Government reverses attempt to specify in law limits on undercover agents

Ministers have reversed attempts to explicitly ban the state from authorising undercover agents to kill, torture or rape.

Peers made several changes to the controversial Covert Human Intelligence Sources (Criminal Conduct) Bill, including the ban on the most serious crimes and the addition of strict curbs and safeguards on the use of children and vulnerable people as operatives.

But MPs voted 363 to 267, majority 96, to remove the explicit ban from the Bill.

Solicitor General Michael Ellis also committed to hold further talks over the matter of child covert intelligence sources, adding it “may be appropriate” to specify some of the safeguards in the Bill from the existing code of practice.

He added this could include confirmation that a juvenile can only be authorised in “exceptional circumstances”.

The House of Lords changed the Bill to only permit the undercover involvement of children and vulnerable people in crime in “exceptional circumstances” and with additional protections.

The Bill aims to protect undercover operatives from prosecution if they are forced to break the law during operations, and also seeks to define circumstances in which operatives can commit crime – replacing various pieces of overlapping legislation.

It will cover law enforcement and government agencies, including the intelligence services, police, the National Crime Agency, the armed forces and the Prison Service.

Speaking as MPs considered the amendments, Mr Ellis explained why the Government could not support specifying limits on what undercover agents can do.

He argued the Human Rights Act – which includes the right to life, prohibition of torture, and prohibition of subjecting someone to inhuman or degrading treatment – already provides safeguards.

Mr Ellis told the Commons: “Any authorisation which is not compliant with the Human Rights Act would be unlawful, and nothing in this Bill seeks to undermine the important protections in that Act.

“However, were we to place explicit limits on the face of the Bill that would create the risk to the operational tactics involved and to the safety of the covert human intelligence source (Chis) and the general public at large.”

Mr Ellis said this was the assessment of “operational partners” using the tactics, adding including within the legislation a “checklist” on what operatives can do will “make it very easy” for criminal gangs and others to develop “initiation test” to root out undercover agents.

MPs are now considering Lords amendments to the Covert Human Intelligence Sources (Criminal Conduct) Bill.

Find out more about the Bill and track its progress: https://t.co/mt7XeBaLcv

Watch the debate: https://t.co/r1Kodr0y6j pic.twitter.com/MO1qTXFwQq

— UK House of Commons (@HouseofCommons) January 27, 2021

Labour’s Kevan Jones, a member of the Intelligence and Security Committee, said: “I think what is sad about this Bill is that… a certain label’s got stuck on this Bill right from beginning that somehow it was going to allow the State suddenly to authorise everything from torture to murder and that somehow, certainly in my party that if you were a true socialist and on the left, somehow you had to oppose this Bill at every step of the way.

“Well I’m sorry, I think that’s very unfortunate… because what we’re doing we should actually be welcoming… because what it’s doing, it’s putting on a statutory footing what is taking place anyway.”

Conservative former minister David Davis described using children as undercover informants as “very largely a morally repugnant policy”.

He said: “It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place.

“The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs or continuing victims of child sexual abuse when they’re recruited as an intelligence source.

“We should normally be moving heaven and earth to remove these children from their horrible situations. Instead, this Bill would allow them to be sent back into harm’s way with minimal safeguards in place.”

Labour MP Stella Creasy (Walthamstow) added: “I think everyone in this House knows when it comes to other peoples’ children, it is a fundamental principle we should want for them what we should want for our own. We know that sadly some children will not be as loved as others, some as well cared for as others, some as well behaved, but we know they are all children.”

Mr Ellis said children are only authorised as Chis in “exceptional circumstances” and “significant additional safeguards” are in place for the authorisations, noting the requirement for an “appropriate adult” to be present in any discussions between the handlers and the child under the age of 16.