MI5 spies can commit crimes in Britain, secret papers reveal

Posted By: March 05, 2018

Fiona Hamilton. The Times. London. Friday, March 2, 2018

The government has publicly acknowledged for the first time that agents acting on behalf of MI5 are allowed to carry out criminal activity in the UK.

Theresa May published yesterday a previously secret order governing criminal activity by the security service. She revealed that the Investigatory Powers Commissioner, who scrutinizes the work of the intelligence agencies, has oversight of “security service agents’ participation in criminality.” The government has refused to give more detail due to security fears.

MI5 relies heavily on the work of its agents or informers who provide intelligence to assist investigations into terrorism and espionage. So-called human sources are considered particularly important in thwarting terrorist plots, especially since advanced technology has helped would-be attackers avoid detection by the authorities.

Andrew Parker, director-general of MI5, publicly paid tribute to the work of agents last year, saying: “Those who courageously work for us in secret, close to the extremists, who do so much to help us prevent terror atrocities, we all owe them a debt of gratitude.”

The so-called James Bond clause, section 7 of the Intelligence Services Act 1994, allows the foreign secretary to authorize MI6 or GCHQ to carry out criminal acts outside Britain. However, criminality within Britain had not been previously acknowledged.

The government’s move came after the campaign groups Reprieve, and Privacy International took a case to the Investigatory Powers Tribunal (IPT) to have “directions” from the prime minister made public.

Two had already been made public. One dealt with the interrogation of detainees held in other countries by British personnel and the second with the widespread collection of bulk personal data by intelligence agencies. Criminal activity by MI5 agents was thought to have been referred to only once in public, during separate litigation in 2016 by Privacy International. On that occasion, the information was redacted.

The direction was first made in 2014 when intrusive, covert activity by the security services was overseen by the Intelligence Services Commissioner.

Sir Mark Waller referred the issue in his 2015 report when he said that there might be occasions where a “covert human intelligence source” participated in a criminal offense to gather intelligence.

He wrote: “However in specific situations where the intelligence dividend justifies it, a good argument can be made that it is in the public interest and for the greater good to become involved. Although such activity cannot be made lawful, I have recommended that the agency must justify the public-interest test.”

The intelligence services commissioner has since been replaced with the role of Investigatory Powers Commissioner, undertaken by Lord Justice Sir Adrian Fulford.

Reprieve last night called on the government to publish the guidance that governs when and in what circumstances individuals were permitted to break the law. Maya Foa, its director, said that “we are still a long way from having transparency,” adding: “Authorised criminality is the most intrusive power a state can wield. Theresa May must publish this guidance without delay.”

• MI5 has downgraded the official threat level for terrorism in Britain related to Northern Ireland. It has been reduced from substantial to moderate, which means an attack is “possible but not likely.” The threat level within Northern Ireland remains severe. Amber Rudd, the home secretary, said: “There remains a real and serious threat against the United Kingdom from terrorism and I would ask the public to remain vigilant and to report any suspicious activity to the police.” The threat to the UK from international terrorism is rated as severe.