Government lawyers told a court that MI5 officials could authorize an informant to carry out a murder under controversial powers that ministers continue to want to see in a bill passed hours later in the House of Commons.
The admission came in an appeals court hearing on Wednesday when the government representative Sir James Eadie was asked if “a security officer has the authority to authorize an agent to execute a highly hostile person.”
Eadie, who defended MI5’s current policy on dealing with confidential informants, said “there would be authority to do so” under the Security Service Act of 1989 and the royal prerogative that previously effectively governed the secret service.
Critics immediately took up the harsh explanation of asking the government to accept an amendment to the Covert Sources of Human Intelligence (Chis) law, which will be discussed in the House of Commons on Wednesday afternoon.
David Davis, a former Conservative minister, told MPs that government lawyers had “only confirmed this morning” in court that MI5 “would authorize one of its informants to commit murder as part of its activities.”
The MP supported an amendment from Lords calling for a prohibited list to be drawn up of crimes – including murder, torture and serious sexual offenses – that could not be carried out by undercover agents working for spies or police officers.
However, ministers argued that an explicit list of prohibited crimes could jeopardize the safety of confidential informants as terrorists or organized criminals could run tests to expose informants.
Michael Ellis, the attorney general, said, “Would we put explicit limits on the bill that would pose a risk to operational tactics and the safety of the covert source of human intelligence and the public at large.”
The minister also said the law would comply with human rights law and that MI5 or the police could not violate it. “Any authorization that does not comply with human rights law would be illegal.”
Minutes later, Lords’ amendment from 363 to 267 was rejected, with Davis and another Conservative Cheryl Gillan voting against the government.
The result prompted Sinn Féin MP John Finucane, whose father Pat was murdered by loyal gunmen at home in North Belfast in 1989, to accuse the government of ignoring “legitimate opposition” to the bill.
“The reality of this legislation, as the appeals court has shown over the past two days, is that there will be no effective control over the worst crimes committed by state agents,” Finucane said.
The Chis bill aims to put the state’s policy on the handling of informants into effect for the first time, also because a number of legal challenges had been posed to the previous approach of relying on a partially secret written policy.
A three-day appeal before the appeals court will determine whether the old policy was lawful. Although the court arguments are largely superseded by legislation, it could mean that whistleblowing policy in Scotland, where Holyrood has refused to approve the bill, will be illegal if the government loses the case.
A second amendment by the Lords earlier this month that would have banned the use of children as undercover informants, particularly in drug gangs, was also lifted from 361 to 267.
The Home Office said it was not appropriate to comment on ongoing legal proceedings. A spokesperson added: “The use of covert agents is an essential tool for our security and intelligence services.”