On 7 October 2020, Lord Neuberger, a former president of the Supreme Court and one of the most respected legal figures in the UK, said something extraordinary. He issued this warning: the Johnson Government's Internal Markets Bill, which explicitly allows the UK to break international law and which in vital respects deprives people of the right to challenge the Government in court, puts the UK on a "very slippery slope" towards a dictatorship.
Matters have, however, become even more worrying since Neuberger spoke.
On 15 October 2020, a Bill passed its Third Reading in the Commons and may prove more dangerous to UK democracy and the Rule of Law than even the Internal Markets Bill.
The Bill was the Covert Human Intelligence Sources (Criminal Conduct) Bill. Covert human intelligence sources (known as "CHIS") are people who operate undercover in order to collect intelligence.
Sometimes, in order to maintain their cover, CHIS have to commit crimes. There have been no cases where the State has ever prosecuted a CHIS for such crimes, because no doubt the prosecuting authorities have always used their discretion. However, the purpose of the Bill, according to the Government, is to put protection from prosecution on a statutory basis.
The provisions of the Bill are extraordinary. Certain designated persons will have the power to grant "criminal conduct authorisations." These will authorise a CHIS to engage in criminal conduct in connection with an undercover operation. It will guarantee that the CHIS will not be prosecuted.
From the words of the Bill and the debate in the Commons, it is absolutely clear that such an authorisation has no limit as to the type of crime. A CHIS could commit murder, torture or rape with impunity.
A CHIS would have James Bond's "licence to kill" or to torture or to rape.
And this is the list of 14 organisations that would have the power to grant criminal conduct authorisations with no input from a judge.
Any police force. National Crime Agency. Serious Fraud Office. Intelligence Services. HMRC. Armed Forces. Dept of Health and Social Care. Home Office. Ministry of Justice. Competition and Markets Authority. Environment Agency. Financial Conduct Authority. Gambling Commission
Under the provisions in the Bill, Criminal conduct authorisations should only be granted by one of these 14 organisations for one of three specified purposes: - 1. National Security 2. Preventing crime or disorder or detecting crime 3. In the interests of the economic well-being of the UK.
These purposes set a low threshold. Someone at one of the 14 organisations might decide, for example, that campaign groups wanting to help the poor, or to rejoin the EU, or to stop a climate catastrophe could all be targeted legitimately "in the interests of the economic well-being of the UK."
Sadly, there is a well-documented history of undercover operations being abused by the authorities. It is naive to assume that the extraordinary powers in the Bill are not likely to be abused with serious consequences, not only for individuals but for the Rule of Law and democracy.
One notorious example of abuse is that an undercover policeman was sent to infiltrate the group around the grieving parents of Stephen Lawrence after his murder.
A major Inquiry, the Undercover Policing Inquiry, is currently hearing evidence and has heard multiple accounts of State abuse of power. These include evidence from women in campaign groups who had relationships with, and many had children with, CHIS - who they thought were fellow activists - and who now, understandably, feel they have been "raped by the State".
Over 1,000 political groups have been infiltrated by CHIS over the last 40 years. They include Trade Unions, environmental groups like Greenpeace, peace groups like CND, groups campaigning against measures like the Poll Tax, and groups campaigning for social justice. These groups were not a danger to the State, but may well have been highly irritating to those in government.
At least one murder has been linked to CHIS. In 1989 a Belfast solicitor, Pat Finucane, was shot dead in his home by loyalist paramilitaries with the since admitted involvement of CHIS.
It is no doubt true that some undercover operations have helped keep the UK safe from terrorism and crime. It is clearly desirable that there is a proper legal basis to cover crimes committed by CHIS. The Undercover Policing Inquiry has not yet reported. When it does so, it will provide recommendations for appropriate law to cover the operation of CHIS. However, the Government is clearly not prepared to wait for the Inquiry's report: they have not explained why the matter is so urgent after decades, that they will not wait.
The Government claims that there are safeguards against abuse of power in the CHIS Bill, but they are wafer-thin. It cites the Human Rights Act, but the Government itself has previously argued the Act does not apply to CHIS. Furthermore, ministers have made no secret of their wish to scrap the Human Rights Act and withdraw from the underlying Convention.
The Bill grants the power of oversight to the Investigatory Powers Commissioner (IPC) but that is only to review. No prior judicial authority is needed. The IPC is not remotely adequately resourced to be able to meaningfully oversee, even in retrospect, the use of the powers in the Bill.
There are tougher safeguards for the police obtaining a search warrant of your house or garden shed than there are in the Bill for someone on the long list above granting criminal conduct authorisations.
Do you trust Priti Patel, Matt Hancock, Robert Buckland or someone you have never heard of in the Food Standards Agency, the Gambling Commission, Environment Agency, HMRC or the rest not to abuse their power?
Lord Neuberger was right. The UK is on a very slippery slope toward a dictatorship. Unless those putting us on that very slippery slope can somehow be stopped.
