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James Bond and the Food Standards Agency

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James Bond and the Food Standards Agency

Old 7th Oct 2020, 06:25
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James Bond and the Food Standards Agency

Might have to a few more digits to the numbers of agents “licensed to kill”.

Humour apart, I wasn’t aware of the ramifications of this Act before now, and it does seem concerning.


The terrifying consequences of the ‘licence to kill’ bill

Should the Food Standards Agency be permitted to engage in torture in order to put a stop to the sale of horse meat? Should the Gambling Commission have the authority to issue licences to its agents to commit murder with impunity?

That would be the astonishing outcome were the Covert Human Intelligence Sources (Criminal Conduct) Bill, which passed its second reading in the House of Commons yesterday, to be enacted in its current form.

The justification for the Bill arises out of the real dilemma of how the intelligence services handle undercover agents who may be forced to break the law in order to carry out their work.

The purist’s position that agents of the state should never break the law is obviously unsustainable. To take but one example: if MI5 wants to place an agent (a 'covert human intelligence source' or 'CHIS', pronounced like the first syllable of 'chisel') within a proscribed terrorist organisation it’s not much good telling him that he mustn’t join it because that would be breaking the law. At the very least a blind eye must be turned to that crime.

The secret agent in a terrorist cell cannot approach his task like a reporter in a brothel; he cannot make an excuse and leave once discussion turns to the planning of an atrocity. On the contrary, both the safety of the agent and the flow of intelligence depend upon at least the appearance of enthusiastic participation. The higher within the organisation the agent might be, the more helpful he will be to his handlers, but also the more likely it is that he will find himself under pressure to become involved in crimes it plans and perpetrates.

But although some law-breaking is inevitable there must be limits to what a democratic state can do in its pursuit of intelligence.

The 1989 murder of Belfast solicitor Patrick Finucane illustrates the dangers of agents of the state becoming involved in murder, believing themselves to be acting with at least some degree of official sanction. Finucane’s murder was carried out by loyalist paramilitaries, but as Sir Desmond de Silva QC’s 2012 inquiry concluded:

there was a series of positive actions by employees of the State that actively furthered and facilitated his murder and… in the aftermath there was a relentless attempt to defeat the ends of justice.

Permitting an employee of the state to facilitate a murder, or obstructing justice in the aftermath of a murder, is something that a civilised state should only do, if at all, in the most extraordinary of circumstances. Those circumstances certainly do not include the gunning down of a Republican sympathising solicitor.So, given that a certain amount of officially sanctioned law-breaking is essential if intelligence agencies are to do their job properly, there is a difficulty over where to draw the line.

The existing position is a fudge. The guidelines under which the security services operate make clear — or at least as clear as a heavily redacted document can ever be — that while handlers cannot offer immunity from the criminal law, they 'may in appropriate cases authorise the use of an agent participating in crime'.

As the guidelines correctly state, such an authorisation 'has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution'. What it boils down to is that under existing law agents are unlikely to be prosecuted if they have been 'authorised' to commit crimes, but they cannot be completely sure. In general, it is probably a good thing that agents have a nagging doubt over the legality of killing and torturing in the interests of the state.

Under the Bill, such nagging doubts will disappear. Agencies will be able to issue a 'criminal conduct authorisation', permitting CHISs to commit any offence up to and including torture and murder with the assurance of legal impunity. To the maxim 'be ye ever so mighty the law is above you', one would have to add the proviso 'unless your handler has issued you with a criminal conduct authorisation'.

There are obvious dangers in that. Not all agents are patriotic heroes, although of course some are. Some must of necessity be drawn from the membership of terrorist organisations. Such organisations tend to attract fanatics, psychopaths and the unhinged. Even if they are turned by greed, bribery or blackmail, psychopaths will remain psychopaths and the unhinged will remain unhinged despite being in the pay of Her Majesty’s government or issued with an official licence placing them beyond the reach of the criminal law.

Were the Bill to grant these awesome powers just to the intelligence agencies, and only in relation to espionage on matters of vital national interest, that would be concerning enough. Despite the obvious dangers, it would put onto a statutory basis much that goes on anyway and which, for all its dangers and moral ambiguity, most people accept as an unfortunate necessity in the defence of democracy.

Yet the Bill extends its ambit far beyond the protection of national security and serious criminality. The issuing of criminal conduct authorisations will also be possible:

for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom.”

These are remarkably wide and loosely defined purposes. The 'crime' being fought need not be serious. A criminal conduct authorisation could be issued even for the detection of trivial crime, something that MI5 would not be interested in, but the police might.

Indeed the wording is so wide that it will be permissible to issue them to combat activities that are not even criminal at all. 'Disorder' is a horribly vague word that encompasses lawful dissent. The Bill’s provisions would provide the intelligence services and the police with clear legal authority for sexual deception to be used to gather intelligence on political protest movements, even as the undercover policing inquiry conducts its own detailed investigation into the propriety and proper regulation of that very issue.

