Carys Moseley comments on how the newly proposed Covert Human Intelligence Bill presents a threat to freedoms of speech and religion.
The Home Office has tabled a bill in Parliament which would allow public bodies such as the police, the Department of Health and the Food Standards Agency to authorise criminal conduct by spies. This is the Covert Human Intelligence Sources (Criminal Conduct) Bill (CHIS). So far, the government has pushed the bill quickly through all its stages in the House of Commons. The date of the first reading in the House of Lords is expected soon. The bill raises many serious concerns about the morality of government action and the effect on basic freedoms.
New powers to authorise criminal conduct
The government is trying to downplay the novelty of the bill. The Home Office memorandum on the bill says authorising criminal conduct is ‘not new activity’. It is true that the security services are already authorising undercover agents to break the law in some instances. Authorisation was disclosed when the ‘third direction’ policy of MI5 was disclosed in 2018. This policy was limited to the security services. The CHIS bill puts this on a statutory footing.
However, the bill also puts authorisation of criminal conduct by police forces, the National Crime Agency, the Serious Fraud Office and the armed forces on a statutory footing. The civilian public authorities that could authorise criminal conduct include the following: HMRC, the Department of Health and Social Care, the Home Office, the Ministry of Justice, the Competition and Markets Authority, the Environment Agency, the Financial Conduct Authority, the Food Standards Agency, the Gambling Commission. The Explanatory Notes to the bill state that these other public authorities currently rely on ‘express, implied and common law powers’. The question here is, what possible reasons could any of these public authorities have for authorising spies to commit crimes?
Authorisation of surveillance already allowed
The bill builds on the powers already given in the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA gave powers to public bodies to authorise undercover agents to engage in surveillance in the UK.
Several of the public bodies named in the CHIS bill were already named in RIPA. They include the National Crime Agency, the Serious Fraud Office, Department of Health, the Home Office, the Ministry of Justice and the Financial Conduct Authority.
Vague grounds for authorisation
Section 1(5)(5) of the CHIS bill sets out three main grounds for authorising spies to engage in criminal conduct. They are national security, preventing crime and disorder and safeguarding the economic well-being of the UK. These are already grounds for authorising surveillance under RIPA. Several MPs and commentators expressed concerns about these grounds. For example, the meaning of ‘disorder’ is vague, and ‘economic well-being’ is partly a matter of opinion. Scottish Liberal Democrat MP Alistair Carmichael argued strongly that the bill would lead to an increase in corruption.
Weak oversight and accountability
The bill amends the Investigatory Powers Act 2016 (IPA) to give the Investigatory Powers Tribunal oversight over authorisation. However, the Committee on the Administration of Justice has pointed out that the bill’s provisions for oversight of authorisation are weak. The IPA requires independent judicial approval of authorisation for interception. The current bill would allow internal authorisation for criminal conduct. This means government agencies would become a law unto themselves. The bill only provides for the Investigatory Powers Commissioner to issue an annual report where it keeps the use of authorisation under review. This is merely retrospective oversight.
Just as concerning is the fact that the bill provides no redress for victims of the crimes committed under it. We can tell this from the following statement in the bill’s Explanatory Notes:
“The Bill does not prevent the Crown Prosecution Service, Crown Office and Procurator Fiscal Service, or the Public Prosecution Service from considering a prosecution for any activity that falls outside the parameters of an authorisation issued under the Bill’s regime.” [emphasis added]
Some critics have pointed out that the bill’s power to ‘prevent disorder’ is vague, because the meaning of ‘disorder’ is vague. This is very important and should be debated in the House of Lords. The term ‘violent disorder’ is defined in the Public Order Act 1986. However, there is no definition of the term ‘disorder’ by itself. Presumably, the term ‘violent disorder’ was used because it is considered that ‘non-violent disorder’ is a possibility. If this is what is being implied, then the bill’s power to ‘prevent disorder’ is somewhat comparable to the idea of preventing non-violent extremism. This has raised concerns about free speech and freedom of religion over the last five years.
Presumably, the government would argue that the term ‘disorder’ already stands in legislation. Articles 8, 10 and 11 of the ECHR permit limiting human rights in order to prevent disorder or crime. This is repeated in the grounds permissible for authorising surveillance under RIPA, which was passed in 2000. However, this in no way helps provide a definition of the term.
