MI5 does have licence to kill

Tribunal backs power that lets agents and informants commit major crime

‘Protect public from terror’

BRITISH secret agents really do have a licence to kill – and their informants can be allowed to commit other serious crimes, a tribunal has ruled.

MI5 can lawfully authorise acts such as kidnap and torture to protect citizens.

The Investigatory Powers Tribunal (IPT) ruled in favour of the Government after four human rights groups claimed MI5’s policy ‘purports to permit agents to participate in crime’.

A judge said terror attacks in London in 2017 and the Manchester Arena bombing in the same year ‘underline the need’ for the policy.

In the legal action against Britain’s domestic counterintelligence agency, the human rights groups had argued it effectively ‘immunises criminal conduct from prosecution’.

The tribunal said MI5 could still be prosecuted if it went too far, stating it did not have ‘any power to confer immunity from liability under either the criminal law or the civil law’.

Campaigners say they will appeal against the ‘knife-edge’ 3- 2 majority ruling. Privacy International, Reprieve, the Committee on the Administration of Justice and the Pat Finucane Centre asked the IPT to declare the policy unlawful and grant an injunction ‘restraining further unlawful conduct’.

But IPT president Lord Justice Singh said yesterday: ‘This case raises one of the most profound issues which can face a democratic society governed by the rule of law.

‘The events of recent years, for example in Manchester and London in 2017, serve vividly to underline the need for such intelligence- gathering and other activities to protect the public from terrorist threats.’

The judgment said MI5 had ‘an implied power’ under the Security Service Act 1989.

That includes the ‘ licence to kill’, a power wielded by James Bond, the fictional MI6 agent created by author Ian Fleming.

Lord Justice Singh added that preventing MI5 embedding an informant in a banned terror group because they would be committing a criminal offence ‘would strike at the core activities of the Security Service’.

The judge said it was ‘essential to run an agent in a proscribed organisation... for the gathering of intelligence, but also for disrupting the activities of such organisations’.

But Professor Graham Zellick QC said in his dissenting judgment that ‘the power may well be... desirable, even essential’, however, accepting the Government’s arguments ‘would open the door to the lawful exercise of other powers of which we have no notice or notion, creating a potential for abuse’.

He said an authorisation to participate in criminality was ‘in itself intrinsically unlawful’.

Charles Flint QC, the second dissenting judge, said: ‘I entirely accept the operational necessity for the service to run agents who may need to participate in serious criminal activity.’ But he added that the Security Service Act 1989 did not give a legal basis for such a policy.

Maya Foa, director of Reprieve, said: ‘Our security services play a vital role in keeping this country safe. But history has shown the need for proper oversight and limits on what agents can do in the public’s name.’

Ben Jaffey QC, representing the human rights groups, previously highlighted the 1989 murder of Belfast solicitor Pat Finucane, which was later found to have involved State collusion.