The allegedly amputated arm of the law
February 15, 2012 6:45 AM Subscribe
MI6 intends to use the 1994 Intelligence Services Act to deny all application of UK law to extraordinary rendition. The case in question revolves around the forcible extradition of several Libyan dissidents back to Gaddafi's Libya and entirely predictable torture, including a pregnant woman. s.7 of the Act states that any intelligence agency action authorised on foreign soil by a Secretary of State is automatically exempt from legal action in any UK court. This could be said to conflict in some ways with the Human Rights Act 1998 and international law, especially since the HRA may be held to have implicitly repealed s.7 of the 1994 Act.
Intelligence Services Act 1994 s.7:
"(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."
Subsection 3 is too long to quote in full here, but contains important restrictions on when permission and the resultant exemptions can be given, but provides for the following limit:
"(a)that any acts which may be done in reliance on the authorisation or, as the case may be, the operation in the course of which the acts may be done will be necessary for the proper discharge of a function of the Intelligence Service"
Human Rights Act 1998:
-S. 6(1-2) makes it unlawful for a public authority to act in a way which is incompatible with convention rights:
"(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."- S. 7(1) allows a person who claims that a public authority has acted unlawfully, to bring proceedings against the authority.
"(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act."
Intelligence Services Act 1994 s.7:
"(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."
Subsection 3 is too long to quote in full here, but contains important restrictions on when permission and the resultant exemptions can be given, but provides for the following limit:
"(a)that any acts which may be done in reliance on the authorisation or, as the case may be, the operation in the course of which the acts may be done will be necessary for the proper discharge of a function of the Intelligence Service"
Human Rights Act 1998:
-S. 6(1-2) makes it unlawful for a public authority to act in a way which is incompatible with convention rights:
"(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if—
(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."- S. 7(1) allows a person who claims that a public authority has acted unlawfully, to bring proceedings against the authority.
"(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act."
Well, that is what the act is for.
posted by atrazine at 6:56 AM on February 15, 2012 [1 favorite]
posted by atrazine at 6:56 AM on February 15, 2012 [1 favorite]
I'm confused. So, MIA wants to protect dissidents from torture in their homeland - yay! - but the Human Rights Convention forbids them from doing so?
posted by IAmBroom at 7:02 AM on February 15, 2012
posted by IAmBroom at 7:02 AM on February 15, 2012
When they said "Licence to Kill", they really meant "Licence to Kill".
posted by Skeptic at 7:02 AM on February 15, 2012
posted by Skeptic at 7:02 AM on February 15, 2012
Nope. They rendered dissidents back to Libya for torture and are currently attempting to keep that out of court.
posted by jaduncan at 7:03 AM on February 15, 2012 [4 favorites]
posted by jaduncan at 7:03 AM on February 15, 2012 [4 favorites]
"Implicitly repealed"? Is that like, "ignored, and what are you gonna do about it"?
posted by LogicalDash at 7:04 AM on February 15, 2012
posted by LogicalDash at 7:04 AM on February 15, 2012
Implied repeal would mean that any act that was made before the Human Rights Act (1998) that conflicted with it would have those clauses repealed (effectively those clauses are invalidated).
Hence the dubiousness of relying on a 1994 Act.
posted by jaduncan at 7:07 AM on February 15, 2012 [1 favorite]
Hence the dubiousness of relying on a 1994 Act.
posted by jaduncan at 7:07 AM on February 15, 2012 [1 favorite]
"Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful." Anacharsis.
posted by lalochezia at 7:15 AM on February 15, 2012 [4 favorites]
posted by lalochezia at 7:15 AM on February 15, 2012 [4 favorites]
I'm confused.
That's the least that could be said.
So, MIA wants to protect dissidents from torture in their homeland - yay! - but the Human Rights Convention forbids them from doing so?
MIA? Apart from Tamil dissidents, I don't think she cares.