Legal certainty or licence to kill?
Some commentators have raised the alarm about the bill, arguing that it gives government agencies a licence to kill opponents. They say this because committing murder, torture and sexual violence are not expressly prohibited in the bill. The government’s response to this has been twofold. First it has referred critics to the Human Rights Act, which prohibits murder absolutely, saying that the Act limits the bill. The government has also referred critics to the guidance on the bill, by which it means the Memorandum produced by the Home Office and the Explanatory Notes.
The government argues that writing prohibitions of specific crimes in the bill would lead to the criminals that are being watched to test spies, to see if they are trying to incite them to commit particular crimes.
The government’s slide into criminality
All the grounds for authorising criminal conduct listed in the CHIS bill are already listed in RIPA as grounds for authorising surveillance. However, there are more grounds for surveillance in RIPA than there are for criminal conduct in the CHIS bill. Grounds for surveillance which are not listed as grounds for criminal conduct include public safety, public health, and assessing or collecting tax or other charge.
There seems to be nothing to prevent the government from at some point allowing authorisation of criminal conduct on those other grounds. The statutory framework for such a slippery slope has been laid down in this bill. The other more obvious problem is that the bill allows for ministers to add or remove public bodies to the list. It should be clear that the bill heralds the government’s slide into criminality.
Will the state be a terror to good conduct?
One of the key Biblical sources for understanding how Christians should relate to the government is Paul’s letter to the Romans. In chapter 13 he says that the state is to be ‘a terror to bad conduct’. The problem with unjust and morally dubious laws is that they make the state the perpetrator of bad conduct and a terror to good conduct. Christian political and legal theorists down the centuries have debated how to respond in such situations. The prospect of an ever-increasing number of government bodies being above the law is terrifying and puts us on the road to tyranny.
We need to look at how citizens, and Christians in particular, could be at the receiving end of the bill’s powers. For example, the line between hate crime and ‘hate incidents’ already gets blurred by the police. Now for the police to have powers to authorise criminality would effectively allow the police to join campaign groups that have in the past been accused of ‘hate incidents’, e.g. hate speech, in order to commit ‘hate incidents’ and hate crimes. They could do this by pushing the group beyond what it would normally envisage. This is something that undercover agents working among trade union activists have done in the past.
As Biblically-faithful Christians are accused of ‘hatred’ or being ‘hate groups’, there needs to be a strong pushback here. It is not fanciful to imagine certain scenarios as follows:
- A crowd around a street preacher includes an undercover agent who asks questions to steer the preacher into committing a ‘hate incident’ that is considered to raise the likelihood of hate crimes being committed.
- An undercover agent infiltrates a pro-life group and steers the group to break guidelines on protesting outside abortion clinics. The purpose is to discredit the group and pro-life activism.
- An undercover agent pretends to be an ex-gay man or woman and infiltrates a church or ministry to train as a volunteer, then tips off the authorities about ‘conversion therapy’ taking place.
No doubt many other scenarios can be imagined, such is the scope of the bill. Scenarios (1) and (3) are based on taking events that have already happened a step further under the terms of the bill. As it stands, this bill sets out a framework for spying on Christians. Given that the government has said repeatedly that it is considering the criminalisation of so-called ‘conversion therapy’ we must push back against this bill as a matter of urgency.
Eroding public trust in government
There are wider fundamental moral problems with this bill that should lead to much greater public scrutiny than has happened so far. The moral basis for public authorities to be respected by citizens is undermined by the bill. Government in general and public bodies especially cannot demand loyalty and obedience when they are no longer prepared to be consistent in abiding by the criminal law.
In particular, they have no moral grounds for demanding and expecting such obedience when they are unwilling to state explicitly in law what crimes are absolutely prohibited. Referring critics to the Human Rights Act is a cynical deflection manoeuvre. Effectively it is an invitation to more strategic litigation, which hands over decisions of high policy to judges. This is something that in other instances that the government has deplored. In this context it is significant that the government is currently consulting on the future of judicial reviews. It will be important for Christians to make their concerns known to members of the House of Lords where the bill now awaits further debate.