Secret order on authorised criminality by spies made public after legal battle by rights groups MI5 agents are allowed to carry out criminal activity in the UK, the government has acknowledged for the first time.
The prime minister was on Thursday forced to publish the text of a direction to the Investigatory Powers Commissioner’s Office, the spying watchdog, on governing “security service participation in criminality”.
It instructs the IPCO to oversee the participation of MI5 agents in criminal activity, which was previously conducted by the now-defunct office of the Intelligence Services Commissioner, under a secret order referred to as the “third direction”.
However, guidance about when British spies can commit crimes, and how far they can go, remains confidential.
The commissioner, Lord Justice Sir Adrian Fulford, said: “I welcome the government’s decision to make public my oversight of this sensitive area of work.”
The order was published after a legal battle by the human rights groups Reprieve and Privacy International.
Maya Foa, the director of Reprieve, said: “After a seven-month legal battle the prime minister has finally been forced to publish her secret order but we are a long way from having transparency.
“The public and parliament are still being denied the guidance that says when British spies can commit criminal offences and how far they can go.
“Authorised criminality is the most intrusive power a state can wield. Theresa May must publish this guidance without delay.”
Millie Graham Wood, a solicitor at Privacy International, said there was no justification why the secret direction was not published earlier.
“Had we not sought to challenge the government over the failure to publish this direction, together with Reprieve, it is questionable whether it would have ever been brought to light,” she said. “It is wrong in principle for there to be entire areas of intelligence oversight and potentially of intelligence activity, about which the public knows nothing at all.”
The MI5 website says agents are “one of the most significant information gathering assets we have”, adding “intelligence from our agents is critical to keeping the UK safe”.
It also states: “Public views of what MI5 agents do are often based on fiction and not always accurate. There are many misunderstandings about what our agents do, as we cannot say much about those who help us, given our commitment to protect their identity.”