Basic freedoms and the rule of law under threat

Nadine Finch looks at the worrying implications of the Covert Human Intelligence Sources (Criminal Conduct) Bill (CHIS) now completing its passage through Parliament

The government is supporting the draconian new provisions in this Bill on the basis that only they will provide the necessary powers to combat contemporary forms of organised crime and terrorism. But the government has failed to provide a cogent evidence base for extending these powers to agents employed by government departments, whose expertise and experience does not include any significant engagement with policing or security incidents. It is also proposing a “blank cheque” approach, when authorising actions by them and other covert agents, who will not be subject to criminal prosecution or civil liability for their actions.   

The government has also failed to provide any cogent justification for moving away from the checks and balances provided in the Regulation of Investigatory Powers Act 2000. This is despite the fact that the powers being exercised in that Act apply to actions which are likely to have a less significant effect than the ones now proposed, as they only authorise the surveillance of postal and other communications or what in the context of the security service has been termed the ability to bribe, burgle or blackmail.

The current Bill provides for the authorisation of actions by agents in person who, as part of organised criminal and terrorist organisations, will not be sanctioned if they commit sexual assaults, torture or even murder. As Lord MacDonald, who was Director of Public Prosecutions from 2003 to 2008, said, “There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction law-breaking, without the need to first obtain independent warrants from judges or some other authority. Under the Bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”

Judges regularly provide warrants to authorise actions swiftly and are used to the need to maintain confidentiality. Removing the courts and the Criminal Prosecution Service (CPS) from any involvement in this area of operations invites a return to the era of misconduct and miscarriages of justice, which preceded the coming into force of the Police and Criminal Evidence Act 1984 and the Public Order Act 1986 and one which will not be limited to police actions.

Crucially, both the government and the Official Opposition have ignored the fact that previous policies and guidance provided to covert agents respected one of the most basic of components of the UK’s unwritten constitution.  It was accepted that, as a general rule, covert agents cannot operate outside the law and the reach of the CPS and the courts. However, in recognition of the exceptional circumstances in which some covert agents find themselves, it was accepted that where national security or other serious threats to the well-being of the population were involved, the CPS and the courts may decide that the benefits of an agent’s criminal actions were such that their prosecution would not be in the wider public interest. This was a legal compromise which protected both the rule of law and the public interest.

Under the CHIS Bill, the CPS and the courts have no role, as agents are granted both criminal and civil immunity. The clauses of the Bill do require an authorising officer to act on the basis of a reasonable belief that an action by a covert agent is necessary and proportionate. But the case law relating to these concepts is still being developed by the most senior and experienced judges, assisted by highly trained lawyers and years of detailed case law.

There is no rational basis for believing that authorising officers, with no or little legal training, will be able to apply these concepts effectively and, if they do not, there will be no legal redress for those who may be harmed or even killed.  It is not sufficient to say in debate that these officers will be highly trained and experienced and yet provide no evidence of any such training and experience, especially when these officers may be working in departments, such as the Food Standards Agency and the Department of Health and Social Care, with no visible track record in the area.

The inclusion of powers to authorise the use of covert agents to these two agencies and to the Home Office, the Ministry of Justice, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority and the Gambling Commission is a clear example of the “mission creep”, which can often occur when new powers are suggested by politicians or civil servants who have speculated that such powers may be useful on some future unspecified occasion. Even if actions by organised crime or terrorist organisations could occasionally be relevant to the responsibilities of such departments and agencies, it is very unlikely that their authorising officers would be capable of assessing the extent to which it would be reasonable and proportionate to authorise the action of a covert agent and it is likely that they may do more harm than good. This is especially the case when there is no requirement that the agents used are any more than members of the public, who may have agreed to co-operate to avoid prosecution for crimes they have already committed.

It is also the case that there is a long history within the United Kingdom of covert agents acting outside the law or “going rogue” on account of their own political opinions or because they relish the wide- ranging power they have been accorded as agent provocateurs. There are around 50 “legacy inquests” still to be heard in the North of Ireland, many involving the actions of covert agents, who colluded with paramilitary gangs and elements of the British army who were acting outside the rule of law.

