The Undercover Policing Inquiry, now in its third year and unlikely to even begin hearing evidence before late 2019, held two days of hearings at the Royal Courts of Justice last week.
The public inquiry is tasked with examining 40 years of undercover police infiltration of over 1,000 campaigning groups in the UK, during which officers formed long-term sexual relationships with activists, stole the identities of dead children and allegedly took part in the fire-bombing of a Debenhams store. Last week’s hearings dealt primarily with applications from former officers who wish to have their real and undercover names concealed from the public.
The hearings were a lesson in the assumptions, asymmetries and biases which have become ever-more apparent in this Inquiry since Sir John Mitting took over as Chair from the late Sir Christopher Pitchford in July this year.
Presupposing the legitimacy of undercover policing of political groups
The Inquiry’s ‘terms of reference’ state that Mitting’s job is, in part, to ‘identify and assess the adequacy of the justification […] of undercover policing’. Many of those who were spied upon, as well as interested onlookers, assumed this would include examining the fundamental legitimacy of undercover policing of political groups.
It appears, on the basis of last week’s hearings, this critical question is being neglected. The legitimacy of undercover policing of political groups in general, in other words, is being taken for granted.
The legal representative for the Metropolitan Police explicitly stated (p.187) that ‘the purpose of this Inquiry is to discover the truth, but it is not to prevent the tactic from operating again’. Undercover policing, the representative argued (p.164), is ‘statutorily based’.
Mitting appeared to agree. Undercover policing, he said, ‘is not in principle wrongdoing, it is performance by the undercover officer of his or her job’. Whilst this may be true for undercover policing in other domains – say, drug gangs – the legitimacy of undercover policing of social movements is precisely that which the Inquiry is tasked with investigating.
Instead, Mitting pressed the legal representative for the victims of police infiltration to provide a list of categories of ‘wrong-doing’ by undercover officers. Undercover infiltration ‘can't be categorised as wrongdoing full stop as a matter of definition’, Mitting said (p.46). For him, it seems, only specific undercover practices can count as illegitimate: long-term sexual relationships, significant criminal activity, and so on. Through forcing the activists’ lawyer to delineate specific categories of wrong-doing, the question of the wrongness per se of undercover policing of political groups is being subtly side-stepped.
In 1962, the political scientists Bachrach and Baratz outlined a form of political power often hard to spot. This ‘second face of power’, as it became known, occurs when ‘status quo oriented persons and groups influence those […] political institutions […] which tend to limit the scope of actual decision-making to “safe” issues.’
Mitting and the Metropolitan Police Service, quintessential ‘status quo oriented persons and groups’ – the former having served for years in secret surveillance and deportation courts – are successfully setting the assumptions of the Inquiry in such a way as to exclude the fundamental question on the minds of many victims and interested onlookers: should the undercover policing of social movements continue at all?
This assumption of Mitting’s – that he is only concerned with particular instances of wrongdoing by the undercover police units, and not with the general legitimacy of undercover policing – is already impacting his decisions.
Mitting is required, due to a ruling by the former chair, to consider individual applications from former undercover officers who wish to maintain anonymity during the Inquiry. In some cases – particularly cases which occurred in the late 1960s and early 1970s – Mitting is ‘minded to’ withhold the real (and/or cover) names of the officers, unless there is evidence of wrong-doing.
The application for a restriction order on the real name of the officer known only as HN241, to take one example (p.6), was granted partly on the basis that, ‘There is no known allegation of misconduct against this officer.’
Leaving aside the obvious issue that no known allegation of misconduct has ever occurred against an undercover officer without the officer’s cover name being known – only the work of activists who were spied on, investigative journalists, and whistle-blowers has revealed any significant information – this, again, assumes that officers weren’t engaged in wrong-doing per se purely on the basis of their deployment in political groups. Thus, the restricting of the Inquiry’s investigations to a limited sub-set of cases of ‘wrong-doing’ is allowing Mitting to reason his way into concealing the names of former undercover officers.
A further factor contributing to this process of restriction is the fact that Mitting – and indeed, the legal representative for the victims of spying – has focused largely on cases of individual harm resulting from wrong-doing. There has been no consideration in the Inquiry – save, perhaps, for the infiltration of Black justice campaigns – of the wider political purpose of and societal harms engendered by the operations.
This is despite the Inquiry’s terms of reference committing Mitting to considering the undercover operations’ ‘effect upon […] the public in general’.
If these operations were political operations, which functioned to constrain a perceived threat to the status quo, then the question arises whether a large part of society was harmed by the damage done to environmental, social justice and other campaigns.
How many reforms, laws and normative societal changes did not occur because of the police infiltration of these groups? How much fairer and more equitable might society be had this infiltration not occurred, and the groups’ campaigns had been able to flourish free from police interference?
The use and abuse of human rights
A large part of this week’s hearings were taken up by considerations of the human rights of the undercover police officers, in particular their Article 8 rights to a private and family life, and threats to their physical and psychological well-being.
If the real and/or cover names of former officers are revealed, it is argued, then these officers are placed at risk of physical attack or perhaps ‘harassment’ by those who were spied upon and their supporters. Further, their privacy and family life will be severely disrupted by the revelations and media attention which will follow, it is claimed.
We can leave aside the obvious points: that there are no known cases of former undercover officers having been physical assaulted following the revelation of their names – and there are 22 so-far – and the fact that publicly holding officers to account for their actions – as happened to Bob Lambert and John Dines – in no way equals ‘harassment’.
More fundamentally, this line of argument offers a curious case of human rights law and discourse – which was intended as a protection for ordinary citizens against state and corporate power – being used by the state to protect its agents against victims of state human rights abuse.
Those who lied, deceived and betrayed, who shook the foundations of activists’ ability to trust people, who invaded the most intimate privacy of campaigners, are now being protected on the basis of their right to privacy and a family life.
At issue is not just the patent irony of the affair, but the way that human rights law, when liberally applied to protect both the operators of state power and its victims, can reinforce existing power inequalities between the two. It is doubtful whether human rights activists ever envisioned their weapon being forged against them in so brazen a manner.
Disrupting the Inquiry in order to rebalance it
At two points during the proceedings, activists intervened to make several of the points I’ve put above. The final words (p.193-200) of the hearings went to Helen Steel, who had a long-term relationship with John Dines, an undercover officer who manipulated her and vanished from her life without a trace.
The continued emotion and defiance in Steel’s voice successfully disrupted the staid legal rationality on display, where an army of police representatives faced off against one lone representative for the victims of police infiltration.
Slicing through the patent asymmetries on display, where the police hold all the evidence and can present much of it in secret hearings, Steel’s statement reminded us of the real reasons for Inquiry’s initiation: the emotional impact of the policing on all who were subject to it, and the fundamental question of political policing.