Podcast: License to Kill
Section 7. That doesn’t conjure up much at all. The Intelligence and Security Act sounds dull too. Actually, that is not the correct name of the act. What concerns us here is the Intelligence Services Act (ISA) of 1994. Buried deep within are a number of sections, as with all such acts. Section 7 is very special indeed. You can read the whole act here. It is quite short.
In fact, the act is more famous because it marked the occasion when MI6, Britain’s Secret Intelligence Service, was formally recognised. Incredible though it may seem, the organisation did not officially exist prior to 1994. Some say that it was the EU that forced the spies out from the cold, but this seems at best coincidental. The spies were forced out from the cold by themselves: they were busy building one of the most gregarious and least secret architectural monstrosities in the whole of these islands. The new MI6 HQ at Vauxhall Cross has since featured prominently in more than one James Bond film.
So if the de-classifying of MI6, GCHQ and their masters is the lasting legacy of that 1994 act of parliament, why all the fuss about Section 7?
Section 7 permits the serving Secretary of State to allow agents of MI6 to break foreign laws overseas. In other words, in specific cases for which a rationale has been developed and written down, it removes the risk of UK prosecutions against activities outside the UK. Of course, such actions can be punished by the local law enforcement organisations. But it removes the risk of reprisal at home.
This is a particularly important time for Section 7. Take a look at this January 2017 Guardian article. It refers to an ongoing case that is due to be heard by the UK Supreme Court. In particular, it relates to a decision taken many years ago not to seek prosecution of an MI6 senior official called Sir Mark Allen. Although they case is highly unlikely to change earlier legal decisions, it is being brought by two alleged Libyan victims of extraordinary rendition by the British authorities. They were Abdul Hakim Belhaj and his wife. It is highly likely, though as far as I can tell, not proven or admitted, that Sir Mark Allen’s activities are the subject of a Section 7 exemption.
Part of my reason for this belief is that then Foreign Secretary Jack Straw is named in the legal actions. He would have signed the Section 7 orders, if they exist. The people bringing the current case are the victims of CIA torture, which (they claim) was facilitated by MI6 in the person of Sir Mark Allen. They have foregone a financial settlement likely to be several million pounds to have their case heard. If you doubt the sums of money involved, then look at the £2.2 million paid to a man, his wife and four children. The man was named as Sami al-Saadi. They were abducted around the same time as Belhaj, and both men were locked up for six years.
This is dramatic stuff. It has, of course, always been presumed that MI6 agents abroad broke foreign laws, perhaps routinely so. What the 1994 ISA does is formally bring these powers into a legal framework for the first time. Because MI6 began life as a Military Intelligence (MI) outfit, it has always been presumed that its officers and agents are able to perform some of the kinds of activities as other military people, including assassination. Or murder, call it what you will.
Which brings us to License to Kill. As you probably know, there is no such license in Britain. It is a fiction created by Ian Fleming. But in the immediate postwar climate, perhaps leading up to the middle 1960s, those involved in intelligence have made it pretty clear that the British did kill the odd foreign agent. This was the Kim Philby era, and the death penalty was still in force in the UK, never mind the US. Killing the odd foreigner wasn’t particularly seen in the light it would be today. Contrast our own principled position on this with the current Russian regime. They have been implicated in several assassinations abroad, not least in the killing by Polonium poisoning of Alexander Litvinenko on the streets of London.
Almost all states which we consider ‘enemies’ still kill at home and abroad. Although we like to consider ourselves above and beyond such gutter activities, the 1994 ISA does leave open the possibility that a future Secretary of State will sanction a British citizen to kill a nasty chap abroad. It is not as sexy as a License to Kill, but the ISA provides the legal framework for such a killing that is beyond the reach of the European Court system, particularly so as Britain prepares to leave the EU.