Security Service Act 1989

– Why was it introduced (political sociological context)?

The Security Service Act 1989 relates to the Security Service, more commonly known as MI5 (Military Intelligence, Section 5). Obviously, MI5 had been functioning for a long time prior to the promulgation of the act. To be precise, it can trace its lineage to its existence as a part of the Secret Service Bureau all the way in 1909. This department’s focus has shifted variously over the years, starting as a service dedicated to gathering information on Imperial Germany (including and perhaps particularly, its Navy), to a service focused on Nazi Germany and broader fascist targets before and during World War II and finally to a service focused on Communist activity from near the end of World War II until the fall of communism (approximately in 1989). The modern focus of MI5 is arguably split between counter intelligence and counter terrorism work. Since 1914, MI5 has been singularly focused on counter intelligence work (which is to say, defending the realm from the activity of foreign intelligence agencies – for instance, foiling assassinations, sabotage and similar). Up until Security Service Act 1989, MI5 was not on any statutory footing.  The act itself was not particularly detailed and mostly aimed to rectify that situation. The context of this decision was the collapse of the Soviet Union and general fall of communism (at least in its main cradle of Eastern Europe) and the subsequent end of the Cold War. Providing more transparency around Britain’s intelligence community was, as a result, a more palatable option. It took some more years until 1994, before the Secret Intelligence Service (known popularly as Military Intelligence, Section 6 or MI6) and the Government Communication Headquarters (GCHQ) were also placed on a statutory footing in the same way, through the Intelligence Services Act 1994.

– What was the aim of the Act (legal context)?

The aim of the act was to place the MI5 on a firm legal (that is to say, statutory) footing for the first time in its history. This would allow, for instance, for its operation to be more transparent and accountable since the act provided a framework for its existence and operations.  For instance, Section 1 of the Act defined, in the following way, the activity and remit of MI5:

“(1)There shall continue to be a Security Service (in this Act referred to as “the Service”) under the authority of the Secretary of State.

(2)The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.

(3)It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands.

[F1(4)It shall also be the function of the Service to act in support of the activities of police forces [F2, the [F3National Crime Agency]] and other law enforcement agencies in the prevention and detection of serious crime.]” (Security Service Act 1989, s.1(1)-(4))

– What main changes did it make to the law?

Perhaps the main change brought in by the Security Service Act 1989 was a significant increase in accountability for the activity of MI5 provided through the increased transparency and clear framework for its operation. The Act imposes on MI5 an accountability framework which involves ministerial oversight; for example, after the introduction of the Act it became necessary for MI5 to obtain warrants for any activities which could require them to interfere with property. Further, the act set up a degree of civil rights scrutiny of the activities of MI5, particularly through the Security Service Commissioner (now known as the Intelligence Service Commissioner) and Security Service Tribunal (which has now been overtaken by the Investigatory Powers Tribunal, pursuant to the Regulation of Investigatory Powers Act 2000). While it is felt by MI5 itself that being placed on a statutory footing has made it easier for the agency to reveal more of its activity to the public, this has arguably had another (related) effect – placing the MI5 under a clear statutory framework, with procedures for the exercise of its powers, as well as for oversight by the government, is something which opened the door for legal implications. Specifically, it has arguably made it easier to challenge the activity of Mi5 in court (if it violates this statutory framework) or to start an action against the government  (for instance on human rights grounds) for the activity of MI5, which could be made easier if the so established oversight functions have not been properly carried out.