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Government legislation protects national security capability to fight serious crime

03 November 2020

NEW LEGISLATION which underpins the work of MI5, the police service and other public authorities tackling serious crimes has been introduced to Parliament. The Covert Human Intelligence Sources Bill provides a clear and consistent statutory basis for a limited number of public authorities to continue to authorise participation in criminality in carefully managed circumstances.

Undercover operatives and agents play a crucial role in preventing and safeguarding victims from the most serious crimes, including terrorism. In order to gain the trust of those under investigation, there are occasions where they need to participate in criminality themselves. This is a long-standing capability which remains critical for national security.

The Covert Human Intelligence Sources Bill provides certainty to public authorities already using this critical capability and confirms a common set of safeguards by which they are bound, including compliance with Human Rights.

Debt of gratitude

Security Minister James Brokenshire said: “We owe a huge debt of gratitude to the men and women who put themselves in often dangerous situations in order to protect our national security and keep the public safe. In the course of this vital work, it may be necessary for agents to participate in criminal activity in order to gain the trust of those under investigation. This is a critical capability and subject to robust and independent oversight. It’s important that those with a responsibility to protect the public can continue this work, knowing that they’re on a sound legal footing to do so.”

Ken McCallum, director general of MI5, stated: “Throughout MI5’s history, human agents have played a critical role in helping to protect the UK from terrorist threats and hostile activity by states. Since March 2017, MI5 and Counter-Terrorism Policing have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt that many of these attacks would not have been prevented. In some situations, it’s both necessary and proportionate to authorise agents to be involved in some managed level of criminal activity in order to win or maintain the trust of those intent on harming the UK and gain the critical information needed to save lives.

This power, carefully used and independently overseen, is vital such that we can continue to meet our duty to keep the public safe.”

Express power

DAC Graham McNulty, Covert Human Intelligence Sources lead at the National Police Chiefs’ Council, explained: “We welcome the creation of an express power which will ensure policing can continue to deploy this vital tactic against the most harmful offenders. From terrorists to violent gangs and organised criminals who seek to harm the most vulnerable in society, this Government Bill will help us to disrupt their activities and keep our communities safe.”

Lynne Owens, director general of the National Crime Agency, commented: “We lead the UK’s fight to cut serious and organised crime, focusing on the most determined criminals who dominate communities through violence linked to drugs and firearms supply, who abuse the vulnerable and who threaten the UK’s economic security and institutions. Law enforcement has long used Covert Human Intelligence Sources to help thwart the most serious criminal threats to our nation and its partners.”

Owens went on to state: “Only when it’s absolutely necessary and proportionate will we authorise our Covert Human Intelligence Sources to be involved in a limited form of criminal activity. This is done with great care and scrutiny. Without this capability we would not be able to bring to justice criminals and their groups who conspire to harm the UK and its citizens. We welcome this new legislation which puts this crucial capability on a firm foundation.”

Robust oversight

Robust independent oversight is provided by the Investigatory Powers Commissioner, namely Sir Brian Leveson, who carries out regular inspections and publishes an Annual Report on the findings for public consumption.

This capability is supported by the courts, with the Investigatory Powers Tribunal (in its recent supportive judgment on the use of Covert Human Intelligence Sources participation in criminal conduct) noting that: “The policy… has been exercised with scrupulous care by the Security Service so as to discharge its essential functions in protecting national security, while also giving proper regard to the Human Rights of persons who may be affected by the activities of agents.”

The Investigatory Powers Commissioner has also commented that, with regards to MI5, “in every case that we examined… the activity authorised was proportionate to the anticipated operational benefits”.

The public authorities that will be authorised under the Bill are the UKIC, the police service, the National Crime Agency, the Home Office (immigration and borders functions), Her Majesty’s Revenue and Customs, HM Forces and their police, the Ministry of Justice (HMPPS), the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency, the Gambling Commission, the Medicines and Healthcare Regulation Authority and, last but not least, the Serious Fraud Office.