The beginning of 2021 has seen the United Kingdom’s controversial Covert Human Intelligence Sources (CHIS) Bill, more commonly referred to as “Spy Cops”, reach its final parliamentary stage before gaining royal assent. The proposed legislation authorises undercover operatives – both employees of British state agencies and their informants – to commit what would otherwise be criminalised offences with impunity.

The Bill has been met with widespread opposition from Members of Parliament and Peers, along with numerous human rights organisations and legal practitioners. In a damning report, the UK Parliament’s Joint Committee on Human Rights said that the proposed law should not be introduced in its current form, due to the “major human rights concerns” relating to the possibility of “state sanctioned crimes such as rape, murder or torture being carried out under authorisation”.

The UK Government has stressed that the Bill does not introduce a new power. Instead, the Government argues that its main purpose is to place “existing practice on a clear and consistent statutory footing”. This argument is in line with the recent 2019 Investigatory Powers Tribunal judgement, wherein the lawfulness of an existing MI5 policy governing the involvement of undercover agents in criminal conduct was upheld.

However, notwithstanding prevailing acceptance concerning the necessity of undercover criminal conduct authorisations (CCAs) for national security, there are a number of controversial features of the Bill which depart from the previously established norm.

NO SPECIFIC LIMITATIONS ON THE TYPE OF CRIMINAL ACTIVITY

The most serious offences, such as rape, murder, sexual abuse of children, and torture, are not excluded on the face of the Bill. Amnesty International noted that this creates “the possibility of a dystopian future, where human rights abuses at home or abroad are given a legal green light”. The UK Home Office has argued that specifying offences which are excluded from immunity would risk exposing covert agents to a “checklist” test designed to expose their cover and that the Human Rights Act nevertheless provides an effectual limit on the conduct which can be authorised.

However, similar legislation in Canada, the USA, and Australia place specific limits on the type of criminal conduct that can be conducted. JUSTICE has further argued that if limits can be placed on CCAs in publicly available secondary legislation without putting undercover operatives at risk, it is unclear why such limits cannot be set out in primary legislation.

Furthermore, relying on the Human Rights Act to prevent violations has historically proved insufficient in the context of undercover investigations. The Spy Cops scandal, which sparked the commissioning of the Undercover Policing Inquiry in 2015, revealed that multiple women were deceived into long-term sexual relationships with undercover agents. The police acknowledged in a statement that the relationships were “a violation of the women’s human rights, an abuse of police power and caused significant trauma”.

WIDENED SCOPE, PURPOSE, AND JUSTIFICATION OF AUTHORISATIONS

The Bill extends the authorisation of criminal conduct to not only undercover operatives, but also other members of a state agency that are “involved in or affected by the authorisation”. Additionally, the Bill does not make any requirement for reasonable belief in the necessity or proportionality of crime; and allows crimes to be committed to “prevent disorder” or maintain “economic well-being”. No clear justification has been provided by the Government as to why this is the case.

Reprieve argued in a joint briefing that extending the use of CCAs into non-criminal situations risks unjustified interference with the activities of legitimate trade unions and justice campaigners, and their rights to free expression and free assembly. These concerns are raised in the context of revelations that undercover operatives were deployed to spy on at least 1000 majority left leaning political groups over forty years, including those campaigning for racial and sexual equality.

STATE AGENT IMMUNITY AND LIMITED REDRESS FOR VICTIMS

The current MI5 policy permits prosecutorial independent decision making regarding whether it is in the public interest to prosecute by granting criminal and civil immunity to undercover operatives. Rather than drafting legislation that mirrors this policy, the Government has drafted a bill that extends state agent immunity to the point that undercover agents are effectively placed above the law and has not provided clear justification as to why this extension is necessary.

Shami Chakrabarti, Labour Peer and ex-director of Liberty, stated that this sets a dangerous precedent that “undermines the rule of law itself” and the most fundamental principle of equality before the law. The Committee on the Administration of Justice further argued that providing total immunity risks violating the rights of victims to an effective remedy, as well as undermining the ongoing legal proceedings through which victims of previous criminal conduct by undercover agents are seeking justice.

AN UNCERTAIN FUTURE  

The House of Lords passed a number of cross-party amendments to the bill at its third reading, which were welcomed by Amnesty, JUSTICE, and Reprieve. The House of Commons, however, rejected these amendments on 27 January 2021, with the Bill’s proponents doubling down on the necessity of its key provisions. 

If the Spy Cops Bill reaches royal assent in its unamended form, it could entail Parliament approving a range of serious human rights violations which would set the UK apart from accepted international human rights standards. When viewed in the context of the British state’s history of infiltrating the activities of justice campaigners, and in light of the record of human rights abuses by undercover agents, the dangers of removing all accountability are unfortunately all too clear.

Amy holds a MA in Social and Political Thought from the University of Warwick, specialising in International Politics and Indigenous Feminism. Her areas of interest in the field of human rights are postcolonialism, racial justice and gender equality. She is currently working on research into gender-based violence legislation for the UK Parliament.

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