Many more ‘spying cops’ without proper controls
By Tim Baldwin, barrister at Garden Court Chambers
The CHIS Act is an Act of Parliament sponsored by the Home Office which will make provisions for and authorise criminal conduct in the course of, or in connection with, the conduct of covert human intelligence sources (CHIS). In other words, this Act makes provisions for various bodies to use undercover agents (a CHIS) and covert sources, and can authorise the CHIS to commit crimes in the undertaking of this duty.
This Act of Parliament has also been referred to as the ‘Spy Cops Bill’ which is a reference to the present Public Inquiry into Undercover Policing, known as the Spy Cops Inquiry. The Undercover Policing Inquiry (UCPI) was set up in 2015 to get to the truth about undercover policing across England and Wales since 1968 and provide recommendations for the future. The inquiry has unearthed that over 1,000 political groups were infiltrated during this time and it has released the cover names of 69 undercover officers, from the Special Demonstration Squad (SDS), who are being investigated.
There have also been allegations of gross sexual misconduct by certain undercover agents, which has been documented widely in the national press. As well as accounts of women being led to believe they were in normal relationships, when in fact their partner was an undercover agent. In addition, conduct such as adopting the identities of dead children to provide for a cover identity by police officers have been prominent in news stories.
Moreover, the UCPI has been investigating the infiltration of trade unions by undercover policing units in addition to improper conduct by Secret Service since 1968. The inquiry has received evidence from prominent political figures such as Lord Peter Hain in respect of infiltration of the anti-apartheid movement and has only just commenced work under Sir John Mitting who became inquiry chair in 2017.
At present only Sections 9 and 10 of the CHIS Act are in force and the remainder of the Act is awaiting the making of the appropriate commencement orders by the Secretary of State to bring them into force.
The provisions of the Act include in outline:
- Inserting a Section 29B into the Regulation of Investigatory Powers Act 2000 that creates a ‘Criminal Conduct Authorisation’ (CCA) which allows undercover law enforcement agents or covert sources to break the law in the interests of national security, the wellbeing of the UK’s economy, or in order to detect or prevent crime. CCAs must only be used to prevent more serious crimes being committed and when there is no practicable legal path by which the same outcome could be.
- Inserting a Section 29C into the Regulation of Investigatory Powers Act 2000 that implements safeguards in instances where the covert source is under the age of 18. These include extra requirements before a ‘juvenile criminal conduct authorisation’ (JCCA) can be issued: a risk assessment must be undertaken, special arrangements for meetings must be made, and there must be exceptional circumstances, which mean that the covert source would not come to any harm and that a JCCA would be in the best interests of the safeguarding of the minor.
- Inserting a Section 29D into the Regulation of Investigatory Powers Act 2000 that implements safeguards in instances where the covert source is a vulnerable adult. This includes extra requirements before a CCA can be issued: a risk assessment must be undertaken, the risks of harm identified by the assessment have been sufficiently explained to and understood by the adult, and the need to safeguard the individual has been taken into account.
- Setting out the bodies capable of using undercover agents and CCAs as being:
- any police force
- National Crime Agency
- Serious Fraud Office
- any of the intelligence agencies
- Department of Health and Social Care
- Home Office
- Ministry of Justice
- Competition and Markets Authority
- Environment Agency
- Financial Conduct Authority
- Food Standards Agency
- Gambling Commission
- Disallowing criminal injuries compensation for conduct authorised under a CCA or a JCCA.
- Making it a requirement of the authorisation or cancellation of a CCA to give notice of the changes to a judicial commissioner.
- Amending the Investigatory Powers Act 2016 to give oversight of the CCA process to the Investigatory Powers Commissioner.
- Consequentially amending the Police Reform Act 2002, the Gambling Act 2005, the Serious Crime Act 2007, the Crime and Courts Act 2013 and the Coronavirus Act 2020 to bring them into line with the provisions of this act.
The Government claimed that the CHIS Act was drafted in response to a ruling in December 2019 by the Investigatory Powers tribunal which declared that MI5’s partially secret policy of allowing agents and informants to participate in serious crimes is lawful and does not breach human rights. The ruling was published with two dissenting judgments both of which was highly critical of the statutory framework surrounding the handling of agents. Many arguments turned on the exploitation of informants within the IRA and Loyalist paramilitaries in Northern Ireland during the Troubles.
