12
Investigatory Powers Commissioner’s Annual Report 2019
Privacy International’s (and others’) challenge, in the IPT, in relation to MI5’s policy
on agents who participate in crime – the “Third Direction” litigation
2.20
In proceedings in the IPT, Privacy International (together with Reprieve, the Committee
on the Administration of Justice and the Pat Finucane Centre) challenged the lawfulness
of MI5’s policy relating to agents who participate in crime. In particular, the claimants
challenged the lawful basis for such a policy and whether the policy was compatible with
the ECHR.
2.21
Further to a direction issued by the Prime Minister on 22 August 2017, the IPC is required
to “keep under review the application of [MI5] guidelines on the use of agents who
participate in criminality and the authorisations issued in accordance with them.” MI5’s
“authorisations” do not, in fact, purport to authorise criminality, in the sense of providing
any form of immunity from prosecution. Rather, the authorisations are intended to explain
and justify the decision to engage in criminality and, in particular, the public interest in
doing so. Those reasons can then, if required, be provided to prosecutors.
2.22
The IPT ruled, on 20 December 2019 (following a hearing in November 2019) that MI5 does
have the power, as a matter of public law, to engage in activities which may involve their
agents participating in crime. The IPT also concluded that the oversight powers, given to
the IPC, “do provide adequate safeguards against the risk of abuse of discretionary power.”
The IPT also rejected the arguments that the policy was incompatible with the ECHR. The
claimants applied for, and were granted, permission to appeal to the Court of Appeal from
the IPT’s ruling; a hearing before the Court of Appeal is expected to take place during the
course of 2020.
2.23
IPCO’s oversight of MI5’s activities in relation to agents who participate in crime is
described in Chapter 8 of this report.
Liberty and Privacy International claim, in the IPT, arising from the
MI5 compliance issues
2.24
In February 2020, Liberty and Privacy International brought a new claim (and an
amendment to their existing claim relating to bulk data) against the Home Office and MI5
in relation to the MI5 compliance issues that were considered by the IPC during 2019, as
referred to by the High Court in Liberty’s judicial review of the IPA (as mentioned above).
2.25
The IPC will provide such assistance to the IPT as may be required in these proceedings.
Review of the Consolidated Guidance
2.26
5
The 2018 report set out details of the IPC’s role in the Government’s review of the
Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and
Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating
to Detainees (the Consolidated Guidance). In brief, the Prime Minister invited the IPC ‘to
make proposals to the Government about how the Guidance could be improved, taking
account of the [Intelligence and Security Committee of Parliament] ISC’s views and those of
civil society’. Nine written submissions were received in response to a public consultation,5
from Non-Governmental Organisations (NGOs), academics and from Her Majesty’s
IPCO, “Consultation on the Consolidated Guidance” (April 2018), https://ipco.org.uk/docs/IPCO%20
Consultation%20on%20the%20Consolidated%20Guidance.pdf