MI6, on the other hand, sent dissidents to the tender care of Gaddafi's goons. Apart from the fact that some of those dissidents are now in positions of power (awkward!), it is now slightly concerned that they may be dragged to court under the Human Rights Act.
Don't worry, though, the Tories (supported by all the usual suspects) intend to have it repealed.
Some supporters of the repeal may be getting second thoughts, though.
posted by Skeptic at 7:15 AM on February 15, 2012 [1 favorite]
That's the least that could be said.
So, MIA wants to protect dissidents from torture in their homeland - yay! - but the Human Rights Convention forbids them from doing so?
MIA? Apart from Tamil dissidents, I don't think she cares.
MI6, on the other hand, sent dissidents to the tender care of Gaddafi's goons. Apart from the fact that some of those dissidents are now in positions of power (awkward!), it is now slightly concerned that they may be dragged to court under the Human Rights Act.
Don't worry, though, the Tories (supported by all the usual suspects) intend to have it repealed.
Some supporters of the repeal may be getting second thoughts, though.
posted by Skeptic at 7:15 AM on February 15, 2012 [1 favorite]
"Whitehall officials defended the actions of the agencies, saying they had acted within the law and in accordance with government policy as laid down by ministers. "
MI6 man: "Can you sign this? I've just shat on a pregnant Libyan Woman's head."
Jack Straw: "That's fine."
posted by TheAlarminglySwollenFinger at 7:18 AM on February 15, 2012 [1 favorite]
MI6 man: "Can you sign this? I've just shat on a pregnant Libyan Woman's head."
Jack Straw: "That's fine."
posted by TheAlarminglySwollenFinger at 7:18 AM on February 15, 2012 [1 favorite]
So wait...MI6 is ok with prisoners being tortured not only by the US but also Libya?
posted by DU at 7:19 AM on February 15, 2012
posted by DU at 7:19 AM on February 15, 2012
Nope. They rendered dissidents back to Libya for torture and are currently attempting to keep that out of court.
Thanks, jaduncan.
I'm confused.
That's the least that could be said.
Or, pretty much a valid description.
posted by IAmBroom at 7:23 AM on February 15, 2012
Thanks, jaduncan.
I'm confused.
That's the least that could be said.
Or, pretty much a valid description.
posted by IAmBroom at 7:23 AM on February 15, 2012
So wait...MI6 is ok with prisoners being tortured not only by the US but also Libya?
Not just that but, according to the Torygraph, the (former) prisoners should still be thanking MI6 for their luck.
posted by Skeptic at 7:23 AM on February 15, 2012 [1 favorite]
Not just that but, according to the Torygraph, the (former) prisoners should still be thanking MI6 for their luck.
posted by Skeptic at 7:23 AM on February 15, 2012 [1 favorite]
Not just that but, according to the Torygraph, the (former) prisoners should still be thanking MI6 for their luck.
Well yeah. If the UK government hadn't allowed the extraordinary renditions to occur, those dissidents would not have been on the ground* in Libya to overthrow Gadaffi.
"There's gratitude for you."
posted by notyou at 7:42 AM on February 15, 2012
Well yeah. If the UK government hadn't allowed the extraordinary renditions to occur, those dissidents would not have been on the ground* in Libya to overthrow Gadaffi.
"There's gratitude for you."
posted by notyou at 7:42 AM on February 15, 2012
So this is ultimately a question of statutory interpretation that will be resolved in the courts, right?
posted by dixiecupdrinking at 7:52 AM on February 15, 2012
posted by dixiecupdrinking at 7:52 AM on February 15, 2012
Oh, and speaking of gratitude owed.
Al-Saadi and Belhadj owe Gadaffi himself some thanks, since it was only through the forbearance of Gadaffi and/or his agents that they are on the ground rather than under it.
posted by notyou at 8:02 AM on February 15, 2012
Al-Saadi and Belhadj owe Gadaffi himself some thanks, since it was only through the forbearance of Gadaffi and/or his agents that they are on the ground rather than under it.
posted by notyou at 8:02 AM on February 15, 2012
So this is ultimately a question of statutory interpretation that will be resolved in the courts, right?
