The Investigatory Powers Tribunal has dismissed a challenge to MI5’s “Guidelines on the use of agents who participate in criminality”. The claim – commonly referred to as “the Third Direction” – was brought by four NGOs (Privacy International, Reprieve, the Committee on the Administration of Justice and the Pat Finucane Centre). It was alleged that the policy was ultra vires, conferred de facto immunity and breached the ECHR.
The Tribunal dismissed all grounds of challenge. In particular, it held that the Security Service Act 1989 contained implied vires for the policy. This is because it is essential, in order for MI5 to perform its core functions, for it to be able to run agents who are embedded in illegal or criminal organisations, and therefore necessary for such agents to be able to participate in criminal activity. This is not to be equated with the conferral of an immunity, which (it was common ground) MI5 has no power to confer.
The judgment is here.
Victoria Wakefield QC, instructed by the Government Legal Department, appeared for MI5.