15 October 2020

A chilling new bill risks putting the British state above the law

By Radomir Tylecote and Emma Webb

Boris Johnson’s government is already accused of using Covid to sideline Parliament. 

But the Government’s plans are much more troubling than most people realise. 

Amid the disturbing “new normal” of mass surveillance, government will today push a bill through the Commons whose implications are chilling. The Covert Human Intelligence Sources (Criminal Conduct) Bill would authorise the state and huge numbers of bureaucrats to break the law – to engage in “criminal conduct”. It is an ancient principle in our country that the law applies to everyone equally: the right to due legal process is outlined in Clause 29 of Magna Carta, one of the clauses which remains in law today. This government seems ready to flout that principle.

The government has rushed this bill through Parliament at such speed that it has largely escaped media attention. If it becomes law, it will effectively grant permission to bureaucrats to break the law in a wide range of situations. These plans are the kernel of dictatorship, and we hope ministers are pushing them without fully understanding their implications. The alternative is frightening indeed.

Because the Bill as it stands is like something written by the Generals of Burma. Law-breaking can be authorised by bureaucrats for vague aims like preventing “disorder” or for the UK’s “economic wellbeing”. The bill’s title implies criminal conduct should be by “covert human intelligence sources”, but it only need be “otherwise in connection” with this. Bureaucrats need simply to “believe” that “authorised conduct is proportionate to what is sought to be achieved by that conduct”.

Defenders of the legislation say it will let MI5 informants commit crime in pursuit of intelligence. But this is just the tip of the iceberg.

Everyone knows that, for better or worse, people working for the security services have occasionally broken the law. But to explicitly place its operatives above the law is something quite different. Yet this is even worse than that, because it applies not only to our intelligence agencies but to all police forces, to the Home Office, the Ministry of Justice, the Environment Agency, and, believe it or not, the Department of Health. Is the Government so pleased with our health bureaucrats’ performance during the Covid crisis that they want to give them a licence to break the law? 

To be fair to the Government, they may believe that the bill is necessary to allow the intelligence services to do their work effectively or to infiltrate terrorist groups. But what possible need can the Charity Commission have to break the law? Or the Food Standards Authority? Or HMRC? As the recent case of Darren Grimes and David Starkey has shown, some bureaucrats behave as if they’re already above the law. Imagine what they might do if they really are. 

Any slide towards authoritarianism is justified  with claims to public safety. Our security services, like MI5, MI6, and others, whose courage we respect, have to work bravely and sometimes in grey areas. But to put so much of the state above the law is terrifying. 

There have been a few rebels in Parliament, but the bill passed at second reading last week by 182 to 21. No Conservative voted against it, and with the honourable exceptions of MPs like David Davis and Steve Baker, most have offered no criticism in the Commons. 

Keen to distance themselves from the Labour Left on national security, Sir Keir Starmer and the Labour frontbench simply abstained. Today, the Bill will be rammed through all its remaining Commons stages. A serious failure of democratic process is underway. 

The Government claims the Bill simply amends the Regulation of Investigatory Powers Act 2000 (RIPA) while responding to a December 2019 court ruling over criminal actions by intelligence agencies. But this seems ill-thought through. First, RIPA allowed specific intrusions like bugging and surveillance by specific agencies, but did not sanction widespread criminality. And since the court decision held in favour of permitting agents working for bodies like MI5 to commit some crimes, it is not clear why a bill is needed. This is part of the recent trend of re-legislating areas already covered by law. But as Cicero said, “the more laws, the less justice”.   

This Bill is also the latest example of a lack of regard for our freedoms. As Caroline Elsom has outlined on this site, the Government’s Online Harms White Paper plans an internet censorship bill for next year, designed to suppress news that hasn’t been graded “authoritative” by state-approved “fact-checkers”. Here, too, the Government is under pressure, from a vocal internet censorship lobby.

But in both cases, what is needed is attention to the detail of the actual problems: instead of the vast extra-legal powers of the Covert Human Intelligence Sources Bill, clear rules for the security services; instead of the vast Online Harms Bill, more resources for the over-stretched law enforcement agencies which catch paedophiles and terrorists online, like the National Crime Agency.    

Many of the Prime Minister’s supporters voted to leave the EU because of its suffocating legislation and this is not the Brexit Britain they had in mind. If Parliamentary democracy is not to be replaced by an increasingly permanent police state, which we cannot believe the Prime Minister or his Home Secretary really intend, the Government must think much harder at an early stage about the implications of this legislation. 

Boris Johnson and his government promised to tame the blob; are they really going to put it above the law? 

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Dr Radomir Tylecote is Director of Defence and Democracy for Security (DSD) at Civitas and Research Director at the Free Speech Union.

Emma Webb is Director of the Forum for Integration, Democracy and Extremism (FIDE) at Civitas.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.