It seem that way, yes. Rather than an outright, "they can do that because UK law is rotten," it is more, "they are arguing the toss that they can do that, or at least that a minister should face trial and not the MI6 agents."
posted by Jehan at 8:07 AM on February 15, 2012
It seem that way, yes. Rather than an outright, "they can do that because UK law is rotten," it is more, "they are arguing the toss that they can do that, or at least that a minister should face trial and not the MI6 agents."
posted by Jehan at 8:07 AM on February 15, 2012
that any intelligence agency action authorised on foreign soil by a Secretary of State
Does the state in question have to be formally recognized by the UK? Because as yourattorney secretary of state, I advise you to drive extremely fast and we'll sort out the details later.
posted by Kid Charlemagne at 8:38 AM on February 15, 2012
Does the state in question have to be formally recognized by the UK? Because as your
posted by Kid Charlemagne at 8:38 AM on February 15, 2012
Unbelievable. Bloody Tories. I hope the Lib Dems have enough sense to see incidents like this and realize who they've gone to bed with to be in a coalition government.
And can I just say: I love that Skeptic uses the brilliant "Torygraph" to describe that UK paper. I hereby move that any and all mentions of conservative British papers on Metafilter use their nicknames from now on: The Torygraph, The Daily Hatemail, and The Scum.
posted by jsr1138 at 10:25 AM on February 15, 2012
And can I just say: I love that Skeptic uses the brilliant "Torygraph" to describe that UK paper. I hereby move that any and all mentions of conservative British papers on Metafilter use their nicknames from now on: The Torygraph, The Daily Hatemail, and The Scum.
posted by jsr1138 at 10:25 AM on February 15, 2012
"... 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."
Does the state in question have to be formally recognized by the UK?
For the American audience: the phrase "Secretary of State", as used here does not mean the same as in the US. AFAIK, in UK, the term implies any of the political heads of departments (Cabinet Minister or Principal Secretary of State). The UK counterpart of the American Secretary of State would be Foreign Secretary.
In the context of this particular legislation though, I guess the use of "the" before "Secretary of State" implies the Secretary responsible for overseeing the intelligence service. It would be weird to have the Secretary of State for Work and Pensions authorize such things.
posted by vidur at 11:42 AM on February 15, 2012
Does the state in question have to be formally recognized by the UK?
For the American audience: the phrase "Secretary of State", as used here does not mean the same as in the US. AFAIK, in UK, the term implies any of the political heads of departments (Cabinet Minister or Principal Secretary of State). The UK counterpart of the American Secretary of State would be Foreign Secretary.
In the context of this particular legislation though, I guess the use of "the" before "Secretary of State" implies the Secretary responsible for overseeing the intelligence service. It would be weird to have the Secretary of State for Work and Pensions authorize such things.
posted by vidur at 11:42 AM on February 15, 2012
Those Telegraph comments are really something.
'People don't get tortured for nothing' is just one gem.
posted by Summer at 12:06 PM on February 15, 2012
'People don't get tortured for nothing' is just one gem.
posted by Summer at 12:06 PM on February 15, 2012
One former secretary of state who has signed quite a few authorisations in his time says he believes that he could not have been committing an offence as he was carrying out his duties in accordance with an act of parliament. "And the acts then authorised are not crimes, they become lawful acts. But don't quote me – I'm not a lawyer."Ahh, the "just following orders" defence.
I always thought the acts which legalised unlawful actions on the signature of a judge/chief constable/minister protected those who committed those acts not those who signed them off.
Any Home or Foreign secretary who signed off on torture should be arrested and put on trial. Let a jury decide whether the decision was justified.
posted by fullerine at 5:49 PM on February 15, 2012
Jury, trials, you guys are funny.
posted by CautionToTheWind at 8:07 AM on February 16, 2012
posted by CautionToTheWind at 8:07 AM on February 16, 2012
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posted by jaduncan at 6:47 AM on February 15, 2012