QB-2022-000174 - [2025] EWHC 1669 (KB)

Whether MI5 had confirmed X’s CHIS status mattered for four reasons.

First, it was relevant to the substance of the claim for an injunction. The cause of action relied upon was breach of confidence. It was relevant to the establishment of that cause of action if the information which the BBC wished to broadcast had been communicated to it by MI5. If that had been stated, the court might have wished to consider whether the terms in which the confirmation was given undermined any obligation of confidence. As we have said, the BBC has not asked for the injunction preventing the disclosure of X’s identity to be discharged. But that is known only with the benefit of hindsight.

Secondly, it was relevant to the application for a declaration under s. 6 of the 2013 Act. The notes of the CLOSED argument show that Chamberlain J regarded it as such. He was persuaded to make a s. 6 declaration on the strength, amongst other things, of MI5’s evidence that X’s CHIS status had been maintained throughout and it was vital to maintain that stance. Decisions about what material should be withheld from the BBC and their legal representatives were also made on the basis that X’s CHIS status had not been confirmed to them. The recent flurry of disclosure of previously CLOSED material into OPEN, following the concession that MI5 can no longer maintain NCND, demonstrates how much the point mattered to the location of the OPEN/CLOSED divide.

Thirdly, it was also relevant to the Attorney General’s application that even those parts of the hearing that were being held in the presence of the BBC and its legal representatives should be held in private. As noted above, the application was rejected for other reasons. But from the perspective of MI5 at the relevant time, if there had been a departure from NCND in this case, particularly an authorised one, that made it materially less likely that the court would accede to the application for a private hearing.

Fourthly, the question whether MI5 had departed from NCND in this case was relevant more broadly to the stance generally adopted by it and the other security and intelligence agencies (among others) in legal proceedings. As shown by the excerpt cited above from the IPT decision in Frank-Steiner, the “invariable” application of the NCND stance is said to be central to its effectiveness. Disclosure of an authorised departure from NCND—particularly one as extensive as it is now known took place in this case—would be relevant to the ability of MI5 and others to adopt such a stance in proceedings in the future.