Chakrabarti: “If the CHIS bill passes, a real Rubicon will have been crossed”

“If this bill passes unamended, as it did in the House of Commons, I think a real Rubicon will have been crossed that we will come to regret.” Shami Chakrabarti served as director of advocacy group Liberty before becoming Shadow Attorney General under the last Labour leadership. She is now using those skills and her detailed knowledge of civil liberties and human rights law in the House of Lords to resist the government’s new legislation on covert human intelligence sources, known as ‘CHIS’. While the party led by Keir Starmer abstained on the CHIS bill at both second and third reading in the Commons, Baroness Chakrabarti is tabling amendments and working cross-party to radically reform the proposed piece of legislation that she regards as “contrary to the rule of law” and “counterproductive to law and order”.

The Labour peer tells me in our interview that she believes something fundamental changed in the debate when the bill was introduced to the Lords last week. She points out that the new Advocate General for Scotland, Keir Stewart, acknowledged in his opening speech that it represents “a departure from the existing approach” – and described this as a “deliberate policy decision”. Neither the government nor the Labour frontbench was saying that this was the case, instead portraying the bill as merely formalising the status quo. “A lot of the people who supported the bill in the Commons did so on the understanding that what the bill is about is taking existing shadowy practices and putting them on a statutory footing,” Chakrabarti tells me. “And that’s certainly how the government was presenting the bill.” But this myth has been busted, she says.

What does the CHIS bill actually do, and what is it that led 34 Labour MPs including several frontbenchers to break the whip and oppose it? The legislation would allow CHIS – not employees of agencies like MI5, but people who establish or maintain a relationship to gather intelligence for those bodies – to lawfully engage in authorised criminal conduct. Put simply, CHIS can currently be authorised to commit crimes in the process of obtaining information, but such activity can still be considered for prosecution. Under this bill, however, they would be given immunity from prosecution when authorised. The government has now conceded this via its law chief.

Chakrabarti says the criminal conduct authorisation we have now is “not a golden ticket” and “not a license to kill”, but the government is seeking to overturn that by creating immunity. “Now that the government has come clean,” she says, “I have tabled some amendments to restore the status quo, and to do what Labour people said they wanted, which is just to put current practices squarely on a statutory footing, to take them out of the shadows.” She has cross-party support for her two amendments. One is to strip out the immunity, so that the conduct isn’t rendered “lawful for all purposes” but made relevant to the public interest test, to the court’s consideration of available defences and to the consideration of liability or damages. The other is to prohibit criminal conduct being authorised to make someone an agent provocateur, i.e. for the primary purpose of inciting crime or discrediting those under surveillance.

The Labour peer explains: “Throughout the history of peaceful protest, and particularly progressive movements, in our country – and in the world, probably – there have been some agents of the state who’ve gone undercover not really to investigate crime, not to gather intelligence on what they believe to be a violent group, not to disrupt criminal or violent behaviour, but to actually incite it, to whip it up. In order to tarnish the organisation or the campaign, or in order to justify a more robust state response, like ‘ban this organisation’ or ‘break up this demonstration’. This happened with the Hunger marches,” she says, referring to the protests that became prominent in the 1920s and 1930s. “It probably happened at Peterloo, for goodness’ sake!”

Her concern here is linked to that of trade unionists who are keenly aware that their legitimate activity – as well as that of campaigns such as the one led by Stephen Lawrence’s family – has been subject to police surveillance. I know myself of those worries first-hand, though not of the devastating effect that such spying can have, as my interest in the CHIS bill may be shaped partly by the experience of being in an anti-capitalist activist samba band for several years. The only child in the group, I grew up for a time surrounded by adults who constantly exchanged rumours about whether this or that member was an undercover agent. It seemed a bit paranoid at the time – why would the police be interested in spying on a non-violent group that simply loved drumming at demonstrations and in anti-G8 camps while wearing pink and silver? – but it seems I was too naive, as the band Rhythms of Resistance became a core participant in the undercover policing inquiry. I wouldn’t be surprised to discover I had been babysat by a CHIS.

As I drill into the detail of the bill with Chakrabarti, I bring up one criticism voiced by MPs from across the chamber – that so many different agencies are listed, including the Food Standards Agency and the Gambling Commission, which seems absurd. This point and the concern about surveillance overreach taps into a broader problem with this legislation, Chakrabarti tells me: “criminal conduct is being tagged on to a framework that is about surveillance”, i.e. the Investigatory Powers Act 2016. The peer says: “I need a politician’s warrant if I want to tap your telephone. But ironically, I can self-authorise as an agency or a police force if I want to use the most intrusive surveillance of all, which is actually an undercover operative.”

