25th September 2025
A practical example of the judiciary and the executive holding the security service to account
In his post on Monday on the collapse of the Chinese spying prosecution (to which I have already added one footnote), Joshua Rozenberg linked to this fascinating written statement from the Prime Minister.
It really deserves a closer look, as it reveals something extraordinary and significant about the relationship between our security state and the other elements of our constitutional order.
The statement (broken into smaller paragraphs and with emphasis added) was as follows:
In July this year, the High Court and the Investigatory Powers Tribunal handed down judgments following MI5’s provision of incorrect evidence to the Courts in relation to the case of Agent X.
On 2 July the High Court concluded that the High Court, the Investigatory Powers Tribunal, the Investigatory Powers Commissioner and the associated Special Advocates were misled by MI5. It also concluded that – once it had been determined that the evidence given to the Courts was incorrect – the subsequent investigations carried out suffered from serious procedural deficiencies. As such, the High Court ordered that a ‘further, robust and independent investigation’ should take place and recommended that this should be led by the Investigatory Powers Commissioner.
In its judgment of 30 July, the Investigatory Powers Tribunal agreed with the High Court’s conclusions and set out further specific issues on the provision of false evidence. The Tribunal requested these were answered via further investigation and again recommended this be taken forward by the Investigatory Powers Commissioner’s Office. Both Courts will use the outcome of this investigation to determine their next steps in relation to the case of Agent X.
Exercising the power conferred by sections 230 & 234(3) of the Investigatory Powers Act 2016, I have now issued a direction to the Commissioner to commence this investigation immediately. In accordance with my obligation to publish such directions under section 230 of the Investigatory Powers Act 2016, I am depositing a copy of the Direction and Terms of Reference in the Libraries of both Houses.
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Well.
There are two parts to this which render it extraordinary.
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First is the very finding that MI5 had misled not just a court, and not just a court and a tribunal, but also misled everyone involved.
That is not a finding which one expects to see made of a security service – and it certainly is not one which would be made lightly.
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But the second extraordinary thing is that the court and the tribunal did not merely accept the MI5-commissioned investigations that cleared those involved of any deliberate wrong-doing.
Indeed, a strong High Court bench – including no less than the Lady Chief Justice and the President of the King’s Bench Division – stated “the investigations were procedurally deficient and we cannot rely on their conclusions…the serious procedural deficiencies of the investigations”.
This was not going to be a court that that would simply nod along.
This was instead going to be a court that was going to actually check and balance the security service
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This was a huge step.
The High Court then “direct[ed] that a copy of this judgment be sent to the Secretary of State for the Home Department, who has Ministerial responsibility for MI5”.
But it was not the Home Secretary who was to give a statement to Parliament about this matter.
It was the Prime Minister himself:
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Who knows what will happen next. It may be that the independent investigation agrees with the MI5-commissioned investigations into what went wrong. It is an independent investigation, after all.
But the very fact that the court would openly find it had been misled by the security service and to then not automatically accept the assurances that there was no deliberate wrongdoing is extraordinary – and it is significant.
For it signifies that even in these dismal constitutional times, there are checks and balances in our constitutional arrangements and that those checks and balances do operate.
Often the lot of a constitutional law blog is to set out when a constitution is not working, but from time to time it is good to set out when it does.
We don’t always have to brace, brace.
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“As regards what is strictly the security service – that is the Home Security Service – they are under the Home Secretary; obviously the right place, for they are very close to the internal police. They try with the police to guard us against spies and espionage and all the rest. But all the same, the Prime Minister has an overriding, and indeed a special responsibility to see that they work effectively. And for this reason- and this is a remarkable fact – the head of the Security Service, unlike that head of any other department, but like, of course, the Chiefs of the Staff, has direct access to the Prime Minister. Now, I explained all this in Parliament on many occasions, notably on June the 13th, 1961- more than two years ago – and again in June, the 23rd, and there’s really no mystery about it at all. As for the reason why the Home Secretary has not answered, it’s been the practice for the Prime Minister to answer on any matters of real importance, for the reasons that I have given.”
Extract from a transcript of a telephone interview for the BBC Home Service with Harold Macmillan by Peter Hardiman Scott, 26th September 1963.
The interview concerned the recently published Denning Report on the Profumo Affair.
Are you sure this is about the Chinese spying case. The mention of “Agent X” in the PM’s statement suggests it’s about a quite different case – “violence inflicted by an MI5 agent on his girlfriend”
https://www.bbc.co.uk/news/live/cn8z78vjkn1t
I did not say it was about the Chinese Spying case – and so your “are you sure” query falls away. It is not about that case, as far as I know.
What I did say is that the PM’s statement was linked to in JR’s blogpost, to which I linked. I would suggest you read the post above again and click on the link, and you will then be less confused.
I wonder if this excellent piece of news will make any of the papers. I doubt it.
I think I would still recommend bracing. One bit of good news in a hurricane of bad news.
There is a certain delicious irony in that the decision to prosecute Cash and Berry must surely have been partly based on an assumption that their prosecution would not prove embarrassing to MI5 or the Government.
Moreover, burning them so publicly suggests that no one thought they were of any value as assets to the intelligence community or that their exposure to the world would harm MI5’s operations going forward or compromise its agents and informers.
What does this sordid tale tell us about the internal management of MI5? Quis Custodiet etc.
Who thought it would be worthwhile from a cost and from a moral perspective to run a girlfriend bashing machete wielding right wing informant. Very unpleasant I’m sure but did this person consort with some secret cabal liable to bring down the government and economy.
The cost. Estimates vary but MI5 costs the thick end of £1M per stated member of staff. No doubt misleading but was this worthwhile?
Then the presentation of false evidence to a court. Just what was the management structure that thought this was likely to remain under the rug. At the very best we might (just) send some minor functionary down for a minor perjury offence. Not likely to happen and the real offence is in the management structure surrounding this sad tale. In a normal organisation the whole team would be slung out. Poor judgement hardly covers it.
This all has echos of some almost forgotten police persons begetting children with highly undangerous female protesters. And I don’t recall any being slung out over that either. Quis Custotiet.
Sweep it under the rug, again.
Thank you for the commentary, I found it informative. Is one inference that a ‘weaker’ judicial bench may have looked the other way? Would love to learn about any safeguards here to ensure the constitution prevails…
No – the inference should be that a strong bench means a judgment is unlikely to be reversed on appeal and more likely to be influential in other cases.