On 12 February 1989, two men burst through the door of Pat Finucane’s home in Belfast as he sat down to dinner, shooting him 14 times in front of his wife and children. Twenty-three years later, David Cameron, then prime minister, apologised for “shocking levels of collusion” between security forces and the lawyer’s loyalist killers.
Undercover operatives have saved countless lives, including by averting terrorist attacks. The public understands the need for them, and the fact that at times such sources may even need to commit offences to maintain their cover – joining a proscribed organisation is an obvious example. But the risk that they will go much further than they should, and act for much less reason than they claim, is not merely hypothetical, as Mr Finucane’s family can attest. So can the women who were “raped by the state”, in the words of one of those deceived into a relationship by a “spy cop” posing as an activist.
This is why the covert human intelligence sources bill, which passed at its second reading in the Commons on Tuesday, is of such concern. The government appears to have been stirred to action by its narrow victory in a legal case brought by Reprieve, the Pat Finucane Centre, and other NGOs. Though the investigatory powers tribunal (IPT) backed MI5’s ability to authorise involvement in criminality, two of the five judges disagreed – the first dissent in the IPT’s two-decade history. One described the government’s claimed basis for the policy as setting a “dangerous precedent”.
Seeking to put longstanding secret protocols on a statutory footing is welcome. But the legislation that has resulted currently offers astounding scope for the use of such sources. Most alarmingly, it does not rule out murder, torture or sexual offences. The argument is that otherwise criminals will be able to test those they suspect with a “checklist”, as if they might not already sound them out. Other countries – including Canada and the US – spell out the limits for those operating undercover.
The government’s rationale is that of course undercover sources would not breach the Human Rights Act. Yet it has previously argued that the act does not apply to covert agents. Even putting aside the long-term risks posed by the hostility of Tory zealots to human rights law, such assurances are self-evidently empty. Nor should one place faith in the complacent claims that no one would dream of behaving as they did in the bad old days.
Consider too the extraordinary breadth of the bill, which covers not only MI5 and the police, but HMRC and even the Food Standards Agency. Covert intelligence can be authorised to “prevent disorder” and to promote “the interests of economic wellbeing of the UK” as well as to protect national security. This rings alarm bells for anyone who recalls that racial equality campaigners and even Stephen Lawrence’s grieving parents were targeted by spy cops, or that trade unionists were blacklisted by employers after information was passed on by police.
Of the 1,000 political groups spied on by undercover police officers since 1968, only a handful belonged to the extreme right. Of further concern is the fact that authorisation is provided by those overseeing investigations, rather than by an external figure, such as a judge. Lord Macdonald, a former director of public prosecutions, has pointed out that under this legislation it will be easier for an officer to commit a serious crime than to tap a phone or search a shed.
Even if these problems were fixed, however, the failure to draw a red line for agents would still render this bill unfit for purpose. Faced with the government’s hefty majority, and the prospect of Conservatives portraying it as soft on national security issues, Labour has abstained – as it did on a similarly dangerous piece of legislation, the overseas operations bill, last month. The former Tory minister David Davis suggests it is highly likely that this bill could be successfully challenged in the courts. But the priority must be forthright parliamentary opposition to this shameful legislation.