“Why is it the most intrusive? Because they’re human. And because you’re human, once they’re in, they can change your behaviour. They’re not just a bugging device, or a monitoring device, or a telephone tap, or even a search of your physical premises. Once a human is in your friendship circle, in your office, in your bed, they are actually changing your behaviour.” Chakrabarti convincingly makes the case that this is a “defect” in the original Regulation of Investigatory Powers Act, first introduced in 2000 under a Labour government. (She jokes that I am “pricking the balloon of pompous elderly people in the House of Lords” when I mention that this was the sort of thing I would watch her talk about on BBC Question Time as a teenager.) She sums up: “This is how thin ends of wedges work. You start with surveillance powers that are too broad, then you start building criminal conduct powers on to that edifice with a long list of agencies.”

Another key objection to the bill – known as ‘spycops’ by critics – is that there is no limit specified on the types of crimes that can be authorised, and it simply refers to the Human Rights Act instead. When this was raised directly with Starmer during a ‘Call Keir’ meeting over Zoom, he emphasised that “nothing can be authorised if it conflicts with or breaches the Human Rights Act”. The leader asked rhetorically: “If you can’t authorise something that breaks the Human Rights Act, how on earth do people make the argument that you can break human rights under this bill?” But Chakrabarti counters that the HRA is being used in a “slightly Orwellian way”, as a “fig leaf”. She makes the point that “if the Human Rights Act were enough by itself, we wouldn’t need criminal law”, with the bottom line being: “No individual can be prosecuted under the Human Rights Act. Human rights principles bind the state and public bodies.” And on that subject, the government has declared that it doesn’t hold itself responsible for the actions of CHIS, and Chakrabarti says “they haven’t squared that circle”.

The other argument put forward is that Labour needs to rebuild trust with voters on national security, and this bill makes us safer. Starmer has stressed that he worked with security and intelligence services before entering parliament, and that in the last three years 27 terrorist plots have been brought down by agents. To this line of reasoning, Chakrabarti says: “You do not protect law and order by allowing armies of members of the community, including former criminals who are turned, or continuing criminals who are also operating as CHIS, to break the law with impunity. If voters really understood that is the debate here, they wouldn’t consider it soft on crime to say we don’t want agents of the state committing crimes against us in the community with impunity.” She is not against CHIS committing crimes in the public interest, but illustrates her problem with the legislation as such:

“Sienna, if you and I were walking down the street, and we walked past a house, and we saw a child who appeared to be in incredible distress and looked as if they were being strangled by somebody, and they’re up there in the window. And we’re not police officers, we’re not MI5 agents. We’re just citizens. If we broke down the door, or smashed the window, or did something, because we didn’t think we had time to call the police and we thought a child was in mortal peril, we would subsequently be able to rely on the public interest in not prosecuting us. 

“And if anybody was perverse enough to prosecute us, we would have defences that we could rely on. And the point is, it’s the same law for us as it is for undercover operatives, or even police officers. Now, granted, they have to put themselves in these situations all the time, and we don’t. And that’s the justification for giving them these authorisations plus guidance and putting it on a statutory footing. But it’s not a justification for saying they get complete immunity.

“I believe that the public would understand that. It’s a really important principle of British law, that there’s one law for everybody. Look at how they felt about Dominic Cummings, and Barnard Castle… A lot of people will accept the privations of lockdown, harsh though they are, but not if there’s one law for some and another law for other people. And I think if people can feel that way about Dominic Cummings, they can certainly feel that way about armies of unnamed not just officers and spies but members of the community who are acting as undercover operatives. You don’t protect the rule of law by undermining it.”

Chakrabarti is “hoping” to work with the Labour leadership on stripping out big parts of the CHIS bill, particularly after the government made the fundamental concession that “this isn’t just putting the existing, difficult, shadowy, vital practice on a statutory footing”. Building such alliances is the next step of the journey, as the committee stage takes place in the Lords on November 24th. But the real, ultimate question for the passing of this legislation is whether the government will change course and accept amendments if they are passed by the Lords, or simply reverse those changes as ministers have done with other recent bills. Although all signs point to government intransigence, there is hope based on the concerns of some Tory MPs and on the joint human rights committee report that is deeply critical, which has led Baroness Chakrabarti to remain optimistic in her fight against the ‘spycops’ bill.