Covert Human Intelligence Sources bill: accountability in the justice system

Much of the glitz regarding the James Bond franchise, only exists in the minds of Hollywood producers. But, a ‘licence to kill’ may soon become a reality in the UK, as Westminster considers new legislation allowing confidential informants working for the security services to be authorised to break the law.

The Covert Human Intelligence Sources bill provides the express authority to allow agents to conduct any activity that would otherwise constitute a criminal offence. Undercover agents, known as Cover Human Intelligence Sources (CHIS), already participate in often necessary criminal activity, a long-standing tactic claimed to be ‘vital’ for national security.

Last year, the independent Investigatory Powers Tribunal ruled that the ‘Third Direction’ tactic lawful, which for over 30 years remained a secret policy inside the Security Service (MI5), providing the barefooting for the legality of law-breaking spies.

For its detractors, the bill presents a severity of issues – legislating to allow someone to break the law proves to be a touchy subject. There is little in the current version of the bill that rules out CHIS from potentially using rape, murder, or torture in their work, leaving it up to security services to issue ‘Criminal Conduct Authorisation’ at their own discretion. Critics argue that an attenuation of the Human Rights Act will only ensue.

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Amnesty International has suggested “giving such disturbing powers to bodies including MI5 and the police could have devastating impacts.” Reprieve, that charity that took MI5 to court against its use of the ‘Third Direction’ in 2018, claimed, “without limits on the crimes agents can commit, this Bill is wide open to abuse.”

Indeed, for decades the government and security services have had to tread a contentious line in dealing with the legality and scandals of acts by their agents. This will only serve to provide them with a legal footing.

History provides a diverse array of examples where CHIS have used immunity from prosecution to commit odious criminal acts. In 1989, Pat Finucane, a 39-year-old Belfast solicitor, was shot dead by the Ulster Defence Association, a paramilitary loyalist force with “shocking levels of collusion” with the British security services.
MI5 guidelines emerged during The Troubles to formalise the legal gap for special branch agent-handlers in how far informants were permitted to participate in crimes without facing prosecution themselves.

The security services are also having to deal with the fallout over the ‘police cops’ scandal, where a public inquiry has revealed decades of deep infiltration into British activist groups using purportedly dubious tactics.

Some agents had adopted the aliases of dead children, and others, in sordid attempts to establish credibility as activists, fathered children and established romantic relationships.

Yet the inquiry has grappled with issues over transparency, with over a third of undercover officers investigated keeping their real and assumed identities concealed, making it harder for those who were spied on to make challenge claims if they are unaware of the aliases used during deployments.

The government appears to be stirred to action by their recent win against Reprieve in the Investigatory Powers Tribunal 3-2 decision. However, it represents the first dissent in the independent court’s history.

The government’s actions have set a dangerous precedent over its handling of CHIS, and together with the exposure of details from the spy cops scandal, the CHIS bill paints a bleak picture for accountability over illegal and immoral acts.