Protecting National Security by Breaking the Law? Prerogative, Statute and the Powers of MI5
| Published date | 01 September 2022 |
| Author | Robert Craig,Gavin Phillipson |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12702 |
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Modern Law Review
DOI:10.1111/1468-2230.12702
Protecting National Security by Breaking the Law?
Prerogative,Statute and the Powers of MI5
Robert Craig and Gavin Phillipson∗
The Court of Appeal decision in Privacy International v Foreign Secretary (2021) found lawful
the long-secret policy governing the purported authorisation and commission of criminal of-
fences as part of the work of MI5 and its informants. The Court found MI5 had a public law
power to engage in such criminality, historically under the royal prerogativeand more latterly as
an implied power under the Security Service Act 1989. The authors argue that these ndings
threaten serious damage to core constitutional principles, including the rule of law and settled
understandings of the prerogative and its relationship with statute. They postulate a much nar-
rower implied legal power under the 1989 Act, authorising only the making of representations
to the CPS on whether it would be in the public interest to prosecute. This would provide a
narrow path for MI5 ocers and their informants to avoid legal jeopardy for activities core to
its mission.
INTRODUCTION
‘And we did have fun.For ve years we bugged and burgled our way across Lon-
don at the State’s behest,while pompous bowler-hatted civil servants in Whitehall
pretended to look the other way’, Peter Wr ight, Spycatcher (1987).
For decades, the British government has been involved in organising,inciting,
and abetting its agents and informants in committing criminal oences as part
of its intelligence operations. This was done under the auspices of the long-
secret ‘Third Direction’ policy (‘Guidelines on the Use of Agents who partic-
ipate in Criminality – Ocial Guidance’ (‘the Guidance’)), which purported
to explain, justify and in some sense ‘authorise’ these actions. The Govern-
ment only disclosed the subject matter of the policy to parliament in 2018 after
it had failed to get the litigation that is the subject of this note struck out.1
The Court of Appeal judgment considered here arose from an appeal against a
high-powered decision of the Investigatory Powers Tribunal (IPT), which had
∗Respectively, Lecturer in Law and Professor of Law,University of Bristol Law School. The authors
would like to thankthe anonymous reviewer for their helpful comments.The usual disclaimer applies.
1 D. Lock, ‘The “Third Direction case” Part One: Miller (Nos 1 and 2) in the National Security
Context?’ UK Const L Blog 7 July 2020 at https://ukconstitutionallaw.org/ (last visited 19 July
2021). We are indebted to Lock’s valuable analysis of the background to this case.
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited. (2022) 85(5) MLR 1274–1288
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