A UK intelligence services watchdog tribunal heard on Wednesday that MI6 may have authorised spies to commit crimes in the UK, possibly without any limits on their extent.
According to campaigners, the Investigatory Powers Tribunal found that the UK’s foreign intelligence secret service MI6 and GCHQ, its intelligence communications service, may have breached their remit by operating under a policy to break the law in the UK that the government had unjustifiably asked them to keep secret.
Justice organisation Reprieve confirmed in an email to The Epoch Times that the revelations emerged during an ongoing legal challenge mounted by civil liberties groups.
They are challenging the secret policy, also known as the “third direction,” which is operated by the UK’s domestic intelligence agency MI5, and does not expressly prohibit the authorisation of certain serious crimes.
Ben Jaffey QC, who is representing the civil liberties campaigners, told the tribunal: “Until yesterday morning we had absolutely no idea that [MI6] or GCHQ considered they have power to commit crime in the UK … It was very difficult to believe this was occurring.
“MI6 and GCHQ couldn’t possibly be conducting criminality in UK, as the third direction only refers to the Security Service [MI5]. There’s no provision for oversight of crime by [MI6] or GCHQ. I couldn’t believe the position is without statutory oversight, as this is a more or less guaranteed breach of the [European Convention on Human Rights],” he said.
“More fool me,” he added.
‘Intelligence Services Act’
The Committee on the Administration of Justice (CAJ) said in a statement that “MI6 appears to be operating this policy [in the UK] despite Parliament having only given them powers to break the law overseas, under section 7 of the Intelligence Services Act.”
The CAJ, Reprieve, the Pat Finucane Centre, and Privacy International have been challenging aspects of the government’s Covert Human Intelligence Sources (CHIS) bill.
The bill aims to confirm a set of safeguards, including human rights compliance, creating a statutory basis for undercover agents to engage in criminality to secure the trust of those they are investigating.
A joint statement from the campaigners said that the Investigatory Powers Tribunal in December 2019 narrowly ruled 3-2 in favour of the government (pdf) that MI5’s powers to authorise informants to break the law were “implicit.” But “one dissenting judge warned that the government’s claimed basis for the policy amounts to a ‘dangerous precedent,’” they said.
On Wednesday, the CAJ said that the tribunal’s “first split ruling in its history,” had found “only by a bare majority that MI5’s activity was lawful.”
‘Unilaterally Assumed Power’
Maya Foa, Reprieve’s executive director, said in a statement, “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,” she said.
Any use of spies or covert human intelligence sources by law enforcement agencies has to be authorised by a designated officer in accordance with the Home Office’s code of practice (pdf).
Before this latest challenge, the CHIS bill also met with opposition in October from the Labour Party when the bill came before the House of Commons. It is currently on its way through the House of Lords and is yet to be made law.
On Wednesday the Investigatory Powers Commissioner’s Office found MI6 had failed in 2019 to properly disclose to the foreign secretary that a spy operating overseas had likely gone rogue and committed serious crimes.
The Home Office did not respond to a request for comment by The Epoch Times.