Many of these involve deaths which occurred some decades ago but the delay in hearing these inquests indicates that collusion remains a powerful element of the state’s response to these deaths. For example, the Historical Enquiries Team, set up in 2005, was subsequently disbanded and replaced by a smaller and less well-funded unit and it required action by the Northern Ireland Lord Chief Justice, Sir Declan Morgan in 2016, a decision by Mr Justice Maguire in 2017 and a decision by another High Court Judge, Sir Paul Girvan, to ensure that a schedule for these inquests was finally established.

In addition, the failure to honour a commitment to hold a new public inquiry into the death of Patrick Finucane, to co-operate in a meaningful manner with establishing the truth behind the Ballymurphy killings and the criminal charges brought against the journalists who investigated the Loughinisland Massacre, all indicate that the state is still intent on hiding the truth about the killings which occurred in the North of Ireland over a number of decades, many of which involved covert agents. There has been passing reference to the killing of Patrick Finucane in the debate on the CHIS Bill but there has been no attempt to learn lessons from the past. There has merely been an assertion that it is all different now, despite the lack of inquiries or support for legacy inquests.

This is also the response to the current Mitting Inquiry into Undercover Policing, including the activities of the Special Demonstration Squad and the National Public Intelligence Unit. This is despite the fact that the issues being considered in the Inquiry are of undeniable relevance to the powers being proposed in the CHIS Bill. Module 2 of the Inquiry will consider the management and oversight of undercover officers and Module 3 will provide recommendations about how undercover policing should be conducted in the future.  

Both the government and the Official Opposition rely on the existence of the Human Rights Act 1998, as a substitute for the involvement of the CPS and the courts. However, the Act prohibits the actions of states, not individuals, and any challenge to an authorisation which led to a breach of an individual’s human rights by a covert agent will only be possible by way of a claim for judicial review. Such claims do not attract publicly funded legal aid and the extent of claims for judicial review is currently subject to an Independent Review of Administrative Law. This is expected to try to limit the basis upon which executive decisions can be challenged and fundamentally challenge the scope of the common law principles, which underpin the concept of the separation of powers between the executive and the courts.

In any event, the CHIS Bill has been drafted with the Human Rights Act in mind in an attempt to make it difficult for legal challenges to be brought against decisions by the departments and agencies to authorise actions by covert agents. Both the Human Rights Act and the CHIS Bill balance individual rights to liberty, respect for private and family life and freedom of peaceful assembly and association, including the right to form and join a trade union, against the interests of national security and public safety and the need for the state to prevent disorder and crime and protect the economic well-being of the country. It is then left to the officer authorising any action by the covert agent to apply this balance by reference to concepts of proportionality and necessity. Any public lawyer will confirm that these concepts are open to a very wide range of lawful interpretation and that decisions may be very difficult to challenge.

The rights to life and the prohibition against torture and human trafficking and servitude, also incorporated into national law by the Human Rights Act 1998, are absolute rights which are not subject to any such balancing act. But any challenge to breaches of these rights is fundamentally undermined by the fact that actions taken under the CHIS Bill do not attract criminal or civil liability and any claim for judicial review, which may remain possible, will lack any practical effect as it will only occur after the event.  

Furthermore, in relation to covert agents, the Investigatory Powers Commissioner will have very limited and retrospective powers. They will be able to keep authorisations under review and then include their findings in an annual report.  Even, the cross-party parliamentary Intelligence and Security Committee has been denied a meaningful role.

As a consequence, the checks and balances provided in the CHIS Bill are disproportionate to the very serious human rights abuses, which may result from the authorisation of actions by covert agents by officers without insufficient legal training and understanding to undertake the necessary balancing exercise between individual rights and the public interest. The breadth of the powers and departments and agencies involved also indicate that the powers are likely to be used against a wide range of individuals, including members of trade unions and community and political activists, and not just members of organised criminal and terrorist groups.

The bill is now in its last stage in the House of Lords, where a small number of Labour Lords assisted by Lib Dem and Green Lords, cross-benchers and bishops have sought to defend the rule of law and the rights of individuals to take trade union and political actions. The Labour leadership has not taken a principled position on the fundamental legal and constitutional issues at stake. In failing to do so, it has abandoned many in the labour movement who have struggled and continue to struggle to protect democratic and legal rights for those who most need them.

Nadine Finch is a former barrister who specialised in human rights law and is the author of several books on family, immigration and comparative law.

Image: Benches in the Chamber of the House of Lords, extracted from: Take a tour of the House of Lords.webm Author: UK Parliament, licensed under the Creative Commons Attribution 3.0 Unported license.

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