UK: Government proposes limited reforms of undercover police authorisations, neglects other issues

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21.06.2013 - The government has announced plans to introduce a new system of authorisation for undercover policing operations in response to scandals that have plagued the police since January 2011 when Mark Kennedy was ousted as a spy within the European environmental movement.

Under the new proposals, which will be enacted as secondary legislation, [1] the Office for Surveillance Commissioners (OSC, an oversight body) will have to be notified at the start of all undercover police deployments and will have to approve any that last longer than a year. At the same time, long-term operations will have to be authorised by a chief constable, altering the current practice whereby officers from the level of superintendent upwards can make such authorisations.

The changes to be introduced stem from recommendations made in a 2012 report by Her Majesty's Inspectorate of Constabulary, which reviewed "national police units which provide intelligence on criminality associated with protest." [2] As well as saying that the OSC should have to give its approval for "pre-planned, long-term intelligence development operations," as is now being proposed by the government, it also said that:

"The level of authorisation for long-term deployments of undercover police officers should be aligned with other highly intrusive tactics such as Property Interference, as defined by s93 Police Act 1997 (subject to the legal requirements and the agreement of the OSC)."

New legislation has yet to be published, but the Home Office's press release on the issue makes no mention of this aspect of the recommendation. [3]

The findings and recommendations in the HMIC report were described by one critic, Eveline Lubbers, as "shocking for their emptiness," and leaving many "pressing issues… untouched". [4] Theresa May, the Home Secretary, said after the publication of the report that she was "grateful" for the review and that "with the police, the government will consider carefully the recommendations to ensure enhanced control of these undercover police officers in the future." [5]

Campaigners, activists, politicians and others concerned with the issue of undercover policing may well be highly concerned by the government's new proposals, which do not take into account other recommendations made by the HMIC. One recommendation said that:

"ACPO and the Home Office should agree a definition of domestic extremism that reflects the severity of crimes that might warrant this title, and that includes serious disruption to the life of the community arising from criminal activity. This definition should give sufficient clarity to inform judgments relating to the appropriate use of covert techniques, while continuing to enable intelligence development work by police even where there is no imminent prospect of a prosecution. This should be included in the update ACPO 2003 guidance."

Stephen Greenlaigh, London's Deputy Mayor for Policing and Crime, said in September 2012 that the National Domestic Extremism Coordinator "is in liaison with the Home Office to consider a new definition" but so far nothing has emerged. [6] ACPO's definition therefore remains unchanged:

"Domestic extremism and extremists are the terms used for activity, individuals or campaign groups that carry out criminal acts of direct action in furtherance of what is typically a single issue campaign. They usually seek to prevent something from happening or to change legislation or domestic policy, but attempt to do so outside of the normal democratic process." [7]

A further HMIC recommendation said that "additional controls should be implemented". None of these would require a legislative basis, yet it is not clear what steps have been taken by policing bodies or government to implement those which are most likely to concern campaigners and individuals affected by undercover operations:

MPS and ACPO leads should adopt a practical framework for reviewing the value of proposed operations or their continuation.
Subject to reconsideration of the public order component… domestic extremism operations should continue to be managed within the existing regional Counter Terrorism Unit structure, and there should be oversight by an operational steering group representing a range of interests and agencies. External governance could be provided using arrangements similar to those employed by the counter terrorism network.
The rationale for recording public order intelligence material on NDEU's [National Domestic Extremism Unit's] database should be sufficient to provide assurance that its continued retention is necessary and justified given the level of intrusion into people's privacy.
The 2003 ACPO Guidance [on undercover work] needs urgent revision taking account of the findings of this and other reviews. [8]

The government has dismissed other issues that have been raised. In a report published in March, the Home Affairs Select Committee recommended that there be a "fundamental review" of the Regulation of Investigatory Powers Act (RIPA), which is the legal framework for regulating undercover operations. [9]

In a letter to the Committee on 18 June, the Minister for Police and Criminal Justice Damian Green argued against this, saying that:

"the Act provides a clear basis for investigatory powers to be used lawfully and in accordance with human rights" and that scandals that have emerged over the last two and half years over undercover policing do not "necessarily demonstrate that a fundamental review of the legislative framework is necessary." [10]

A group of eight women currently involved in legal action against the Metropolitan Police would likely dispute this. They all had 'relationships' - some of which led to children - with undercover officers, and launched a court case arguing that their human rights were breached by the actions of the officers. In a hearing to determine whether their complaints should be heard before a secretive Investigatory Powers Tribunal (it was decided that they should), Justice Tugendhat ruled that:

"James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women to obtain information, or access to persons or property… In the 1980s and the 1990s, when RIPA and other statutes were passing through Parliament, everyone in public life would, in my view, have assumed, whether rightly or wrongly, that the intelligence services and the police did from time to time deploy CHIS [covert human intelligence sources] in this way." [11]

There are also many questioned yet to be answered over the overseas activities of undercover officers, in particular Mark Kennedy. Correspondence between Andrej Hunko of the German party Die Linke and the British government seeking answers on who was responsible for the deployment of Kennedy in Berlin, where it is suspected that he committed arson and undertook spying operations without the agreement of the German authorities, has so far had no significant outcome. A reply to Hunko's letter from Damian Green simply suggested that "if you have evidence that German law has been broken, I would recommend you to pass it on to the Bundestministerium des Innern, who can then make an investigative request of the British police or the IPCC via the usual international diplomatic channels."

Operation Herne, the Metropolitan Police's mammoth review of undercover operations from 1968 to the present, is due to run for another three years, but it is not certain that any of its findings will be made public. Before then, it seems almost certain that the government and police will have to face more questions on the deployment of undercover officers in protest groups. How hard they will be pushed on the most fundamental issue - spying on and undermining peaceful protest groups - remains to be seen.

What is missing from the government's reponse is a willingness to re-define "domestic extremism" so as to expressly exclude the right to protest in a democracy.

An article in the next issue of the Statewatch Journal will examine court cases and inquiries across Europe related to Mark Kennedy and other British spies.

Further reading
  • State guidelines for the exchange of undercover police officers revealed, Statewatch News Online, 17 May 2013
  • Police spies stole identities of dead children - Exclusive: Undercover officers created aliases based on details found in birth and death records, Guardian investigation reveals, The Guardian, February 2013
  • UN Special Rapporteur calls for a "judge-led public inquiry" into undercover police operations and condemns a number of other police practices, Statewatch News Online, 23 January 2013
  • Outrage as High Court permits secrecy over undercover policing, Statewatch News Online, January 2013
  • Getting answers from the police on undercover deployments "will be a long process", Statewatch News Online, 12 January 2013

    [1] UK Parliament, Secondary Legislation
    [2] HMIC, A review of national police units which provide intelligence on criminality associated with protest, February 2012
    [3], Independent approval for undercover policing, 18 June 2013
    [4] Eveline Lubbers, March 2012: HMIC's 'empty' review leaves little hope for robust scrutiny of undercover cops, 28 March 2012
    [5] UK Parliament, Written Ministerial Statements, 2 February 2012
    [6] Stephen Greenhalgh, Re. Operational Questions following the Police and Crime Commitee meeting on 21 June, 27 September 2012
    [7] A review of national police units which provide intelligence on criminality associated with protest, p.11
    [8] Ibid., p.41
    [9] Home Affairs Committee, Undercover Policing: Interim Report, 26 February 2013
    [10] Damian Green, Government response to the Home Affairs Select Commitee Report "Undercover Policing: Interim Report", 18 June 2013
    [11] [2013] EWHC 32 (QB), 17 January 2013

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