In 1968, a secret operation was launched which sent undercover cops into radical political groups on deployments typically lasting four years. Many of those police operatives had sexual relationships with group members under their fake personas. Others manipulated evidence about the people they were spying on, leading to the wrongful conviction or prosecution of at least fifty activists. Evidence has since come to light that eighteen grieving families seeking justice from the police were spied on too – including the parents of Stephen Lawrence.
This operation went on for forty years, and since its closure, an inquiry has been launched into the practices of undercover police. But in recent weeks, concerns about the viability of the justice that the inquiry seeks have been raised in light of the threat posed by the Covert Human Intelligence Sources (Criminal Conduct) Bill, which will be presented for its second reading this afternoon.
The proposed law would give intelligence agents who commit crimes while undercover protection against both criminal prosecution and civil redress. In reality, the practice is already commonplace. The ‘third direction’ policy has authorised undercover officers to commit crimes since the 1990s – if officers feel it necessary to show loyalty to the group they’re spying on, for example. This Bill would amend the Regulation of Investigatory Powers Act 2000 to enshrine those rights in statute, and pre-emptively shields police officers, MI5 agents and civilian informants from future blame.
The government is keen to point out that this Bill doesn’t amount to a criminal free-for-all. It allows internal authorities to authorise specific instances of law-breaking when necessary ‘in the interests of national security, preventing or detecting crime or disorder, or the economic well-being of the UK’, and only ‘proportionate to what is sought to be achieved by the authorised conduct’. Infractions outside of that authorisation, either in terms of time or type of activity, won’t be protected legally – and all authorisations will be subject to oversight from the Investigatory Powers Commissioner.
But fears raised by groups as broad as Amnesty International, Reprieve, the Orgreave Truth and Justice Campaign and Unite the Union centre on the fact that the Bill doesn’t exclude any forms of criminal conduct (it should be pointed out that even the USA’s equivalent legislation rules out torture and murder). Amnesty’s Northern Ireland campaigns manager Grainne Teggart has warned of the “grave danger” that the Bill could “end up providing informers and agents with a licence to kill,” while Unite’s briefing referenced the state’s collusion in the murder of the Belfast solicitor Pat Finucane as well as ongoing legal battles over the blacklisting of construction workers.
In its ECHR memorandum, the government itself lists the human rights articles most likely to be breached by authorisations under this Bill: Article 2 (the right to life); Article 3 (the right to protection from torture, or inhumane and degrading treatment); and Article 5 (the right to liberty and security of person). “The Bill does not alter the position that authorities are not able to authorise conduct that constitutes or entails a breach of those rights,” the memorandum states. “However, due to the circumstances in which CHIS [Covert Human Intelligence Sources; undercover officers] operate, consideration of Articles 2, 3 and 5 is relevant.” It also argues that breaches by CHIS are not the responsibility of the state in instances where similar breaches might have taken place anyway – an addition one might be inclined to read as a covering up exercise.
Similarly, the provisions made – that authorisations for law-breaking must be ‘specific and proportionate’ – are subjective, and history shows that governments tend to view questions of crime, disorder and national security in highly political terms. Of the more than 1000 groups subject to undercover surveillance since the 1960s, only three were far-right: the majority were anarchist, anti-fascist and left-wing collectives, trade unions, and campaigns for justice for victims of state violence.
Perhaps even more worryingly, the powers granted by the Bill extend beyond the security services: among others, the Competition and Market Authority, the Department for Health and Social Care and, bizarrely, the Food Standards Agency will also be able to authorise breaches. It amounts to an enormous extension of powers to surveil citizens – and particularly dissenting ones – across the British state.
Today’s debate comes less than two weeks after similar human rights concerns were raised over the ‘de facto decriminalisation of torture’ entailed in the Overseas Operations Bill. Many Labour members were dismayed by the lack of opposition the Party raised to that Bill, and by the subsequent sacking of MPs who flouted the guidance to abstain. Despite some of the same individuals speaking out against the CHIS Bill, the enthusiasm for it expressed by the Shadow Home Secretary in yesterday’s Independent makes it clear we’ll be disappointed again this afternoon.
To Labour’s shame, dissenting voices are being heard elsewhere. Yesterday the FT reported that the government might be facing a rebellion by senior Tories including David Davis and Andrew Mitchell, who have expressed fears that the legislation is ill thought-through. “There are a whole series of weaknesses in it,” Davis told the paper, “which at the end of the day will impinge on innocent people.”
‘Contravention of human rights’ is a cold term for what could prove a brutal reality for left-wing activists. Justice for victims of undercover police activities in past years is yet to be seen – and the clear intention on the government’s part to extend those powers and that impunity raises pressing questions about the kind of authoritarian legislative issues that are being set in motion. It will be to Labour’s enormous detriment if they allow that future to come to pass while sitting idly by.