When Kingdoms were established thousands of years ago, the overall apparatus of spying on the population to find any hint of wrong-think or rebellion among the people who may want to rid the place they live in of authoritarian rulers has not changed much,

Rather it has evolved. The most trusted servants were often used by the ruling Kings, Queens or Emperors to gather information on finding out which enemies, both foreign and domestic, threatened them. Many empires of the past including the Roman Empire with the Praetorian Guard, the Austro-Hungarian Empire with the Evidenzbureau, the Japanese Empire with the Kompeitai from 1881 to 1945, the Russian Empire with the Okhrana Guard Department from 1881 until 1917, the Ottoman Empire with the Special Organisation from 1913 until 1918 to suppress Arab separatism and the Soviet Union with various agencies including the KGB used these services as an excuse to seek out and crush any dissenting person or group that they perceived as a potential threat to their rule should they gain small to large numbers of support for their ideas.

These days, things aren’t that different with the formation of GCHQ after World War 2, the passing of the Intelligence Services Act 1994 which protects Mi6 agents from prosecution under British law for committing acts such as murder, the subsequent passing of the Regulatory of Investigatory Powers Act of 2000 (RIPA) which can be invoked at any time in the name of ‘national security’ and the passing of the Investigatory Powers Act 2016 which expanded government surveillance to the internet. But it may be argued that the characteristics of state surveillance were established at the beginning of the modern state and mass communication in the second quarter of the nineteenth century.

The 1830s saw the Great Reform Act and the first wave of railway building. In 1840 the British government slashed the cost of postage to a penny irrespective of distance, and introduced pre-payment to speed the process of delivery. The intention was to democratise correspondence, stabilising a society disrupted by urbanisation, promoting the exchange of the information necessary for a fluid industrialising economy, and creating demand for universal literacy. Four years later in what Torrens McCullagh Torrens, the biographer of the Home Secretary, Sir James Graham, called a ‘paroxysm of national anger’ exploded when the government was caught opening letters in the interests of national security. It was that political espionage scandal of 1844 which led to laws surrounding surveillance being introduced around the time of the First World War, such as the 1911 Official Secrets Act which got updated many times in 1920, 1939 and 1989. This leads us up to the titular bill which has been causing some controversy lately.

On Monday 5th October 2020, the Covert Human Intelligence Sources Bill passed its second reading in Parliament by 182 votes to 20. A vote on that date which all 48 elected SNP MPs abstained from. Amendments were proposed on the 15th October 2020 including a few which focuses on civil redress, preventing torture, preventing the violations of sexual consent, preventing unlimited detention and preventing the violation of property rights but these included amendments were voted down by 315 to 256 votes. Clause 4 which protects Trade Unions from being spied on by the British state intelligence agencies was also introduced but this too was voted down by 313 to 255 votes from primarily Conservative MPs who went on by 313 votes to 98 to vote through the CHIS bill after it’s third reading that same day.

Security minister James Brokenshire said in parliament that the Bill is intended to make Britain safer by ensuring that “operational agencies and public authorities have access to the tools and intelligence that they need to keep us safe”, including from terrorists and serious organised crime groups. The minister added that undercover agents, known as covert human intelligence sources (CHIS), have played a “critical” role in disrupting terrorist plots, thwarting 27 terror attacks since March 2017. Brokenshire has previously said of the Bill that “it may be necessary for agents to participate in criminal activity in order to gain the trust of those under investigation”.
The proposed legislation includes protecting undercover police and MI5 agents from prosecution when they commit criminal offences as part of their work.

The Bill has been criticised for not explicitly prohibiting undercover agents from committing various serious crimes as part of their work. These include murder, torture, and sexual violence. Former Brexit secretary David Davis expressed concern over the bill, describing it as “ill thought-through”, saying that Britain “shouldn’t give more powers to our police than Americans give to the FBI.” Some MPs have also expressed bewilderment that the The Competition and Markets Authority, The Financial Conduct Authority, The Food Standards Agency and The Gambling Commission have been named in Section 2 of the bill as ‘bodies’ to help enforce the law.

