A History of Infiltration

The British government honed its infiltration techniques while oppressing anti-colonial dissent. Colonial police relied on intelligence-gathering to identify sources of rebellion against British rule, and intelligence agencies were created across the world with the task of infiltrating communities fostering anti-colonial subversion. One particular area of focus was colonised Ireland, where the government established an armed police force to collect information on Irish Republicans called the Special Irish Branch. This became Special Branch, which was responsible for intelligence-gathering first across the British colonies and then in Britain, until it was replaced by the Counter-Terrorism Command in 2006.

Since 1968, undercover police officers have spied on more than 1,000 political groups. No official list of these groups has been published, and there remains much we do not know about the true extent of state infiltration, due both to high levels of secrecy surrounding covert operations and to the tendency for important historical records to be destroyed. But it is clear that the government’s focus has long been on groups holding either state or corporate power to account.

Consistent with the recent experience of BLM, anti-racist groups have been a key target, from the Anti-Apartheid movement to No Borders to black-led family justice campaigns like the Stephen Lawrence campaign. We also know that the security and intelligence agencies spied on NGOs, including, recently, Amnesty International. Left-leaning political groups have also been targeted: in addition to heavily infiltrating the Communist Party in the last century, the police have engaged in the covert surveillance of Labour MPs including Jeremy Corbyn, Harriet Harman, and Diane Abbott, and have infiltrated trade unions. In his authorised history of MI5, Christopher Andrew wrote that by 1947, the government had a ‘tendency to identify all industrial stoppages with Communist subversion’—or, as Thatcher put it decades later, as ‘the enemy within’.

The Impact

When we talk about the damage caused by state infiltration, it’s the devastating personal costs experienced by specific activists as a result of individual operators that have garnered the most public attention. Even the government has conceded that the relationships had by Mark Kennedy and others like him violated activists’ basic human rights.

Other harms, however, have been less talked about. One is the general damage done to the effectiveness of political organising. State infiltration of senior organising positions often means disruption to the workings of an organisation as a whole. Examples of such damage have been set out in great detail in evidence provided by the National Union of Mineworkers, or NUM, to the ongoing inquiry. Infiltration, the NUM highlights, represented the very opposite of defence of democracy, and instead enabled police intervention in ‘every aspect of maintaining the [1984 miners’] strike’, during which 11,313 miners were arrested, 7000 injured, 5,653 put on trial, 960 dismissed from employment, and 200 imprisoned.

In addition to equipping the state with information that helps it attack a movement, the betrayal of trust constituted by state infiltration can undermine solidarity to such an extent that organising becomes impossible. In the case of Swansea BLM, the prospect of infiltration meant the wholesale shut-down of political group. Given, then, that the ability to organise is a basic tenet of democracy, it’s clear that any system containing such broad surveillance powers is a threat to democracy as a whole.

Expansion

Despite these widespread concerns, the government passed the CHISA anyway. The legislation provides statutory footing for a wide set of public authorities, including the Food Standards Agency, to authorise engagement in criminal conduct in the course of, or ‘in connection with’, in-person intelligence gathering. There are no explicit limitations on the kind of criminal acts that may be authorised, and authorisations can be given on the basis of broad and vague tests: for example, that the authorisation is ‘necessary’ and ‘proportionate’ in the ‘interests of the economic well-being of the United Kingdom’.

Such powers—to engage in any criminal conduct—were justified as necessary to ensure state agents would not be identified.  Under this logic, as many argued at the time, it would be acceptable for officials to authorise acts of sexual violence, torture, and murder. In similar legislation in Canada, serious crimes are explicitly ruled out.

Two key factors supported the rushing-through of the CHISA, beyond the government’s large majority and a growing appetite for excessive executive power. The first concerns the strategic human rights litigation that preceded the creation of the CHISA, referred to as the ‘Third Direction’ litigation. The background to the litigation concerned a secret policy that had previously allowed MI5 to authorise criminal acts, which was disclosed in a previous surveillance case. The exposure of secret surveillance policies, like the bulk interception of internet communications and hacking powers, has been a frequent occurrence since the Snowden leaks, and NGOs like Liberty and Amnesty International have sought to challenge the legality of such policies in the courts on the grounds that they are unnecessary, disproportionate, and/or not contained in law with safeguards against abuse.

