Should the Food Standards Agency be permitted to engage in torture in order to put a stop to the sale of horse meat? Should the Gambling Commission have the authority to issue licences to its agents to commit murder with impunity?
That would be the astonishing outcome were the Covert Human Intelligence Sources (Criminal Conduct) Bill, which passed its second reading in the House of Commons yesterday, to be enacted in its current form.
The justification for the Bill arises out of the real dilemma of how the intelligence services handle undercover agents who may be forced to break the law in order to carry out their work.
The purist’s position that agents of the state should never break the law is obviously unsustainable. To take but one example: if MI5 wants to place an agent (a 'covert human intelligence source' or 'CHIS', pronounced like the first syllable of 'chisel') within a proscribed terrorist organisation it’s not much good telling him that he mustn’t join it because that would be breaking the law. At the very least a blind eye must be turned to that crime.
The secret agent in a terrorist cell cannot approach his task like a reporter in a brothel; he cannot make an excuse and leave once discussion turns to the planning of an atrocity. On the contrary, both the safety of the agent and the flow of intelligence depend upon at least the appearance of enthusiastic participation. The higher within the organisation the agent might be, the more helpful he will be to his handlers, but also the more likely it is that he will find himself under pressure to become involved in crimes it plans and perpetrates.
But although some law-breaking is inevitable there must be limits to what a democratic state can do in its pursuit of intelligence.
The 1989 murder of Belfast solicitor Patrick Finucane illustrates the dangers of agents of the state becoming involved in murder, believing themselves to be acting with at least some degree of official sanction. Finucane’s murder was carried out by loyalist paramilitaries, but as Sir Desmond de Silva QC’s 2012 inquiry concluded:
“there was a series of positive actions by employees of the State that actively furthered and facilitated his murder and… in the aftermath there was a relentless attempt to defeat the ends of justice.
Permitting an employee of the state to facilitate a murder, or obstructing justice in the aftermath of a murder, is something that a civilised state should only do, if at all, in the most extraordinary of circumstances. Those circumstances certainly do not include the gunning down of a Republican sympathising solicitor.
So, given that a certain amount of officially sanctioned law-breaking is essential if intelligence agencies are to do their job properly, there is a difficulty over where to draw the line.
The existing position is a fudge. The guidelines under which the security services operate make clear — or at least as clear as a heavily redacted document can ever be — that while handlers cannot offer immunity from the criminal law, they 'may in appropriate cases authorise the use of an agent participating in crime'.
As the guidelines correctly state, such an authorisation 'has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution'. What it boils down to is that under existing law agents are unlikely to be prosecuted if they have been 'authorised' to commit crimes, but they cannot be completely sure. In general, it is probably a good thing that agents have a nagging doubt over the legality of killing and torturing in the interests of the state.
Under the Bill, such nagging doubts will disappear. Agencies will be able to issue a 'criminal conduct authorisation', permitting CHISs to commit any offence up to and including torture and murder with the assurance of legal impunity. To the maxim 'be ye ever so mighty the law is above you', one would have to add the proviso 'unless your handler has issued you with a criminal conduct authorisation'.
There are obvious dangers in that. Not all agents are patriotic heroes, although of course some are. Some must of necessity be drawn from the membership of terrorist organisations. Such organisations tend to attract fanatics, psychopaths and the unhinged. Even if they are turned by greed, bribery or blackmail, psychopaths will remain psychopaths and the unhinged will remain unhinged despite being in the pay of Her Majesty’s government or issued with an official licence placing them beyond the reach of the criminal law.
Were the Bill to grant these awesome powers just to the intelligence agencies, and only in relation to espionage on matters of vital national interest, that would be concerning enough. Despite the obvious dangers, it would put onto a statutory basis much that goes on anyway and which, for all its dangers and moral ambiguity, most people accept as an unfortunate necessity in the defence of democracy.
Yet the Bill extends its ambit far beyond the protection of national security and serious criminality. The issuing of criminal conduct authorisations will also be possible:
“for the purpose of preventing or detecting crime or of preventing disorder; orin the interests of the economic well-being of the United Kingdom.
These are remarkably wide and loosely defined purposes. The 'crime' being fought need not be serious. A criminal conduct authorisation could be issued even for the detection of trivial crime, something that MI5 would not be interested in, but the police might.
Indeed the wording is so wide that it will be permissible to issue them to combat activities that are not even criminal at all. 'Disorder' is a horribly vague word that encompasses lawful dissent. The Bill’s provisions would provide the intelligence services and the police with clear legal authority for sexual deception to be used to gather intelligence on political protest movements, even as the undercover policing inquiry conducts its own detailed investigation into the propriety and proper regulation of that very issue.
Perhaps most startlingly, the list of organisations that will be able to issue licences to commit crimes goes far beyond the intelligence services. Any police force is included, as are the armed forces, HMRC, the Home Office, the Department of Health, the Competition and Markets Authority, the Environment Agency, the Food Standards Agency, the Financial Conduct Authority and the Gambling Commission. In the most modern fashion, the Bill gives the home secretary the power to add other agencies to this list by future statutory instrument — without the oversight of parliament.
As with the intelligence agencies, there are no limits on the types of crime that any of these organisations will be able to authorise, up to and including torture, rape and murder. Quite why it is thought that the Food Standards Agency might ever need to authorise its covert human agents to torture people is unclear, and although the workings of the Gambling Commission are a mystery to most of us, I would require a good deal of persuasion before accepting that it cannot perform its statutory functions effectively without a licence to kill people.
The Bill has apparently been 'widely welcomed in the law enforcement community', which is hardly a surprise, and has so far received a remarkably easy ride from the official opposition. The few backbenchers who somewhat diffidently questioned why the powers needed to be quite so broad were told in the second reading debate not to worry because they would all be subject to the Human Rights Act, hardly a very reassuring reply when the long term existence of that very Act is something opposed by a large section of the Conservative party.