Statement from the Investigatory Powers Commissioner’s Office (IPCO) RE: His Majesty’s Attorney General v BBC and R (on the application of Beth) v the Investigatory Powers Tribunal [2025] EWHC 1669 (KB)

In today’s judgment in His Majesty’s Attorney General v BBC and R (on the application of Beth) v the Investigatory Powers Tribunal, the Divisional Court has concluded that a further investigation into ‘Agent X’ is required. The Court has recommended that this be conducted under the auspices of the Investigatory Powers Commissioner. We anticipate that Ministers may make statements in connection with the judgment and do not wish to pre-empt those statements, or any direction from the Prime Minister which may follow.     

The remainder of this statement on behalf of the Investigatory Powers Commissioner, Sir Brian Leveson, seeks to clarify our role to date and provide necessary facts. IPCO routinely and regularly conducts inspections of MI5’s use of CHIS. Prior to an inspection, MI5 provides IPCO with a complete list of CHIS authorised during the relevant inspection period and can bring to the attention of IPCO any issues that may require consideration, and in addition IPCO selects cases for inspection. Prior to January 2022, IPCO had not reviewed the Agent X case.  

The chronology of IPCO’s oversight of this case is as follows:  

1. In January 2022, MI5 wrote to IPCO about the BBC’s interest in ‘Agent X’; it stated that the BBC was seeking to disclose Agent X’s role as an MI5 CHIS publicly, and shared a summary of allegations made by the BBC concerning Agent X and their role as a CHIS; MI5 also stated that they might seek an injunction to prevent the public disclosure.   
2. In May 2022, IPCO Inspectors conducted an initial review of the case and concluded that there were potential issues that were worthy of further investigation relating to compliance with MI5’s statutory obligations under the Regulation of Investigatory Powers Act 2000 and the CHIS Code of Practice (December 2018). 
3. In August 2022, IPCO Inspectors carried out a detailed inspection of the case as part of its statutory function to conduct independent oversight of public authorities in their exercise of investigatory powers.  
4. The inspection found several areas of non-compliance by MI5 in connection with the management of the case, and MI5’s obligations in relation to the safety and welfare of both the CHIS and those affected by the CHIS’s authorised conduct. Serious issues were noted in relation to the adequacy of MI5’s record keeping. In addition to these compliance issues, the Inspectors concluded – on the basis of the material they had reviewed – that Agent X’s status as a CHIS had been disclosed to the BBC.  
5. In line with normal practice, a draft copy of this report was shared with MI5 in February 2023 to allow ‘matters of fact’ to be checked for accuracy. During this process MI5 robustly asserted that, contrary to the conclusion of the IPCO Inspectors, MI5 had not deviated in respect of Agent X from the long-standing policy to Neither Confirm Nor Deny (NCND) the status or identity of a person as a CHIS.   
6. In December 2023, Sir Brian Leveson, the Investigatory Powers Commissioner, wrote to MI5 detailing why IPCO had come to this view and asking MI5 to supply IPCO with copies of any contemporaneous documentary evidence that they had to support their assertions. Such evidence had previously been orally requested at a meeting between IPCO and MI5 officials in April 2023. In response to Sir Brian Leveson’s letter, MI5 provided firm assurances to IPCO that they had not deviated from their NCND policy and, although they could not provide any contemporaneous material or records to support this assurance, they did provide copies of evidence prepared for the purpose of injunction proceedings against the BBC in the High Court.   
7. It is important to note that, from IPCO’s oversight perspective, whether or not Agent X’s status had been disclosed was not a material issue; either way, there should have been an unambiguous contemporaneous record of such an important decision and any associated actions taken and there was not. On the basis of the assertions to IPCO by MI5 and its evidence provided to the High Court (along with the fact that in his statement the reporter did not assert that the status of Agent X had been disclosed), IPCO removed its finding that MI5 had broken NCND from the inspection report. As a result of the lack of contemporaneous evidence, IPCO’s important findings of non-compliance regarding MI5’s failure to maintain accurate records were reinforced in the final report.  
8. In March 2024, Sir Brian Leveson wrote to the Director General of MI5 sharing a copy of the inspection report in line with normal IPCO oversight practices. MI5 has subsequently taken action to improve compliance at an organisational level, and this continues to be subject to close and robust scrutiny by IPCO.  
9. MI5’s view that its officers had not deviated from the long-standing NCND policy has subsequently been shown to be incorrect, and MI5 now accepts that a departure from NCND did occur, as originally concluded by the IPCO inspectors during their inspection. The Court has found that IPCO, along with the High Court, the Investigatory Powers Tribunal and the special advocates, were misled on this point. MI5 has apologised both to Sir Brian and the inspectors who conducted the original inspection.  
10. IPCO can also confirm that this matter relates to the historical MI5 CHIS case referred to in its 2022 and 2023 Annual Reports.  

Sir Brian Leveson, the Investigatory Powers Commissioner, said: “It is clear that MI5’s compliance with its statutory duties fell short in this case. In my inspection report of March 2024, I made recommendations to MI5 to improve their RIPA compliance, particularly around record keeping.  I have noted the Divisional Court’s finding that ‘a further, robust and independent investigation’ should be carried out and the recommendation that IPCO is the appropriate forum. I await direction from the Prime Minister as to any further investigation I am asked to undertake. Any such review will, of course, be undertaken in addition to my existing statutory oversight functions.”  

IPCO remain committed to providing robust oversight of the use of covert investigatory powers and operating with integrity and transparency.  

ENDS  

For media enquires please contact: 
Press Line: 0300 427 2730 | 07356 190877  

Email: IPCOpressoffice@ipco.org.uk  

Notes to Editors  

IPCO provides independent oversight of the use of investigatory powers by intelligence agencies, police forces and other public authorities. The Investigatory Powers Commissioner, Sir Brian Leveson, and his Judicial Commissioners are responsible for overseeing the use of investigatory powers by public authorities which include law enforcement, the intelligence agencies, prisons, local authorities and other government agencies (e.g. regulators). In total over 600 public authorities and institutions have investigatory powers. Further information about IPCO is here: www.ipco.org.uk/