Introduction

The case of Privacy International & Ors v. Secretary of State for Foreign and Commonwealth Affairs & Ors ([2021] EWCA Civ 330) addresses a critical question regarding the legal authority of the UK's Security Service (MI5) to authorize undercover agents to engage in criminal activities. This appeal, heard by the England and Wales Court of Appeal (Civil Division) on March 9, 2021, involves Privacy International and other non-governmental organizations challenging the legality of MI5's policies that permit such authorizations.

Summary of the Judgment

The Court of Appeal upheld the decision of the Investigatory Powers Tribunal, affirming that MI5 possesses the legal authority under the Security Service Act 1989 to authorize agents to participate in criminal activities as part of their intelligence-gathering operations. However, the court clarified that such authorizations do not confer immunity from prosecution for the criminal actions undertaken by the agents or their handlers. The majority of the tribunal found that the Security Service's powers were sufficiently supported by existing legislation, while a minority dissenting opinion argued that the necessary authority to permit such conduct was not adequately established by the 1989 Act and should instead be addressed through explicit legislative measures.

Analysis

Precedents Cited

The judgment references several key cases and legislative provisions to support its findings:

• Hazell v Hammersmith and Fulham London Borough Council [1993] 2 AC 1: Emphasized that "functions" encompass all duties and powers of a statutory body.
• R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21: Established the criteria for necessary implication in statutory interpretation.
• R (Black) v Justice Secretary [2017] UKSC 81: Highlighted that statutory interpretation must consider both context and purpose.
• Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109: Asserted that intelligence services are not above the law and must adhere to legal constraints.
• National security cases such as R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 26: Affirmed the Crown's prerogative powers to maintain peace and security.

These precedents collectively support the court's position that intelligence agencies operate within a framework of legal authority and oversight, even when engaging in activities that may intersect with criminal law.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of the Security Service Act 1989. The central issue was whether MI5's authority to run agents who may engage in criminality was implicit within the Act. The court concluded that:

• Necessary Implication: The functions outlined in the 1989 Act necessitate certain powers to effectively carry out intelligence operations, including the use of agents who might engage in criminal activities.
• Distinction Between Power and Immunity: The court distinguished between the power to authorize such activities and the immunity from prosecution, clarifying that MI5 does not have the authority to grant legal immunity.
• Purpose and Context: Considering both the context—national security—and the purpose of the 1989 Act, it was logical to infer that authorizing agents to engage in criminal acts falls within MI5's operational necessities.
• Rule of Law and Oversight: The judgment emphasized adherence to the rule of law, ensuring that MI5's actions remain subject to legal scrutiny and judicial oversight, thus preventing abuse of power.

Importantly, the court rejected the minority's position that explicit legislative provisions were necessary, instead supporting an interpretation that allows for operational flexibility within the established legal framework.

Impact

This judgment has significant implications for the operations of the UK's intelligence agencies:

• Affirmation of Powers: Reinforces MI5's authority to use undercover agents in activities that may involve criminal conduct, essential for effective intelligence operations and national security.
• Legal Accountability: Clarifies that while MI5 can authorize such activities, individuals involved do not receive immunity from prosecution, maintaining accountability and adherence to the law.
• Precedent for Future Cases: Sets a legal precedent that may influence how courts interpret the powers of intelligence agencies in relation to national security and counter-terrorism efforts.
• Legislative Implications: Highlights potential areas where legislation may need to evolve, such as the pending Covert Human Intelligence Sources (Criminal Conduct) Bill 2020, to further clarify and regulate the extent of these powers.

Overall, the judgment balances the necessity of robust intelligence operations with the principles of legality and accountability, ensuring that intelligence activities do not operate unchecked.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in Privacy International & Ors v. Secretary of State for Foreign and Commonwealth Affairs & Ors upholds the legality of MI5's policies permitting agents to engage in criminal activities as part of their intelligence work. By interpreting the Security Service Act 1989 to implicitly include this authority, the court ensures that national security operations can continue effectively while maintaining strict adherence to the rule of law. Importantly, the lack of immunity from prosecution preserves legal accountability, preventing any overreach by intelligence agencies. This balance between operational necessity and legal oversight sets a crucial precedent for future cases involving national security and intelligence operations.