James Bond clause let spies break laws

‘‘We want to know if it’s government policy to let MI5 agents get away with serious crimes such as torture and murder.’’

MI5’s agents and informants have been secretly authorised to carry out crime within the UK without proper scrutiny for the best part of three decades, a court was told yesterday.

The ‘‘secret and concealed’’ policy would potentially allow the Security Service to authorise participation in ‘‘murder, torture, sexual assault or other grave criminality’’ if it believed it was in the public interest, it was claimed.

The criminal authorisation was acknowledged for the first time in a British court when an alliance of human rights groups argued that it was unlawful.

It could potentially breach fundamental human rights such as the ban on using torture, the alliance claimed.

Ben Jaffey, QC, for the alliance, told the Investigatory Powers Tribunal, which oversees the work of spy agencies: ‘‘This is a case where the agencies are able to self-grant themselves a practical immunity from the criminal law.’’

The policy was publicly acknowledged for the first time in March when Theresa May published a previously secret order governing criminal activity by the security service.

When judicial oversight of the policy was introduced in 2012, it was kept secret. David Cameron, then prime minister, told the oversight judge at the time that he could not comment on the legality of the policy.

The order, which was renewed and signed off by Prime Minister May last year, allows MI5 handlers to authorise agents to commit crime while providing intelligence to help the agency’s investigations into terrorism and espionage.

The so-called James Bond clause, section 7 of the Intelligence Services Act 1994, allows the foreign secretary to authorise MI6 or GCHQ to carry out criminal acts outside Britain. However, criminality within Britain had not previously been revealed.

Fresh details of the policy emerged at yesterday’s hearing in a case brought by two London-based organisations, Reprieve and Privacy International, and two in Northern Ireland, the Pat Finucane Centre and the Committee on the Administration of Justice.

Maya Foa, director of Reprieve, said after the hearing: ‘‘We want to know if it’s government policy to let MI5 agents get away with Maya Foa, director of Reprieve serious crimes such as torture and murder.

‘‘ While our intelligence agencies have an important role in keeping this country safe, it does not follow that agents can be permitted to break the law without any limits.

‘‘If this is indeed the government’s position it must inform MPs and the public, and open the policy to legal and parliamentary scrutiny.’’

Jaffey told the tribunal that the policy had existed in ‘‘one way or the other’’ since the 1990s.

Although it was not raised in court it is likely that the criminal policy was brought into force when MI5 officers were handling agents during the Troubles.

The official guidelines on the use of agents who participate in criminality state that there is no immunity from prosecution.

However, Jaffey said that the policy operated in such secrecy that police and prosecutors were not told about it and would not find out about any details of the crimes committed.

He said that the policy was so secret that there was no judicial oversight until 2012 when Sir Mark Waller, then the intelligence services commissioner, became involved.

In a letter dated November 27 2012 Mr Cameron told him that his ‘‘oversight would not provide endorsement of the legality of the policy’’.

The government has provided a heavily redacted version of the guidelines for the intelligence policy in which the parameters and the circumstances around which crimes are permitted are blacked out.

According to legal papers lodged by Jaffey, the issue is of public importance because ‘‘in the past the authorisation of participation in criminality by agents may have led to grave breaches in fundamental human rights’’.

They may have included the 1989 shooting of Pat Finucane, a British and Irish human rights lawyer killed by loyalist paramilitaries. Cameron wrote to Sir Mark one month before he told parliament that there was ‘‘state collusion’’ in the murder.

The intelligence agencies, Home Office and Foreign Office argue that details of the policy cannot be publicly aired for reasons of national security.

The hearing went into closed session before the panel of judges, headed by Lord Justice Singh, ordered further disclosure from MI5. – The Times