In the second dissenting judgment, Prof Graham Zellick QC, was more critical, arguing that parliament had never authorised such a policy. And he added: ‘To accede to [MI5’s] argument would open the door to the lawful exercise of other powers of which we have no notice or notion, creating uncertainty and a potential for abuse’. During the hearing, Ben Jaffey QC, representing civil liberty groups, said the policy in effect meant that MI5 was granting immunity to its agents. He pointed out that police have recently recommended that more than 20 people, including senior officials, should be prosecuted for murder, kidnap, torture and perverting the course of justice following an investigation by Operation Kenova into the handling of agents inside the IRA during Northern Ireland’s Troubles.
The CHIS Act was opposed by a number of political organisations and NGOs, including Amnesty International, the Green Party, Scottish National Party, Sinn Féin, and some Labour and Liberal Democrat MPs. In a statement, Amnesty International said:
‘It’s hugely worrying that we’re a step closer to seeing this deeply dangerous bill become law. MPs are signing off on a licence for government agencies to authorise torture and murder.’
The Guardian ran an editorial against the bill, saying it was ‘unfit for purpose’. The Morning Star noted that ‘even the equivalent legislation in the United States rules out torture and murder, yet nothing is ruled out in this Bill.’ Lord Macdonald, the former DPP from 2003 to 2008, called for explicit limits on the crimes covered by the Bill, now the Act. Reprieve’s director Maya Foa said that although ‘our intelligence agencies do a vital job in keeping the country safe, … there must be common sense limits to their agents’ activities’.
Privacy International director and legal officer Ilia Siatitsa added that:
‘the public has a right to know what type of criminal acts MI5’s policy authorises in the UK. That’s why we’re fighting them in court. The new Bill does not alleviate these concerns.’
The general secretaries of 14 trade unions and Reprieve, the Pat Finucane Centre, the Orgreave Truth and Justice Campaign, Hillsborough Justice Campaign and Justice 4 Grenfell, released a joint statement in October 2020 expressing their concerns over the Bill.
Rather than opposing the enactment of the CHIS Act the Labour Party controversially abstained and a number of Labour MP’s rebelled both in the second and third reading of the CHIS Bill leading to resignations from shadow ministers and parliamentary private secretaries.
When the CHIS Bill reached the House of Lords peers defeated the government in passing two amendments to curtail the use of children, and to stop informants participating in the most serious crimes such as murder, torture, and rape. A third amendment by Shami Chakrabarti seeking to prevent immunity for undercover agents was defeated after the Labour leadership again chose to abstain. The government argued in response that once a particular crime is explicitly outside the limit of the Act, then that crime will be used as a way to ‘unmask infiltrators’ in criminal organisations. Shami Chakrabarti, a member of the House of Lords and the former director of Liberty, pointed out that UK law prosecution must be in the public interest, a prosecutor wouldn’t charge an agent who was breaking the law in the course of their duty.
Upon return to the Commons, the amendments preventing the use of minors and vulnerable people and the participation in serious crimes were defeated.
There is of course nothing new about the use of CHIS by law enforcement agencies, which has been regulated by s 29 of RIPA 2000 from its enactment. It is also a matter of record that the Security Services have long used covert agents as part of their domestic operations, which has often involved those agents engaging in criminal activity. For some time, those acting for the foreign branch of our Intelligence Service (MI6) have been permitted by statute to commit criminal offences in the course of their operations on foreign soil (s.7 Intelligence Services Act 1994). The CHIS Act, however, is the first time that legislation has been drafted to allow offences to be committed in the UK. Perhaps more importantly, the Act allows for authorisation of such activity, not just for those working for MI5 seeking to disrupt terrorist activity but, as alluded to earlier, for a very wide array of state agencies engaged in law enforcement activity, and will have more explicit authority to commit offences.
The CHIS Act provides for little, if any, judicial or independent oversight or protection and the Home Secretary’s assertion that the Human Rights Act 1998 will be a sufficient safeguard raises further problems. First, by not defining which crimes may not be authorised each agency is left with a series of potentially very difficult judgments to be made. Secondly, the rule of law at least demands that decisions to authorise serious criminal activity not be left solely to police officers (or other officials), even if they have attained a particular rank, and certainly not in the huge range of agencies covered by the CHIS Act. It has to be remembered that the CHIS Act was passed during the course of the long running inquiry into scandals concerning the conduct of undercover police officers and the infiltration of various organisations by the Special Demonstrations Squad. It is also difficult to see how the CHIS Act complies with a declaration under s 19 of the Human Rights Act 1998 which itself seems in peril of the government reform.
The question therefore is posed; is the CHIS Act a dangerous affront to our civil liberties?
To address this as implementation is underway, a panel of experts at Garden Court Chambers examined how the law came about and the serious concerns that remain regarding its potential effect.
The webinar took place on Monday 24 May but is available to watch on YouTube here