Rights groups welcomed a proposed new British law that will create a legal basis for undercover informants to break the law when needed in the fight against serious crimes, but said that it doesn’t go far enough in specifying which crimes could be authorized.
The Covert Human Intelligence Sources (CHIS) Bill, which had its first reading in the House of Commons on Sept. 24, would explicitly allow informants recruited by MI5, the police, and other government departments to engage in criminality to secure the trust of those they are investigating, the government said in a statement.
The new legislation is to confirm a set of safeguards, including human rights compliance, creating a statutory basis for the crime-fighting tactic that has already been in use for some time, the government said.
However, prior to legal cases brought against the government, it was not publicly known that MI5, Britain’s domestic intelligence agency, had been authorizing informants to commit crimes under a secret policy that was not subject to meaningful oversight, rights watchdog Privacy International (PI) said.
PI and other right groups, who have been challenging the government in the courts for more transparency, said the bill’s lack of details about which crimes could be authorized was concerning.
“We are seriously concerned that the Bill fails to expressly prohibit MI5 and other agencies from authorizing crimes like torture, murder, and sexual violence,” Maya Foa, director of justice organization Reprieve, said in a joint statement with PI, the Committee on the Administration of Justice, and the Pat Finucane Centre.
“Our intelligence agencies do a vital job in keeping this country safe, but there must be common-sense limits on their agents’ activities, and we hope MPs will ensure these limits are written into the legislation,” she added.
Oversight and Limitations
Director-general of MI5 Ken McCallum said informant lawbreaking was necessary to “gain the critical information needed to save lives.”
“Since March 2017, MI5 and Counter Terror Police have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented,” he said in a statement.
Lynne Owens, director general of the National Crime Agency, said informants are authorized to engage in criminal activity only when “absolutely necessary and proportionate” and under “great care and scrutiny.”
Oversight is provided by the Investigatory Powers Commissioner, Sir Brian Leveson.
PI and Reprieve, who launched a legal challenge against the secret MI5 policy in 2017, do not object to the authorizing of informants to commit crimes per se.
“We are not challenging the fact that the use of informants can be a very useful tool to actually fight organized crime,” Ilia Siatitsa, program director and legal officer at PI, told The Epoch Times.
“But what we are challenging is the way the bill regulates the use of informants, including the lack of specific limitations with regard to what kind of acts can be authorized,” she added.
Another concern is oversight.
“Right now there is no double lock around these authorizations, so while you need a judicial warrant in other cases, to use an [MI5] informant, actually all you need is a supervisor’s approval,” she said.
Siatitsa also said that informants themselves who are acting in “precarious” situations needed clear parameters and should know whether they’d be prosecuted if they went beyond what was pre-authorized.
The FBI and Canada’s intelligence service, CSIS, have such safeguards in place already, according to the joint statement.
“Canada explicitly set the limits and the contours around which these acts can be authorized,” Siatitsa said.
Satitisa believes the new bill is related to Privacy International’s litigation, which challenged the legal basis of MI5’s authorization of informants to commit crimes.
“Before our case, the use of informants by MI5 was entirely secret,” she said. “It was only when we went to court that the government revealed some of this information.”
In December 2019, the Investigatory Powers Tribunal narrowly ruled 3–2 (pdf) that MI5’s powers to authorize informants to break the law were “implicit,” but “one dissenting judge warned that the government’s claimed basis for the policy amounts to a ‘dangerous precedent,’” according to the joint statement.
PI, Reprieve, and co-complainants Committee on the Administration of Justice and the Pat Finucane Centre, who joined the case in 2018, are continuing their litigation.
New law lets MI5 authorise crimes with no hard limits. CAJ has joined with @FinucaneCentre @Reprieve & @privacyint to call for the Bill to be amended to include explicit restrictions: https://t.co/BUtFmg9Wix pic.twitter.com/5ZLRsfSxs7
— CAJ (@CAJNi) September 24, 2020
Permission to appeal the 2019 ruling has been granted. There’s no fixed date as yet due to restrictions put in place to slow the spread of the CCP (Chinese Communist Party) virus, but the appeal may be heard by January next year.
“Even if the bill has passed [into law by then] we are still challenging to what extent the use of informants by MI5 was lawful before the bill came to the fore,” she said.
“The public has the right to know what type of criminal acts MI5’s policy authorizes in the UK. Our democracy and our most fundamental rights are at risk if the government permits MI5 agents to commit crimes with impunity,” Siatitsa said in the joint statement.
The CHIS bill will not act retroactively to address the way MI5 used informants from as early as the 1990s, nor allegations of past abuses of authorizations by informants, Siatitsa explained.
Other agencies that will be covered under the CHIS bill include the seven agencies and departments of the UK Intelligence Community (UKIC), the police, the Home Office immigration and border forces, the military, the Ministry of Justice, the Food Standards Agency, the Environment Agency, and others.