commissioner (IPC). Authorisations do not require any judicial authorisation. Given the extent of the powers contained within the legislation, this is alarming. Judicial authorisation is required to exercise a power of entry or to intercept phone calls, but not to authorise an undercover officer to participate in criminal activity. The absence of judicial influence removes an important check from the checks and balances which forms the cornerstone of our legal framework.

Erosion of judicial influence

The lack of judicial authority within the CHIS framework must be viewed against a wider landscape. In July of this year the Government launched an independent review to examine whether there is a need to reform the judicial review process in the UK. The review follows a number of applications for judicial review of decisions made by the Government (such as Miller (No. 1) [2017] UKSC 5 and Miller (No.2) [2019] UKSC 41) and a pledge by the Conservative party in their manifesto to ensure that judicial review is “not abused to conduct politics by another means or to create endless delays.” The clear message is that the judiciary are overstepping their power and encroaching into the territory of the executive. There is, however, some debate over whether in taking such action, the Government is seeking to restore the correct balance to the separation of powers or whether they are seeking to disproportionately curb the power of the judiciary. Placed within this context, the omission of judicial influence from the authorisation process under the CHIS Bill begins to take on a different complexion.

How will the CHIS Bill impact the investigation of environmental offences?

The Environment Agency (EA) are one of the regulatory agencies authorised to exercise powers under the CHIS Bill. There are limited situations where such powers may be of use. There have been instances, for example, where the EA have undertaken undercover work as part of investigations into the illegal dumping of toxic waste. In recent years there has been an emphasis on the link between criminal gangs and illegal waste activities and a greater push towards cracking down on these criminals. There are, then, certain situations where the CHIS legislation is arguably useful. However, the legislation makes no allowances for the fact that unlike agencies who have a wealth of experience in intelligence, such as the intelligence services, the National Crime Agency and the Serious Fraud Office, the Environment Agency’s experience is more limited.

This coupled with the fact that there is no judicial oversight and agencies are, in effect, required to regulate themselves, has the potential to be disastrous. It is our experience that the EA do, on occasion, act outside of the scope of their statutory powers. For example, in Allensway Recycling Ltd & Ors, R [on the application of] v The Environment Agency [2015] EWCA Civ 1289, the Court of Appeal ruled that the EA had unlawfully executed a warrant on residential premises under section 108 of the Environmental Protection Act 1990. The EA had sought to argue that the law could be interpreted in such a way as to preclude that seven days’ notice must be provided prior to exercising a power of entry. The Court of Appeal rejected this argument on the grounds that the legislation is unequivocal in its requirement for seven days’ notice. Allensway demonstrates the vital role the judiciary plays in ensuring that regulators do not overstep the bounds of their statutory powers, as well as the importance of clear wording in legislation in safeguarding the rights of those subject to regulation. The absence of these two elements from the CHIS Bill does not inspire confidence that there will be sufficient safeguards to protect the public from overexuberant enforcement.

Whilst the CHIS Bill has the potential to be an important tool in the fight against serious crime, the provision of such broad powers without any meaningful safeguard should be scrutinised. The bill’s reliance on regulators to police themselves sets a dangerous precedent, the inevitable conclusion of which is the loss of the public’s confidence in those who regulate them.

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