Thwarted Amendments

On January 21, in what proved to be a short-lived (and partial) victory for defenders of civil liberties, the House of Lords revised the bill by introducing a series of safeguards. Among other things, their amendments restricted using children, vulnerable persons, or victims of modern slavery or trafficking as assets who could be authorized to commit crimes, outside of “exceptional circumstances.”

Lords amendments also prohibited the authorization of sexual violence, torture, murder, and perverting the course of justice by state agents or their assets. Another amendment sought to ensure that any authorization for criminal conduct must satisfy a “reasonableness” test. But when these changes were reviewed by the Commons, all of the amendments were removed.

The government did backtrack somewhat after the bill was sent back to the Lords — proposing its own amendment to limit the use of children to commit crimes to “exceptional circumstances.” It has also agreed to permit victims of “authorised crimes” to seek compensation and to ensure that a judge or Commissioner will be notified when a Criminal Conduct Authorization is granted, albeit after the fact. Attempts to allow “improper” authorizations to be referred to prosecutors failed.

The CHIS bill is currently bouncing back and forth between the House of Lords and the Commons — both chambers must approve a version of the bill without seeking to amend it further. The Lords, made up of appointed life peers, typically gives way to the will of its elected counterpart. But even if it doesn’t, the Parliament Acts stripped the Lords of its ability to veto proposed laws like CHIS.

Tory ex-minister David Davies MP proposed his own amendment to exempt murder, rape, and torture from being authorized by the bill. He cited how the Intelligence Services Act 1994, which he helped make law, was used to authorize torture, murder, and mass surveillance of innocents despite not being designed for that purpose. “These morally indefensible actions by the State and their agents occur at the darkest times in our history,” Davies said in reference to the “Troubles” in Northern Ireland and the 9/11 terrorist attacks, “and we must write our laws to cope with the darkest times in our history,” he insisted.

Davies cited the murder of Belfast-based human rights lawyer Pat Finucane, by loyalist paramilitaries which were infiltrated by UK intelligence operatives who colluded in “identifying, targeting and murdering” Finucane.

However, in the end, Davies — like so many other MPs — abstained rather than vote against the bill, even though his own amendments fell.

A Home Office spokesperson told Jacobin that the bill “does not list specific crimes that may be authorized” because doing so “would place into the hands of criminals, terrorists, and hostile states a means of testing [covert human intelligence sources], resulting in an increased threat to the public.”

Unaccountable Power

Retired human rights barrister and vice chair of the Institute of Race Relations Frances Webber insisted that even if all the amendments proposed by the Lords had been approved by the House of Commons, “problems remain.”

“The bill does not ban the use of child informants. An amendment to delete advance blanket immunity completely in favor of a case-by-case assessment, brought by former shadow attorney-general Shami Chakrabarti, was defeated when Labour whipped peers to abstain,” Webber pointed out. “Other problems include the lack of a requirement for a judge’s warrant; the wide range of public bodies whose senior officials can authorize criminal conduct, and the breadth and looseness of the criteria for authorizing crime and the interests to be protected, which embrace economic interests and the prevention of disorder, indicating that trade unionists and demonstrators will be targeted,” she added.

“Any authorisation for [an asset or state actor] to engage in crime must be proportionate to the criminality they are seeking to prevent and, through the Human Rights Act, there are limits to the activity that can be authorized under this Bill, including the right to life,” the Home Office said in its statement. The suggestion is that adherence to human rights is implied by law and, as such, there is no need for additional safeguards such as those the Lords proposed.

But legal experts and longtime campaigners point out that this position is fundamentally flawed, both in theory and in practice. “While the Government points to the Human Rights Act, it would not make a difference in practice. This is because it does not apply to private individuals, only the State,” said Tyrone Steele of law reform organization JUSTICE. “We are deeply concerned that there is no need for prior judicial authorisation for the granting of criminal conduct authorisations,” Steele explained.

JUSTICE was one of a number of organizations that submitted briefings to MPs and peers as the bill was being debated. “There are obvious flaws in any authorisation procedure in which the main safeguard against a public body carrying out unjustified surveillance is a senior official from the same organisation. Even the most diligent official would struggle to remain objective, particularly if the organisation is under pressure to meet targets or achieve certain results,” JUSTICE said (see p. 13) in its submissions to parliament.

Steele also told Jacobin that the system currently “unduly places the onus on the victim” to make a claim via the secretive Investigatory Powers Tribunal. This makes any form of post-injury redress all but impossible, since most people may never even know that their rights had been violated by an asset or undercover officer.

Starmer’s Silence

Labour Leader Keir Starmer supported the bill, despite being critical of certain aspects of it. Starmer, a former human rights barrister turned chief prosecutor, “whipped” his MPs into abstaining on the bill even when amendments that they supported failed to garner enough votes. Seven members of his Shadow Cabinet stepped down from their positions last October so as to defy the whip. In the end, a small core of Labour MPs, such as former leader Jeremy Corbyn, Diane Abbott, and John McDonnell, defied Starmer and voted against the bill before it headed to the Lords. These rebels were accompanied by forty-six Scottish National Party MPs and one Tory.

