Thursday, 8 October 2020

The Covert Human Intelligence Sources (Criminal Conduct) Bill

On 5 October, the Covert Human Intelligence Sources (Criminal Conduct) Bill passed its Second Reading in the House of Commons by 182 votes to 20.  Very briefly, the Bill aims to empower various bodies to authorise undercover operatives to commit criminal offences.

The Labour Party's position was to abstain because the party supports putting undercover activities on a statutory footing but 20 Labour MPs voted against the Bill. Labour is calling for additional safeguards in the Bill.  The Guardian 6 October and Labour List 5 October.

Opening the Second Reading debate, the Minister (Mr James Brokenshire MP) set out the purpose of the Bill - "... the Bill deals with participation in criminal conduct by covert human intelligence sources - so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups."

In reality, it is not merely

criminal and terrorist groups that have been infiltrated. For instance, the Undercover Policing Inquiry heard an acknowledgement from the Metropolitan Police Service in 2018 that the force infiltrated trade unions and passed information to the construction industry about blacklisted workers.

Much that is objectionable in this Bill was summarised during the second reading debate by Zarah Sultana MP (Coventry South) who argued that the Police had - 

" run covert operations spying on thousands of civilians. More than 1,000 political groups were spied on. Overwhelmingly, it was left-wing, anti-racist and climate justice groups that were spied on, with just three far-right groups included on the list. The spy cops revelations have shown that police operatives deceived women into sexual relationships and even spied on grieving families seeking justice, including the parents of Stephen Lawrence."

The Bill places "no limits on the crimes that state agents can be authorised to commit. It does not prohibit torture. It does not prohibit murder. It does not prohibit sexual violence. Instead, all it requires is that authorising officers themselves believe that the conduct is appropriate, necessary by broadly defined criteria and meets requirements that may be imposed by an order made by the Secretary of State."

"The grounds upon which the authorisations can be granted are ill-defined and wide-ranging. They include not only national security but “preventing disorder” and to promote “the interests of the economic well-being of the United Kingdom.”

"The Bill grants these powers to a dizzying array of agencies - not just intelligence agencies and the police, but the Competition and Markets Authority, the Gambling Commission and the Environment Agency, just to name a few. The oversight for authorisation of potentially serious crimes is scandalously weak. There are no provisions in the Bill for warrants or independent judicial approval. Instead, authorisation will be granted internally, which means that incredibly serious crimes could be authorised with less oversight than is currently required for phone tapping or police searches."

Zarah Sultana concluded by saying -

"This Bill marks the latest step in a frightening descent into authoritarianism by this Government. In the past two weeks, they have proposed the effective decriminalisation of torture by British soldiers overseas, the shipping of asylum seekers more than 4,000 miles away to be imprisoned on Ascension Island, the ban on anti-capitalist teaching materials in schools and now this—licensing undercover agents to commit torture, sexual violence and murder. This descent into authoritarianism should be a concern to us all. It must be resisted.​"

It remains to be seen whether safeguards can be strengthened as the Bill goes through Parliament. 

The government seems likely to resist placing on the face of the Bill any limits about what offences may be authorised. Brokenshire said - "

"We do not believe, however, that it is appropriate to draw up a list of specific crimes that may be authorised or prohibited. To do so would place in the hands of criminals, terrorists and hostile states a means of identifying our agents and sources, creating a potential checklist for suspected CHIS to be tested against. That would threaten the future of the CHIS capability and result in an increased threat to the public. Protecting CHIS from prosecution will have achieved little if we cannot also protect them from being identified by the terrorist and criminal groups they inform against, placing them at personal risk."

A former Director of Public Prosecutions (Lord Macdonald) has advocated placing limits in the Bill - see Scottish Legal 5 October 2020.

See also UK Government Draft Code of Practice

Links:

The Undercover Policing Inquiry continues to trundle along. It was set up in 2015 and the indications are that it will not conclude until 2023. The lengthy timescale of some inquiries ought to be another cause for concern. Inquiries are set up as a response to some matter of particular concern and reports issued years afterwards can be of limited value. 

Investigatory Powers Commissioner

Investigatory Powers Tribunal

Materials:

Government Factsheet about the Bill 

Intelligence and Security Committee - 24 September 2020 - ISC Statement on the Covert Human Intelligence Sources (Criminal Conduct) Bill

Joint Committee on Human Rights 30 September - the committee has called for evidence on the Bill - and expressed "concern" about the human rights implications of the Bill, particularly as it has no express limit on what criminal conduct can be authorised. Not only this, but the Bill covers the authorisation of criminal conduct by a wide range of public authorities, from the intelligence services and the police to the Gambling Commission and the Food Standards Agency." 

Previous post 10 September 2015 - Intelligence Services Act 1994 section 7

Articles:

Committee on the Administration of Justice (CAJ) - Briefing for Second Reading of the Bill

Statewatch - Calls to halt bill authorising crimes by state agents

Note:

The use of CHIS has to be authorised under section 29 of the Regulation of Investigatory Powers Act 2000.  The Bill does not change that. 

The Bill inserts a new section 29B into RIPA 2000 to enable designated persons to have the power to grant criminal conduct authorisations (CCA).  A CCA is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a Covert human intelligence source.


1 comment:

  1. Dreadful Bill, shameful politics. I don't know what anyone else was expecting when the former DPP and legal counsel for the McLibel defendants became leader of the Labour Party, but it wasn't hearing the rule of law upheld by the marginalised "Corbynite" minority of the parliamentry party while the leadership studiously keeps mum.

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