The ‘Third Direction case’, soon to be brought before the Court of Appeal, concerns the lawfulness of a previously secret national security policy of the UK Government. The policy authorises agents of the Security Service (MI5) to engage in criminal activity, which the claimants allege include the carrying out of torture and murder. Hearings on the case were held in November last year in the Investigatory Powers Tribunal (IPT), a specialist tribunal which adjudicates complaints on state surveillance and the conduct of the Security Services (MI5, MI6 and GCHQ).  The IPT produced a judgment remarkably quickly, published in December.

The background to the Third Direction case is complicated, and the constitutional issues it raises are extensive. This initial discussion of the case is therefore presented across two posts. This first presents the background to the case and its key issues, while highlighting its parallels with the Miller cases.The post goes on to emphasise two important differences between the cases which reflect significant challenges in maintaining the rule of law in national security litigation. It argues that such challenges are contributing to a widening gulf of uncertainty between the law and national security practice.  A second post will follow this analysis setting out the findings of the IPT in this case and evaluating its response to the rule of law challenges set out in this initial post.

Background to the case

The policy forming the subject of the Third Direction case came to light in previous IPT litigation on bulk surveillance powers (bulk personal datasets and bulk communications data). The IPT examined the oversight associated with the powers, which included a ‘direction’ provided by the Prime Minster to the Intelligence Services Commissioner to oversee the exercise of bulk personal datasets.  Two other directions were referred to in the evidence presented in the case – one in the public domain relating to the UK’s involvement in detention overseas and one now known as the ‘Third Direction’ not in the public domain. The litigants brought a separate claim to establish the nature of this direction.

The Third Direction

Following a failed attempt to have the claim regarding the Third Direction struck out, the UK Government disclosed the subject matter of the Third Direction on 1 March 2018 via a written statement to Parliament. The statement referred to the ‘Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Services agent participation in criminality) Direction 2017’, made on 22 August 2017, which required the Investigatory Powers Commissioner to ‘keep under review’ the application of the ‘Security Service guidelines on the use of agents who participate in criminality’. Subsequent IPT proceedings revealed that the direction had replaced an earlier one with the same subject matter given on 27 November 2014, which in turn replaced a non-statutory direction made on 27 November 2012, which had been issued to the Intelligence Services Commissioner (who provided oversight in this area before the role of Investigatory Powers Commissioner was created in 2016)

The Policy

While the authorisation policy in the public domain is heavily redacted, we do know that it allows the Security Service to authorise agent participation in crime in order to obtain or maintain access to intelligence. An agent in this context is a person who can provide intelligence on individuals of interest to MI5. Previous iterations of the policy were consolidated in the ‘Guidelines on the use of Agents who participate in Criminality (Official Guidance)’. The claimants contend that the policy has been in place since around 1992, and was introduced following the murder of lawyer Pat Finucane by loyalist paramilitaries.

This power contrasts with two other key statutory powers relating to the Security Service and ordinary criminal law. First, there is an explicit statutory power under section 7 of the Intelligence Services Act 1994 which allows a Minister to permit UK personnel to commit criminal acts, however such acts must be committed abroad. Secondly, there are powers under Part Two of the Regulation of Investigatory Powers Act 2000 (RIPA) for a Covert Human Intelligence Source (CHIS) to engage in activity which looks very similar to criminal activity. However, according to MI5’s own guidance from 2011, that RIPA authorises criminality is a ‘common misunderstanding’ and it is ‘better’ to think of RIPA as ‘authorising merely the element of interference with privacy occasioned by the conduct or use of the agent’ (see p73 of the guidance).

A key area of contention between the parties is whether the policy authorises activity which would breach fundamental rights, including torture.  The claimants argue that nothing in the policy rules out such activity and that past Service operations, such as Operation Kenova, shows that authorisation of agent participation in criminality has resulted in both murder and torture of individuals. Conversely the Government emphasises that its policy does not authorise such activity and that it is ‘inappropriate’ to rely on evidence of past practice which is subject of investigation elsewhere (for example, Operation Kenova is currently the subject of a public inquiry).