But most Labour parliamentarians (166) abstained, along with forty-six Tories and a few independents.

Starmer also reportedly whipped Labour members of the Lords to abstain. This would explain why, when the Commons sent back the legislation stripped of the amendments that the Lords had initially imposed, the Lords ultimately capitulated when they reviewed the bill for a second time in February. This Wednesday, the Commons will review a further set of amendments proposed by the Lords.

Repeated requests for comment from Starmer’s office as to why he whipped his MPs in favor of the bill went unanswered. However, in an article published on Labour List in October, Labour’s Shadow security minister Conor McGinn insisted the security services must have “the powers they need to keep us safe,” while committing to ensuring “cast iron guarantees” that the bill “will not stand in the way of justice for victims.” Yet, despite these vague assurances, Labour still ended up abstaining on the bill on the basis that they must appear to be “a responsible government-in-waiting.”

Starmer, who was director of public prosecutions for England and Wales from 2008 to 2013, is known to be close to the security services. He had to be dragged into prosecuting the police officer who was filmed killing news vendor Ian Tomlinson — a prosecution he ultimately botched — offered his tacit support for a “super database” to track Britain’s phone and internet communications, and voted in favor of the Investigatory Powers Act in 2016.

That act retroactively legalized the very mass surveillance exposed by ex-NSA contractor Edward Snowden two years prior. Starmer is also a member of the Trilateral Commission, which once argued that the West suffered from an “excess of Democracy.” The organization boasts other notable members such as ex-CIA chief David Petraeus and ex–National Security Advisor Henry Kissinger.

Targeting Dissent

The CHIS bill comes within the wider backdrop of the Undercover Policing Inquiry (UCPI) which is looking into the infiltration and surveillance of groups and individuals in England and Wales since 1969. Since the UCPI was set up in 2015 by then-Home Secretary Theresa May, the Metropolitan Police Service has admitted that it infiltrated or spied on over a thousand groups and associations since 1968.

These were lawfully constituted organizations, whether left-wing, antiwar, anti-racist, pro-environment, critical of UK foreign policy, or critical of corporate excess. They included trade unions, animal rights groups, homelessness advocates, Palestine solidarity campaigns, immigrant rights groups, family justice campaigners, police reform advocates, and the like.

MPs were also spied on, including Jeremy Corbyn, longtime anti-racist campaigner Peter Hain, Tory MP David Davies, Labour MP Jack Straw whilst he was Home Secretary, and Green peer Jenny Jones. Jones was the subject of over a decade of covert police surveillance and recently attempted to kill the CHIS bill in the Lords.

Undercover police, known popularly as “Spycops,” have also carried on relationships with women, in some cases even fathering children, while operating under false identities.

When it was discovered that presumed environmentalist Mark Stone was actually an undercover officer named Mark Kennedy, the trial against six environmental campaigners (accused of conspiring to occupy a coal-fired power station) collapsed. In addition, the convictions of twenty others for conspiring to occupy the same power plant were “quashed by the Court of Appeal, because the prosecution failed to disclose information about Mark Kennedy’s involvement that would have helped their defence,” as the Campaign Opposing Police Surveillance pointed out in a recent open letter. As part of his cover, Kennedy deceived two separate environmentalist and social justice activists into long term relationships, one lasting two years and the other lasting six. Unbeknownst to both women, Kennedy was already married with two children.

“We are lobbying for the Bill to be scrapped,” Women Against Rape (WAR) told Jacobin. “Nobody should be above the law, to commit crimes with impunity,” they said, noting that permitting rape, torture and murder by the State and “its corporate agents” is unacceptable.

WAR, which led a successful 15-year campaign that led to rape in marriage being recognized as a crime in 1991, called the Bill “horrific”, especially, in the context of “rape and domestic violence having been practically decriminalized with a conviction rate of 1 percent and two women a week murdered by partners or ex-partners.”

“If the Bill is passed, we expect its powers will be first used to interfere with and criminalize protest by women, climate justice and human rights campaigners, whistle-blowers, strikers, trade unionists, anyone without a passport,” they insisted.

“It’s outrageous that the Labour leadership whipped people to abstain, and that so many politicians voted for it, dropping their opposition,” WAR added.

Starmer was himself called out in the same open letter which demanded that he answer questions at the UCPI regarding his time as chief prosecutor. The campaigners assert that, while Starmer was director of public prosecutions (DPP) he, “may have been involved in a cover-up of police and prosecutors orchestrating wrongful convictions.”

