MI6 unilaterally assumed power to break the law on UK soil, a tribunal has found.
At the Investigatory Powers Tribunal on Wednesday, it was revealed that MI6 may have unilaterally assumed the power to authorise agents to commit crimes in the UK – potentially without any legal basis or limits on the crimes they can commit.
Reprieve, the Pat Finucane Centre, Privacy International, and the Committee on the Administration of Justice have been challenging a secret policy under which MI5 authorises covert agents, known as covert human intelligence sources (CHIS), to commit crimes in the UK.
Late last year, the Investigatory Powers Tribunal issued the first split ruling in its history, finding only by a bare majority that MI5’s activity was lawful.
It was revealed on Wednesday that there may be a separate MI6 policy to break the law in the UK, and that it is alleged the Johnson government has for more than a year urged the Tribunal to keep it secret, despite admitting that it ‘does not raise a national security argument against disclosure’.
MI6 appears to be operating this policy despite Parliament having only given them powers to break the law overseas, under section 7 of the Intelligence Services Act.
Concerns that agencies may be authorising agents to commit crimes in the UK without any limits to ensure that murder, torture, or sexual violence are not authorised, have been intensified by these revelations about MI6’s secret law-breaking policy.
Earlier this year, MI6 was forced by the Tribunal to apologise when its officers wrongly sought to stop independent judges from scrutinising the agency’s activities.
Wednesday’s disclosures make clear that it was the existence of this secret policy which MI6 sought to cover up.
These revelations came only a day after the Investigatory Powers Commissioner severely criticised MI6 for ‘several weaknesses’ in its agent-running within the UK, leading to ‘several errors’.
It found that MI6 needed to ‘better recognise’ and ‘authorise activity in compliance with’ the law in the UK.
This government is now seeking to put these practices into legislation with the Covert Human Intelligence Sources (Criminal Conduct) Bill, which at present contains no express limits on the crimes covert agents may be permitted to commit, even against torture, murder, or sexual violence.
Maya Foa, Reprieve’s Executive Director, said on Wednesday: ‘We’ve learned today that MI6 unilaterally assumed the power to authorise unchecked agent law-breaking on UK soil, going far beyond the rules set for them by Parliament.
‘In light of this secret power-grab, Parliament should think twice about giving assent to the government’s CHIS bill, which places no express limits on agent lawbreaking even for crimes like murder, torture, or rape.’
Daniel Holder of Belfast-based human rights NGO the Committee on the Administration of Justice (CAJ), said: ‘The Northern Ireland peace process was predicated on a future of law enforcement accountability including for covert policing, with the PSNI (Police Service of Northern Ireland) subject to powerful oversight bodies.
‘There was therefore major controversy when MI5 were formally given “primacy” for running “national security” informants here in October 2007, which led to some very limited but at least publicly available safeguards being built into the UK-Ireland St Andrews Agreement.
‘It now however transpires another agency, MI6, can also run and “authorise” informants to commit crimes here but on the basis of a policy kept entirely secret.’
Ilia Siatitsa, Programme Director at Privacy International, also said on Wednesday: ‘The intelligence agencies’ powers derive from the democratically elected parliament.
‘Today, we have discovered MI6 may have authorised criminal acts in the UK in secret without parliamentary approval.
‘The European Court of Human Rights has repeatedly said that “a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it.
‘Today’s revelations are a stark example of how such concerns can materialise.
‘The disregard that the intelligence agencies have shown for fundamental democratic procedures and the rule of law is deeply concerning.’
Paul O’Connor, Director of the Pat Finucane Centre, said: ‘It is not surprising that a government that refuses to properly investigate the role of its own intelligence agencies in the 1989 murder of Pat Finucane would turn a blind eye to criminal authorisations in 2020.’
The Covert Human Intelligence Sources (Criminal Conduct) Bill is set to reach its final ‘report’ stage in Parliament.
Section 29B Covert human intelligence sources: criminal conduct authorisations states:
‘(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section each have power to grant criminal conduct authorisations.
‘(2) A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.
‘(3) A criminal conduct authorisation may only be granted in relation to a covert human intelligence source after, or at the same time as, an authorisation under section 29 which authorises the conduct or the use of the covert human intelligence source concerned.
‘(4) A person may not grant a criminal conduct authorisation unless the person believes –
‘(a) that the authorisation is necessary on grounds falling within subsection 5;
‘(b) that the authorised conduct is proportionate to what is sought to be achieved by that conduct; and
‘(c) that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.
‘(5) A criminal conduct authorisation is necessary on grounds falling within this subsection if it is necessary –
‘(a) in the interests of national security;
‘(b) for the purpose of preventing or detecting crime or of preventing disorder; or
‘(c) in the interests of the economic wellbeing of the United Kingdom. (News Line emphasis)
‘(6) In considering whether the requirements in subsection (4) (a) and (b) are satisfied, the person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.
‘(7) Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).
‘(8) The conduct that is authorised by a criminal conduct authorisation is any conduct that –
‘(a) is comprised in any activities –
‘(i) which involve criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source, and
‘(ii) are specified or described in the authorisation;
‘(b) consists in conduct by or in relation to the person who is so specified or described as the covert human intelligence source to whom the authorisation relates; and
‘(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described …’