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Northern Ireland: MI5's control over national security issues means covert operations are run by a "parallel police force"

28 March 2012

Covert policing operations in Northern Ireland are effectively run by a "parallel police force" dominated by MI5 that is answerable to government ministers in London rather than domestic officials, according to a new report by the Committee on the Administration of Justice (CAJ). [1]

The report, The Policing You Don't See, argues that the role of MI5 in covert policing means that "perhaps the most sensitive area of policing" - encompassing communications interception, surveillance, the use of informants and undercover operations - "remains largely secret, under the direct political control of London ministers, and subject to very limited oversight."

Last week's publication of Demond de Silva's report into the 1989 murder of the lawyer Pat Finucance (which for many, including the Finucane family, CAJ, and Amnesty, fell far short of the independent inquiry they continue to demand) [2] brought back into the public eye a long history in Northern Ireland of abuse of power by the British state.

De Silva's report noted that of the three agencies running agents in the late 1980s in Northern Ireland - the Royal Ulster Constabulary (RUC) Special Branch, the army's Force Research Unit (FRU) and the Security Service (MI5) - none had "recourse to any effective guidance or a proper framework." [3]

There was a "wilful and abject failure by successive governments to provide the clear policy and legal framework for agent-handling operations to take place effectively and within the law."

As noted in The Policing You Don't See, previous reports and inquiries have found that the free reign given to these agencies led to collusion with paramilitary forces, state agents operating outside the law, deliberately poor-record keeping and concealment of evidence, the obstruction of investigations and inquiries, no clear enforceable policies to regulate the activities of agents, and "the institutionalisation, primacy and power of 'counterinsurgency' type policing led by Royal Ulster Constabulary Special Branch, above normal police law enforcement."

Many of the same issues surrounding policing in Northern Ireland in the 1980s remain today, despite David Cameron last week attempting "to draw a line under the covert, often morally dubious, sometimes dirty war in Northern Ireland" during a House of Commons speech, when he noted that both the RUC Special Branch and FRU were "gone". [4]

According to Brian Gormally, director of CAJ:

"The Prime Minister claimed that things had changed by saying: 'FRU - Gone! RUC Special Branch - Gone!' He should have continued by saying: 'MI5 - In charge!'

"Because the reality is that MI5 - secret, unreformed and unaccountable - is now running one of the most sensitive areas of policing - covert national security… This is a disaster waiting to happen to confidence in the rule of law and our peace settlement." [5]

'Annex E'

The RUC was superseded by the Police Service of Northern Ireland (PSNI) in 2001, but responsibility for covert policing has not been devolved - instead, it has been handed to the MI5.

The St Andrews Agreement, which dealt with devolution of power from Britain to Northern Ireland, contained an Annex ('Annex E') addressing "future national security arrangements in Northern Ireland."

This confirmed that "lead responsibility" for national security would be formally passed to MI5 "in late 2007", saying that the agency would set "strategic direction" for PSNI work related to national security, and that "there will be no diminution in police accountability." [6]

The findings of CAJ demonstrate that accountability for covert policing policy and operations is either minimal or non-existent.

MI5 - secretive, unaccountable, and in control

During the time MI5 has been responsible for covert policing operations, a number of issues have arisen:

• Concerns over practices used to recruit informers
• The possible use of 'agent provocateurs': "In 2006 a series of fire bombings led to a prosecution which was then dropped on the day of the trial after prosecutors, without explanation, decided not to give evidence. The accused maintained he had been framed for the attacks by an MI5 agent who had actually carried out the firebombing campaign";
• The murder of Kieran Doherty: the Real IRA murdered Mr Doherty in 2009, stating he was a member of the organisation [and that he had been involved in cannabis cultivation]. His family have maintained he was set up by MI5, who had tried to recruit him as an informer, in order to protect someone else..."; [7]
• Concerns over the extent to which MI5 directs the use of emergency stop and search powers, under which individual reasonable suspicion is not required;
• Links with Special Forces units from the British army: "In 2009 the PSNI announced they were calling in the British Arm's Special Recognisance Regiment (SRR). However an earlier court case indicates the SRR were operating some time before this date and there have been claims that the SRR report to MI5 and not the PSNI."

In order to address issues regarding policy; compliance with human rights standards; personnel, staffing and structure; and accountability and control, CAJ recommends:

"A full review of the entire post-St Andrews arrangement. Such a review should be comprehensive, genuinely independent, and undertaken with a view to the reform of covert policing responsibility which will meet both the stipulations by the Patten Commission and international human rights standards."

Unkept promises

The Good Friday or Belfast Agreement, signed in 1998, promised policing that was:

"Fair and impartial, free from partisan political control; accountable, both under the law for its actions and to the community it serves; representative of the society it polices, and operates within a coherent and co-operative criminal justice system, which conforms with human rights norms."

