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IPT rules by a majority in favour of MI5 in a case raising “one of the most profound issues which can face a democratic society governed by the rule of law”

Published:

Re: Privacy International & Ors v Secretary of State for Foreign and Commonwealth Affairs & Ors IPT/17/86/CH, IPT/17/87/CH

The Investigatory Powers Tribunal (the IPT) has today, by a 3:2 majority, ruled that MI5’s policy authorising the participation of its agents in criminality is lawful. The IPT said that the case raised “one of the most profound issues which can face a democratic society governed by the rule of law.”

Privacy International, Reprieve, the Committee on the Administration of Justice, and the Pat Finucane Centre has asked the IPT to declare the policy unlawful as a matter of domestic law as well as under the ECHR. They sought an injunction “restraining further unlawful conduct”.  In the majority ruling, Lord Justice Singh said MI5 has “an implied power” under the Security Service Act 1989 “to engage in the activities which are the subject of the policy under challenge”. But he added: “It is important to appreciate that this does not mean that it has any power to confer immunity from liability under either the criminal law or the civil law … on either its own officers or on agents handled by them.”

The majority found that the oversight powers given to the Investigatory Powers Commissioner now (and previously to the Intelligence Services Commissioner) provided adequate safeguards against the risk of abuse of discretionary power.

In the first dissenting decision, Charles Flint QC said: “I entirely accept the operational necessity for the service to run agents who may need to participate in serious criminal activity.” He said the policy under challenge “has been exercised with scrupulous care by the security service so as to discharge its essential functions in protecting national security, whilst giving proper regard to the human rights of persons who may be affected by the activities of agents”. However, he concluded he was “unable to find that the 1989 [Security Service] Act provides any legal basis for the policy under challenge”.  He said that the policy “cannot be regarded as being in accordance with the law under the European convention on human rights”.

In the second dissenting judgment, Prof Graham Zellick QC, concluded that parliament had never authorised such a policy. Professor Zellick said “To accede to [MI5’s] argument would open the door to the lawful exercise of other powers of which we have no notice or notion, creating uncertainty and a potential for abuse.”

The case has been referred to as “the Third Direction case” because it arose from the third secret direction by the Prime Minister to the Intelligence Services Commissioner

The IPT is a special tribunal established by the Regulation of Investigatory Powers Act 2000 and is presided over by a Court of Appeal Judge, Singh LJ. The panel that heard the case was Singh LJ, Lord Boyd of Duncansby, Sir Richard McLaughlin, Charles Flint QC and Professor Graham Zellick QC.

Jonathan Glasson QC and Sarah Hannett were involved in this case (counsel to the Tribunal).