Perhaps most startlingly, the list of organisations that will be able to issue licences to commit crimes goes far beyond the intelligence services. Any police force is included, as are the armed forces, HMRC, the Home Office, the Department of Health, the Competition and Markets Authority, the Environment Agency, the Food Standards Agency, the Financial Conduct Authority and the Gambling Commission. In the most modern fashion, the Bill gives the home secretary the power to add other agencies to this list by future statutory instrument — without the oversight of parliament.

As with the intelligence agencies, there are no limits on the types of crime that any of these organisations will be able to authorise, up to and including torture, rape and murder. Quite why it is thought that the Food Standards Agency might ever need to authorise its covert human agents to torture people is unclear, and although the workings of the Gambling Commission are a mystery to most of us, I would require a good deal of persuasion before accepting that it cannot perform its statutory functions effectively without a licence to kill people.

The Bill has apparently been 'widely welcomed in the law enforcement community', which is hardly a surprise, and has so far received a remarkably easy ride from the official opposition. The few backbenchers who somewhat diffidently questioned why the powers needed to be quite so broad were told in the second reading debate not to worry because they would all be subject to the Human Rights Act, hardly a very reassuring reply when the long term existence of that very Act is something opposed by a large section of the Conservative party.

WRITTEN BY Matthew Scott Matthew Scott is a criminal barrister at Pump Court Chambers
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Old 7th Oct 2020, 08:09
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Isn't the defence of the state inherently immoral, from a human rights perspective?

We want to protect our way of life, and we view the actions of some other states and organisations as being a threat to our way of life, so we have organisations that have been set up to keep us safe. Since time immemorial people have used any means available to protect that which they hold dear, the only difference now is that the range of threats has become very much broader. Food, or money, are every bit as much weapons, in the wrong hands, as guns are.

The questions really come down to the perennial one as to what is reasonable in the circumstances, who should have the responsibility for deciding which laws to break, and to what extent are we going to sanction law breaking in order to protect our way of life?
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Old 7th Oct 2020, 12:07
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We declare war on another country and immediately thousands of our citizens are legally authorised to kill, without warning, any citizen of the state upon which we have declared war. It goes further than that, thousands of our citizens have frequently been given carte blanche to kill citizens of other states without the formality of declaring war.

Where exactly do we draw the line?
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Old 7th Oct 2020, 13:18
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I recall from the Snowden leaks that GCHQ were using operatives from the intelligence services to do their dirty work, which included breaking the law with what seemed impunity to obtain intelligence. Yes, this in many ways is minor relative to directly harming people (although I imagine blackmail was involved/needed in some of these cases) but it did open my eyes to the fact there was a complete disregard for the law.

The end justify the means so to speak, the problem of course is the end may well be itself criminal (as in Snowden, burgle a tech factory, steal secrets, illegally use them against that state).

"We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm."
Of course the (alleged) Orwell quote always comes to mind!

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Old 7th Oct 2020, 14:21
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The carte blanche is not as simple as that. Those who dispense these criminal conduct authorisations presumably would presumaly need to justify them and could limit them so as to exclude murder, torture, kidnapping etc yet permit membership of a proscribed organisation or burglary.

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Old 7th Oct 2020, 19:01
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I once shared an apartment with a friend who became a fairly high powered lawyer. We were discussing some relatively minor new law and I made the comment that of course the police would not bother to pursue prosecution in the circumstances he had raised and he pointed out that one could not say that for certain.

That was fifty years ago and I have to say that over the years I have seen his prognostication come true over and over again.
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Old 16th Oct 2020, 06:23
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Keir Starmer Has Been Dealt A Blow As Labour MPs Quit Their Roles And Rebelled Over A 'Spycops' Bill

Two Labour MPs have quit Keir Starmer’s front-bench team and four more resigned from party roles to vote against the “spycops” bill that gives protections to undercover agents.

In a day of high drama for Labour – overshadowed by government rows with northern leaders about coronavirus restrictions – Starmer suffered the biggest rebellions from the Parliamentary party since he took over as leader in April.

The bill has been criticised over concerns it breaches human rights by allowing undercover agents to commit criminal offences and have immunity from prosecution. The legislation does not provide for a ban on children being used as agents, or torture or murder in the line of work.

This evening 34 MPs including Jeremy Corbyn, John McDonnell and Diane Abbott, broke ranks to vote against the Covert Human Intelligence Sources (Criminal Conduct) bill at third reading, despite a three-line whip to abstain.

Dan Carden, who served as shadow financial secretary, and Margaret Greenwood, shadow schools minister, both said they had to stand down from the front bench as a matter of principle.

Labour MP for Liverpool Riverside, Kim Johnson, and Nav Mishra, MP for Stockport, who were parliamentary private secretaries to the party’s deputy leader Angela Rayner both quit, as did Mary Foy, a PPS to Andy McDonald, and Rachel Hopkins, a PPS to Marsha de Cordova. All are members of the party’s Socialist Campaign Group.

Sarah Owen also rebelled, and it was rumoured tonight she may have also left her brand new job as PPS to shadow chancellor of the Duchy of Lancaster, Rachel Reeves......
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Old 16th Oct 2020, 07:52
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34 MPs including Jeremy Corbyn, John McDonnell and Diane Abbott, broke rank
No surprise there then.
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