However, according to CAJ, partisan policing continues, if a statement by former Chief Constable Hugh Orde's statement that "MI5 would focus only on dissident republicans" still holds true.

There is no way to tell whether MI5 is "representative of the society it polices," one of the changes that the Belfast Agreement promised to introduce - however, if it is the case that the agency only addresses paramilitary activity by republican groups and ignores that by loyalist groups, clear issues of equality and non-discrimination arise.

'National security' policing evades accountability and oversight

As for accountability, the secrecy surrounding MI5 means "it is not possible to asses" whether "the stipulations for intelligence services having a restricted role and the assurance MI5 would have 'no executive policing functions' have been met."

The agency is not subject to the Freedom of Information Act; the body overseeing its work (the Intelligence and Security Committee) does not report to parliament; and its "structural relationship with the PSNI remains complex and unclear. There are some indications that their primacy in 'national security policing' may lead to what is in practice tasking the PSNI in certain operational areas, as well as a potential relationship with the SRR [Special Reconnaisance Regiment, a British army unit]."

Even MI5's chief purpose - "the protection of national security" - is open to interpretation, due to a longstanding government policy "not to define the term, in order to retain the flexibility necessary to ensure that the use of the term can adapt to changing circumstances." [8]

Two documents unearthed by CAJ and detailed in The Policing You Don't See seem to contradict assurances from the British government that officers from the Police Service of Northern Ireland (PSNI) working with MI5 "would be 'solely accountable' to the Chief Constable and Policing Board."

The first, a protocol sent from the Northern Ireland Office (The London-based department dealing with Northern Ireland) to a committee on the Northern Ireland Assembly (the devolved administration) states that PSNI functions dealing with national security remain the responsibility of the Secretary of State of the Northern Ireland Office, currently Conservative MP Theresa Villiers.

The protocol also says that:

• It is up to the UK government to determine which information on national security can be shared with the devolved Minister of Justice;
• Information on the modus operandi of MI5 and other agencies "will not be shared";
• Northern Ireland's Department of Justice will have no access to pre-devolution national security records;
• The Police and Prisoner Ombudsman must report any national security issues to the Secretary of State for Northern Ireland
• Panels judging police misconduct cases must defer to the UK government to decide whether the panel can access information relating to national security.

The second document is an undated Memorandum of Understanding on "National Security and the Policing Board", the body set up to oversee the work of the PSNI. It states that:

• Any questions from members of the Board that "indirectly touch upon national security" should not be answered if they would be damaging to national security interests;
• Questions to the Chief Constable from the Board relating to "past, present or future" national security should be referred to MI5 or the Northern Ireland Office;
• The Chief Constable must not divulge to the Policing Board "any information from or relating to MI5 without MI5's authority to do so."

Who is running policing in Northern Ireland?

There is no way to say under which rules and policies 'national security' policing in Northern Ireland is operating. "The transfer of powers to MI5 presently makes it impossible to determine the policy approach to covert policing and its compliance with human rights standards."

CAJ's report calls for covert policing in Northern Ireland to be undertaken within a human rights framework that meets international standards and the recommendations of the 1999 Patten Report. [9] This would require:

• Clear, published written policy on covert policing
• Developing a human rights culture within policing organisations
• Changes in personnel, structure and composition
• Oversight and control by democratically-accountable institutions

Their report concludes:

"How a society is policed is one of its defining characteristics. With the monopoly of the legal use of force comes the capacity to define a society based on repression and fear or one based on consensus and respect for the human rights of all. A human rights framework makes clear that those charged with implementing law are also subject to the law and that 'national security' is not a trump card that allows the rule of law to be set aside. The issue of policing has been a pivotal aspect of the violent political conflict Northern Ireland suffered and one of the most difficult elements of the peace process. If the transition to a peaceful society is our goal it is clear that such change will be hampered if past practices which caused the legitimacy of policing to be called into question are allowed to continue."

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Sources
[1] Committee on the Administration of Justice, The Policing You Don't See, 5 December 2012
[2] Henry McDonald, Critics refuse to let Cameron draw line under Pat Finucane scandal, The Guardian, 12 December 2012
[3] Sir Demond de Silva QC, The Report of the Patrick Finucane Review, 12 December 2012
[4] Critics refuse to let Cameron draw line under Pat Finucane scandal
[5] Committee on the Administration of Justice, We still need a Finucane Public Inquiry, 12 December 2012
[6] Agreement at St Andrews, October 2006
[7] Eamon McCann, Why MI5 is free to operate here while Stormont can't do a thing, Belfast Telegraph, 4 March 2010
[8] MI5, Protecting national security
[9] A new beginning: Policing in Northern Ireland, September 1999