Sir David Davis comments on the challenges UK ministers face on giving immunity to MI5 agents committing crimes while on covert operations


As published in The Financial Times:

Senior Conservatives are to challenge UK ministers over a new law giving immunity to undercover agents who commit crimes while on covert operations, arguing the “rushed” legislation is “ill thought-through” and risks sanctioning offences that will harm innocent people.

The Covert Human Intelligence Sources bill — which enters parliament for its second reading on Monday — aims to provide legal protection for a previously secret power known as “the third direction”. This allows agents and informants working for the UK’s domestic security service MI5 as well as the police and other authorities to break the law if this would prevent a more serious crime or threat to national security.

The policy only came to light two years ago after legal action by human rights campaigners forced the government to acknowledge the existence of the directive. The Home Office is now seeking to formalise this power in law.

However, opponents of the bill are concerned that it does not explicitly rule out grave crimes such as murder, torture and sexual violence, and grants immunity to undercover agents working for a wide variety of organisations beyond security agencies and the police, including HM Revenue & Customs, the Food Standards Agency and the Gambling Commission.

Whitehall officials argue they do not want to set out a list of sanctioned crimes in the bill in case this helps criminal or terrorist groups “test” suspected undercover agents by asking them to commit banned offences.

David Davis, former Brexit secretary, said the proposed law was “ill thought-through”. “It’s been rushed, and it should preclude crimes which we think are beyond the pale”, he said. “There are a whole series of weaknesses in it, which at the end of the day will impinge on innocent people.”

The former Cabinet minister raised concerns that under the bill, the authorisation to commit crimes undercover would be signed off by lawyers in the organisations themselves, rather than the home secretary. As a result, these powers are subject to less rigorous oversight than phone taps or search warrants. He also questioned why the UK was granting far wider powers than two of its Five Eyes security partners, the US and Canada, which both specifically prohibit certain crimes such as murder and torture under similar legislation.

“The decisions should be taken by non-operational personnel, ideally judges,” Mr Davis said. “And we certainly shouldn’t give more powers to our police than Americans give to the FBI.”

Andrew Mitchell, the former Tory chief whip and ex-international development secretary, said he would argue for more limits on the legislation. “Parliament should be incredibly cautious in granting such powers in a free society and the executive must provide the strongest possible justification,” he said, querying why the Food Standards Agency should be granted the same freedoms to break the law as spy agencies.

Security officials argue it is essential that undercover informants are allowed to commit certain crimes — such as joining a terrorist organisation — in order to infiltrate jihadi and far-right wing groups. The 2018 plot by an Isis supporter to bomb Downing Street and kill the prime minister was only thwarted because undercover operatives were authorised to commit crimes, officials say.

The Home Office emphasises that while the bill does not specifically ban grave crimes, the authorisation to break the law is not a “licence to kill”, as some have claimed, because all actions must be compliant with the Human Rights Act. This includes a right to life, and freedom from torture or degrading treatment.

But Ken MacDonald, the former director of public prosecutions, said that while he supported the government’s move to enshrine agents’ “essential” powers in law, more transparency was needed.

“When you’re talking about people under cover you’ll very often hear these stories about being tested in one way or another,” Lord MacDonald said. “You’ve got to be very careful you’re not slipping into a Quentin Tarantino world or a Sopranos world where criminals involved in activity are constantly challenging each other to test their loyalty. I don’t think that’s the real world, it’s not how this activity works.”

“I think to get public confidence for these sorts of measures . . . it’s much better to be clear about the fact that there are some limits,” he added.

Reprieve, the human rights group that brought the original case against the government’s use of the “third direction”, is lobbying for far stronger safeguards concerning the legislation. The group warns that the human rights act will not be an effective block on the sorts of crimes agents are allowed to engage in, because the government’s lawyers have previously argued the act does not apply in acts which are being merely authorised by the state, rather than initiated by it.

James Brokenshire, security minister, said the ability of agents to break the law without fear of prosecution was a “critical capability” which was subject to “robust, independent oversight” by the Investigatory Powers Commissioner’s Office.

“It is important that those with a responsibility to protect the public can continue this work, knowing that they are on a sound legal footing,” he said.

Labour’s shadow home secretary Nick Thomas-Symonds, writing on Sunday for the Independent, called on the government to be “far more explicit” about how human rights protections would be used. He also said the IPCO should be notified of every authorisation “in real time”.