Surveillance of Anti-Racists

The inquiry into undercover policing was set up only after revelations of egregious levels of political policing and misconduct emerged. The straw that broke the camel’s back came in the form of disclosures made by Spycop-turned-whistleblower Peter Frances. His revelations included police spying on ten separate Labour MPs, as well as the surveillance and smearing of the Lawrence family, campaigning for justice for their son. Stephen Lawrence was murdered in a racist attack in 1993 and the subsequent botched police investigation into the killing resulted in a judge-led inquiry that ended up concluding London’s Met Police were “institutionally racist.”

In 2016, the Centre for Crime and Justice Studies and the UK’s oldest community-based anti-racist organization, the Monitoring Group co-organized a two-day conference entitled “Subversion, Sabotage, and Spying: Political Policing and State Racism in the UK.” Speakers at the event went into great detail regarding the nature of political policing in the UK. It is this very type of activity that critics point to as evidence of the dangers posed by the bill.

“Anti-racist groups and Black justice campaigns are already subject to surveillance by undercover police officers,” the Monitoring Group’s director Suresh Grover pointed out.

The Monitoring Group joined other civil society representatives to try and lobby parliamentarians in 2020 to oppose the bill. Grover spoke to Labour’s Shadow Home Secretary and deputy leader but didn’t find them particularly receptive to his concerns. “I am deeply dismayed when opposition politicians argue that the Human Rights legislation provides safeguards for covert police behaviour. This is a false assertion because the Act, in reality, only applies after an action has been committed, it does not a prevent it,” Grover lamented.

Dónal O’Driscoll, cofounder of the Undercover Research Group, agreed. “For the last decade the undercover policing scandal has been rumbling on, including a farcical public inquiry,” he said. “What it has demonstrated is what many have known for years, that the police and their ilk have scant regard to basic human rights. The safeguards that were supposedly in place, European Convention on Human Rights included, have simply not functioned.”

“If you give police this sort of vast power, it will be abused,” O’Driscoll insisted. “It is not a case of if, but when, and we know that lives will be irrevocably ruined before it is checked.”

Anti-Union Record

Even attempts to restrict the prospective law from being applied to trade unions failed. This is particularly noteworthy given the level of state collusion in the surveillance and blacklisting of workers.

“Union members in construction were spied on by undercover police while we were campaigning for better safety on building sites,” Dave Smith of the Blacklisted Support Group (BSG), explained. “The police have admitted that they supplied information to employers and blacklisting organizations that meant we were denied work and our families suffered,” Smith said.

Undercover police have acted as agent provocateurs “inciting activists to commit serious criminality,” he added. Smith coauthored a book on this subject entitled Blacklisted, together with investigative journalist Phil Chamberlain.

An engineer and former construction worker, Smith was dismissed from one of his jobs after handing in two reports on asbestos and contaminated water at construction sites in Essex and London. Denied future work, he later found out that his was one of 3,213 names on the Consulting Association blacklist — a secret and illegal service used by businesses to weed out workers who raise concerns over wages, workplace treatment, and safety. The Consulting Association, defunct since its existence was revealed in 2009, was itself a close successor to the Economic League blacklisting firm.

Years of unemployment took its toll on blacklisted workers with many getting divorced, losing their homes, and some even committing suicide. A 2019 report by ex–Chief Constable Michael Creedon concluded that police “including Special Branches and the Security Services” supplied information to the Consulting Association. Although the Creedon Report was heavily critiqued by O’Driscoll for downplaying and misrepresenting the nature of state collusion, it at least provided some limited official recognition of the problem.

Smith suspects that the number of blacklisted workers may be in the tens of thousands. “There are [Blacklisting registers] in operation in other sectors — [‘Not Required Back‘ system] in the North Sea and National Staff Dismissal Register in retail, plus various wiki-style HR blacklists online.”

Where’s the Opposition?

Starmer’s willingness to go along with the Tories has not gone unnoticed, including by his former colleagues who continue to practice law. On February 9, the Haldane Society of Socialist Lawyers passed a motion to prevent Starmer from returning to the organization, which he left when he accepted the position of chief prosecutor in 2009. At its Annual General Meeting, Haldane passed a motion censuring Starmer for taking positions that are “totally contrary to [its] values and political convictions.”

The policies Haldane signaled out include Starmer’s presiding over the censoring of left-wing and pro-Palestinian voices in the Labour Party, his abandonment of pledges to support the rights of migrants, and his whipping of Labour MPs and peers to abstain on the CHIS bill. This is, indeed, quite a dramatic turn of events for a former human rights lawyer who in 1986–87 wrote about creating a self-managing socialism, “based on democratic control of production for ‘use’ rather than ‘profit.'”

As the CHIS bill continues to make its way through parliament, it remains to be seen whether any meaningful safeguards will make their way into the final version. Yet, as critics such as the Network for Police Monitoring’s Kevin Blowe have previously told this author, the bill’s intentions are “dangerous and authoritarian and tinkering with it at the margins will not make it any less harmful. That is what has made the main opposition party’s refusal to oppose it, so as not to look ‘weak’ on security issues, so completely cowardly.”