Licence to Kill: MI6 may have allowed undercover operatives to commit serious crimes in the UK

January 5, 2021

3 min read

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What's going on here?

A judgment released by the Investigatory Powers Tribunal (IPT) suggests that MI6 (formally the Secret Intelligence Service which mostly operates outside the UK) and the Government Communications Headquarters (GCHQ) “illegally authorised” its undercover operatives to engage in serious criminal activity in the UK.

What does this mean?

The recently released judgment concerns the activities of MI6 operatives, known as covert human intelligence sources (CHIS), and has put the conduct of the secret service under legal review. Evidence of illegal activity was highlighted in a case brought by various claimants via civil liberties groups including Privacy International and Reprieve against MI6. At present, CHIS’s are only legally authorised to participate in criminal activity outside the UK, according to section 7 of the Intelligence Services Act 1994 (known as the James Bond clause). Such illicit activity is strictly prohibited within the UK, hence why MI6 is facing legal action. Arguing for the claimants in the case, Ben Jaffey QC said, “it was very difficult to believe this was occurring” and that “this is a more or less guaranteed breach of the European Convention on Human Rights”. Maya Foa, director of Reprieve, said that “MI6 unilaterally assumed the power to authorise unchecked agent law-breaking on UK soil”. Meanwhile, unnamed government sources warned against making “assumptions” about MI6 at this stage of litigation.

What's the big picture effect?

This story raises questions about the legal accountability of MI6 and whether it will face any repercussions as a result. The present case concerned the “third direction” which is a set of guidelines that give immunity to agents of MI5 (formally the Security Service which usually operates inside the UK) who commit criminal offences. Mr Jaffey QC made clear that “there’s no provision for oversight of crime by MI6” as this only applies to MI5 agents. There is also heavy criticism of the policy that MI6 implements during its operations which is largely secret and inaccessible to the general public. Daniel Holder, deputy director at the Committee for the Administration of Justice, said, “MI6 can…authorise informants to commit crimes here…on the basis of a policy kept entirely secret”. 

However, the Covert Human Intelligence Sources (Criminal Conduct) (CHIS) Bill, which is making its way through Parliament, aims to reform this area by putting “existing practice on a clear and consistent statutory footing”. Once it becomes an Act of Parliament, the previously criticised secret rule book will be available as a public document. The Bill will provide “an express power for the authorisation of criminal conduct” but will ensure that it “enshrines uniform safeguards”. Although its finished form is yet to be determined, the Bill has faced criticism. The Scottish Justice Secretary, Humza Yousaf, claims it lacks “sufficient safeguards” and has said that the Scottish government will not back it in its current state. Meanwhile, Shami Chakrabati, a Labour peer in the House of Lords, has described the Bill as “counterproductive to law and order”. Despite the criticism, the Bill will probably become law but will be unlikely to appease the voices that are calling for agent immunity to be scrapped as CHIS conduct may be deemed “lawful for all purposes”. Overall, the limited legal accountability of MI6 will likely remain unchanged. In return for public access to secret service rules, the government will be adamant in reducing MI6’s statutory liability as much as possible.

Report written by Dan Furniss

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