Thread by @thebrieftweet

The CHIS (Criminal Conduct) Bill is a pretty extraordinary read as is the ECHR Memorandum accompanying it. Points that emerge on a first read:
#1. The criminal conduct authoriseable (subject to the HRA override) is unbounded, from petty criminal damage to the most grave offences.

#2. The HRA override is a triumph of formalism without robust mechanisms to test ostensible authorisations either in advance or after grant/as used. IPCO oversight and the qualified route to IPT is no substitute for judicial prior authorisation or embedded adversarial challenge

#3. IPC error reporting to victims- which must be serious and in the public interest - is hopelessly weak and will generate yet more secret jurisprudence.

#4 The Govt line that CHIS action is not attributable to the state (Memo para16) where the intention is disruption or it would take place anyway is laughable and troubling in equal measure.

#5 There is going to be a mass of secret case law on points of real principle - the legality of authorisations, of policies on when and where to authorise, what to authorise etc as well as IPC powers. No provision is made to address the profusion of secret law and policy.

#6. The interaction with private law is going to be a nightmare where the conduct is tortious. Claims for assault etc will not go to the IPT and CMOs are only available for national security. The Bill and those it authorises go far wider e.g Gambling Commission (gulp).

#7. This means PII common law processes will have to be used and a means found to use PII advocates to challenge authorisations as part of establishing whether PII should be granted - but does invalid authorisationnmean no PII. Rock v Carnduff problems AHOY!

#8. The scheme of the Bill is in effect full immunity not just from prosecution but also tortious liability. Where the victims are innocent or suffer horribly (violence, sexual offences etc) how can this be a “fair balance” to deny all compensation?

#9. The interaction with the Criminal Injuries Compensation scheme could be “interesting” as there is no wrong or crime to compensate for. This will need to be carved out (if only not to amount to a breach of NCND).

#10. Limitation will never run in many cases since claimants will be deprived of key facts for their claim this meeting the s.32 LA threshold (even allowing for the fact that this is a defence to some torts; not so the HRA s.8 claim).

#11. The only way to make any of this acceptable is to limit such powers as far as possible by serious and sustained independent internal challenge pre and post fear of authorisation.

#12. It is bizarre ultimately that there will be far greater and better safeguards for a civil search order (based ultimately on Art 8 considerations from Chappell v UK) than there will for far more intrusive, damaging and unfair intrusions on non-derogable protected rights.

#13. I fear this Bill will receive no sustained opposition since Cons and Lab and Lib (in coalition) bought into the former secret policy whilst in Govt. How far former Judges and others in police and justice are compromises by former awareness of the policy is an open Q. END