Press release: New law sets no limits on MI5 powers to authorise crimes

A joint press release from Privacy International, Reprieve, CAJ, and the Pat Finucane Centre.

Agents of MI5 and other Government bodies could be legally authorised to commit crimes under new legislation introduced today. There appear to be no express limits in the legislation on the types of crime which could be authorised.

The Covert Human Intelligence Sources (Criminal Conduct) Bill appears not to explicitly prohibit the authorisation of murder, torture, or sexual violence. Reprieve, Privacy International, the Pat Finucane Centre and the Committee on Administration of Justice are calling for the Bill to be amended to include explicit restrictions against offences of this nature, which would mirror safeguards imposed on other law enforcement agencies such as the American FBI and Canada’s intelligence service, CSIS.

By introducing this Bill, the Government is effectively conceding on fundamental constitutional issues raised in a legal challenge by Reprieve, the Pat Finucane Centre, Privacy International, and the Committee on the Administration of Justice.

This legal case challenged the legality of a previously-secret MI5 policy under which agents were authorised to commit crimes. The Bill represents a belated recognition by the Government that it cannot continue secretly and informally signing off crimes, but rather must put this process on legislative footing of some kind.

Though Reprieve and co-claimants welcome the introduction of legislation in this area, the lack of explicit prohibitions on authorising crimes like torture, murder and sexual violence remains deeply problematic.

Maya Foa, Reprieve's Director, said: "We are seriously concerned that the Bill fails to expressly prohibit MI5 and other agencies from authorising crimes like torture, murder and sexual violence. Our intelligence agencies do a vital job in keeping this country safe, but there must be common sense limits on their agents’ activities, and we hope MPs will ensure these limits are written into the legislation”.

Ilia Siatitsa, Programme Director and Legal Officer, PI, said: “The public has the right to know what type of criminal acts MI5’s policy authorises in the UK. That’s why we’re fighting them in court. The new Bill does not seem to alleviate those concerns. Our democracy and our most fundamental rights are at risk if the government permits MI5 agents to commit crimes with impunity.”

Paul O’Connor, Director, PFC, said: “Barely a week passes where this Government doesn’t announce yet another departure from recognised rules of domestic and international law. Nothing has been learnt from the scandal surrounding the officially sanctioned murder of Pat Finucane, an officer of the court. Legalising human rights abuses does not lessen the gravity of the abuse.”

Daniel Holder, Deputy Director, CAJ, said: “In Northern Ireland we have particular experience of where the policy of tolerating, encouraging or facilitating criminality by agents can lead. Informant-based collusion with paramilitary groups was one of the patterns of human rights violations that fuelled and prolonged the conflict here. “Independent inquiries into our past have found that when intelligence units of the security forces were running informants they were acting as if the law did not apply to them. What the UK government is now doing will enable such criminal acts to be carried out within the law, instead of outside of it.

Background to the bill 

The secret policy which today's legislation covers was first revealed in 2018, as part of a separate court case, brought by Privacy International. This policy operated without scrutiny until 2012, when Prime Minister David Cameron wrote to the Intelligence Services Commissioner asking to oversee aspects of its use, thus requiring the ISC to conduct secret oversight of a secret policy.

Cameron wrote the letter in 2012, barely a fortnight before publishing a long-awaited review into the murder of Pat Finucane. The human rights lawyer was murdered at the dinner table of his family home in 1989, in front of his wife and children. Cameron told Parliament that the level of state collusion in the lawyer’s murder was “shocking”, recognising that the state was not only aware of the plan to assassinate Mr Finucane, but that its agents actively participated in it, including by helping to source the weapon that was used to shoot him.

In November 2019, Lord Evans, a former director general of MI5, said “there are no specific rules on exactly which crimes” can be authorised under the policy. He declined to rule out agent participation in torture (the specific example given being knee-capping).

The following month, the Investigatory Powers Tribunal issued an unprecedented divided ruling over the legality of the policy. Although the judges ruled 3-2 that the policy was lawful, one dissenting judge warned that the Government’s claimed basis for the policy amounts to a “dangerous precedent”, while another noting the court had been asked to accept “fanciful” and “extraordinary” propositions. Reprieve and its co-claimants are now challenging the ruling before the Court of Appeal.