MPs vote against attempt to ban undercover agents from committing murder, torture and rape

Bill ‘paves the way for gross abuses of state power against citizens’, critical Labour MP says

Lizzie Dearden
Security Correspondent
Thursday 15 October 2020 20:12 BST
MP proposes protections for journalistic sources in criminal conduct bill

MPs have voted against an attempt to formally ban undercover agents and informants from committing murder, torture and rape.

The House of Commons rejected an amendment that aimed to limit the kind of crimes that can be authorised under a new law.

The Covert Human Intelligence Sources (Criminal Conduct) Bill went on to pass its third reading by 313 votes to 98, sending the unamended legislation off to the House of Lords for further scrutiny.

It would allow public authorities, ranging from police and MI5 to HMRC and the Food Standards Agency, to authorise agents and informants to commit crimes while undercover.

The proposed authorisations would not only be issued in the interests of national security or preventing and detecting crime, but also preventing “disorder” and in the “interests of the economic well-being of the United Kingdom”.

An amendment tabled by Labour leader Sir Keir Starmer would have stopped the authorisation of serious offences including causing death or bodily harm, torture, violating the sexual integrity of a person and detention. It was defeated by 317 votes to 256 on Thursday.

Conservative former minister David Davis, who proposed a similar amendment, pointed out that allies US and Canada have “specific limits” on the crimes their agents can commit.

He said the amendments “would give the intelligence services the protections they need but stop short of giving them the carte blanche authorisation to carry out the heinous crimes in the name of the state that have happened too often in the past”.

James Brokenshire, the security minister, told MPs that the bill would make authorised crimes “lawful for all purposes and no crime will have been committed”.

But he denied that it was a licence to “commit any and all crimes” because of human rights laws and codes of practice.

MPs also voted against an amendment that would have required authorities to apply for judicial warrants for criminal conduct authorisations, and set out the reasons why they were needed.

Several MPs complained that time to debate the law had been severely limited, amid accusations that the government was rushing the bill through ahead of potentially damaging findings in the forthcoming Undercover Policing Inquiry.

Labour whipped its MPs to abstain from the vote, prompting a flurry of resignations from Labour frontbenchers from the left of the party - including  shadow financial secretary Dan Carden, who resigned his post ahead of the debate.

He told the Commons the bill “paves the way for gross abuses of state power against citizens” and accused the government of taking the Labour leadership “for a ride” with loose assurances.

Officials have argued that the Human Rights Act must be considered in authorisations and would prevent the most grievous crimes, but several MPs questioned that assurance.

Sir Bob Neill, a former Conservative minister and chair of the Justice Committee, told the Commons: “If that’s the case, given the importance of the subject, why not put that on the face of the bill? And should there be at any time a future government… that derogated from the Human Rights Act, it would be better to have that protection here.”

Sir Bob also raised concern over the redress open to victims of authorised crimes, but Mr Brokenshire said the bill was not a barrier to judicial review or scrutiny by the Investigatory Powers Tribunal.

Stella Creasy, the Labour MP for Walthamstow, called for an amendment to prevent children and vulnerable informants being subject to criminal conduct authorisations unless “exceptional circumstances apply”.

Security minister James Brokenshire said the law did not allow CHIS sources to commit any crime
Security minister James Brokenshire said the law did not allow CHIS sources to commit any crime

The government said the proposal was covered by separate guidance on the law but she called for it to be contained in the bill itself, adding: “It is right to see them as children first.”

Liberal Democrat former minister Alistair Carmichael suggested a series of changes to implement further safeguards, including to prevent crimes on economic grounds being authorised unless there is a national security justification.

“If it's decided we maybe need a different governor of the Bank of England, can we authorise a Chis (Covert human intelligence source) to wipe him out?” he asked.

The independent chairman of the Intelligence and Security Committee, Julian Lewis, asked for a commitment to oversight in the bill, which Mr Brokenshire said he intended to provide.

His amendment, which was also defeated, would have mandated annual reports to the committee containing statistics on the number and category of criminal conduct authorisations by the intelligence services.

The bill was drawn up after MI5 narrowly won an Investigatory Powers Tribunal (IPT) ruling over the lawfulness of agents’ crimes, while a separate challenge over the use of children as informants and spies continues.

Maya Foa, director of the legal charity Reprieve - which brought the legal challenge against MI5 - said: “Without limits on the crimes agents can commit this bill is wide open to abuse - and history suggests this will result in terrible harm. 

“We are hopeful the House of Lords will amend this legislation to make clear MI5 cannot say what is and isn’t lawful, nor authorise torture, murder, or sexual violence.”  

Mr Brokenshire, the security minister, told MPs that there would be “deep and retrospective oversight” of the powers, including through regular inspections by the Investigatory Powers Commissioner.

He added: "A covert human intelligence source is not able to commit any and all criminality. 

“There are limits to the activity that can be authorised under the bill and they are contained within the Human Rights Act 1998. The covert human intelligence sources code of practice also sits under this legislation and provides additional guidance and safeguards that apply to the authorisation of such activity.”

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