Maya Foa

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 or CHIS, to commit crimes in the UK.

Late last year, the Investigatory Powers Tribunal in London issued the first split ruling in its history, finding only by a bare majority that MI5’s activity was lawful.

It was revealed yesterday that there may be a separate MI6 policy to break the law in the UK and that the UK government has for more than a year urged the tribunal to keep it secret.

MI6 appears to be operating this policy despite Parliament having only given it powers to break the law overseas, under section 7 of the Intelligence Services Act.

The news comes a day after the Investigatory Powers Commissioner criticised MI6 for “several weaknesses” in its agent-running within the UK, leading to “several errors”. It found that the agency 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: “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 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, said: “The intelligence agencies’ powers derive from the democratically elected parliament. [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.”