Britain’s policy of allowing secret intelligence officials to use lethal force has survived a legal challenge.
A judicial panel ruled that agents can lawfully take a life in execution of their duties to thwart threats to national security. The legal threshold should be the action is in the public interest.
The five judges in the Investigatory Powers Tribunal (IPT) issued the ruling on Friday but there was unprecedented dissent with two out of five saying there was no legal basis for the domestic intelligence Security Service, known as MI5, to act without legal constraint.
The IPT hears complaints about surveillance by public bodies, including intelligence services.
"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 in order to protect the public from serious terrorist threats,” the IPT said in its ruling.
In the tribunal, the government argued that it would be possible for the intelligence agency to operate, gather intelligence and prevent terrorist attacks without licence. While the courts judged the domestic security service, an exaggerated version of the powers entered the popular imagination in the James Bond films, where the Secret Intelligence Service agent has a ‘licence to kill’.
The judges reiterated that British spies don’t have immunity from prosecution. "It is important to appreciate that this does not mean that it 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," the IPT said.
The Security Services Act passed in 1989 after European judges ruled that the continent’s intelligence agencies must have a statutory basis. Although MI5 has been operating since 1909, UK governments had denied its existence before the act passed.
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.
Reprieve pointed out that one judge said that 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,” Maya Foa, a Reprieve director said.
The human rights groups said they would appeal against the ruling.
Commenting on the ruling, Daniel Holder, deputy director of the Committee on the Administration of Justice, said: “This close ruling is far from the end of the matter.”