Law and Rights
It has been suggested in some comments on social media and elsewhere that authorisations under the Intelligence Services Act 1994 section 7 were issued in connection with the air strike against the individuals killed in Iraq - Previous Post 9th September 2015.
For reasons of national security minimal information about this engagement has been released by the government and we will not be informed whether section 7 came into play or not. The Prime Minister's statement to Parliament informs us that the strike was conducted by the Royal Air Force. The Attorney-General advised the government; the threat was identified by the Intelligence Service; the National Security Council met and the Defence Secretary authorised the action. In this context, the Prime Minister's use of the word "authorised" seems to simply mean that the Defence Secretary gave the go ahead to it as a military operation.
Section 7(1):
(1) If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British Islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section.
(2) In subsection (1) above ?liable in the United Kingdom ? means liable under the criminal or civil law of any part of the United Kingdom.
Discussion:
A first point to note is that acts authorised under section 7 will not attract criminal or civil liability in the U.K. Section 7 is limited to acts outside the British Islands which are necessary for the proper discharge of a function of the Intelligence Service or GCHQ. The Act is silent as to who the individuals carrying out such acts might actually be.
However reassuring that might be, it does not alter the point that the Act lacks limitations on the activities that could take place under a section 7 authorisation. The Commissioner's report has the effect of highlighting the point that, apart from his oversight of the Intelligence Services, any control is primarily political and the Secretary of State is accountable to Parliament and to the Intelligence and Security Committee.
Further:
The Intelligence Services Commissioner website gives more information about section 7 authorisations.
2013 report of the Intelligence Services Commissioner.
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Law and Rights
Intelligence Services Act section 7
For reasons of national security minimal information about this engagement has been released by the government and we will not be informed whether section 7 came into play or not. The Prime Minister's statement to Parliament informs us that the strike was conducted by the Royal Air Force. The Attorney-General advised the government; the threat was identified by the Intelligence Service; the National Security Council met and the Defence Secretary authorised the action. In this context, the Prime Minister's use of the word "authorised" seems to simply mean that the Defence Secretary gave the go ahead to it as a military operation.
Section 7(1):
(1) If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British Islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section.
(2) In subsection (1) above ?liable in the United Kingdom ? means liable under the criminal or civil law of any part of the United Kingdom.
Section 7(3) makes it clear that the Secretary of State may only give an authorisation for acts necessary for the proper discharge of a function of the Intelligence Service or GCHQ. The functions of the Secret Intelligence Service are set out in section 1 and, for GCHQ, in section 3.
Section 1 - SIS function:
"There shall continue to be a Secret Intelligence Service (in this Act referred to as ?the Intelligence Service ?) under the authority of the Secretary of State; and, subject to subsection (2) below, its functions shall be?
(a) to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and
(b) to perform other tasks relating to the actions or intentions of such persons. (Colour added).
(2) The functions of the Intelligence Service shall be exercisable only?
(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty?s Government in the United Kingdom; or
(b) in the interests of the economic well-being of the United Kingdom; or
(c) in support of the prevention or detection of serious crime.
(a) to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and
(b) to perform other tasks relating to the actions or intentions of such persons. (Colour added).
(2) The functions of the Intelligence Service shall be exercisable only?
(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty?s Government in the United Kingdom; or
(b) in the interests of the economic well-being of the United Kingdom; or
(c) in support of the prevention or detection of serious crime.
Discussion:
A first point to note is that acts authorised under section 7 will not attract criminal or civil liability in the U.K. Section 7 is limited to acts outside the British Islands which are necessary for the proper discharge of a function of the Intelligence Service or GCHQ. The Act is silent as to who the individuals carrying out such acts might actually be.
Section 1(b) is vague. Just what "other tasks" relating to the actions or intentions of persons may be performed?
We know from the Secret Intelligence Service (SIS) website that they mount covert operations overseas in support of British government objectives. Just what such covert operations entail and the exact personnel who conduct them are, of course, secret matters! It is easy to imagine all sorts of activities under the banner of "other tasks relating to the actions or intentions of such persons." As an extreme example, if government believed that X (who is abroad) intends to carry out an attack on a target in London then to kill X could be regarded as a task related to X's intentions.
The Intelligence Services Commissioner report for 2014 notes (page 23) that some non-governmental organisations have expressed concerns about the broad nature of section 7 authorisations and the fear that they may be used to permit SIS or GCHQ to commit serious offences. The Commissioner asserts that "this is not the case" because (a) the government (and not the SIS/GCHQ) decides the necessity of the intelligence required, (b) the Foreign Secretary decides if a proposed operation is both necessary and reasonable and (c) "SIS staff have no desire to operate unlawfully."
The Intelligence Services Commissioner report for 2014 notes (page 23) that some non-governmental organisations have expressed concerns about the broad nature of section 7 authorisations and the fear that they may be used to permit SIS or GCHQ to commit serious offences. The Commissioner asserts that "this is not the case" because (a) the government (and not the SIS/GCHQ) decides the necessity of the intelligence required, (b) the Foreign Secretary decides if a proposed operation is both necessary and reasonable and (c) "SIS staff have no desire to operate unlawfully."
However reassuring that might be, it does not alter the point that the Act lacks limitations on the activities that could take place under a section 7 authorisation. The Commissioner's report has the effect of highlighting the point that, apart from his oversight of the Intelligence Services, any control is primarily political and the Secretary of State is accountable to Parliament and to the Intelligence and Security Committee.
Further:
The Intelligence Services Commissioner website gives more information about section 7 authorisations.
2013 report of the Intelligence Services Commissioner.
- The Truth, The Whole Truth And Nothing But The Truth
The Torturer has long been regarded as the enemy of mankind (Hostis humani generis). Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor...
- Terrorism ~ Report On The Murder Of Fusilier Lee Rigby
The need for legislation to give Ministers more anti-terrorism powers was announced earlier this month - Further anti-terrorism powers (15th November). The new Anti-terrorism and Security Bill is to be presented to Parliament on Wednesday 26th November. ...
- The Justice And Security Green Paper: Part 3 - Oversight
UPDATED - see links at the end Cabinet Office - Justice and Security. See also Part 1 (The government's case) of this series and Part 2 (Proposals and Consultation). Chapter 3 of the Green paper considers oversight of the services and how...
- The Official Secrets Acts 1911-1989: Blunderbusses And Armalites
The first Official Secrets Act was enacted in 1889. This was replaced by the Official Secrets Act 1911. The background to this is explained very well on the BBC Radio programme "Secret Britain" (43 minutes) - "One Hundred Years of Secrecy."...
- The Al Rawi Case Settlement: Security And The Justice System
The government has now entered into a mediated settlement of litigation which alleged British complicity in torture and abuse. The government hopes that the settlement will "draw a line under" the matter - see The Guardian 16th November 2010. ...