Does new Bill give spies a licence to kill?

As the world awaits the (now-delayed until April) release of ‘No Time to Die’, Daniel Craig’s final outing as James Bond, a new Government Bill deemed by many as giving a real ‘licence to kill’ to Covert Human Intelligence Sources (CHIS) agents such as MI5 has attracted much media attention.

In its long title, The Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21,[1] is described as intending to “make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources”. For the first time, this will give spies legal protection to break the law.  Understandably, this has been met with some opposition. Having already had its first reading, which requires no debate, it is my hope that on its second reading on the 5^th October 2020; the House meets it with an appropriate level of scrutiny. Regardless, this Bill’s sponsor and Home Secretary – Priti Patel has stated[2] that, in her view, the Bill is compatible with the ECHR.[3]

The Government make a utilitarian argument to justify the Bill, saying any lawbreaking is to “prevent more serious criminality”.[4] Concurrently, MI5 cites the recently revealed foiled assassination attempt of Former Prime Minister Theresa May as giving a clear mandate for the Bill’s passage.[5] Using the language of the ECHR itself, MI5 insist the Bill will only apply where it is “necessary and proportionate”[6] but in that same breath refuse to comment on which crimes the Bill would allow – saying to do so could mean covert missions were “seriously frustrated”.[7] Hence why it has been branded a ‘licence to kill’ by many.

Last December, the High Court held that MI5 spies can kill without fear of prosecution if they can prove public interest[8] – meaning the Bill is possibly already lawful. Before that, in 2008 as part of the Diana, Princess of Wales Inquest, the former Head of MI6, Sir Richard Dearlove said that SIS (MI6) could only use force “likely to cause injury” if specially authorized to do so by the UK Secretary of State.[9] Dearlove also testified in the same inquest that he was unaware of anyone ever having been assassinated by MI6 during his tenure between 1999 and  2004.[10] Regardless, one does wonder if this new Bill gives protection for extra-judicial killings. Comments from the Judgement last December indicate to the contrary. They said the powers of the existing regime are “exercised with scrupulous care so as to discharge [MI5’s] essential functions in protecting national security, whilst giving proper regard to the human rights of persons who may be affected by the activities of agents.”[11]

Irrespective of that, as this Bill is the first time spies have been given legal authority to commit crimes it can be considered a milestone – SIS itself was not officially recognised until The Intelligence Services Act 1994.  [12]One does wonder how useful it will be – as Former Spy Matthew Dunn pointed out: a spy’s primary job is to violate the law in other countries, and if an agent is compromised, they are at the mercy of the authorities of that country – thus a ‘licence to kill’ is not required’.[13] Nevertheless, as this Bill comes law, it shall be fascinating to see its debate,  deployment by the Secret Service and its potential future legal challenges.  

 

References

[1] https://services.parliament.uk/Bills/2019-21/coverthumanintelligencesourcescriminalconduct.html

[2] As required by and done under section 19(1)(a) of the Human Rights Act 1998

[3] In the Bill

[4] https://www.gov.uk/government/publications/covert-human-intelligence-sources-draft-code-of-practice/covert-human-intelligence-sources-bill-factsheet-accessible-version

[5] https://www.heraldscotland.com/news/18745372.issue-day-spies-licence-kill/

[6] https://www.mi5.gov.uk/law-and-governance

[7] https://www.heraldscotland.com/news/18745372.issue-day-spies-licence-kill/

[8] https://www.telegraph.co.uk/news/2019/12/20/mi5-spies-can-kill-without-fear-prosecution-can-prove-public/

[9] https://webarchive.nationalarchives.gov.uk/20080521150227/http://www.scottbaker-inquests.gov.uk/hearing_transcripts/200208am.htm

[10] https://webarchive.nationalarchives.gov.uk/20080521150227/http://www.scottbaker-inquests.gov.uk/hearing_transcripts/200208am.htm

[11] Comments from the Investigatory Powers Tribunal (December 2019)

[12] The Intelligence Services Act 1994

[13] http://www.foxnews.com/opinion/2012/10/05/real-life-james-bond-never-got-girl-or-gadgets/?intcmp=features