The Bill that gives MI5 carte blanche to spy on trade unions

The Covert Human Intelligence Sources (Criminal Conduct) Bill not only allows but potentially encourages MI5 to spy on lawful citizens.

Commentary icon16 Nov 2020|Comment

Keith Ewing

Professor of Public Law, King’s College London

The Covert Human Intelligence Sources (Criminal Conduct) Bill – currently in the House of Lords – can be seen as the latest in a series of initiatives introduced over the last 70 years intended to protect the Security Service and Special Branch. Although the Bill does not wholly legitimise the more dubious activities of the Security Service (MI5), it at least reassures officers that it is unlikely that they or the Service will be called to account for breaches of their Charter or breaches of the law. The Bill will make it easier for MI5 officers to secure the results their political masters wish to see.

Initiatives of this kind introduced during the Cold War are examined in our book MI5, the Cold War and the Rule of Law. The best known of these initiatives remains the Maxwell Fyfe Directive issued to the Service in 1952, which relaxed the strictures of the earlier Attlee Directive of 1946, Attlee keeping MI5 under tighter control than his Tory successors. Today, those instruments that we know about are almost exclusively statutory, the Covert Human Intelligence Sources (Criminal Conduct) Bill adding yet another arrow to MI5’s extensive statutory quiver.

It is sobering to reflect on what the Bill provides: it authorises the police, the security and intelligence services and the armed forces to infiltrate lawful organisations and to authorise those infiltrated to commit criminal offences.

What the Bill says

Coverage of the Bill has focused almost exclusively on the supposed extra powers it gives the Security Service. However, the Bill effectively gives statutory effect to the Service’s own previously legally ambivalent procedures for handling informers who engage in criminal conduct. So, while MI5 officers will undoubtedly feel less inhibited about breaking the law and working with informers who do the same, the Service may not in practice have any fresh powers. MI5’s ‘in house’ mechanism for approving unlawful activity is their ‘Guidelines on the use of Agents who participate in Criminality’. This is the latest manifestation of an allegedly longstanding tacit arrangement by which a blind eye was turned to the connivance with informers engaged in criminal activities – activities which may even have been instigated by the officer or officers handling a particular ‘covert human intelligence source’.

As long as the procedures are adhered to and authorisation obtained, officers are permitted, as the guidelines put it, to ‘encourage, counsel or procure the commission by an agent of a criminal offence,’ although officers are instructed that ‘It should be clearly explained to the agent that the authorisation procedure does not bestow on them any immunity from prosecution.’ The Bill gives this mechanism statutory approval, but will also effectively confer immunity from prosecution on officers and informers. Moreover, it extends this extraordinary statutory mechanism for authorising lawbreaking to the police and to a variety of public authorities, and for a wide range of purposes drafted in vague and open-ended terms without clear boundaries as to their intended scope of operation.

By Clause 1(5) the Bill allows for criminal conduct authorisations within the CHIS framework in (a) the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; or (c) in the interests of the economic well-being of the United Kingdom. While it can be stated with some confidence that the activities of foreign powers, notably China and Russia, were the primary reason for Clause 1(5)(c), there can be no doubt that those overseeing the drafting of the Bill were conscious that these ‘statutory reasons’ for authorisations could embrace the surveillance of trade unions and trade union members. Amendments intended to exclude trade unions from the reach of the Bill were defeated, along with a number of other amendments which would have provided safeguards against abuse.

The trade union amendment was rejected by 59 votes – 255 MPs voted for it, 314 against. It would appear that the police and security services are to be trusted to behave themselves.  The danger is of course that the defeat of the trade union amendment will be taken as being given carte blanche for infiltration, the police and security services paradoxically emboldened by the fact that Parliament expressly repudiated this specific limitation of their powers. At this point, it is sobering to reflect on what the Bill provides: it authorises the police, the security and intelligence services and the armed forces to infiltrate lawful organisations and to authorise those infiltrated to commit criminal offences. That this can be done without prior judicial authorisation is extraordinary, and surely inconsistent with the European Convention on Human Rights, despite government claims to the contrary.

Amendments intended to exclude trade unions from the reach of the Bill were defeated, along with a number of other amendments which would have provided safeguards against abuse.

Spying on trade unions – a recent history of MI5

MI5 had, since the end of the First World War, maintained a close interest in the unions and the labour movement. With its files swelled by reports passed on by Special Branch, its own informers in place at the highest levels and increasingly effective electronic eavesdropping techniques at its disposal, the Service’s industrial work could be said to have reached a peak in the 1970s and 1980s. It was at this time that the Service, operating as a political police force, advised the Heath and Thatcher governments on what their sources had revealed about union plans and negotiating positions, while also running ‘dirty tricks’ operations against the NUM.

MI5’s interest in the labour movement appeared, however, to wane after the fall of the Berlin Wall. Union power had declined following the restrictions on freedom of association imposed by the Thatcher and Major governments. At the same time, the disclosures by Peter Wright in Spycatcher, along with what would today be described as the ‘whistleblowing’ by disillusioned MI5 officer Cathy Massiter, saw MI5 obliged to rein in what was seen as out of control and wholly unnecessary political policing. Massiter had participated in the intensive surveillance of civil society organisations including trade unions throughout the 1970s and into the early 1980s, little of which was in aid of the ‘defence of the realm’. Her revelations led directly to a European Commission of Human Rights complaint and to the introduction of the Security Service Act 1989.