Amnesty International UK’s Northern Ireland’s Campaign Manager, Grainne Teggart, released a statement saying, “There is a grave danger that this Bill could end up providing informers and agents with a licence to kill. “It is deeply alarming that the proposed law does not explicitly prohibit MI5 and other agencies from authorising crimes like torture and killing. It must be amended to do so. “In Northern Ireland, we have seen the consequences of undercover agents in paramilitary organisations operating with apparent impunity whilst committing grave human rights abuses, including murder. Such criminal acts do not become any less serious when placed on a legal footing. Decades after the Northern Ireland conflict, victims for these and other crimes are still fighting for the truth, justice and accountability to which they are entitled.”

Undercover agents have come under increasing scrutiny in recent years, after it was revealed that officers posing as activists in various environmentalist, anti-racist and animal rights groups had formed sexual relationships with women they were spying on, one of which included Bob Lambert, who fathered a child with one of the activists he was spying on when he posed as a left-wing animal rights campaigner in the 1980s.

Kate Wilson was one particular victim of illegal undercover policing. A police officer disguised himself as an ordinary person who attended many social events with her and came off as impressionable. He originally said that he came from a broken home and was raised by his single mother because his father left the family and that Ms Wilson’s family were like the family he never had. the activities started in 2003 but Kate found out in 2010 that the officer ‘Gary’ (whose real name turned out to be Mark Kennedy) did not exist by a given name – filed a claim against Met Police (claim ongoing) – lots of complicated legal arguments – S26 of RIPA used as defence by the police along with the fact the officers said they were encouraged by Mi5 to spy on thousands of political activists.

She won her case against 2 police officers including Mr Kennedy in 2016. This was revealed in a public inquiry into undercover policing which was ordered by then-home secretary Theresa May after disclosures revealed in 2014 that police spied on the family of Stephen Lawrence after he was killed by thugs in a racially motivated attack in London in 1993. An undercover officer turned whistle-blower Peter Francis revealed in 2013 that he posed as an anti-racist to find ‘dirt’ to smear the Lawrence family.

Another tragic case involving collusion between the police and agents of the state happened to Pat Finucane from Belfast on 12th February 1989 when 2 gunmen came in and murdered Finucane by shooting him 14 times and shooting his wife once while their 3 kids (one of which is the Belfast North MP for Sinn Fein, John Finucane) hid under the table they had their dinner on. Questions were raised given that Mr Finucane was a human rights lawyer who often defended members of republican paramilitary groups in Northern Ireland including the late Bobby Sands. Ken Barrett, a paid informant of the Royal Ulster Constabulary, pleaded guilty to his murder in 2004 and was sentenced to a minimum of 22 years in prison but was released from jail in 2006 and left Northern Ireland that same year.

Skepticism was met at the outcome of the trial including from Johnny Adair, a former leader of the Ulster Defence Association paramilitary group, who told The Observer that same year, ‘Barrett is a b—— informer and I hate him, but he did not pull the trigger’ as well as from the Funicane family. A similar sentiment was made in June 2005 when the then Irish Taoiseach Bertie Ahern told a US Special Envoy to Northern Ireland that “everyone knows” the UK government was involved in the murder of Pat Finucane which then got the US House of Representatives to pass a resolution demanding the UK Government to hold a public inquiry into his death. Then Prime Minister David Cameron apologised to him & his family in 2011 but further reports including the 2012 De Silva report and a lawsuit filed in the High Court in Belfast in 2015 revealed much more revelations.

A public inquiry into the actions of the undercover officers is set to begin in November. The justification behind the Bill is not entirely new as it follows a ruling in December 2019 where it was decided, albeit narrowly, that MI5 and other agencies are permitted to commit serious crimes. And if you think these spying shenanigans from the state only happen elsewhere other than our own doorstep, think again:

Police Scotland spent more than £500,000 buying from an Israeli firm 41 laptop-sized machines which override encryption on devices including passwords. A trial was undertaken in 2016 in the cities of Edinburgh and Stirling. The force planned to deploy the ‘cyber kiosks’ in the country in October 2018. The force say that The UK Information Commissioner, Senior lawyers, MSPs and the Scottish Human Rights Commission raised concerns that giving officers the ability to bypass passwords on mobile phones to access data could be against the law. In response to a freedom of information request sent in 2019, Police Scotland said it couldn’t provide a figure for the number of devices analysed in 2018 or 2017, even though it had released numbers in prior years.

