Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors

This Court was asked to decide whether the Security Service (MI5) has legal power under the Security Service Act 1989 to run undercover agents who participate in criminality, and whether the Security Service's internal March 2011 "Guidelines on the Use of Agents who participate in Criminality" (the Guidance) is unlawful. The appellants argued there is no statutory or common-law authority to authorise agents' participation in crime and that the Guidance amounts to an unlawful de facto power to dispense with the criminal law and fails the Convention "in accordance with law" test.

The Court held that the central question turns on the proper construction of the 1989 Act. Having assessed the Act's language, its context and purpose, and relevant authorities on necessary implication and the Royal Prerogative, the Court concluded that the Act continued the Security Service's pre-existing powers necessary to discharge its statutory functions and that those powers encompass, as a matter of public law, the power to run agents who may participate in criminality. The Court emphasised the distinction between a power and an immunity: the Guidance expressly disclaims any legal effect conferring immunity from prosecution. The Court therefore rejected the contention that the Guidance creates a de facto immunity or places MI5 above the law. It also held the appellants lacked standing to pursue generic Convention challenges and that statutory oversight mechanisms and judicial review remedies provide appropriate safeguards.

The appellants (non-governmental organisations) challenged the lawfulness of the Security Service's policy, contained in the March 2011 Guidance (redacted), and sought declarations, quashing and injunctive relief. The Guidance sets out the circumstances and internal procedures by which MI5 handlers may run agents who participate in criminality. The proceedings before the Investigatory Powers Tribunal began in 2017 and raised seven issues including (i) whether there is any lawful basis for the policy in statute or common law, (ii) whether the policy amounts to a de facto power to dispense with the criminal law, and (iii) whether the policy is "in accordance with law" for Convention purposes.

Path to this Court: the majority of the Tribunal (three of five) held the Security Service had the power under the Security Service Act 1989, by necessary implication, to run agents who participate in criminality and rejected the appellants' other grounds. Two Tribunal members dissented on the first issue. Permission to appeal was granted on a number of issues; the appeal came to the Court of Appeal from the IPT ([2019] UKIPTrib IPT 17 186 CH).

Nature of the claim and relief sought: declarations of unlawfulness, quashing of the Guidance and an injunction restraining continued conduct under the Guidance.

Issues framed by the Court: (i) whether the 1989 Act provides any power (vires) to authorise agents' participation in crime by necessary implication or otherwise; (ii) whether the Guidance effects a de facto immunity from prosecution; (iii) whether the Guidance is "in accordance with law" under the ECHR and whether the appellants have standing; (iv) whether oversight and safeguards are adequate.

Court's reasoning: the Court accepted the respondents' concession that any power, if it exists, must be derived from the 1989 Act and applied the established test for implication (necessity, construed by reference to context and purpose). The Court found that the Act continued the Security Service and its functions and that those functions could not sensibly be exercised without the incidental powers which had been exercised prior to 1989, including the capacity to run agents who may participate in criminality. The Court relied on authorities on implication and the Royal Prerogative to conclude that Parliament did not intend, without express words, to remove core operational powers. Crucially, the Guidance expressly states that authorisations have no legal effect conferring immunity and that authorised conduct remains potentially prosecutable; the Court emphasised the legal distinction between a power to act and immunity from sanction. On Convention issues the Court held the appellants lacked standing because they were not "victims" under s.7 Human Rights Act or Article 34 ECHR; Convention challenges require an identified victim or facts. The Court also held established oversight (Commissioners, Tribunal and courts) and prosecutorial independence provide adequate safeguards. The closed material considered did not alter these conclusions.

Outcome: the Court dismissed the appeal, upholding the majority IPT conclusion that the Security Service has the relevant power under the 1989 Act and rejecting the other grounds.

Appeal dismissed. The Court held that the Security Service, as continued by the Security Service Act 1989, has the incidental power necessary to run agents who participate in criminality; the Guidance is not unlawful in principle because it does not confer immunity from prosecution and the 1989 Act, properly construed by reference to its context and purpose, continues the Service's necessary operational powers. The appellants also lacked standing to bring broad Convention challenges and oversight and prosecutorial mechanisms provide adequate safeguards.

Appeal to the Court of Appeal from the Investigatory Powers Tribunal decision dated 17 December 2019 (Investigation Powers Tribunal citation: [2019] UKIPTrib IPT 17 186 CH). Permission to appeal was granted by the Tribunal and by Dingemans LJ in respect of certain issues; this Court heard the appeal and dismissed it on 9 March 2021.