While the Government made clear statements in its submissions to the IPT that the policy does not permit torture, it also emphasises that whether certain activity constitutes torture or inhuman or degrading treatment under article 3 of the European Convention on Human Rights (ECHR) ‘depends on context’ (e.g see para 81). Furthermore, on the first day of proceedings on 5 November 2019, Lord Evans speaking on the policy refused to rule out it being used to authorise torture when interviewed on the Today Programme. The rest of the evidence on this matter was presented in closed hearings.

Parallels with Miller 1 and 2

The claimants in the Third Direction case claim that the policy is unlawful on the basis of a number of different factors, including UK constitutional law and under the ECHR. Other important issues they have raised include whether the policy has the result of the executive undermining both the role of the Director of Public Prosecutions as well as current devolution arrangements.

There are clear parallels in this case with the Miller cases. These include that one of the key questions in the Third Direction case is whether the exercise of executive power has undermined or restricted Parliamentary power. In particular, the claimants argue that the policy allows the executive to dispense with criminal law and that this contravenes the fundamental UK constitutional principles that the executive has no power to act beyond the criminal law (e.g. as is required by the Bill of Rights and the Case of Proclamations) and that the executive cannot exercise power in a manner in which the practical effects will undermine law passed by Parliament (e.g. Miller (No 1)). The claimants also argue that the policy undermines Parliamentary power by violating ECHR rights, principally through authorising conduct in breach of negative obligations established in articles 2, 3, 5 and 6 ECHR and by not being ‘in accordance with the law’

Another parallel is that the areas of executive action being scrutinised by the courts in both cases are those traditionally considered to fall within exclusive executive competence. The Third Directions case relates to national security policy which is a classic area in which the executive used to claim sole competence. The same is true of Miller (No 1), which grappled with executive treaty-making power, and Miller (No 2), concerned with the power of the executive to prorogue Parliament.

Differences reflecting challenges

i. Secrecy and Secret Law  

While a few of the documents in Miller (No 2) were redacted, a big difference between the Miller cases and the Third Direction case is that all the evidence related to the operation of the executive policy in the Third Direction case was presented in secret proceedings. Indeed despite there being a number of safeguards in IPT procedure to limit secrecy, there remains a strong risk of blanket secrecy surrounding the Government’s evidence.

For example, there exists a ‘Counsel to the Tribunal’ who is present in closed hearings and may flag closed evidence they think may be made public without harming national security. However the role of the Counsel of the Tribunal is not to protect specifically the interests of the claimants (though it can be directed to carry out this role by the Tribunal, see para 8 of Liberty v GCHQ (No 1)).  Even if the Counsel is able to persuade the IPT that certain documents should be disclosed, the Tribunal has no power to compel the Government to publish the documents, but can only recommend disclosure.

The risk of blanket secrecy surrounding the policy’s operation in the Third Direction case reflects a common rule of law challenge in national security litigation which is (at least) threefold. In the first instance, and as has been the subject of much academic scholarship, secret proceedings undermine the rule of law by shielding the governmental party from the non-governmental party and the public. This undermines equality of arms between the parties as well as open justice in a particular case.

There is a second impact on the rule of law that occurs over time across rather than in an individual case. Despite compelling proposals from Liora Lazarus that there should be a time limit on the confidentiality of material presented in closed proceedings (see Security and Human Rights, Ch 7), closed material and judgments in all areas of national security law are currently set to remain permanently closed. Lazarus highlights that this impacts the rule of law over time by eroding Government accountability for its national security activity as well as setting up barriers to scholarly scrutiny of national security activity.

Thirdly, and relatedly, as closed material and judgments swell in mass over time, this not only shields Government activity but also the development of related legal precedent. Closed material screens the operation of national security practice, including secret internal Government policies, as well as the treatment of that practice and internal procedures by judges. This is resulting – presumably – in the development of ‘secret law’. Such secret law is likely to relate to important issues such as whether internal necessity and proportionality tests applied by the Government to national security powers are adequate for the purpose of protecting against the abuse of power, as is required under the ECHR.

ii. Statutory Authority rather than Prerogative Power

Operating in tandem with secrecy, another difference is that in the Third Direction case, unlike in the Miller cases, the Government is arguing that the policy has statutory authority rather than operating on the basis of prerogative power. Specifically, the Government argues that the policy has a lawful statutory basis in the Security Service Act 1989 (SSA). Section 1 of the SSA sets out the ‘functions’ of the Security Service, which include the ‘protection of national security’ and to ‘safeguard the economic well-being’ of the UK.

