In Depth

Debate: should British spies be given a ‘licence to kill’?

Government to push through law offering protections to secret agents

Spies working on behalf of the British government may effectively be granted a “licence to kill” under new laws expected to be unveiled this week, according to reports.

Fresh legislation will grant MI5 - among other security branches - the power to sanction its agents to carry out “necessary and proportionate” crimes in the line of duty, The Telegraph says.

Although how far the protection extends will not be known until the legislation is laid before Parliament, an intelligence source told the newspaper there would be “no limit on the type” of offences that an agent could commit.

So should the UK’s supersleuths be granted life or death powers?

‘A view to kill’: the case for the new law  

The latest reports come amid “an ongoing battle over the legal limits of what agents in the Security Service are permitted to do during covert operations”, The Sun reports

The High Court ruled in December that spies operating on behalf of MI5 can kill in the line of duty without being prosecuted if they are able to persuade authorities that it was done in the public interest. 

In the 3-2 majority ruling, Lord Justice Singh of the Investigatory Powers Tribunal said the spy agency has “an implied power” under the Security Service Act 1989 to engage in criminal activity.

James Eadie QC, representing the government, had argued that it would be “impossible” for MI5 to operate without covert sources going undercover in terrorist or other extremist groups, the Daily Mail reports. As the paper notes, maintaining their cover could require agents to “commit murder, kidnap, torture or carry out other serious and violent crimes”.

The tribunal agreed that banning MI5 from operating agents in criminal organisations “would strike at the core activities of the Security Service”. A Home Office spokesperson added that the “use of covert agents” was “an essential tool for MI5 as it carries out its job of keeping the country safe”.

The government now “wants to ensure the implied power is turned into the legal protection the security service says it needs for undercover missions”, according to the Daily Star.

The Telegraph reports that new legislation will “create a legal framework to authorise crime by agents acting on behalf of a variety of public organisations which conduct covert investigations”, effectively bypassing the need for further court cases. 

Downing Street is also aiming to “help bring all public authorities which make use of undercover sources under the same statutory framework”, the paper adds.

‘Die another day’: the case against the powers  

These sorts of protections have been the subject of fierce debate for decades in the UK.

In the wake of the High Court ruling last year, campaign groups including Privacy International, Reprieve, the Committee on the Administration of Justice and the Pat Finucane Centre said the decision “went against British law and the European Convention on Human Rights”, The National reports.

Maya Foa, director of legal charity Reprieve, pointed out that one of the Investigatory Powers Tribunal judges had said the case set “a dangerous precedent”.

“Our security services play a vital role in keeping this country safe, but history has shown us time and again the need for proper oversight and common sense limits on what agents can do in the public’s name,” said Foa.

Delivering the divided ruling, Lord Justice Singh also sounded a note of warning. The existing protections do “not mean that [MI5] has any power to confer immunity from liability under either the criminal law or the civil law… on either its own officers or on agents handled by them”. 

Spies working for MI6 - Britain’s foreign intelligence service - are also protected under Section 7 of the Intelligence Services Act 1994, which offers immunity to agents involved in bugging, bribery, murder, kidnap and torture as long as their actions have been authorised in writing by a secretary of state.

That protection - which is likely to be extended by the expected new legislation - came under “intense scrutiny” during a Scotland Yard investigation launched in 2012 into secret rendition operations that MI6 ran in cooperation with Muammar Gaddafi’s regime in 2004, according to The Guardian.

When asked which offences might be covered by the new law, a source told The Telegraph that “all covert human intelligence complies with [the European Convention on Human Rights] and is necessary and proportionate”.

MI5 has previously refused to say which crimes could be committed under its internal guidelines, known as the “third direction”, claiming that to do so could mean undercover operations were “seriously frustrated”.

But the paper warns that this silence will add to human rights groups’ fears that “the policy may be used to authorise offences as serious as killing on British soil”.

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