The covert human intelligence sources bill (CHIS), due to be rushed through its final stages of legislation on Thursday, would give protection to agents who commit crimes while undercover from criminal prosecution or civil redress. Its proponents argue that this practice is already commonplace, and legislation is necessary to put it on a statutory footing. But this legislation goes way beyond that.
The list of crimes committed by the state during undercover operations is vast. One only needs to think of the ‘spycops’ scandal, where women were tricked into sexual relationships by undercover police. Or the murder or Pat Finucane, a Belfast lawyer shot in his home 14 times in front of his wife and three children in 1989. David Cameron was forced to apologise in 2011 for the “shocking levels of state collusion” in his murder, yet still no member of the British Security Services has been prosecuted for this crime.
Unlike similar legislation in countries including the US and Canada, this bill does not place any limits whatsoever on the types of crimes that can be committed while undercover, doing nothing to ensure scandals like the Pat Finucane murder never happen again. It places many lawful organisations, including trade unions, at risk of infiltration where crimes can lawfully be committed against their members.
Some MPs who debated the bill last week seemed utterly incredulous at the idea that any agents of the British state might ever seek to spy on trade unions or their members. I don’t know where they’ve been for the last few years, but the revelations over the links between unlawful undercover policing and blacklisting operations have already been admitted by Scotland Yard. Peter Francis, formerly an undercover cop in the Met’s Special Demonstrations Squad (SDS), has admitted infiltrating and spying on five national trade unions, in addition to anti-racist movements, justice campaigns, socialist groups and environmental activists. We’re not talking about terrorists or child sexual exploitation rings here. The families of Stephen Lawrence and Ricky Reel, murdered in brutal racist attacks, were spied on as they sought justice for their loved ones.
Francis has offered to give evidence to the public inquiry now under the stewardship of Sir John Mitting (a process dragging on for so long that the initial presiding Judge, Lord Justice Pitchford, has had to step down on health grounds). Victims of Francis’ ‘spycops’ colleagues on the SDS are days away from beginning their formal hearings, including women tricked into intimate sexual relationships on false pretences – actions that campaigners believe constitutes statutory rape. The Met has just apologised for the actions of undercover cop Bob Lambert, who fathered a child with a woman he misled in this way, paying compensation to the son he deserted at two years old – now a 26-year-old man.
Whilst the government’s decision to clarify the issue of such authorisations by putting them on to a statutory footing is not necessarily unwelcome, the near-total lack of necessary safeguards should appall anyone concerned with human rights and basic freedoms in a democracy.
Security minister James Brokenshire is hiding behind the legal requirement for compliance with the Human Rights Act (1999), which incorporates the European Convention on Human Rights. But the government’s track record suggests this is being put forward in bad faith. Not only have many Tory backbenchers flirted with revoking the HRA altogether, the government’s legal defence team has previously argued that the state cannot be held responsible for the human rights compliance of individual agents once lawfully authorised, telling the IPT, “the state, in tasking the CHIS… is not the instigator of that activity and cannot be treated as somehow responsible for it… It would be unreal to hold the state responsible.”
Unite has joined other trade unions, civil society organisations and civil liberties campaigners to warn MPs about this. The bill refuses to specify any upper limit to the nature of criminal acts that might be authorised, potentially allowing agencies to give the green light to torture, rape, arson, bombings and even murder. Nor does it forbid the surveillance of trade unions, so long as the agency could argue that such action was “proportionate” to a vague threat of “preventing disorder” or to “economic wellbeing”.
Unlike applications to tap phones or access someone’s internet browsing history, such a power would not even require prior independent judicial authorisation. Instead, the security services, police and other agencies given the power to authorise criminality would simply be left to decide for themselves when the relevant thresholds had been met. The bill provides no basis for compensating innocent victims of illegal actions undertaken by an authorised CHIS, so future victims of spycops would be left without legal redress.
The sheer range of organisations that would have such a power is shocking – including such unlikely spymasters as the Food Standards Agency, the Gambling Commission and the Environment Agency, which aren’t even thought to be worthy of scrutiny by parliament’s intelligence and security committee.
While Labour rightly raised concerns about the lack of proper safeguards, by demanding that MPs abstain on the second reading of the CHIS bill, for the second time in recent weeks the party failed to sound the alarm to the wider public on an issue that should concern all trade unionists and social justice campaigners. Nevertheless, we welcome the amendments to the bill that Labour has tabled to be voted upon on Thursday, and hope all MPs get behind these necessary safeguards.
But let’s be under no illusions: if Boris Johnson’s Tories use their parliamentary majority to block these essential amendments, it would be a total dereliction of duty for the party of organised labour to continue to sit on its hands. We owe it to the victims waiting to give evidence to the public inquiry that the proceedings aren’t undermined by this outrageous attempt to legitimise the very behaviour for which they are seeking long-overdue redress.