The claimants argue that these functions as laid out in the SSA cannot contain actual powers, particularly in light of the explicit provision of similar powers in other legislation regulating the Security Service (for example, see section 7 of the Intelligence Services Act 1994 which specifically allows ministers to permit MI6 personnel to commit criminal acts abroad). However, the Government contends that embedded within each of these functions must be vires to do what is necessary to perform those functions. The Government seems to implicitly accept that the passing of the SSA 1989 has placed any prerogative powers enjoyed by MI5 in abeyance.

Whether or not the functions referred to in the SSA are ultimately found by the courts to have vires embedded within them, it is clear that the idea that section 1(2) of the SSA would implicitly authorise the policy is likely to require some form of creative or broad interpretation. While such interpretations of statutory language occur in many areas of the law, including where the protection of human rights is concerned, they have been a repeating theme in recent national security litigation in the IPT. The IPT has accepted a number of broad interpretations of statutory language in establishing the legality of surveillance powers disclosed in the wake of the Snowden leaks. This occurred, for example, in the case of Liberty v GCHQ (No 1) & (No 2), whereby section 8 (4) of RIPA was accepted by the Tribunal to authorise the bulk interception of internet communications, including communications within the UK (for example, where individuals in the UK were using websites relying on an international server such as Twitter or Google).  The Tribunal found that s8 (4) authorised this form of interception despite the provision only explicitly authorising the interception of ‘external’ communications – that is ‘a communication sent or received outside the British Islands’ (see clause 20 of RIPA as originally enacted) – while authorisation of interception for communications within the UK was provided for separately in s 8 (1) of RIPA. It is also noteworthy that RIPA was passed in 2000, when surveillance on the scale of bulk interception of internet communications was not considered as a possibility by Parliament when considering the provisions under RIPA. An interpretation of s 8 (4) as authorising the interception of internet communications within the UK therefore represents an interpretative stretch on the part of the IPT.  The Tribunal has relied on comparably broad interpretations in its findings that statutory authority existed prior to the Investigatory Powers Act 2016 for ‘computer network exploitation’ (or hacking as it is more commonly referred to) and bulk personal datasets.

A succession of broad statutory interpretations in national security law will have its own corrosive effect on legal certainty and therefore the rule of law. It will help to widen the gap between the legal expectations of the Government held by Parliament and citizens based on an ordinary reading of the national security legislation and the operation of national security law in practice. This gap is also significant, as is highlighted in Simms, on the basis that where Parliament’s language relating to rights is ambiguous, this carries with it the risk that ‘their unqualified meaning may have passed unnoticed in the democratic process’ (per Lord Hoffmann). In this way this stretched legal interpretations may not only undermine legal accountability through corroding certainty, but also political accountability.

Conclusion

Part One of this post has presented the background to the Third Direction case, and argued that it represents a version of the Miller cases in the national security context, though one that illustrates significant obstacles to the rule of law persistently arising in national security litigation. These challenges are contributing to a broadening gap of uncertainty between formal, public, national security law and the way that such law operates in practice. This discordance within the current system is undermining both the legal and political accountability of the UK Government for its national security activity.  Part Two examines the IPT judgment produced in December and highlights some its key implications for the rule of law, before setting out the issues soon to be before the Court of Appeal.

Daniella Lock, @DaniellaLock, PhD student and Teaching Fellow, University College London

The author would like to give warm thanks to Paul F Scott and Bernard Keenan for their comments on an earlier draft of this piece. Any remaining errors are the author’s own.

(Suggested citation: D. Lock, ‘The ‘Third Direction case’ Part One: Miller (Nos 1 and 2) in the National Security Context?, U.K. Const. L. Blog (7th July 2020) (available at https://ukconstitutionallaw.org/))