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Officers from MI6 attempted to persuade Britain’s most secret court, the Investigatory Powers Tribunal (IPT), not to consider sensitive documents provided in a case about crimes committed by undercover agents.
Two members of the Secret Intelligence Service (SIS) telephoned the secretary of the tribunal asking her not to share documents disclosed by the independent watchdog with the tribunal president and its members, which include current and former judges.
MI6 attempted to intervene to prevent documents being disclosed to the court in a legal battle between four non-government organisations (NGOs) and the government over guidance known as the “third direction”, which allows MI5 to authorise informers to commit serious crimes, potentially including murder or torture.
The case raises serious questions about attempts by intelligence agencies to influence the Investigatory Powers Tribunal and the Investigatory Powers Commissioner’s Office (IPCO), an independent watchdog which has oversight of the intelligence services.
The Investigatory Powers Tribunal heard today that a pattern of similar attempts had been made in the past by MI6, GCHQ and other agencies to influence independent regulators and the Intelligence and National Security Committee of Parliament.
The contents of the documents have not been made public. However, MI6 offers legal amnesty to agents who commit acts abroad that would be crimes in the UK, under Section 7 of the Intelligence Services Act 1994 – known as the “James Bond clause”.
Two MI6 officers telephoned the secretary of the IPT, Sue Cobb, on 5 March 2019, arguing that that inspection reports provided by IPCO should not be provided to the president of the court, its member judges and legal counsel because SIS had “concerns” over the material, the IPT heard today.
Cobb wrote back to MI6 on 7 March questioning the legality of their approach.
Sue Cobb, Investigatory Powers Tribunal
“It was inappropriate for your staff to seek to intervene in ongoing legal proceedings in the way that they sought to do. The tribunal is an independent judicial body and it is of the utmost importance that the exercise of its statutory functions, in this instance a request for assistance from IPCO, is not the subject of inappropriate interference by any public authority,” she wrote.
Pattern of attempts to influence independent regulation
In written submissions, the campaign groups Reprieve, Privacy International, the Pat Finucane Centre and the Committee for the Administration of Justice (CAJ), claimed there had been a pattern of attempts by intelligence agencies to interfere in the operation of oversight bodies.
Parliament’s Intelligence and Security Committee said in a 2009-2010 report that questions had been raised about its independence following “misunderstandings” within government over the statutory nature of its work. The committee went on to state that its staff should not be put under “undue pressure” or have their work interfered with by others.
On another occasion, GCHQ attempted to set up a protocol with IPCO to “manage any circumstances” where litigation could raise issues with the oversight of intelligence agencies, after the regulator disclosed documents about the mass collection of phone and internet data to the IPT.
The investigatory powers commissioner, Adrian Fulford, told GCHQ: “I do not anticipate any situation where that engagement [with the IPT] could be the subject of any form of prior agreement, however transparent, especially with a party which is subject to my oversight.”
Call for investigation
The court heard today that a senior officer at MI6 wrote to Cobb, secretary for the tribunal, on 12 March 2019, apologising for what it described as a misunderstanding, when its officers called her asking for her not to share documents with the tribunal judges.
“I would like to assure you that the sole purpose of those telephone calls was to seek to understand better the nature of SIS information apparently referenced in the attachments to your 27 February email to the Government Legal Department,” the letter said.
“In the course of the conversations with my staff, you helpfully explained to them that the material in question had been provided to the tribunal by the Investigatory Powers Commissioner’s Office.”
Ben Jaffey, representing the four NGOs, argued that the IPT should investigate whether MI6 had made an inappropriate attempt to intervene in legal proceedings.
He said that although the two members of SIS staff were no longer involved in litigation over the “third direction”, MI6 had refused to say whether the two officers acted under instructions or whether the people who instructed them were still involved in the case.
Jaffey said there had been no explanation for the conflict in evidence given by MI6 and the tribunal secretary, and no recognition by MI6 of wrongdoing or any proper apology.
Something serious went wrong
In a ruling at 3pm today, the Investigatory Powers Tribunal president, Lord Justice Rabinder Singh, said MI6 had apologised and had recognised that something serious had gone wrong.
“It was recognised that the direct communication that took place was inappropriate, an apology was given, and it was clearly recognised that nothing like this should happen in the future…and that something serious had gone wrong,” he said.
He said that for the avoidance of doubt, “this tribunal is in substance a court which is completely independent of the government, the intelligence agencies, and everyone else”.
Ilia Siatitsa, Privacy International
Singh said, however, it would not be an appropriate use of the IPT’s finite resources to mount an investigation in this case. It would lead to satellite litigation that would be unnecessary and disproportionate.
Following the case, Ilia Siatitsa, legal officer and programme director at Privacy International, said: “Such an interference with judicial proceedings has absolutely no place in any mature democracy.”
She said that GCHQ had also made advances of a similar nature to the Investigatory Powers Commissioner in 2017. “It is troubling the agencies have not yet learned these basic principles.”
Daniel Holder of CAJ and Paul O’Connor of the Pat Finucane Centre said there had been a long history in Northern Ireland of the intelligence services considering themselves not bound by the law and above and beyond its reach.
“Such practices are incompatible with the principles of a democratic society and go to the heart of this case. It’s therefore particularly alarming that MI6 sought to interfere with the tribunal in this way,” they said.
Five judges in the IPC ruled by a three to two majority in December 2019 that MI5’s “third direction policy” was lawful, arguing that MI5 officers could not operate without informants who could commit crimes, while infiltrating criminal and terrorists organisations – the first occasion that the court has given a divided opinion.
“This case raises one of the most profound issues which can face a democratic society governed by the rule of law,” the judges wrote in the majority decision.
The NGOs are appealing the decision.
What the third direction guidelines say
The third direction guidelines allow the security service to authorise informants, known as agents, who are not employed by MI5 to participate in criminal activities.
Extracts of the guidelines, some of which have now been made public, report that agents are frequently tasked to report on terrorist organisations whose activities may pose a threat to national security or involve the commission of serious offences.
“In those circumstances, it may sometimes be necessary and proportionate for agents to participate in criminality to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence,” the guidelines say.
The guidelines require MI5 case handlers to consider whether information could be obtained in a different way and whether the potential harm to the public interest from the criminal activity of the agent is outweighed by the benefit to the public interest from the information received.
The guidelines say that the authorisation process does not offer agents or their handlers immunity from prosecution for committing serious crimes.
“Rather, the authorisation will be the service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities,” the guidelines state.
However, they allow for MI5 to make representations to the police or the Crown Prosecution Service to advise, on public interest grounds, against the prosecution of an agent for criminal activity.
Record of the authorisation “may form the form the basis of representations by the service to the prosecuting authorities that prosecution is not in the public interest”.