While debate rages over controversial spying legislation in the UK, other disclosures indicate British spooks have long been secretly free to commit crimes with impunity anyway.
There has rightly been intense controversy over the Covert Human Intelligence Sources (CHIS) bill in recent months.
The legislation would enshrine in law the ability of undercover operatives – both employees of British state agencies and their informants – to not only commit extremely serious crimes, up to and including rape, torture and murder, but also insulate them from criminal prosecution and civil actions for doing so.
However, for all their at times fiery condemnation, few if any mainstream critics acknowledged that the UK intelligence services have been allowed to commit crimes with impunity for some time.
Since the early 1990s, a once-secret policy dubbed ‘third direction’ has permitted MI5 to participate in crime to “secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or ensure the agent’s continued safety, security and ability to pass such intelligence.”
It also grants MI5 authority to make representations to the police or Crown Prosecution Service advising against the prosecution of agents for criminal activity on ‘public interest’ grounds.
Moreover, Section 7 of the Intelligence Services Act 1994 – nicknamed the ‘James Bond clause’ – provides legal amnesty for MI6 operatives to commit abroad what would be crimes at home, as long as these activities have been authorised by the Foreign Secretary.
In essence then, all the CHIS bill will do is amend the Regulation of Investigatory Powers Act 2000 to codify in statute existing informal powers, while officially extending them beyond MI5, MI6, GCHQ and Special Branch to, among others, the Competition and Markets Authority, Food Standards Agency and Department of Health and Social Care.
The legislation is currently under consideration by the House of Lords, where it has received a less than welcome reception in several quarters. Among others, former Labour MP Peter Hain, himself surveilled by the state over three decades, gave an incendiary speech, noting many instances in which British spies “were on the wrong side of justice, the law and history.”
In the meantime, there are troubling indications that criminal actions by British spies are continuing apace.
On 15 December, the Investigatory Powers Commissioner’s Office (ICPO) issued its annual report on “UK use of covert powers” and its review of MI6 has a dedicated section on the agency’s reliance on the aforementioned Section 7.
It highlights one case in which the agency had cause to believe a “high-risk” agent overseas might be or become involved in “serious criminality”. ICPO states that MI6 didn’t “encourage, condone or approve”’ these activities, and its Section 7 submission related to the individual alleged the agency had “secured the agent’s co-operation in terms of full transparency about the activities in which [they] were involved.”
This included some “clear ‘red lines’”, setting out conduct that was “not authorised and would result in the termination of [MI6’s] relationship with the agent” When the Section 7 submission for the individual in question was up for renewal six months later, MI6 acknowledged these “red lines” may have been breached, and the agent may have been involved in, or at least contemplated, “serious criminality”.
However, ICPO found that, on the basis of the information available at the time, there wasn’t just a heightened risk of the agent committing serious crimes, they probably already had, which wasn’t reflected in the submission to the Foreign, Commonwealth & Development Office, meaning MI6 had potentially misled the Foreign Secretary.
“We concluded the renewal did not provide a comprehensive overview of available information, which we believe would’ve provided the Secretary of State with a fuller and more balanced picture,” the report states.
The report notes that, in October 2019, Investigatory Powers Commissioner Sir Brian Leveson wrote to Prime Minister Boris Johnson, expressing concern at Whitehall’s apparent view that running agents overseas requires “less detailed and intrusive oversight” than in the UK, and recommended the government “carefully consider whether this is still the right policy position.”
In response to the report, however, the PM said the findings demonstrated “the high quality of the oversight of our security and intelligence agencies’ use of the most intrusive powers”, and that he was “satisfied our arrangements are amongst the strongest and most effective in the world.”
ICPO censured MI6 for a number of other shortcomings too – for example, in relation to the “detention and interview of detainees overseas and the passing and receipt of intelligence relating to detainees”.
The report highlighted a case in which MI6 officers “failed properly to consider the conditions to which a detainee may have been subject following his detention” in an unnamed foreign country, or whether the individual’s transfer to the country in which they were operating for further interrogation was legal.
In a separate case, MI6 was found to have covertly obtained intelligence sourced from the interrogation of a detainee – material that “included clear indications the detainee had been mistreated by a foreign liaison service” – without seeking official permission.
Another section covers the operations of MI6 in the UK. It identified “several weaknesses” in how its domestic agents were handled, with “inconsistent written reviews” being a “problem area for improvement”.
ICPO notes that, “were it necessary” for one of MI6’s UK-based agents to participate in criminality in the UK, this activity would be covered by the “third direction” policy. The Office was unable to confirm “the extent (if any) of such activity” by MI6’s domestic operatives, however.
This passage is particularly striking, given the day after the report was issued, it was revealed at an Investigatory Powers Tribunal (IPT) hearing 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”.
In December 2019, the IPT issued its first ‘split’ ruling since its founding in 2000, in a case brought by rights organisations the Committee on the Administration of Justice, Reprieve, the Pat Finucane Centre, and Privacy International. The coalition had launched a legal challenge against the “third direction” policy, after its existence was first acknowledged by then-Prime Minister Theresa May in March 2018.
While the Tribunal ruled 3-2 in favour of the government that MI5’s powers to authorise its agents to break the law were “implicit”, a dissenting judge warned the claimed basis for the policy amounted to a “dangerous precedent”.
The trio have challenged the ruling ever since, and at the 16 December hearing, it was not only revealed for the first time that “third direction” also applies to MI6, but that Whitehall had, for over a year, urged the IPT to keep this a secret, despite “not raising a national security argument against disclosure”.
It’s unclear how long MI6 has been covered by the policy – a question muddied significantly by the agency’s attempts to prevent the IPT from scrutinising its activities.
In July, MI6 was forced to apologise after it was revealed that, in March 2019, two of its officers had phoned the Tribunal’s secretary to argue inspection reports the ICPO had handed to the IPT over the course of the rights groups’ legal actions should not be provided to the court’s president, member judges or legal counsel, as the agency had “concerns in relation to the material”. The Tribunal characterized this as “inappropriate interference”.
It wasn’t the first time a UK intelligence agency had moved to insulate itself from IPT scrutiny. In 2017, the Government Communications Headquarters (GCHQ) sought to agree a “process or protocol” by which the agency might better liaise with IPCO to manage any circumstances where a piece of litigation … could raise issues in relation to oversight activity”.
This was a euphemism for GCHQ seeking to discuss with IPCO which documentation could and couldn’t be shared with the IPT in advance of any potential legal proceedings lodged against it – a suggestion that intensely irritated the Tribunal. Exposure of this attempted connivance led, in February 2018, to a senior GCHQ official being cross-examined in the Tribunal – the first time the agency had given open evidence to the body.
Such obfuscation and concealment is par for the course for UK spying agencies. The 2015 Intelligence Services Commissioner’s Report lays out in shocking detail MI6’s non-cooperation with an investigation by the judge Sir Mark Waller of the 2013 killing of Lee Rigby.
“Both the ISC [Intelligence and Security Committee] and I experienced considerable frustrations with the approach of [MI6] to our investigations,” Waller concluded. “[MI6] demonstrated a troubling tendency to be defensive and unhelpful, provided inaccurate and incomplete information and generally sought to … close down lines of enquiry, rather than engage constructively … I found [this] extremely unsatisfactory.”
Such a tendency is perhaps understandable, given the array of transgressions MI6 operatives have, unbeknownst to the public, been free to perpetrate for so long. And the nature of those offences being what they are, it’s no wonder the agency is committed to covering them up at all costs.
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