When a British woman declared she had been “raped by the state” after having a child with an undercover officer hiding behind a false identity, it should have been a national scandal, a catalyst for an urgent reckoning. She was one of a dozen women who had sexual relationships with men who pretended to be their companions and allies in order to spy on their political activities. They courageously fought for justice, yet last night parliament passed a bill making it legal for undercover MI5 agents and police officers to commit crimes – including sexual assault, torture and murder – if this prevents a more serious crime or threat to national security. Only 19 Labour MPs voted against the bill, defying Keir Starmer’s instruction to abstain.
Very few would dispute the need for undercover informants to break the law in certain circumstances to keep us safe. Campaigners have long argued for a legal framework for criminal acts committed by undercover agents, but while Canada prohibits undercover agents from engaging in killing, bodily harm or sexual assault, no such limits have been enshrined in UK law. The Human Rights Act exists as a safeguard against such offences, protests the government: an entirely disingenuous argument given that, as Reprieve’s executive director Anna Yearley tells me, “just a few months ago in court, and again last week in parliament, it argued that the act doesn’t apply to crimes committed by its agents”. Future survivors of abuses committed by undercover officers will be barred from seeking justice, because their abusers will be protected from civil liability for the rest of their lives.
It’s not scaremongering to claim that agents of the British state could commit crimes against the very people they have been tasked with keeping safe. Eight years ago, then prime minister David Cameron apologised to the House of Commons for “shocking levels of collusion” between agents of the British state and the loyalist murderers of Belfast lawyer Pat Finucane.
Some groups are more vulnerable than others to secretive infiltration, threatening citizens’ democratic right to protest against government action. According to research by the Guardian, of the more than 1,000 groups targeted by undercover police in the last five decades, just three belonged to the far right. The vast majority hailed from the left, and included trade unionists and climate activists. One of the three tests an authorising officer must be satisfied has been passed is to safeguard “the interests of the economic wellbeing of the UK”. Agents of the state could commit offences to defend business interests from, for example, campaigners desperately trying to urge action to confront the climate emergency.
If a police force wished to search a property for evidence, they would need to seek a warrant. But, as organisations such as Reprieve and the Pat Finucane Centre point out, the bill includes no system of warrants or independent judicial approval for the authorisation of crimes, meaning crimes by agents would be subject to even weaker oversight than phone tapping or searches by law enforcement.
Rather than protecting our security, the bill could further threaten it. I have interviewed several women who were violated by undercover police officers. There were striking similarities in all their cases: the agent would concoct a story of having fallen out with or lost their family, and towards the end of their mission, would become withdrawn before leaving a note on the table ending the relationship. At meetings they would frequently take minutes – handy for intelligence gathering – and often possessed a large white van, allowing them to drop all activists back at their homes each evening and, in the process, find out their addresses. They would also often pose as the most radical, urging the most militant actions. As Labour’s former shadow attorney general Shami Chakrabarti tells me, the legislation “creates even greater temptations for agents provocateurs to incite peaceful protest movements into violent action. Those agents will know they are shielded from a British rule of law that was always supposed to apply to everyone equally”.
Related: UK set to introduce bill allowing MI5 agents to break the law
Starmer’s champions would undoubtedly rebut the idea that the former human rights lawyer would ever be sanguine about such dangerous infringements on rights and freedoms. The party’s argument goes like this: providing a legal framework for criminal acts committed by undercover agents is necessary, and Labour will propose amendments to deal with the bill’s pernicious elements.
But cynics would suggest that a political calculation is at play. Labour cannot hope to overcome an 80-seat majority by ordering its MPs to vote against the bill, and some senior Labour figures brief that this posture is necessary to win back the former red wall heartlands, where voters, they believe, need to be convinced of the party’s commitment to national security. Those same shadow ministers and their advisers applied the same logic just two weeks earlier when Labour also abstained on the overseas operations bill.
However, accepting the government’s terms of debate is no way to conduct an opposition. Voting against the bill would have granted Labour the political authority to make an unambiguous and compelling argument to the electorate about the Conservative menace to a hard-won democracy. Now the deed is done, Labour must back amendments suggested by Reprieve that would impose limits on offences that undercover agents can commit, to ensure oversight mechanisms, and to allow the prosecuting authorities to independently review crimes.
It fell to a new generation of Labour MPs – including Apsana Begum and Zarah Sultana, both in their 20s – to offer leadership in the Commons by offering powerful speeches before trooping through the empty parliamentary “no” lobby. For the second time in as many weeks, Labour offered a vacuum in place of leadership against state-sanctioned violence against civilians. It has paid a profound moral price, and conceded yet more ground to its opponents.
• Owen Jones is a Guardian columnist