Although mistakenly seen as the executive arm of MI5, Special Branch can be seen nevertheless as the foot soldiers of trade union surveillance. MI5 files released to the National Archives contain copious reports from Special Branch officers, and reveal quite clearly the role of Special Branch covert presence at union meetings, and its role in the bugging of meetings – including strike meetings – where physical presence would not have been possible. Although often clumsy, Special Branch was also able occasionally to cultivate trade union members, officials and officers as informers. Less well known is that Special Branch performed a de facto role during the Cold War as the executive arm of F3, the Home Office’s industrial policing department. As in the case of MI5, however, Special Branch’s surveillance of the unions was also wound down in the early 1990s.

Wound down but not discontinued, it seems. By the second half of the 1990s, a specialist section within Special Branch, the Special Demonstration Squad, later the Special Duties Squad [SDS], infiltrated officers with false identities into potentially ‘extremist’ organisations, thereby keeping the political policing flag flying by targeting organisations on the Left. In 1999, the police National Public Order Intelligence Unit [NPOIU] was formed employing similar techniques targeting a wider range of ‘domestic extremists,’ and in 2004 the National Extremism Tactical Co-ordination Unit [NETCU] was established. In 2006, the SDS was subsumed into SO15, Counter Terrorism Command. The monitoring of what used to be called ‘subversives’, including unions and trade unionists, thus enjoyed something of a revival at the end of the 20th century and the beginning of the 21st century.

The reality is that the government is poised to introduce an Act of Parliament which will encourage rather prevent police surveillance of trade unions.

The blacklisting scandal

The 21st century equivalent of the political policing scandals in which MI5 became mired in the late 1980s and early 1990s was triggered by a raid in 2009 by the Information Commissioners Office (ICO) on a blacklisting employers’ association, the Consulting Association (CA), and by the subsequent unmasking of a number of SDS and NPIOU spies during 2010-2014. The extraordinary stories of and surrounding these events are set out in two superb books: Guardian journalists Rob Evans’ and Paul Lewis’ 2014 Undercover; The True Story of Britain’s Secret Police (‘they steal identities, they break the law, they sleep with the enemy…’), and Dave Smith and Phil Chamberlain’s Blacklisting, the Secret War between Big Business and Union Activists.

The events described are inextricably intertwined and in 2015 penitent ex-SDS officer Peter Francis revealed in a statement read out by John McDonnell MP at the Westminster launch of Blacklisting, that he had personally spied upon the FBU, the National Union of Students, the NUT, Unison and the CWU. The ex-policeman promised that a comparison of Special Branch records with the files of the Consulting Association would reveal beyond any doubt that the police and CA had colluded in blacklisting. While the Branch are unlikely to be inclined to co-operate, few would doubt there has been collusion on a considerable scale. Smith and Chamberlain’s book makes plain that the CA’s files are stuffed with information that could only have been provided by the police and security services.

The authors tell us that the CA admitted to the Times newspaper that it exchanged information with the police’s National Extremism Tactical Co-ordination Unit, and indeed when the Blacklist Support Group made an official complaint about police collusion the Independent Police Complaints Commission admitted that ‘it was likely that all Special Branches were involved with providing information about potential employees.’ Moreover, it is well known that the CA’s previous incarnation, the Economic League, had collaborated with MI5 and Special Branch for decades up until its demise in 1993 in the face of a welter of hostile publicity, condemnation by the International Labour Organisation and a libel case brought by a blacklisted construction worker.

The policing scandal led the government to establish in 2015 the Undercover Policing Inquiry for England and Wales – the Mitting Enquiry. The Blacklist Support Group and members of the group, including Dave Smith, are among those classed by the enquiry as ‘core participants.’ Unfortunately, the anticipated report date of 2019 has been rescheduled for 2024, although the many victims may derive some comfort from the fact that with £30 million already spent on the enquiry the evidence hearings started on 02 November 2020. Meanwhile, the International Labour Organisation, which played an important role in closing the Economic League down and in pressing the government to introduce effective legislation to tackle blacklisting has, prompted by the TUC, asked the government to explain why it has been permitting police surveillance of trade unionists in breach of its obligations in international law and how it proposes to rectify the situation.

Protecting our human rights

Of course, the first thing the government could do would be to amend the Covert Human Intelligence Sources (Criminal Conduct) Bill to exclude trade unions. Unfortunately, it appears unrepentant both about blacklisting and police spying. In the last set of Observations on the most fundamental of ILO Conventions on the human right to freedom of association published in 2019, the ILO’s Committee of Experts stated that they were still waiting for a reply from the government on the spying allegations and for proper assurances that the requirements of the Trade Union Act 2016 for picket supervisors to give their names to the police will not result in the supervisors being placed on a blacklist.

So far, all the ILO Committee of Experts have received from the government is obfuscatory waffle about confidentiality being protected by the Human Rights Act 1998 and the Data Protection Act 2018, and ‘that complaints regarding data handling can be brought to the Independent Police Complaints’ Commission, if the data was mishandled by the police, or to the Information Commissioner…’. A laughable response given the nature of the allegations and the overwhelming weight of wholly convincing evidence against the police. The reality is that the government is poised to introduce an Act of Parliament which will encourage rather prevent police surveillance of trade unions.

Thus, the Covert Human Intelligence Sources (Criminal Conduct) Bill will enable authorisations to be given to informers and infiltrating officers to break the law and to act as agents provocateurs. Our concern here has been with the impact on trade unions in particular. The Bill does, however, raise much wider questions of civil liberties in what is a brazen authorisation of criminal conduct – without limits – by State officials.

The Labour Party will have disappointed many of its potential supporters by abstaining at the Second Reading of the Bill, willing it seems to endorse the authorisation of unlawful conduct by State agents in violation of the rule of law, the very principle that was once the Labour Party leader’s professional duty as Director of Public Prosecutions [DPP] to uphold.

Andrew Moretta

World of Work PhD student, The University of Liverpool

Keith Ewing

Keith Ewing Keith Ewing Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights