1984, REIMAGINED: MI5’S UNLAWFUL INVESTIGATORY POWERS
Originally formed as the Secret Service Bureau, MI5 came into being in 1909 as a single organisation consisting of only two members. This was in response to the threat of German spies infiltrating the UK. Now, more than a century later, MI5 has over 5000 recruits in their employment, reflecting the growing appreciation by the UK government of MI5 as a system to protect national security against threats such as espionage, terrorism, and sabotage.
However, the infamous publication of the memoir Spycatcher in 1987 by former MI5 official Peter Wright exposed how the nature of work conducted by MI5 agents is often questionable. For instance, he alleged the secretive bugging of political figures and assassination plots against foreign leaders. Publication of Spycatcher has been banned in England due to the sensitive information revealed which led to a series of litigation between Peter Wright and the British government. Spycatcher has become emblematic of restriction on free speech by the English government, particularly in instances where the illegitimate practice of state arms is challenged.
Fast forward to 2021, it seems there is still much left to be improved with the introduction of the Covert Human Intelligence Sources (Criminal Conduct) Act (hereafter referred to as ‘the Act’ to ‘the CHIS act). The provisions of the Act provide robust protection to MI5. For instance, the Act authorises criminal conduct (CCA) of the MI5 where it is for the purpose of protecting national security.
To understand why this is an issue, this article will take a look at the sections of the Act to provide context.
This will be followed by explaining why the Act as a whole is problematic, considering its incompatibility with pre-existing statutes and its potential for misuse respectively.
THE COVERT HUMAN INTELLIGENCE SOURCES (CRIMINAL CONDUCT) ACT 2021
Several acts precede the Covert Human Intelligence Sources (Criminal Conduct) Act 2021(CHIS Act), providing the legal framework which MI5 must abide by.
This includes:
- The Security Services Act 1989.
- The Intelligent Services Act 1994.
- The Regulation of Investigatory Powers Act 2000.
These statutes entitle MI5 to act in questionable ways, such as covert surveillance and the “retention and examination of bulk personal datasets”. These existing powers had already received backlash by the general public, due to its clear disregard to privacy rights. The CHIS Act further contributes to this issue by amending the 2000 act and widening the scope of MI5’s investigatory powers.
The most notable amendment is the introduction of provisions establishing powers of CCA. This enables MI5 to commit criminal acts whilst they are performing under duty.
Of course, this is not an unlimited power, and there are restrictions placed on this, namely an objective test on whether the authorisation is necessary and proportionate to the conduct.
Conduct may be deemed necessary:
- Where it is in the interest of national security;
- For the prevention of crime and disorder; and
- When in it is the interest of the economic well-being of the UK. We can now begin to assess the several issues which arose from the legislation.
INCOMPATIBILITY AND IMPROPRIETY
The passing of the CHIS Act is incredibly perplexing considering its sheer incompatibility with other statutes under English law. The most salient example is the Human Rights Act 1998, and I will be using Article 2 right [to life] to demonstrate this. The CHIS Act does not have any substantive limits on criminal conduct, suggesting that in principle, there are instances where crimes such as torture, murder and rape may be authorised. Relating this to the HRA, Article 2 obliges the state to protect the lives of citizens. This is an absolute right, which means under no circumstance can the intentional deprivation of life by state actors be authorised. However, the convention acknowledges there are unavoidable instances where force by state agents may be unintentionally lethal. To combat this, state agents will not be held liable using a similar requirement of “necessity” as the CHIS Act. However, this argument falters when looking at the difference in threshold. Article 2 establishes there is no liability of state agents where lethal force is “no more than absolutely necessary”. This was clarified as meaning force that was used:
- As a defence from unlawful violence;
- To effectively arrest someone or to prevent their escape;
- To quell a riot or insurrection
This is a significantly higher threshold of necessity than that of the CHIS Act. Circumstances in Article 2 indicate the prerequisite of an immediate threat of sorts. The European Courts of Human Rights expressed that a “stricter and more compelling test of necessity”is appropriate to facilitate a democratic society and limit the power of stage agents.
Yet, the CHIS Act contradicts this directly with its incredibly low threshold of necessity, as listed above.
For instance, the “prevention of crime and disorder” also applies to the restriction of the ECHR Article 11 right to freedom of peaceful assembly, a right that is often engaged in the process of (peaceful) protests. This restriction can be exercised extensively, where even overcrowding in a protest has been enough to restrict the right. Considering this, it reflects the amount of flexibility MI5 agents have to justify their criminal conduct, even in instances as severe as murder.
Furthermore, the obscure justification of “economic well-being” (EWB) has been suggested to be redundant and to have no practical effect. However, Critics Leigh and Lustgarten suggest otherwise, rightly identifying how this vague concept is open to abuse by state agents. For instance, they suggest that the justification of EWB has a dire implication on the trade union movement, potentially allowing the surveillance of trade unionists by state actors under the excuse of EWB and protecting national security. As Leigh and Lustgarten phrased it, the inclusion of EWB serves as a reflection of the way the state “treat[s] economic desires or wishes as a matter of national security”.
It should briefly be mentioned that there is a question of compatibility with parties secondary to a CCA. Even if an agent were to help the primary person committing a crime under one of the necessity justifications, there is no clarity on whether the 2021 Act supersedes the Aiders and Abettors Act 1861. This provides that ‘whosoever shall aid, abet, counsel, or procure the commission of any indictable offence … shall be liable to be tried, indicted, and punished as a principal offender'. Thus, there is the risk that even state agents could be at risk by the provisions intended to protect them, showing the incoherency of the Act.
GATEWAY TO ABUSE
Expanding on Leigh and Lustgarten suggestion that legislation can be misappropriated by agents, there are other forms of abuse that the 2021 Act could lead to.
An issue that crops up is domestic abuse and sexual misconduct.
In the notorious case of Wilson v MPS, the claimant had brought a claim to the Investigatory Powers Tribunal (IPT) on the basis that she had gotten into a relationship with an undercover cop without knowing his true identity, and so her ECHR rights had been violated.It was found that the defendant had sexual relationships with up to 10 women in his deployment. Furthermore, it was found that there had been inadequate training in relation to the risk of men undercover entering relationships with women. While the tribunal had ruled in her favour and she had received damages, one could question whether a claimant post the enactment of the 2021 Act would receive the same treatment, and in the similar context of a relationship with an undercover MI5 agent. In theory, the Act could allow an agent to argue they were acting in the national interest by withholding their identity, where they are expected to be acting covertly. In turn, CCA’s could bar claims of sexual assault. Outside of hypotheticals is the grave reality that the abuse of power is a problem in existence in the sphere of state agents.
In 2022, following a complaint lodged to the IPT by the victim (given the pseudonym Beth), it was found that an MI5 agent “used his security status to coercively control her”. He would regularly exhibit violent behaviours, such as attacking the victim with a machete, and would often make threats about murdering and sexually abusing young girls. With this, it is clear that the 2021 Act can become a dangerous mechanism. State actors such as the MI5 are recognisably given a large domain of power. In return, citizens place their trust in them with the expectation this power will be exercised to protect society. When power is used inappropriately, it may be hard for victims to come forward knowing the status and abilities of the law permit agents. The 2021 Act only inflames this issue by expressly permitting the authorisation of crime. Victims may misinterpret this and there are possibilities that agents may use the provisions to pressure victims in their relationships. Indeed, there is the risk that the 2022 case is not an exception and that there will be an increase in silent victims who may feel they cannot step forward.
In conclusion, the 2021 Act is a highly questionable piece of legislation. Its incompatibility with the HRA alone suggests the dire need for reformations. Even so, defenders may counter that this piece of legislation is well-founded. If the function of MI5 is to protect national security, then surely it is in the interest of members of society to grant MI5 flexibility to successfully fulfil their duty. Thus, a greater scope of power would be more favourable if MI5 were allowed to protect national security by any means possible. The legislation has had three years to mature under English law, and it hasn’t posed much of a problem yet. However, this fails to be justification enough. Three years is a relatively short passage of time, and the 2022 instance with Beth is proof that not every MI5 agent will be acting in the best interest of citizens at the forefront of their minds. If that is the case, it can be argued that it was not a well-grounded decision for the government to make the threshold of CCA as low as it is for MI5 members. While their role is undeniably important, it is clear that the threshold of necessity needs to rise to a much higher standard for the CHIS Act to operate synergistically with statutes such as the HRA and to facilitate democracy.
BIBLIOGRAPHY
Legislation
UK Statutes
Aiders and Abettors Act 1861
Covert Human Intelligence Sources (Criminal Conduct) Act 2021
Human Rights Act 1998
Security Services Act 1989
The Intelligent Services Act 1994
The Regulation of Investigatory Powers Act 2000
Table of Cases
UK Cases
Wilson v. Commissioner of Police of the Metropolis [2021] 9 WLUK 354
Other Jurisdictions
Eva Molnar v Hungary (App No. 10346/05); [2008] ECHR 10346/05
McCann and Others v United Kingdom (App.No. 18984/91); [1995] ECHR 18984/91
Journal Articles
Scott P, ‘Authorising Crime: The Covert Human Intelligence Sources (Criminal Conduct) Act 2021’ (2022) 85(5) MLR
Scott P, ‘’Economic Well-being’ in National Security Law and Practice’ (2022) 33(3) KLJ
Newspaper Articles
Shoker S, ‘Met Police: Deceived Activist Kate Wilson Awarded Compensation’ BBC (London, 25 January 2022) < https://www.bbc.co.uk/news/uk-england-nottinghamshire-60132610> accessed 21st March 2024
Simone D and Geiger C, ‘Agent’s Abused Former Partner in Legal Action Against MI5’ BBC (London, 20 May 2022) <
https://www.bbc.co.uk/news/uk-politics-61521569#:~:text=A%20woman%20who%20was%20terrorise d,Investigatory%20Powers%20Tribunal%20(IPT).> accessed 21st March 2024
Webpages
ECtHR, ‘Guide on Article 2 of the European Convention on Human Rights’ (ECtHR, August 2022) < https://www.echr.coe.int/documents/d/echr/Guide_Art_2_ENG> accessed 19th March 2024 MI5, ‘About Us’ (MI5, 2024)
<https://www.mi5.gov.uk/aboutus#:~:text=More%20than%205%2C000%20people%20work,o ur%20investigators%20and%20surveillance%20officers> accessed 17th March 2024 MI5, ‘Law, Oversight and Ethics’ (MI5, 2024) < https://tinyurl.com/ycafc3p5 > accessed 17th March 2024
MI5, ‘The Establishment of the Secret Service Bureau’ (MI5, 2016)
< https://www.mi5.gov.uk/history/mi5s-early-years/the-establishment-of-the-secret-service-bureau> accessed 17th March 2024
UOLLB, ‘Spycatcher Cases’ (UOLLB ,February 2023)
< https://uollb.com/blog/cases/spycatcher-cases-conflict-of-laws> accessed 17th March 2024