Throughout years of litigation brought against an array of leaked surveillance policies, judges in the UK surveillance court, the Investigatory Powers Tribunal (IPT), have generally opted to avoid considering whether particular surveillance powers are, in fact, necessary and proportionate. Instead, they have confined themselves to ruling surveillance powers unlawful on the basis that they don’t have a statutory footing. This approach has contributed to a trend where the government seizes opportunities to place previously secret surveillance powers into legislation, to make them ‘lawful’.

This is what happened with the ‘Third Direction’ litigation, which was intended to scrutinise a secret policy and ask questions about its legal basis. The government took that as an opportunity to legitimise the policy using legislation, couched in broad provisions with vague language, which it rushed through Parliament. The analysis of the policy provided by the IPT, meanwhile, was highly technical and inaccessible, resulting in widespread confusion about the nature of the powers in the legislation, backed up by officials giving contradictory accounts.

The government claimed in its submissions to the IPT, for example, that the policy did not permit torture. But Lord Evans then refused to rule out the policy being used to authorise torture when interviewed on the Today Programme. This confusion impacted the scrutiny to which the powers could be subject, which limited civil society engagement and tilted the stage even further than usual in the government’s favour.

The second factor is Labour’s continued failure to oppose government policy on ‘national security’. Keir Starmer whipped Labour MPs and Lords to abstain on the CHISA, including on an amendment tabled by Shami Chakrabarti to remove the impunity of state actors committing criminal offences. At the time, the Shadow Minister of State for Security, Conor McGinn, stated that opposition to the legislation would only ‘weaken national security’. Labour’s failure to challenge the government meant it never had to justify the powers it was seeking or clarify when and how they would be used; this helped their safe passage through Parliament and props up further securitisation, not to mention a political narrative that says an as yet undefined notion of ‘national security’ takes precedence over the protection of basic rights or democracy.

This, of course, isn’t anything new for Labour, as emphasised by Shami Chakrabarti in a previous interview with Tribune. Research comparing Labour and the Conservatives’ national security policies shows a strong convergence since 2001, and even under Corbyn’s leadership, the party abstained on the Investigatory Powers Act 2016. Such behaviour is clearly linked to sustained pressure not to seem ‘weak’ on national security, but it is a position that fails to acknowledge the role ill-defined national security policy has historically played in the erosion of democracy. It has also greatly assisted in helping successive governments create broad new statutory national security powers almost every year since 9/11.

Protecting Our Politics

Taking into account the background to the CHISA, it’s clear that protecting political organising in the face of covert surveillance is of crucial importance. There must be greater coordination between seeking to affect change through litigation and the grassroots movements working in this area long-term. The trajectory of the ‘Third Direction’ litigation shows that the process of litigation itself can be exclusionary, and has contributed to dissonance in the pushback against expanding executive power. The Spycops campaign has been a crucial force in raising public awareness about the problem of state infiltration, meanwhile, and resources like those from the Undercover Research Group, including their ‘Who’s Who’ database of instances of police infiltration, can help to inform the public and other activists of the scale of the crisis political organising currently faces.

There is work to do from the bottom up, but there are also crucial steps to be taken from the top down. The CHISA needs to be repealed or heavily amended to explicitly protect human rights, including the right to freedom of expression, which includes the right to political expression, and the right to freedom of assembly and association. Such protections would need to be explicitly inserted into the law, with effective mechanisms for independent oversight to ensure that it is not unnamed officials alone who are able to invade democratic political spaces on the basis of vague concepts like ‘subversion’ or ‘counter-extremism’. The publication of the Spycops inquiry report represents an important opportunity to push for legal change, but  for any such reform to take place, the Parliamentary Labour Party would have to give it full support—and as evidenced by the current passage of the Police Bill through Parliament, Labour faces an uphill battle even where it is prepared to fight back on certain provisions.

However, the Police Bill also shows how crucial it is that such battles are fought, and that political organising has to be protected from erosion from all angles. As the experience of BLM Swansea proves, state infiltration is very much part of our present, not confined to the past. If we fail to recognise the threat it poses, we could find ourselves without political organising spaces at all—and sooner than we might think.