The force added that the number of “cases” processed by the cyberhubs in 2018 was around 6,740. Although officials said each case could include multiple devices, last year just 5,520 cases were categorized on case submission forms as “phone” and 1,240 as “computer.” Asked to clarify the statistics, a police spokesperson said: “Police Scotland seize around 40,000 mobile phone devices a year but only a small proportion are currently submitted for digital forensic examination. As part of that process, we introduced a revised case management system in 2016, and this means that a submission form can relate to more than one device.”

Do take note that the same force also stated in a tweet on 30th December 2014, “Please be aware that we will continue to monitor comments on social media & any offensive comments will be investigated.” Given that offence can be taken, not given, and the definition of what is offensive is often being expanded nowadays, who knows what naughty words you could get a knock on the door for?

Numbers of mobile phones analysed by Police Scotland

2010
7,412

2011
8,418

2012
9,382

2013
11,744

2014
10,411

2015
11,295

2016
12,000

2017
5,270

2018
5,520

*2016 figure given as “at least” 12,000. A new case management system was introduced by Police Scotland in 2016. Each case in 2017 and 2018 may have more than one device associated with it.

Chart: Ally Tibbitt Source: FOI/ Police Scotland Created with Datawrapper

Given that it is also known that GCHQ and the NSA are known to share information with each other as disclosed by Edward Snowden in 2013, who knows where else your private information is going to?

It’s one thing if you can walk away from the premises of any private company should they want to film you with cameras and therefore find another company that respects your general privacy but every individual has the right to be left alone and secure in their personal information from the government. At the end of the day, even if investigations into real criminals need to be commenced, personal information cannot be sold or traded by any third party without the clear consent of the individual nor accumulated by government agencies without a warrant. Any violation of the wish to be left alone by the state in the most Orwellian of fashions would be nothing short of reminding us that we don’t live in a free society at all.

Sources:

https://www.theyworkforyou.com/debates/?id=2020-10-05b.652.0&s=Covert+Human+Intelligence+Sources#g706.0
https://www.theyworkforyou.com/debates/?id=2020-10-05b.652.0&s=Covert+Human+Intelligence+Sources#g706.0
https://www.theyworkforyou.com/debates/?id=2020-10-15a.627.0&s=Covert+Human+Intelligence+Sources#g627.1
http://news.bbc.co.uk/1/shared/spl/hi/northern_ireland/03/stephens_inquiry/pdf/stephens_inquiry.pdf
https://www.theguardian.com/politics/2006/feb/19/uk.northernireland1
https://www.rte.ie/news/2006/0519/76442-finucanep/
https://www.theguardian.com/uk/2012/jan/20/undercover-police-children-activists?newsfeed=true
https://www.dailymail.co.uk/news/article-8907251/amp/Officers-spy-cops-inquiry-deny-racist-sexist.html
https://www.ucpi.org.uk/evidence-hearings/
https://www.theguardian.com/uk-news/2019/dec/20/mi5-informants-investigatory-powers-tribunal-lawful-serious-crimes
https://www.theguardian.com/uk-news/2018/oct/04/mi5-sought-immunity-for-agents-criminal-acts-tribunal-told
https://www.bbc.co.uk/news/uk-scotland-46225771
https://www.bbc.co.uk/news/uk-scotland-scotland-politics-47844721
https://www.glasgowlive.co.uk/news/glasgow-news/police-scotland-roll-out-encryption-17568762
https://www.itv.com/news/2018-09-06/encryption-forcing-police-to-fall-back-on-older-ways-of-catching-criminals
https://theferret.scot/police-scotland-forensic-analysis-mobile-phones/
https://www.documentcloud.org/documents/6002532-19-0324-Review-Response.html
https://twitter.com/policescotland/status/549955567960465408
https://www.thetimes.co.uk/article/hi-alexa-please-report-a-crime-to-police-scotland-b7jt933hl
https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/108429.aspx
https://www.theguardian.com/media/2019/apr/10/julian-assange-wikileaks-says-spies-at-work-in-ecuadorean-embassy

Jonathan Rainey: Is a contributor from Dumbarton and PSPC For the 2021 election