Consultation outcome

Regulation of Investigatory Powers Act 2000: consultation on revised Covert Human Intelligence Source code of practice

Updated 17 October 2022

This was published under the 2019 to 2022 Johnson Conservative government

Ministerial foreword

The Regulation of Investigatory Powers Act 2000 (RIPA) provides a regulatory framework for the use of a number of covert investigatory powers, to ensure that the powers are used by public authorities in a lawful way that is compliant with the UK’s obligations under the European Convention on Human Rights. This involves ensuring that the use of the powers is always closely supervised and constantly reassessed to ensure that what is being done is justified. The Act incorporated a number of important safeguards to guard against any arbitrary or excessive use of the powers, including a strict authorisation framework and provision for independent oversight and review of the use of the powers.

Part II of RIPA governs the use of Covert Human Intelligence Sources (CHIS) by public authorities. Under the Act, a person is a CHIS if a public authority tasks them to establish or maintain a relationship with someone else for the covert purpose of obtaining or disclosing information.

The use of CHIS is key to protecting national security and fighting serious crime. It allows investigators to gain an insight into the criminal and terrorist organisations they are targeting. For decades, CHIS have played a crucial role in preventing, and securing prosecutions for, serious crimes including terrorism, drugs and firearms offences, as well as child sexual exploitation and abuse. This has included helping to identify and disrupt many of the terrorist plots that have been prevented.

RIPA is supplemented by the CHIS Code of Practice which provides detailed, comprehensive guidance and best practice on the use of CHIS. It is intended to guide law enforcement agencies, the security and intelligence agencies and other public authorities who exercise such powers. It sets out additional safeguards as to how the powers already in primary legislation should be exercised and the duties performed.

The CHIS Code was last updated in 2018. The draft on which we are consulting has been revised and updated to reflect the new provisions relating to the authorisation of criminal conduct by CHIS brought in by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021. We have also taken this opportunity to add a number of minor updates, and to make some clarifications to the text, all of which are intended to ensure that public authorities continue to apply best Practice.

All responses will be welcomed and carefully considered.

Rt Hon Damian Hinds MP

Minister of State for Security

Scope of the consultation

Topic of this consultation:

This consultation is on the draft revised Covert Human Intelligence Sources (CHIS) code of practice under the Regulation of Investigatory Powers Act 2000 (RIPA).

Scope of this consultation:

This consultation seeks representations on the draft revised code.

Geographical scope:

UK-wide

Basic information

To:

Representations are welcomed from public authorities that have powers under RIPA, as well as professional bodies, interest groups and the wider public.

Duration:

8 Weeks.

Enquiries and responses:

Please send any enquiries and responses to: RIPA@homeoffice.gov.uk

Please indicate in your response whether you are content for it to be published, with or without attributing it to you/your organisation.

After the consultation:

Following the consultation period, responses will be analysed and the draft code revised as necessary. It will then be laid before Parliament for approval.

Background

Getting to this stage:

In preparing this draft we have engaged with public bodies that authorise and use CHIS under RIPA including the law enforcement community. We have also sought input from the independent Investigatory Powers Commissioner’s Office which oversees and monitors the operation of the legislation.

What is the code of practice?

The Code is primarily intended to guide those public authorities that exercise powers and perform duties under the Regulation of Investigatory Powers Act 2000.

The Code sets out the processes and safeguards governing the use of covert human intelligence sources by public authorities, including the police and security and intelligence agencies. It gives detail on how the powers should be exercised and duties performed, including examples of best practice. It is intended to provide additional clarity and to ensure the highest standards of professionalism and compliance with the legislation.

A Code of Practice issued under the Act has statutory force and individuals exercising powers and performing duties to which the Code relates must have regard to it. The Code is admissible in evidence in criminal and civil proceedings and may be taken into account by any court, tribunal or supervisory authority when determining a question arising in connection with those powers and duties.

Why are we consulting?

Under the Regulation of Investigatory Powers Act 2000, the Secretary of State is required to issue Codes of Practice about the exercise of powers and performance of duties under the Act.

Prior to issuing any Code, the Secretary of State must prepare and publish a draft of it.. This consultation fulfils that requirement.

Following the consultation, the Secretary of State must consider any representations made about the draft and must make an order, to be approved by Parliament, before the final Code can come into effect.

Proposed changes:

The main changes in the revised and updated Code on which we are consulting are set out below.

CHIS Criminal Conduct

The draft revised Code has primarily been amended to reflect the new provisions relating to the authorisation of criminal conduct by CHIS brought in by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021. The Act provides an explicit statutory power for the intelligence agencies, law enforcement and a limited number of wider public authorities, to authorise CHIS to participate in criminal conduct where it is necessary and proportionate to do so. A new chapter (Chapter 6) has been added to the Code which provides detail on:

• The authorisation criteria and procedures to be followed;
• The process for notifying authorisations to Judicial Commissioners at IPCO;
• The information to be provided in an application for the authorisation of criminal conduct;
• The criteria for the review, renewal and cancellation of authorisations.

Other amendments have been made to Chapter 3 of the Code to set out the criteria for assessing whether an authorisation is both necessary and proportionate; this includes listing the grounds on which an authorisation is likely to be necessary and the elements of proportionality that need to be considered before granting an authorisation.

Chapter 4 has been updated to reflect that an authorisation may not be granted for activity in Scotland where it does not relate to a reserved matter.

Special considerations for authorisations

Chapter 4 has been updated to clarify the enhanced safeguards that are in place in the rare circumstances when a juvenile or vulnerable individual is to be authorised as CHIS. The updates make clear that they can only be authorised in exceptional circumstances and provides additional detail on the safeguards that are in place. This includes, for example, guidance on the requirement for an appropriate adult to be in place for meetings between a public authority and juvenile, such as who the appropriate adult should be.

Tasking – use and conduct

Chapter 7 has been updated to ensure a clear process when unforeseen action or undertakings occur on the “use and conduct” of a CHIS, This includes making a record and assessing whether a new authorisation is required.

Relevant errors

Chapter 8 of the Code has been updated to ensure that it is clear only requirements imposed or under Regulation of Investigatory Powers Act 2000 may give rise to a relevant error under the Investigatory Powers Act 2016. Paragraph 8.12 provides clarification on a non-exhaustive list of possible relevant errors by a public authority. This includes if there has been a failure to adhere to the safeguards set out in the relevant statutory provisions or to have regard to the Code.

Sensitive information

There are sections in the Code dedicated to the protection of sensitive information (such as matters subject to legal privilege, applications to acquire material relating to confidential journalistic information and journalist’s sources), including guidance on the information that must be included on an application to use CHIS and how the information obtained must be handled, retained and deleted. These sections have been strengthened further, resulting in more effective safeguards in this area.